JOHN FAIRFAX AND SONS LTD v ARMAGHANIAN [1996] NSWCA 279

JOHN FAIRFAX & SONS LTD v ARMAGHANIAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, COLE JJA and Simos AJA 27 August 1996

[1996] NSWCA 279

PERSONAL INJURY — injury during employment — assessment of damages — failure to give reasons in support

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Sheller JA Ex tempore

This is an appeal from a decision of Bruce J which was delivered in two parts on 5 March 1996 and 2 April 1996. The plaintiff was injured on 13 April 1987 during the course of his employment by the respondent who is the appellant in this appeal. The injury was described as a lifting injury resulting from the use of a power hacksaw.

His Honour found for the plaintiff on liability and assessed damages which, after deduction for compensation payments, came to $336,384. The appellant's challenge to the amount awarded was directed to the assessment for past and future economic loss. His Honour had found that the plaintiff had not been, as he claimed, totally incapacitated for work. The past economic loss was assessed from 11 May 1989 to the time of the hearing, which was in May 1995 to be $99,044. The future economic loss was assessed to be $168,493.

Bruce J's assessment of these amounts was based upon the finding that, but for the injury, the plaintiff would have been capable of earning $626 per week and had a residual earning capacity which his Honour valued at $250 per week. His Honour said:

"T am not satisfied on an assessment of the plaintiff in giving his evidence that he is not capable of performing a significant amount of work for virtually all of the time.

The plaintiff is not and will not be capable of performing his pre-accident work but nevertheless he is capable of working in some form of remunerative employment. There is no evidence of his likely earnings in such employment but doing the best I can I estimate that since his employment ceased he has had an earning capacity in the order of $250 per week."

Bruce J said, the figure of $250 per week was not based on any evidence and his Honour gave no reason for arriving at that figure. His judgment leading up to choosing that figure is as I have quoted it.

The primary ground of appeal is that because his Honour failed to give reasons to support the award of damages he made for economic loss there must be a new trial. In this regard one needs only to refer to what was said by this Court, particularly in the judgment of McHugh J in Soulemezis v Dudley (Holdings) Pty Ltd (1987)10 NSWLR 247 at 280.

Despite the valiant attempts of Mr Donohue QC, who appeared for the respondent, in my opinion his Honour failed in the task of giving sufficient reasons to justify the conclusion to which he came. There was some material which showed that in 1993 a Compensation Court Commissioner had awarded

2 UNREPORTED JUDGMENTS

the plaintiff an amount of $70 per week for loss of earnings. Other than that, there was no evidence whatever which would justify the conclusion to which his Honour came. If he arrived at the amount by reference to some general considerations of salaries available for persons in various types of employment, or if some discount was made because of the difficulty in a partially disabled person obtaining work or if his Honour came to the view that the plaintiff was only able to work part time, these matters were not discussed in the judgment or used to support the conclusion to which his Honour came.

Mr Donohue referred to what was said in the judgment of Mahoney JA in Fuller v Galvin (unreported) 7 April 1995 particularly at 6 and 7 where reference was made to what was said by the High Court in Government Insurance Office of New South Wales v Cox (1976) 50 ALJR 559. With the greatest of respect, these decisions seem to me to illustrate the sort of reasoning that is required in reaching a decision such as the decision to be made in this case which was not an easy one. For some reason the plaintiff put his case on the basis of total incapacity and apparently failed to produce any evidence to demonstrate what could have been earned if, indeed, his case was one of partial incapacity. Likewise no material was put before the Court by the appellant.

However it is not necessary to consider the problem that would be faced by this Court if a re-assessment had to be made. In my opinion his Honour erred in failing to give proper reasons for the conclusion to which he came and it follows that there should be a new trial limited to the question of the quantum of damages for past and future economic loss. Accordingly, I would propose the following orders:

1. The appeal be allowed in part;

2. Set aside so much of the judgment for damages of Bruce J of 2 April 1996 as awarded the following damages:

(a) Damages for past economic loss since the plaintiff ceased employment: $99,044 and interest thereon;

(b) Damages for future economic loss: $168,493.

3. Remit the matter to the Common Law Division for a new trial limited to the assessment of:

(a) Damages for past economic loss since the plaintiff ceased employment;

(b) Damages for diminution of future income earning capacity.

4. The respondent pay the appellant's costs of the appeal but have a certificate under the Suitors Fund Act 1951 if so entitled.

Cole JA I agree. In so doing I understand the judgment just delivered not to address or determine any question of who might bear the onus in relation to the calling of appropriate evidence to address the question of an appropriate sum where there has been a finding of partial incapacity.

Simos AJA I agree with the judgment of Sheller JA.

Sheller JA The orders of the Court will therefore be as I announced them. (Discussion in relation to the foreshadowed amendment to the notice of

appeal.)

I grant the appellant leave to amend the notice of appeal in accordance with the document that has been handed up and placed with the papers. The appellant to pay the respondent's costs thrown away by the amendment.

1. The appeal be allowed in part;

URJ

JOHN FAIRFAX & SONS LTD v ARMAGHANIAN (Sheller JA) 3

4.

Set aside so much of the judgment for damages of Bruce J of 2 April 1996 as awarded the following damages:

(a) Damages for past economic loss since the plaintiff ceased employment: $99,044 and interest thereon;

(b) Damages for future economic loss: $168,493. Remit the matter to the Common Law Division for a new trial limited to the assessment of:

(a) Damages for past economic loss since the plaintiff ceased employment;

(b) Damages for diminution of future income earning capacity. The respondent pay the appellant's costs of the appeal but have a certificate under the Suitors Fund Act 1951 if so entitled.

The Court grants the appellant leave to amend the notice of appeal in accordance with the document that has been handed up and placed with the papers. The appellant to pay the respondent's costs thrown away by the amendment.