RossTown Holding Pty Ltd v Mallinson [2000] VSCA 166

5. The principal complaint made in the present case is that it has not been shown, nor did the judge adequately demonstrate in her reasons, that the damage by way of injury suffered by the respondent was caused by any breach of duty on the part of his employer, the appellant. One may accept for present purposes that it was more than adequately demonstrated that the appellant was in breach of its duty in failing to provide both a reasonably safe place of work and a reasonably safe system of work so far as the respondent was concerned and indeed for all its employees who were obliged to continue work after the hotel had shut for the night and who were asked, directly or by inference, to lock up the hotel alone late at night. Nor, having regard to the learned judge's fact findings as to the credibility of the respondent's account of the events on the night of 22 January 1993, can there now be any doubt that the respondent suffered a serious injury (a finding not now challenged on the appeal), namely post traumatic stress disorder and related psychiatric disturbance, which clearly flowed from his experiences as the victim of an armed robbery on the hotel which involved not merely being held up late at night by an armed gunman, but also being forced at gunpoint to assist the robber to appropriate sums in excess of $9,000 in cash from a container behind the bar after which he was locked in the hotel's cool room. Moreover, there is no doubt as to the circumstances which led to the respondent being on the premises and carrying out his duties in the way that he did that night. He was an assistant manager responsible for closing the premises, but directly or by implication he had been given directions to allow the rest of the staff to go either during opening hours or as soon as practicable thereafter. If it was not implicit that he should lock up the hotel finally on his own, there was clearly no direction that two or more employees should always be present until the hotel was finally locked up. Likewise, there was no dispute that one of the tasks to be performed as part of the locking up process was the pulling down and locking of a roller door at the end of a long lane, entered from a dimly lit kitchen doorway, and that the methods for counting and storing the takings left a good deal to be desired. It is sufficient to say that it could well have seemed an ideal target for any modestly ambitious armed robber who might have observed these deficiencies with a minimum of difficulty.

8. The appellant's argument would, for these purposes, concede all these matters, but would maintain that the breaches of duty to the respondent were not shown to have caused damage to the respondent consisting of the injuries I have earlier described or, at the least, the learned judge failed to give adequate reasons why those breaches caused the plaintiff's injuries.

11. Admittedly the learned judge said relatively little about causation as such. The appellant asserted that the reasoning came only from one sentence in which the learned judge said that she was satisfied of the breach of the duty of care owed to the respondent and "that the breach was a cause of the plaintiff's injury". However, that followed a detailed and on the whole carefully expressed statement of the circumstances leading to her conclusion that the appellant was in breach of its duties, of the armed robbery itself and of the injuries suffered by the respondent. She had also found that there was "a reasonably foreseeable risk of robbery and of injury to the plaintiff in the course of, or for the purposes of, the robbery" which was a real risk in the sense described in the decision of the New South Wales Court of Appeal in Chomentowski v. Red Garter Restaurant Ltd.[1]. She had also taken into account that the existence of the risk was foreseeable as being "inherent in the circumstances as a whole" having taken into account the nature of the premises, the business conducted thereon (including the volume of takings) and the fact that large premises had been left to be secured by one person, namely the respondent, when, in her opinion "the presence of at least another person would have afforded a degree of safety absent in these circumstances". She had described the breach as being "not substantially" constituted by the failure adequately to light the laneway but "rather [by] failing to provide for more than one person when the hotel was being secured for the night". She noted that it was in the course of attempting to secure the premises that the respondent had been confronted by the armed robber and overpowered, leading to the robber being able to steal the money, but she considered that this was not the breach but rather the exposing of the plaintiff to the situation, thereby causing injury, which should have been foreseen. That there was a breach, she said, was demonstrated by the ease with which the appellant could have taken precautions such as by not sending other staff off duty early and by providing better means for leaving and closing the hotel premises.

14. One might say, as the respondent did, that it was more than apparent why the learned judge had concluded that the clear breach of duty by the appellant had resulted in the respondent's injuries that night or, rather, as she carefully expressed it, that the breach was "a cause" of those injuries. The respondent, as did for that matter the appellant, pointed to statements appearing in the recent High Court decision of Chappel v. Hart[2] in which Hayne, J. said (at 290) that the question of causation "will often be asserted without lengthy articulation of reasons", since it is "a question of fact resolved as a matter of common sense and experience", often reached intuitively. As his Honour continued, the extent of the analysis in that particular case was required "not because I consider that a trial judge should be expected (except, perhaps, in the most unusual case) to do more than record the conclusion that he or she reaches about whether the plaintiff's damage was caused by the defendant's negligence". Although in a dissenting judgment, that aspect of his Honour's judgment seems consistent with general statements to be found in the judgments of the majority: see e.g. per Gaudron, J. at pp.238-239 and per Kirby, J. at pp.268-269.

17. The appellant sought to challenge both the finding that it was in breach of its admitted duty to provide a reasonably safe system of work and that the alleged breach caused damage to the respondent in the sense that they were the cause of the injuries established before the learned judge. The arguments tended to telescope because in substance it was said that the appellant's duty was only to take reasonable steps to guard against reasonably foreseeable risks of injury and that the damage here suffered was not reasonably foreseeable. For this purpose it is important accurately to identify the events which should have been averted, and those matters for which, in turn, the respondent seeks to be compensated as consequential injuries. Both sides tended to concentrate on what happened outside the kitchen door, not merely because the respondent had claimed that that area had been insufficiently lit, but because the respondent had first been confronted immediately outside that door and in the laneway and where the armed robber sought in the first place to overpower him. But that was not the sole aspect of the incident pleaded by the respondent nor was it the sole aspect which the plaintiff claimed was the cause of his injuries and loss and damage. The "incident" of which he complained was that he was "the victim of an armed hold up in which he was threatened by a masked bandit, robbed at gunpoint and locked in a cool room". It was the whole of that incident which had led to his suffering post traumatic stress disorder and the other psychological consequences of which he complains. That the incident had led to the respondent's unfortunate stress disorder was ultimately made out to the satisfaction of the judge but, of its nature, it would be and was impossible to identify which aspect of the incident had any particular psychological consequences. To my way of thinking it could not be otherwise than that it was the whole of the incident from the moment he was faced with the gun in the hands of the masked robber to the time, some twenty minutes later, when he was left for an indefinite period in the cool room which in its totality had had these most unfortunate consequences for him.

20. As part of its argument the appellant asserted that the learned judge failed to pose for herself the correct test inasmuch as she expressed the relevant duty too broadly, in terms of an obligation "to provide a system of work which ensured [the plaintiff's] safety and security". An objection of that kind, however, had never formed part of the appellant's grounds of appeal, so that this alleged "misdirection" merely formed the basis of an argument that there was no proper finding of a breach of an admitted duty to take reasonable care in that respect. In any event I would be inclined to the conclusion that what her Honour said was no more than a compendious statement of one aspect of the employee's conditions for which an employer was obliged to take reasonable care. It is no more inaccurate than the statement adapted from the judgment of Du Parcq, L.J. in Deyong v. Shenburn[3], as adopted by Charles, J.A. (with whom Brooking, J.A. and Callaway, J.A. concurred) in Public Transport Corporation v. Sartori[4] to the effect (as his Lordship expressed it) "that the employer's obligation to provide a proper system of work extended to securing the personal safety of the workman". As Charles, J.A. said (ibid.), that is merely part of the general duty of an employer towards its employees.

23. More importantly I do not see why her Honour was in error in giving an affirmative answer to the question "whether, in the circumstances ..., there was a foreseeable risk of injury of the kind which occurred", as counsel's outline here formulated the question. Undoubtedly, to my way of thinking, if a hotel owner leaves a large and ordinarily busy hotel to be closed down and locked up in circumstances where it encourages other staff to be put off as early as practicable and requires the remaining employee to secure the night's takings and to lock up not merely the main doors but also a manual roller door situated thirty or so metres down an alleyway entered from a dimly lit back door, where that employee will ordinarily have no assistance on the premises to complete those duties, then it is clearly foreseeable that those with a propensity, or perhaps merely with an inclination, to commit armed robberies will be tempted to take advantage of the situation in order to hold up the sole remaining employee and steal the evening's proceeds. The situation is not all that different from that which occurred in PTC v. Sartori and Chomentowski v. Red Garter Restaurant[5]. Of course, each case depends upon its particular facts but it could not now be contended that, because the act directly likely to cause injury is that of a person for whom the employer is not responsible and is a free agent acting unlawfully, an attack of the kind here perpetrated was not easily foreseeable. The very task the employee was engaged to perform included the securing of the premises, both main doors and laneway roller door, and ensuring that the takings were safely locked away. If the employer had the wit to foresee (and guard against) the possibility of a robbery at 21 minutes past midnight when the employee had gone, that self-same employer surely must have foreseen that, if one person were left to carry out these duties, which involved going outside the main doors of the hotel itself, then both hotel and employee might well have been held up at a quarter or 20 past midnight while the employee remained alone on the premises. After all, service stations and convenience stores are not infrequently attacked at night in similar circumstances, the armed robbers not ordinarily waiting until the doors are firmly locked against them. The evidence made clear that the hotel owner here was well aware of the risks and chose to allow the hotel to be locked up at least expense to itself, thereby placing at risk those employees vouchsafed with the duty of locking up the hotel.

26. The argument on both sides seemed to concentrate too much on what occurred outside the kitchen door on the night in question. So it was argued that the employer could not foresee that, by reason of its failure to take reasonable steps to provide a safe system of work, that the respondent would be held up at the back door; nor, as the argument developed, could that attack be properly seen to be the consequence of its failure to take due precautions. The robber was not apprehended, so one does not know what went through his mind on the night in question and so, it was argued, one does not know whether these lack of precautions in fact encouraged or made more likely his attack on the respondent that night. One may doubt that one would rarely get useful evidence from the miscreant as to these matters, even though he may, if captured, have made admissions as to reconnoitring the premises either that night or at some earlier time.

29. That defect in evidence, however, should not deny the respondent his remedy in the present case, if it could fairly be shown that the respondent's injuries did flow from and were caused by the appellant's breach of duty. Of course, if the only evidence had been that the respondent had been held up outside the door and robbed of his wallet, or the like, then the connection with the respondent's failure to take adequate precautions might well have remained unproved. It may then have been a fortuitous hold-up in a dark lane by an opportunist armed robber. Then, moreover, it may have been harder to sheet home a breach of duty if it had been necessary to show that the additional employee ought to have been required to go two by two with him to the back door. A breach of that kind might have been the only way of showing that there was a real connection with the limited attack of the kind I have posited for this purpose.

32. That, however, was only part of the story. In the first place, it may be said that the objection made by the learned judge to the appellant's behaviour was not merely to a failure to have the additional person at the doorway when the respondent went to put out the rubbish, but to have that person accompany the respondent up the lane, to lock down the roller door. Insofar as that ought to have been a requirement of the employer, then it clearly would have obviated, or at least on the balance of probabilities it could be found to be likely to have obviated, the particular attack on the respondent. But that is not all. The respondent claims damages not for merely what happened at the back door but for that which followed from the whole of the incident as it affected him. It would be indeed impossible to segregate those aspects of his post traumatic stress disorder, shock, anxiety and depression into those which flowed from the initial hold-up, from the struggle and forcing at gunpoint, from the taking of the money under his control and from his being locked in the cool room. These were, however, the whole of the incident pleaded which was said to flow from the breach of duty. These events took place not merely in the laneway, but for the rest entirely inside the premises, as the armed robber forced his way in and bullied the respondent around the partly lit but otherwise deserted hotel premises to get the takings and then, with seemingly calm deliberation, to subject him to an unlawful imprisonment in the hotel cool room. Now one may argue that the incident at the back door may not necessarily have been obviated by the attendance or presence of another person, but it is impossible to conceive that the whole of the incident would have taken place in the way that it did with the consequences it had unless, as in fact was the case, the respondent had been effectively required on his own to close up the premises that night. It is highly unlikely that the robbery would have taken that form if somebody else had been in the premises, but even if the armed robber had been so bold as to believe that he could hold up two people, not merely by keeping them in one place but also by moving them around the hotel and then trying to lock them up, that would have led to an incident of a quite different character, one in which at least the respondent would have had another person to provide, if not physical support, at least moral support over the twenty minutes duration of the robbery and the later, longer incarceration.

35. In truth, one finds it hard to believe that the robbery would have taken place if another person had been employed at the time, whether or not one could establish the knowledge of the armed robber before that robbery took place. In my opinion, the incident in its totality resulted from the breach of duty. That breach of duty moreover was one which directly had the consequence of making possible a robbery of this kind. No doubt the precise circumstances of such a robbery were not foreseeable, but the absence of adequate and sufficient assistance at the end of the night must have led any reasonable employer to foresee the possibility of the sole employee being held up on the premises in some such way. There was a breach and in my opinion a clear causal link to the "incident", with the unhappy, psychological consequences which the respondent has undergone.

38. The appeal as to liability should therefore be dismissed. However, on the appeal as to damages, specifically future economic loss, I agree with Callaway, J.A., for the reasons he has stated, that the issue of economic loss generally ought to be remitted to the County Court and the appeal allowed to that extent.

43. The respondent brought proceedings in accordance with s.135A of the Accident Compensation Act 1985 claiming damages for personal injury suffered by him in the course of his employment with the appellant, which is the proprietor of the Rosstown Hotel in Carnegie. The injury was post-traumatic stress disorder. The learned trial judge found that it was of such severity as to constitute a "serious injury" within the meaning of s.135A(19).[6] That finding is no longer challenged. Her Honour assessed damages in the sum of $323,000 (consisting of general damages of $100,000, past economic loss of $53,000 and future economic loss of $170,000) less weekly payments of $11,434 plus interest in the sum of $12,313. The appeal to this Court challenges only her Honour's findings on breach and causation, it being conceded that the appellant owed the respondent a duty of care[7], and her Honour's assessment of damages for future economic loss.

46. On the night of Thursday 21st January 1993 the respondent, who was then aged 24, was working as a barman and supervisor at the Rosstown Hotel. Areas of the hotel were gradually closed down until only the lounge remained open. At the time when customers were asked to leave there would usually be only the respondent and one other staff member remaining. It was the respondent's decision when each member of staff went off duty. He was not instructed that there should be two members of staff on the premises when locking up and he was encouraged to release staff as soon as possible in the interests of economy. It was therefore well within the system of work provided by the appellant that the respondent was alone when the time came to secure the premises shortly after midnight. He went out a back door through the kitchen with the intention of disposing of some garbage and locking a roller door at the end of a lane. The area outside the door was dimly lit. There were no windows giving on to that area and no surveillance cameras.

49. It was in that setting that the respondent was accosted by a robber armed with a gun and wearing a calico bag as a hood over his head. The respondent struggled to close the back door but was unable to do so. The robber gained supremacy, pointed the gun at him and marched him through the kitchen into the bar area in search of the day's takings. It is unnecessary to recount the details of what followed except to say that for some 20 minutes the respondent believed himself to be in danger of death if he did not comply with the offender's demands as they moved about the hotel and that he was locked in a cool-store for some 40 minutes thereafter. As previously mentioned he suffered severe psychiatric injury and, in consequence, a diminution in earning capacity.

52. The conclusion I have reached on future economic loss makes it unnecessary and undesirable to say anything about the facts bearing on that issue. I should mention, however, that Mr Forrest objected to the respondent's proposed reliance on actuarial calculations by Cumpston Sarjeant Pty. Ltd. relating to superannuation. We ruled at the beginning of the hearing of the appeal that that material was in evidence before the learned trial judge and that we should have regard to it if that became necessary.

55. I turn first to the challenge to her Honour's findings on breach and causation. It will be as well to set out the relevant part of her reasons:

"It is conceded that the defendant was under a duty to the plaintiff to provide a safe system of work and to provide a safe place of work; that is, to provide adequate security for the plaintiff, and to provide a system of work which ensured his safety and security. On the basis of the authority of Chomentowski v. Red Garter Restaurant Ltd (1970) 92 W.N. NSW 1070 at 1073, there was here a reasonably foreseeable risk of robbery and of injury to the plaintiff in the course of, or for the purposes of, the robbery, and it was a real risk and not a mere fantastic possibility. In the context of this case, as in Chomentowski, the existence of the risk and its foreseeability were inherent in the circumstances as a whole. That is here taking into account the nature of the premises, the nature of the business conducted on the premises (one might expect there to be large amounts of money at the close of business), the fact that the premises were large and were left to be secured by one person, when the presence of at least another person would have afforded a degree of safety absent in these circumstances, in my view, are aspects of the defendant's duty and breach thereof. The breach of the duty was not substantially constituted by a failure to light or adequately light the outdoor area near the kitchen, the shadow of darkness presumably providing cover for the robber, but rather failing to provide for more than one person to be on the premises when the hotel was finally being secured at the close of business. The plaintiff was, as I understand it, going out the kitchen door so as to bring down the roller door, which could only be done manually. It was in the course of securing the premises that he was confronted by the armed robber, and, being on his own, was overpowered by him. The armed robber was then in a position to force his compliance and thus steal the money, but this is not the breach, but, rather, exposing the plaintiff to this situation and thereby creating his injury which should have been foreseen. The ease with which the defendant could take precautions which were reasonably available to be taken, for example, not sending other staff off duty before closing time and providing a better means of leaving the building, and the failure to do so demonstrates the breach of the duty of care."

Her Honour then referred to the evidence of a consultant in occupational health and safety, on which she did not rely. She continued:

"Accordingly I am satisfied that the defendant owed the plaintiff a duty of care, and that the defendant was in breach of it, and, further, that the breach was a cause of the plaintiff's injury."

61. Four criticisms are made of that passage in the judgment. First, it is said that the learned judge misdirected herself as to the standard of care. In a sense that cannot be gainsaid: the appellant's duty was not to provide a system of work which ensured the respondent's safety and security. It was only a duty to take reasonable care to avoid exposing him to unnecessary risks of injury.[8] The difficulty with the criticism made is that it proves too much. If her Honour had really thought that the appellant's duty was to ensure the respondent's safety and security, there would have been no need to consider whether that duty had been breached and the related circumstances to which she then turned. In all probability her Honour was doing no more than paraphrasing the appellant's undoubted duty to provide a "safe system of work", which, if one reflects on it, is also an overstatement if it is understood literally.

64. The second and the third criticisms, which are alternatives, may be compendiously stated as follows: it is said that, when her Honour spoke of more than one person being "on the premises", either she meant that at least one other person should have been inside the hotel or she meant that at least one other person should have been present on the block of land owned by the appellant, without specifying where that person would be; either way, so the argument proceeds, the suggested response was irrelevant to the risk. To decide the merit of those criticisms, it is necessary to read the impugned passage, and the first two paragraphs of the judgment, with considerable care. It is true that her Honour did not spell out the meaning of there being more than one person on the premises but, in the end, I am persuaded that her meaning is clear.

67. In the first paragraph of the judgment she said that the respondent was "in the hotel on his own, and, in the course of securing the premises at the close of business, went outside" to lock the roller door and dispose of the garbage. In the second paragraph she said that the respondent and the robber grappled with the door and the robber gained supremacy and thus entry into the building. Her focus was therefore on what occurred when the respondent went outside on his own.

70. Turning to the passage that I have set out at length, her Honour spoke of the premises being "left to be secured by one person, when the presence of at least another person would have afforded a degree of safety" and said that the breach consisted of failing to provide for more than one person to be on the premises "when the hotel was finally being secured at the close of business". Even more significant, in my opinion, are the second and third sentences of the fourth paragraph of the impugned passage: it was "in the course of securing the premises" that the respondent was confronted by the armed robber and "being on his own" was overpowered by him. The breach was "exposing the plaintiff to this situation". That invites the question, "What situation?" The answer proposed by Mr Dalton, which I accept, is "being on his own when he was securing the premises".

73. The second and third criticisms are, accordingly, founded on a misconception of her Honour's finding of breach. It was, admittedly, a relatively narrow finding in the light of the evidence. She found that the only breach, or the only substantial breach, was providing a system of work which contemplated the respondent's securing the premises on his own.

76. The fourth criticism is that either the breach cannot be said to have caused the incident [9] occasioning the respondent's injury or, alternatively, her Honour gave no reasons for her finding of causation. I was at first attracted by that submission, but it is related to the view one takes of her Honour's finding of breach. Once that finding is understood in the sense I have described, it was well open to her to consider it obvious that the breach caused the incident. The breach being interpreted in that way, no elaborate explanation of causation was required.[10]

79. Moreover, if her Honour had conceived the breach as not providing at least two persons inside the hotel or on the block of land, without more, it would have been surprising if she had not explained how that caused the incident. In those circumstances I might well have accepted the submission that the reasons were inadequate. The very fact that she considered it unnecessary to descend into detail is an indication that the breach was of such a nature as to make the causal link readily apparent; but that is so only if the breach is understood as being a system of work which contemplated the respondent's going out into the lane on his own to dispose of the rubbish and lock the roller door.

82. There was some debate as to the appropriate test of causation when the duty of care is to guard against the actions of third parties. Mr Forrest argued that in such a case the plaintiff cannot succeed unless he or she proves, on the balance of probabilities, that the injury would have been averted if the breach had not been committed.[11] Mr Dalton argued that that was too strict a test where performance of the duty would have substantially diminished the degree of risk.[12] That is similar to the issue which divided the New South Wales Court of Appeal in Bendix Mintex Pty. Ltd. v. Barnes[13]. It is unnecessary to decide the point because, on any acceptable view of causation, it was open to her Honour to find that the breach she discerned caused the incident.[14]

87. For these reasons I do not accept the appellant's case on liability. I turn to the question of future economic loss. Again it will be convenient to set out the relevant part of her Honour's judgment, for it, too, is within a narrow compass.

90. After fixing general damages in the sum of $100,000 and assessing past economic loss at $53,000 (which included an allowance for superannuation), her Honour continued:

"As to the future economic loss, Mr Bird submitted it can only be calculated in relation to his current economic loss, which is accepted at $113 per week, and that, whilst there is a risk he will become further incapacitated, there is also the possibility that with continued treatment and alternative treatment, coupled with the support of his family and the resolution of these matters, he might improve. There is no evidence, except for the possibility of alternative psychiatric treatment, that the other factors relied upon would lead to an improvement in his condition, and it is noted that they have not, to date. There is, however, no evidence that his condition will deteriorate: it appears at the very least if he continues with the therapy with Mr Cummins his condition may not deteriorate. There is evidence psycho-active medication will help him to cope more with the stresses of daily living; nonetheless, he does decline such treatment. There was no evidence that with the medication he could return to his pre-injury employment, thus I am not satisfied that it is unreasonable for him to decline the drug therapy. Mr Dalton QC submitted that there is a risk that he may suffer a total loss of his ability to engage in employment and that I should take such risk into account in fixing the appropriate figure for future economic loss. However, I am not satisfied that there is a substantial risk of that occurring, and this is because he has only relatively recently, and despite his disabilities, been able to impress his employers at Target that he had the ability to take on a managerial role, and, when he declined this position, he was able to persuade them to re-employ him, so that despite his disabilities and his unwillingness to assume greater responsibilities his employers inferentially still regard him as worthy of employment, and indeed their stance is consistent with Dr Wahr's evidence that he could work longer hours. Further, I do not consider that the plaintiff was entirely frank in his evidence concerning his ability to do the Barwon Heads job; he apparently recounting to Mr Cummins quite a different history concerning his capabilities and duties whilst employed there; and coupled with his frank admission that he might still be there were it not for the dermatitis. The plaintiff has also maintained his licence to act as a gaming room supervisor. This suggests that at the very least he considers this to enhance his qualifications, if not employability. Accordingly, taking into account the principles enunciated in Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 639, 642 and Farlow's case, the risk of loss of employment should be substantially qualified by these factors, as should the figure for future economic loss. Mr Dalton QC submitted various multipliers and making an allowance of 15% for the vicissitudes of life. He submitted the figure lay between $115,000-$433,000, including an allowance for superannuation, but less 15% for the vicissitudes of life, but he submitted a broadbrush approach was appropriate and the figure of $250,000 for future economic loss, taking into account that there was a real risk of total unemployment. For reasons earlier stated I do not consider there is a substantial risk of total unemployment so as to amount to a certainty, although there is a chance of it. Accordingly I propose to assess for future economic loss $200,000, less 15%, being $170,000."

94. Mr Dalton submitted, with some encouragement from the Bench, that the learned judge's assessment of $200,000 prior to the discount for contingencies should be understood as follows: the figure of $113 per week could be shown, by reference to the submissions referred to in the last paragraph of the passage I have set out, to produce a figure of $124,210 for loss of wages prior to the discount; the actuary's report which yielded the figure that her Honour accepted as part of the $53,000 for past economic loss yielded a figure of $26,345 for loss of superannuation benefits in the future[15]; accordingly, so the argument proceeded, $50,000 had been allowed for the risk of total unemployment.

97. The difficulty with that analysis, as became clear in the course of the argument, is that, however acceptable it might be in the case of a jury verdict, it flew in the face of what her Honour said in the last paragraph. She recorded that counsel had submitted that a broad-brush approach was appropriate and that that approach would result in a figure of $250,000 for future economic loss. Because she did not consider that there was a substantial risk of total unemployment, she proposed to assess future economic loss at $200,000. To my mind it is plain beyond argument that that, too, was a broad-brush figure. It is therefore open to the same criticism, and for similar reasons, as the award of damages in C.S.R. Readymix (Australia) Pty. Ltd. v. Payne[16]. It is not to the point that it has been said that a discount for contingencies can at best be a matter of impression.[17]

100. It is unfortunate that her Honour's reasons should succumb to this criticism. They were carefully expressed and there were other important issues on which her conclusions are not challenged. I am, however, persuaded that the appellant cannot tell from the reasons the basis on which the figure of $200,000 was assessed and this Court cannot tell whether it was correct.[18] The appellant is entitled to know the basis of assessment, but so too is the respondent. A failure to give reasons disadvantages a respondent as much as an appellant if it deprives the respondent of the ability to defend the judgment. Accordingly, I do not think this is a case in which, consistently with justice, we should assess future economic loss for ourselves, particularly as questions of credit and one's impression of the respondent as a witness are involved.[19] Rather we should direct a retrial, limited appropriately, leaving the parties either to pursue their rights at disproportionate cost or to reach a compromise.

103. Rule 64.23(5) provides that a new trial may be ordered on any question, whatever be the grounds for the new trial, without interfering with the decision upon any other question.[20] That rule, which has statutory force[21], is not to be read down by reference to the alternatives in s.14(2) of the Supreme Court Act 1986. When s.19A(2) of the Supreme Court Act 1958, from which s.14(2) derives, was inserted, Parliament was concerned with the effect of apportionment.[22] It is a power that we should exercise on this occasion, but we should draw the line between general damages and economic loss. Although her Honour's assessment of past economic loss was not challenged, it would be unduly artificial and potentially productive of injustice if the whole issue of economic loss were not retried with a view, among other things, to a consistent result.[23]

108. In my view, for the reasons given by Callaway, J.A., the appeal should be disposed of in the manner proposed by his Honour.

[1] (1970) 92 W.N.(N.S.W.) 1070.

[3] [1946] 1 K.B. 227 at 231-233.

[4] [1997] 1 V.R. 168 at 172.

[5] It also bore some resemblance to the circumstances described in Modbury Triangle Shopping Centre v. Anzil [1999] SASC 335, which has been the subject of a grant of special leave to appeal to the High Court.

[6] See para. (c) of the definition of "serious injury", namely "severe long-term mental or severe long-term behavioural disturbance or disorder".

[7] See, for example, Chomentowski v. Red Garter Restaurant Pty. Ltd. (1970) 92 W.N.(N.S.W.) 1070 and Public Transport Corporation v. Sartori [1997] 1 V.R. 168 at 173.

[8] Bankstown Foundry Pty. Ltd. v. Braistina [1986] HCA 20; (1986) 160 C.L.R. 301 at 307-308.

[9] I express it that way to reflect the case as pleaded. The structure of the statement of claim was to define "the incident" as an armed hold-up in which the respondent was threatened by a masked bandit, robbed at gunpoint and locked in a cool-room. It was then alleged that the incident occurred as a result of the negligence of the respondent, its servants or agents and that, as a result of the incident, the respondent suffered injury.

[10] Cf. Chappel v. Hart (1998) 195 C.L.R. 232 at [148] per Hayne, J., dissenting.

[11] In the context of third parties, see Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 427 at 467 and Lilley v. Alpine Resorts Commission (unreported, Court of Appeal, 3rd April 1998) in the judgment of Phillips, J.A. at 7-8 and, more generally, Romeo v. Conservation Commission of the Northern Territory (1998) 192 C.L.R. 431 at [134] and Secretary to the Department of Natural Resources & Energy v. Harper [2000] VSCA 36 at [55] and [59].

[12] The last six words come from the judgment of Mason, J.A. in Chomentowski at 1085E. See also 1075D per Sugerman, P. Counsel also relied on Chappel v. Hart at [7-9], [13], [25-28], [34], [68-69] and [93, points 2 and 8].

[13] (1997) 42 N.S.W.L.R. 307 at 315-316 per Mason, P. and 348C per Stein, J.A. Subsequent cases in New South Wales include I.C.I. Australia Operations Pty. Ltd. v. Walsh (1997) Aust. Torts Reports 81-452; E.M. Baldwin & Son Pty. Ltd. v. Plane (1999) Aust. Torts Reports 81-499 and Seltsam Pty. Ltd. v. McGuiness [2000] NSWCA 29; (2000) Aust. Torts Reports 81-547.

15] It was assumed in argument that that figure was also prior to a discount for contingencies, but it is in fact shown as a net amount in the submissions.

[16] [1998] 2 V.R. 505. See especially the judgment of Winneke, P. at 512-514.

[17] Wynn v. New South Wales Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 C.L.R. 485 at 499.

[18] Sun Alliance Insurance Ltd. v. Massoud [1989] VicRp 2; [1989] V.R. 8 at 18.

[19] Cf. Electrolux Pty. Ltd. v. Siniakis [1998] 1 V.R. 29 at 45, 46-48.

[20] There are similar provisions in r. 51.23(2) of the New South Wales rules and s.59(3) of the Supreme Court Act 1935 (W.A.). For examples of their use, see John Fairfax & Sons Ltd v. Armaghanian (unreported, New South Wales Court of Appeal, 27th August 1996) and Gibson v. Smith (unreported, Full Court of the Supreme Court of Western Australia, 19th June 1997) and, for an example under earlier provisions, Theelman v. Forte Properties Pty. Ltd. [1973] 1 N.S.W.L.R. 418 at 430-431.

[21] Supreme Court (Rules of Procedure) Act 1986, s.4.

[22] Hansard, 29th March 1972, pp.4614-4615. It is noteworthy that in the Legislative Council the Minister said, "If the court is satisfied with the findings in all respects except one, there seem to be no reason why all of the findings should be returned for re-trial, and this Bill permits a single finding to be remitted for re-trial": Hansard, 4th May 1972, p.5955.

[23] Compare Backwell v. AAA [1997] 1 V.R. 182 at 185, where Tadgell, J.A. recorded that all the members of the Court were agreed that the whole of a judgment for damages including exemplary damages should be set aside even though there was no challenge to the jury's award of $60,000 by way of compensatory damages.