Vulin v Cox - [2005] ACTCA 22

MIROSLAVA DOBROSLAVA VULIN v JAMES MILTON COX
[2005] ACTCA 22 (31 May 2005)

DAMAGES – personal injury – assessment – quantum of general damages – appropriate to refer trial judge to range of non-appellable awards.

Planet Fisheries Proprietary Limited v La Rosa (1968) 119 CLR 118

Carson v John Fairfax & Sons Limited (1993) 178 CLR 44

Hebditch v Slaven Motors Pty Ltd (unreported, Supreme Court of the Australian Capital Territory, 12 July 1996, Gallop, Higgins and Ryan JJ)

No ACTCA 34 - 2004
No SC 335 of 2003

Judges: Gray, Connolly and Madgwick JJ
Supreme Court of the ACT
Date: 31 May 2005

IN THE SUPREME COURT OF THE  )  No ACTCA 34 - 2004
  )  No SC 335 of 2003
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:MIROSLAVA DOBROSLAVA VULIN
Appellant

AND:JAMES MILTON COX
Respondent

Judges:  Gray, Connolly and Madgwick JJ
Date:  31 May 2005
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal by the successful plaintiff in a motor vehicle personal injuries claim restricted solely to the question of general damages. The trial judge had awarded the plaintiff the sum of $119,875.21, of which $12,000 was attributable to general damages.

The plaintiff was a young woman who, the trial judge found, had sustained soft tissue injuries and a degree of nerve root irritation. His Honour found that this had a significant effect on her continuing employment as a hairdresser, and awarded a buffer of $75,000 for future economic loss, based on an ongoing loss of about a day and a half’s pay per week.

In written submissions in the appeal, counsel for the respondent said:

In those circumstances, the Respondent cannot responsibly suggest that an award of general damages in the sum of $12,000.00 was an adequate award, nor can it responsibly suggest that it was an amount “within the range”.

At the commencement of the appeal, counsel advised that the parties had settled the appeal, and invited the Court to uphold the appeal and to substitute a judgment for the plaintiff in the sum of $151,375.21 with costs. The effect of this was to increase the quantum of general damages to $31,500. Judgment was entered accordingly. We made some observations on entering judgment concerning Counsel’s role in assisting a trial judge by identifying a range of non-appellable general damages, and we now publish these reasons setting out those matters.

It is apparent from the transcript that at one point the trial judge had, very properly in our view, sought some guidance on ranges of general damages. Counsel were reticent about submitting what would be an appropriate range. Where a Judge (or additional Judge) of this Court seeks assistance of that kind, it seems to us that it falls within counsel’s duty to the Court to make submissions as to what would constitute a non-appellable range of damages. After entering the consent order, we indicated that we would publish our reasons to provide guidance to the profession on this question.

It seems that there may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vulin v Cox

Details

AGLC: Vulin v Cox [2005] ACTCA 22
Case: [2005] ACTCA 22
Decision Date

CaseChat Overview and Summary

Miroslava Dobroslava Vulin (the plaintiff) appealed to the Supreme Court of the Australian Capital Territory against the quantum of general damages awarded by the trial judge in a personal injury claim arising from a motor vehicle accident. The trial judge had awarded the plaintiff $12,000 for general damages, as part of a total award of $119,875.21. The plaintiff, a young woman, had sustained soft tissue injuries and nerve root irritation, which significantly impacted her ability to continue her employment as a hairdresser.

The central legal issue before the Full Court was the appropriate approach for counsel to assist a trial judge in determining the quantum of general damages, particularly when the judge sought guidance on a range of non-appellable awards. This arose in circumstances where the parties had settled the appeal, agreeing to an increased total judgment sum that effectively raised the general damages component to $31,500. The Court noted that counsel had been reticent to provide the trial judge with a range of damages when requested, and the appeal judgment was being published to clarify the professional duty in such situations.

The Court reasoned that while there is no tariff for general damages in personal injury cases, and each case must be decided on its own facts, it is appropriate for judges to seek and for counsel to provide assistance by identifying a range of non-appellable awards from comparable cases. The Court referred to High Court decisions in *Planet Fisheries Proprietary Limited v La Rosa* and *Carson v John Fairfax & Sons Limited*, and a previous ACT Full Court decision in *Hebditch v Slaven Motors Pty Ltd*, to explain that while a rigid tariff is impermissible, reference to trends in recent, reasonably comparable assessments can serve as a guide. The Court emphasised that it is counsel's duty to honestly and responsibly assist the Court when such assistance is sought, and that this duty should not be overridden by instructions from insurers.

Following the settlement, the appeal was upheld, and judgment was substituted for the plaintiff in the sum of $151,375.21, with costs. The Court published its reasons to provide guidance to the legal profession on the proper role of counsel in assisting trial judges with the assessment of general damages.

Orders