Appeal against award of damages dismissed with costs

In brief - Case demonstrates evaluative nature of assessing common law claims for damages

In Clifton & Ors v Lewis [2012] NSWCA 229, the Court of Appeal, comprising Beazley JA and Basten JA, recently considered an appeal brought by the licensee and owners/operators of a hotel on the assessment of damages for non economic loss and future economic loss as determined by Judge Elkaim in the District Court.

Plaintiff assaulted at hotel by another patron

By way of background, the plaintiff was an amateur boxer and quarry manager.

On the evening of 28 August 2005, he competed in and won an amateur boxing match in Forbes. Later that evening he attended the appellant's hotel and was assaulted in the toilets by another patron.

According to available medical evidence, it was accepted that the plaintiff sustained injury to his right leg, for which he underwent surgery. Despite the surgery, the respondent continued to complain of pain, difficulty driving and operating machinery for lengthy periods of time. He was also forced to abandon his amateur boxing career.

District Court awards damages on the basis of evidence

In considering the plaintiff's evidence in chief, the evidence of the Operations Manager of his current employer, and the available medical evidence, Judge Elkaim in the District Court awarded damages for non economic loss at 33% of a most extreme case and future economic loss by way of a buffer of $120,000 on the basis that his employment may be at risk and that if he found himself looking for alternate employment he would suffer "a substantial loss while he is not working and if he obtains employment at a lower salary".

Hotel's appeal dismissed by Court of Appeal

The hotel challenged the award of both heads of damages, arguing that the damages for non economic loss of 33% of a most extreme case were excessive and that the trial judge erred in assessing damages for future economic loss as a buffer, as there was no evidence of past economic loss (as the plaintiff had remained in full time employment after the accident) and in assessing economic loss on the basis that he would become an Operations Manager, as that had not been pleaded or particularised.

Having considered the matter on appeal, their Honours dismissed the appeal with costs.

Assessment of quantum an art form determined by personal experience

In dismissing the appeal, their Honours made a number of findings which are indicative of the evaluative nature of assessing common law claims for damages and the reason why the assessment of quantum is, to a degree, an art form determined by personal experience in continually performing such assessments.

At the end of the day, the legislation provides the guidelines from which damages are to be assessed. However, the experience of the judge/assessor in factoring in individual nuances into each case and forming a view on an appropriate assessment of damages as compared to other assessments conducted over time is ultimately determinative in forming an opinion on the facts and evidence and a reasoned assessment of damages.

Damages deemed to be within the range of acceptable damages

Beazley JA highlighted the fact that an award of non economic loss damages is an evaluative judgment. Her Honour noted that the award of such damages was within the range of acceptable damages when taking into account the impact of the injury on the recreational activities of the plaintiff and his ongoing pain and disability.

"Opinion, impression, speculation and estimation"

Basten JA in adopting a similar approach and rejecting the challenge to the assessment of non economic loss damages reiterated the judgment of the Court in Dell v Dalton (1991) 23 NSWLR 528, where the court (Handley JA, Kirby P and Priestly JA) said that the assessment of non economic loss damages involved a matter of "opinion, impression, speculation, and estimation".

In considering the challenges to the award of damages for future economic loss, Beazley JA noted that judges generally are permitted to act upon evidence given at trial, where that evidence exceeds the pleaded case in circumstances where the "extension" evidence is not subject to an objection.

Pleaded case and case advanced at trial can differ

For those of us in private practice, this is not an uncommon occurrence. As we all know, the pleaded case and the case advanced at trial sometimes differ (to varying degrees) and consideration needs to be given as to whether a party responding to that case has sufficient material and evidence to meet the additional claim(s) or whether an objection and/or adjournment of proceedings is warranted.

In this matter, there was no expressly pleaded claim that the plaintiff intended to advance to the position of Operations Manager. However, evidence to that effect was given by him without objection and accordingly Her Honour found that the trial judge had not erred in finding he would have achieved that position.

District Court decision found to be correct

In relation to the challenges to the quantum of the buffer awarded, Her Honour found that Elkaim J had complied with the provisions of section 13 of the Civil Liability Act in finding that the plaintiff had lost the capacity to progress his career and that if he found himself on the open labour market he would be disadvantaged due to his injuries.

Basten JA concurred with Beazley JA and found that due to the uncertainty associated with the likelihood of financial loss which may be suffered by the plaintiff at some time in the future, a calculation based on the current value of future loss would be artificial. On that basis, he found that the award of a buffer was appropriate.

Reliance on "the vibe" in assessing quantum in common law damages claims

We have all no doubt, at some stage or another, watched the 1997 film The Castle. We are also therefore very familiar with the exploits of Dennis Denuto, the suburban lawyer retained by Darryl Kerrigan to champion his client's cause in the High Court.

In one of the most quoted lines (for lawyers) out of that film, when making submissions to the court, Mr Denuto refers to it being "the vibe". In my experience, when assessing quantum in common law damage claims, there is a substantial reliance on "the vibe", or as their Honours more eloquently discussed in the Dell case referred to above, a matter of "opinion, impression, speculation and estimation".

Assessing quantum is not an exact science. It requires practitioners and judicial officers to call upon their experience (both personal and through an analysis of legal authorities) to weigh up the evidence and form a view which assesses quantum within a range of damages which is acceptable on the evidence.

This case highlights the difficulties associated with that process and the divergence in general views concerning what is an appropriate assessment of damages for a particular factual matrix.