Jianwei Liu v State of New South Wales

Supreme Court of NSW|2014-07-02|Before: Nicholas AJ

Judgment 1In these proceedings the plaintiff claims damages from the defendant for the loss of items of personal property confiscated by police officers and later destroyed whilst held in the custody of the New South Wales Police Force. The circumstances of destruction were not explained. 2On 1 April 2011 the plaintiff was arrested and items of property were seized, taken to, and held at, a local police station. The property consisted of a Cartier watch, a white gold necklace, a jade pendant, a Louis Vuitton belt, shoes, and Mercedes Benz car keys. The property was destroyed on or about 21 August 2011. 3It was common ground that these items were unrelated to an offence, and ought not to have been destroyed. The defendant accepts liability to compensate the plaintiff for the loss of his property. 4During the hearing there was agreement as to the value of the following items: Cartier watch: $13,300 Louis Vuitton belt: $565 Shoes: $750 Mercedes Benz car keys: $500 5The only issue for trial was the assessment of damages for the loss of the necklace and pendant, and whether it should include an amount for compensation for sentimental value of those items.

The Principles 19With regard to the assessment of damages where quantification is difficult guidance is afforded by the authorities. It is sufficient to refer to the following. 20In Armory v Delamirie (1722) 1 Strange 505; [1722] EWHC KB J94 it was held that in the circumstances of that case the jury could presume the strongest case against the defendant and make the value of the best jewels the measure of the damages. 21In State of New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA said: "[72] Thirdly, the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum. This principle applies as much to the assessment of damages for impaired earning capacity in injured plaintiffs as it does to pecuniary loss caused by negligent advice (Bowen v Blair [1933] VLR 398) or to loss in the form of the diminished value of damaged property (Wheeler v Riverside Coal Transport Co Pty Ltd [1964] Qd R 113), or equitable damages (Talbot v General Television Corp Pty Ltd [1980] VR 224 at 250-1), or damages for breach of contract (Fink v Fink (1946) 74 CLR 127 at 143). In the last case, Dixon and McTiernan JJ put the following general proposition: "Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages." This was followed in Sellars v Adelaide Petroleum NL (1994) 185 CLR 332 at 349 per Mason CJ, Dawson, Toohey and Gaudron JJ. The same is true in tort. In Naylor v Yorkshire Electricity Board [1968] AC 529 at 548 Lord Devlin said: "in the law of damages ... difficulty in calculation is not ordinarily taken as a ground either for reducing or for increasing the award". The court will be more ready to shoulder the burden of acting without specific evidence where that evidence is difficult to call. In Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422 at 438, a sale of goods case involving a recovery in respect of damaged goods, Devlin J said: "It is only that where precise evidence is obtainable the Court naturally expects to have it. Where it is not the Court must do the best it can". As McPherson J said in Nilon v Bezzina [1988] 2 Qd R 420 at 424: "The degree of precision with which damages are to be proved is proportionate to the proof reasonably available". The courts on occasion cite in related contexts Bowen LJ's related but stricter observation in Ratcliffe v Evans [1892] 2 QB 524 at 532-523, an injurious falsehood case: 'In all actions ... on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on ... in ... proof of damage, as is reasonable, having regard to the circumstances and the nature of the acts themselves by which the damage is done.'" 22In McCartny & Ors v Orica Investments Pty Ltd [2011] NSWCA 337 Giles JA said: "[158] Such a course is not a substitute for proof of loss, or an invitation to punishment rather than compensation. It need not be taken, but may be; many assessments of future economic loss from impairment of earning capacity, for example, involve uncertainty, but an approach of resolving the uncertainty against the wrongdoer is generally not taken. Where within the proved case there is a range, however, the wrongdoer can hardly complain if the loss is found at the upper end of the range. [159] L J P Investments Pty Ltd v Howard Chia Investments Pty Ltd (No 2) and Houghton v Immer (No 155) Pty Ltd were distinguished by Rolfe J in Lavender View Pty Ltd v North Sydney Council [1999] NSWSC 255 ; (1999) 104 LGERA 255. His Honour regarded Armory v Delamirie as a different case from the case before him, and did not think that any conduct on the defendant's part had caused the plaintiff difficulty in quantifying its damages; he applied the "the fundamental proposition that the onus is on the plaintiff ... to prove the amount of damages" (at [23]). A robust approach against a defendant whose wrongdoing has required the plaintiff to prove its damages, where proof of the damages involves uncertainty, is not inconsistent with that proposition. Indeed, the proposition does not always hold good, see the particular situation of a claim for reliance loss caused by breach of contract described by Hodgson JA (Allsop P and Macfarlan JA agreeing) in Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268; (2010) 15 BPR 28,563 at [163]- In those cases where it is not possible for a plaintiff to prove whether or to what extent performance of a contract would have been profitable, it can seek to recover expenses reasonably incurred and wasted on the contract, albeit that it cannot recover more than would have been recovered by performance of the contract. However, in those cases where a contract has been rescinded for breach, making it impossible for the plaintiff to prove that it would have recovered those expenses from performance of the contract, the onus shifts to the defendant to prove that it would not have done so: Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64." and Young JA said: "[218] Putting all these thoughts together, it would seem that the tag "Armory v Delamirie" has been attached to a number of similar though possibly distinct principles. First, in cases where there is an action in tort relating to chattels, if the defendant who was last seen in possession of the chattel does not produce it, the court can assume it is the most valuable chattel of the type. Secondly, in actions in debt where no wrongdoing is attributable to the defendant, the plaintiff must prove its case and, if it shows that there is some damage, but cannot prove quantum, the smallest amount is allowed. Thirdly, where the plaintiff is entitled to damages and compensation and their computation is made more difficult by the defendant's action, then the court may assume the worst against the defendant consistent with the evidence. Fourthly, in cases such as those dealt with in Commonwealth v Amann Aviation, the defendant has the ultimate onus of proving that, had the contract been performed, the net value of the plaintiff's benefits would not have covered the expenditure incurred before rescission." 23In Rockdale City Council v Micro Developments Pty Ltd [2008] NSWCA 128 Giles JA said: "[66] ...The task was to arrive at what could only be an estimate of Micro's loss. In any case where precision is not possible or not realistic the court must arrive at the loss despite the difficulty of doing so, including when the loss is from breach of contract (Fink v Fink (1946) 74 CLR 127) or from negligent advice (Bowen v Blair (1933) VLR 398): see generally State of New South Wales v Moss [2000] NSWCA 133, (2000) NSWCA 133, (2000) 54 NSWLR 536 in the reasons of Heydon JA."

Consideration 24The plaintiff candidly declined to propose an amount as the reasonable value for either the pendant or the necklace. The Court was urged to adopt a robust approach favourable to the plaintiff to arrive at an amount in excess of Mr Joel's upper estimate, it being reasonable to take a generous view in circumstances where the defendant's wrongdoing had made quantification difficult. In effect, it was put that it was open to find that Mr Joel had downplayed his assessment, having come to the view that the piece was merely "tourist jade", whereas the Court should make an assessment based on the assumption that the pendant was jadeite, and probably of greater value than jade. 25For the defendant it was fairly conceded that it was open to value the pendant at the high end of Mr Joel's range. It was put that, in the circumstances, there being no evidence to support a finding that the pendant was jadeite, the Court should make an assessment on the basis that, in fact, it was jade. 26It was common ground that there was no evidence of the value of the white gold chain or necklace. The defendant submitted that the plaintiff had failed to prove the value of this loss and, accordingly, the Court was left without the basis upon which any assessment could be made. 27In deference to the plaintiff's submissions, I keep in mind that the task of assessment is very different in this case from the assessment, for example, of damages for diminished earning capacity which has been said to sometimes involve "guess work rather than estimation" (Jones v Schiffman (1971) 124 CLR 303 at 308 per Menzies J). 28In the State of New South Wales v Moss Heydon JA (para 72) referred to authorities which demonstrate that difficulty in quantification of the loss claimed should not prevent the assessment of an appropriate award of damages for a loss, and that "The Court will be more ready to shoulder the burden of acting without specific evidence where that evidence is difficult to call". His Honour also referred to Biggin & Co Ltd v Permanite Limited (1951) 1 KB 422 at 438 in which Devlin J said "It is only that where precise evidence is obtainable the Court naturally expects to have it. Where it is not the Court must do the best it can". Thus, where there is a want of specific evidence, the Court is required to do the best it can with the materials before it to assess damages. As in every case, the Court is confined by the evidence. In a case such as the present, as explained by Giles JA in McCartney & Ors v Orica Investments Pty Ltd (paras 158, 159) the fundamental proposition remains that the onus is on the plaintiff to prove the amount of damages although "...Where within the proved case there is a range...the wrongdoer can hardly complain if the loss is found at the upper end of the range". In the same case, Young JA (para 218) held "...where the plaintiff is entitled to damages and compensation and their computation is made more difficult by the defendant's action, then the court may assume the worst against the defendant consistent with the evidence". 29In the present case, of course, the only evidence of value of the pendant was adduced by the defendant. It was uncontradicted. Mr Joel's expertise enabled him to value the pendant within a wide range, taking into account the lack of information in relation to various relevant factors and, I infer, also the uncertainty resulting from such lack of information. In my opinion, the fact that the plaintiff was unable to obtain similar evidence does not justify the Court in departing from the evidence before it, or to make an assessment not consistent with it. Nevertheless, as the defendant properly acknowledged, in the circumstances it is open to find the loss at the upper end of the range. 30In my opinion, the destruction of the pendant whilst it was in the hands of the police justifies the Court in assuming the worst against the defendant consistent with the evidence. Accordingly, I assess the value of the loss of the jade pendant in the amount of $10,000. 31Absent evidence relevant to the value of the necklace, the Court was left with no rational or principled basis upon which to make an assessment. It follows that the plaintiff's claim for an award of damages for this item must be rejected. 32Also claimed as a component of general damages in compensation for the loss of the pendant was an amount for its sentimental value to the plaintiff. No particulars of the claim were pleaded, and no submissions in support of it were made until very late in the day, although it had been faintly flagged earlier (Tp28). This unsatisfactory situation was remedied by providing the parties opportunity to provide written submissions on the issue. 33The claim is to be assessed with regard to the personal or emotional value of the piece to the plaintiff, as distinct from its objective or intrinsic value. It is now settled that the scope of general damages payable in cases of the present kind is not confined to economic loss or market value, but may include an amount for non-pecuniary loss (Graham v Voigt (1989) 95 FLR 146; Ichard v Frangoulis (1977) 1 WLR 556; Murphy v Doman [2004] NSWCA 419; Palmer on Bailment, 3rd edition, paras 37-025, 37-017). 34The plaintiff's evidence, which I accept, was that the pendant was of significant meaning to him. He regarded it as a family heirloom which had been handed down through his grandfather and father. It was given to him when he was about 20 years old, and he had worn it everyday since about 2005. I am satisfied that the pendant had real sentimental value for the plaintiff, and I infer that its loss and destruction would have been deeply felt. Furthermore, in my opinion, it was reasonably foreseeable that the pendant was a possession of sentimental value to the plaintiff. 35Mindful that damages are compensatory, an assessment is necessarily a matter of impression as to which there are no clear standards which can be applied (Murphy para 4). Quantification should be modest (Farley v Skinner (2002) 2 AC 732 p 748). In my opinion the appropriate amount for sentimental value is $2,500.

Conclusion 36The plaintiff is entitled to an award of general damages referrable to the value of the items, other than the necklace, in the total amount of $ 25,115, to be increased by the amount of $2,500 referrable to sentimental value. I propose to award damages to the plaintiff in the total amount of $27,615, with judgment accordingly. 37The parties are directed to bring in short minutes to give effect to this conclusion. As the questions of interest and costs remain outstanding, absent agreement, the parties should have the opportunity to make submissions on these issues. I should indicate that in relation to costs my prima facie view is that the defendant should be ordered to pay the plaintiff's costs on the ordinary basis. The parties are directed to arrange with my Associate by 4pm 21st July 2014 for the matter to be re-listed for the purpose of hearing any argument.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2014

(1999) 104 LGERA 255

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