Caddajin Pty Ltd & Ors v Tasevski [2003] VSCA 19

Caddajin Pty Ltd & Ors v Tasevski [2003] VSCA 19 - VSCA 2003 case summary — Zoe

[24]

Having considered the matter over the week-end, his Honour ruled that, in respect of the issue of past economic loss, he proposed to leave the matter to the jury on the basis that there was some evidence that would support the claim for loss between 28 January 1998 and the date of trial. He further ruled that it had been appropriate for the respondent's trial counsel to put figures in respect of loss of future earning capacity, a matter which in his Honour's view had been clearly opened and sufficiently supported by evidence to warrant the jury making an assessment of the loss. Thereafter his Honour continued his directions to the jury in respect of the issues relating to damages; and, in addition to the amounts claimed for past loss of earnings in the 20 week period immediately following the accident, left to the jury the "modest" claim for $5,000 to $7,000 for the period of the ensuing three years. He referred to the evidence upon which this sum was claimed and said of that evidence that "it was not specific", but nevertheless was a matter for the jury to assess, taking into account the fact that, in respect of a substantial portion of the period, the respondent's pregnancies and maternal responsibilities would have prevented her, in any event, from resuming employment. Having then dealt with the issue of general, or non-economic, damages (of which no complaint is now made), his Honour left to the jury the issue of future loss of earning capacity, as well as the question of compensation for the prospect of the knee joint replacement operation. Again, neither the directions upon, nor the assessment of, this last mentioned item of loss are now in contention. In respect of the loss of earning capacity, his Honour left that to the jury, not as a matter of present and accruing calculable loss, but as a chance or risk which may, on the evidence, accrue to the respondent at some unspecified time in the future. In the context of discussing the relevant evidence of the respondent and the doctors, his Honour said:

[28]

I have recited at some length the evidence, submissions and events which occurred at trial in relation to the issues of the respondent's "economic loss" and the judge's rulings and directions on "quantum" because they are at the heart of this appeal. Indeed the submissions made by counsel for the appellants are, substantially, a repeat of those made below. Although grounds 1 and 2 of the Notice of Appeal assert, in different ways, that the jury's verdict was unreasonable, counsel told us at the outset of his argument that he would "defer" any contention upon those grounds pending submissions made in respect of the other grounds. In the long run no oral submissions were advanced by counsel to the effect that the jury's verdict was unreasonable. Indeed, when one has regard to the view of the evidence most favourable to the respondent[5], it would, in my opinion, be very difficult to contend that the award of some $230,000 in favour of the respondent was so excessive that no reasonable jury could have made it[6]. Although counsel did not withdraw paragraph 11 of his written submissions that "both in relation to the components of pain and suffering and of loss of earning capacity, the verdict of the jury was manifestly excessive", it is a submission that I am not prepared to accept. Taken at its highest from the respondent's point of view, the evidence portrayed the respondent as a young woman who had suffered a significant injury to her right leg which, with the passage of time, would become increasingly painful and lacking in movement; prospects which - in turn - would in all probability impact not only upon her general enjoyment of life but upon a job to which she was much committed and which she desired very much to be part of. Although this Court does not know with precision how the jury's award was arrived at, or what its components are, I am far from persuaded that it is "manifestly excessive" in the sense that I have described. Indeed counsel for the appellants did not contend to his Honour, or to this Court, that the figure of $120,000 which the respondent's trial counsel had put to the jury for general damages was not a figure which could responsibly have been awarded; nor am I persuaded that the figure of $100,000 for the risk of loss of future earning capacity - if that was awarded by the jury - is a sum which, on the evidence, was beyond the range available.

[37]

For my own part, I am unable to accept these submissions. In the first place there can be no sensible basis for suggesting that appellants' counsel could have been justifiably surprised when counsel for the respondent made a claim for loss of future earning capacity. The particulars of such a claim, to which I have referred in paragraph [16], and the content of the opening address of respondent's counsel, each provided ample notice to the appellants that it would be made, as does the evidence, medical and otherwise, upon which the respondent relied to support it. Furthermore, it can scarcely be suggested that the claim was "masked" in some way by the claim for "general damages" when that claim, in its form and substance, was made solely for the non-economic components of the damages sought (see paragraph [10] of these reasons). Nor, in my view, can it be validly suggested that the claim for loss of future earning capacity was likely to be wrongly "inflated" because of the claim for past loss of earnings until trial. The two claims were entirely discrete; the claim for future loss being put solely on the basis that, because of progressive degeneration, the respondent was at risk - at some undefined time in the future - of having to cease work altogether or, at least, to "scale back" her work activities. On the other hand, the past loss of earnings was put on the basis that she had lost job opportunities in the recovery phase of knee reconstruction when her confidence was low. There was, so far as I can see, nothing in the evidence, or in the way in which it was put to the jury by counsel, which was likely to mislead the jury into believing that the claim for loss of future earning capacity was to be measured from the date of trial. Certainly, nothing which the judge told the jury could have led them to that view; rather to the contrary because - at least in the first instance - his directions were calculated to direct the jury's attention to a commencement of loss at or about the time when, as the evidence suggested, she might have to undergo a joint replacement.

[48]

Finally, counsel submitted that his Honour's directions in respect of future loss of earning capacity were deficient, particularly in the context of the figure of $100,000 which had been put before them by the respondent's trial counsel. Once again, I am not satisfied that this submission is made out. I think it should be said at the outset that it is not uncommon in this State for counsel to seek to give guidance to juries in respect of future loss by putting suggested figures to them. In doing so, counsel assume the responsibility of putting figures which are capable of being supported by the evidence. If they do not, they run the obvious risk that an award of damages based on such figures will be set aside. As I have already said, I do not regard the figure of $100,000 as unsupported by the evidence given in this trial; and I did not understand that appellants' counsel in this Court was contending otherwise because he did not, in the end, contend that the verdict was unreasonable. Counsel continued to submit that he was "taken by surprise" and that the trial judge was in error in not offering to him a "right of reply". For reasons I have already given, I do not agree that his Honour was in error in refusing such request having regard to the advanced stage of the proceedings at which it was made. Furthermore, I am of the view that the directions which his Honour gave to the jury in respect of this aspect of the respondent's claim were both adequate and correct. It was submitted that they did not properly correspond to the reasons of the majority in Malec v. J.C. Hutton Pty. Ltd. (supra) in that they did not adequately bring home to the jury that they should assess and compensate for the risk of future loss in accordance with what they found to be the degree of probability of the risk occurring. Once again, it was submitted that the jury were not in a position to do that without the assistance of actuarial figures. It follows from what I have already said that I do not accept the latter submission.

[49]

With regard to the asserted inadequacy of the judge's directions, the submissions appeared to be premised upon an assumption that, in directing the jury as to the manner in which they should assess a risk of future loss, the judge was required to use terms which replicated, or at least closely followed, the words used by the majority judges in Malec's case; namely that they should assess the risk of such loss by reference to percentage probabilities. Again, I cannot accept those submissions. As I read it, the judgment of the majority judges in Malec's case was not intended to fashion a formula in accordance with which trial judges should slavishly direct juries called upon to make an assessment, in money terms. of the risks or chances of future loss of earning capacity. Rather, their Honours were concerned to identify the principles in accordance with which such risks or chances fell to be proved before becoming compensable. That no doubt is why their Honours referred, with approval, to the exposition of the principles by Lord Diplock in Mallett's case (supra at 176), in which his Lordship spoke in terms of making "estimates" of the chances or risks, and also the exposition of the same principles by Moffitt, P. and Samuels, J.A. in McIntosh v. Williams (supra at 550-1) in which their Honours referred to the evaluation by the court of "the degree" of chance or risk. In any event, it seems to me that the directions given by his Honour both as to the assessment of and compensation for the risk of the knee operation and the assessment of the risk of future loss of earning capacity were sufficient to direct the jury's attention to the appropriate principles to be applied in making their assessment. Thus he told the jury that they only had before them the discounted cost of an operation occurring in 20 and 30 years time and such an award could only be made if they were satisfied that it would happen within those times; but that if not so satisfied they would need to adjust the figures according to the degree of probability that it would or might occur. Likewise, in respect of the assessment of the risk of loss of future earning capacity, his Honour reminded the jury of the evidence, both lay and medical, in respect of the respondent's future prospects, of the risks which she faced in respect of work incapacity, of the inability to determine with precision if, when and how the injury and disability would or might encroach on her employability and that it was for the jury to assess the degree of that risk and "having assessed the risk, to determine what reasonable sum in money terms" should be awarded for the risk. He gave those directions on more than one occasion; he directed the jury that the fact that appellants' counsel had not suggested "a figure" was not to be taken as his acceptance of the figure put by

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Judgment (63 paragraphs)

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