SURESH v JACON INDUSTRIES PTY LTD

LEGISLATION CITED: District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), s 75A

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 CASES CITED: Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202 Warren v Coombes (1979) 142 CLR 531

PARTIES: Kumuda Suresh - Appellant Jacon Industriesl Pty Ltd - Respondent

COUNSEL: D.W. Elliott - Appellant D.J. Hooke - Respondent

SOLICITORS: Stephen Smart & Associates - Appellant Edwards Michael Moroney Lawyers - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40556/06 DC 3677/2000

MASON P BASTEN JA

30 October 2007 SURESH v JACON INDUSTRIES PTY LTD Judgment 1 BASTEN JA: In February 2000 the present Appellant commenced proceedings in the District Court for damages against the defendant in relation to the death of her late husband, who was fatally injured in a work accident whilst employed by the defendant (which is the present Respondent). His death occurred on 30 December 1997, whilst operating a lathe at the factory. 2 The matter first came before this Court in 2005, the District Court having dismissed her claim and given judgment for the defendant. The appeal was upheld and the matter remitted to the District Court for an assessment of damages: Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202. That assessment was undertaken by Judge Armitage, who delivered judgment at the end of the further trial on 10 August 2006. 3 The schedule of damages prepared by the Appellant indicates that she seeks an increase in the amount allowed by the trial of $710,018 to an amount of $808,069. The difference in the two amounts, which is a fraction under $100,000, is apparently covered by a reduction in the amount claimed on account of past and future domestic assistance. However, the grounds of appeal allege four errors, which have been identified in the Appellant's written submissions in the following terms:

(i) the finding that the deceased would have ceased remunerative work at 65 years of age and not at 70 years of age;

(ii) the allowance in the calculation of future economic loss of two-thirds of the allowance available to a leading hand, rather than the full amount;

(iii) a calculation of the entitlement of the children based on dependency to the age of 23, rather than 25 years, and

(iv) allowance for domestic assistance by 'effectively averaging' the parties' contentions. 4 The complaint in relation to each of these findings was that the trial judge failed to give adequate reasons for his conclusions. If made out, that complaint would no doubt demonstrate an error of law. However, an appeal from the District Court pursuant to s 127 of the District Court Act 1973 (NSW) is not so limited: it is required to be dealt with by this Court by way of rehearing, pursuant to s 75A of the Supreme Court Act 1970 (NSW). Why the grounds were formulated in this limited fashion in the present case is unclear. His Honour gave reasons for each challenged element of his determination, and there is no reason to suppose he had other reasons which he failed to disclose. 5 For reasons which may be sufficiently stated by reference to his Honour's judgment of 10 August 2006, without repeating the text thereof, the challenges are without merit and raise no question of general principle. 6 In relation to the first matter identified above, his Honour concluded that the deceased would have continued to undertake remunerative work until 65 years of age, at which stage he would have retired. The plaintiff had sought to extend his working life until 70 years, on the basis of family practice of men in the region of India from which they came. However, his Honour was satisfied that the different social security provisions in relation to income protection for persons after retirement available in this country, would have allowed the deceased to retire at 65 years and he would have taken that option: Judgment at p 10. That assessment was unassailable. 7 The second question concerned the likelihood that the deceased would have obtained a position as a leading hand. That was a contingent benefit which his Honour approached on the basis that he should assess the contingency in accordance with the principles established in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. The plaintiff relied upon a statement by the machine shop supervisor to a WorkCover Authority officer investigating the death of the deceased to the effect that he was not under supervision at the time of the accident because the company was "about to make him into a leading hand of the workshop because he was an intelligent, competent tradesman". 8 There were obviously contingencies which might have affected the occurrence and the timing of any promotion. On one view, the allowance made recognised that there was a two-thirds chance that the deceased would receive promotion immediately and maintain that position until the end of his working life (no additional promotion being proposed). An alternative understanding is that he would have received the promotion, but only after working for some further years. His Honour's reasons for adopting this approach are set out at pp 33-34 of the judgment. Calculation of contingencies are inherently a matter for evaluative judgment. No error of the kind identified in Warren v Coombes (1979) 142 CLR 531 has been demonstrated, nor were the reasons given inadequate. 9 The third issue concerns the complaint that the children would have remained dependent until 25 years of age, rather than 23 years of age as allowed by his Honour. That period made allowance for completion of the Higher School Certificate and the attainment of tertiary qualifications. On one view, the allowance was generous. His Honour noted (Judgment p 13) that "the academic results of the son Suraj, who gave evidence, have been anything but promising". However, as his Honour concluded (at p 14): "I have accepted a relatively long period of dependency in respect of both children because I am satisfied on the balance of probabilities that had the deceased not died, both children would have been extended academically by their parents as far as possible, and would have been supported while they attained as high a degree of tertiary qualifications as was within their academic capabilities." 10 Again, this was a matter for evaluative judgment and there was no flaw or inadequacy in his Honour's reasoning as set out from pp 12-16. 11 The fourth item, and the main one relied upon in the appeal, concerned the assessment of past and future domestic assistance, which his Honour addressed from pp 17-19. His Honour allowed a period of 15 or 16 hours per week for domestic assistance, effective from 1 January 1998 until 2 January 2007. Thereafter he allowed eight hours per week for a further three years and then four hours per week thereafter. 12 His Honour considered in some detail a complaint that the plaintiff had conveyed an exaggerated view of her son's likely academic achievements and had failed to disclose his latest school report, which was damaging to her view: Judgment at pp 4-6. Rather than treat the matter as one of deliberate concealment, he attributed the non-disclosure more to "shame than artifice": Judgment at p 6. However, he concluded that the plaintiff's credit was to some extent damaged and that the question of the school record had "contributed to the impression I had already formed that the plaintiff was a person who in the time-honoured manner of plaintiffs everywhere 'put her best foot' forward when making her claim and, when it came to estimates, maximised them within the bounds of what might reasonably be accepted by a court". 13 On this basis, the trial judge discounted the hours which she had assessed as the contribution provided by the deceased by way of domestic assistance. The estimates involved a period which pre-dated the trial by up to nine years and which required extrapolation into the future. The contention by the Appellant that the trial judge "effectively averaged the competing assertions" of the parties would not demonstrate error if it were correct, unless it could be seen as an entirely arbitrary exercise. However, the figures reveal that this was not the approach which his Honour adopted. 14 The period from 1 January 1998 to 2 January 2007, as indicated, was allowed at a rate of either 15 or 16 hours, the period having been divided into four segments of one, two, three and three years respectively. There is no steady proportionate relationship between the hours claimed, the hours allowed by the defendant's submissions, and those awarded by his Honour although, not surprisingly, those allowed fell somewhere between each party's assertions. (In one case his Honour appears to have intended to allow an hour less than that acknowledged by the defendant, though nothing turns on that.) By way of explanation his Honour stated (at pp 17-18): "As with the succeeding figures to which I shall come, I have found myself between the plaintiff's and the defendant's estimates, and I have done the best I can to attend to the plaintiff's evidence in chief and to her cross-examination, in which she made some but not many concessions, and to formulate a figure which inevitably must contain a degree of guesswork but which is an effort to be fair to both parties." 15 Given that his Honour had already expressed doubts about aspects of the plaintiff's evidence, the statement in his reasons set out above is a fair description of the process by which the final figures were achieved. It demonstrates the artificiality of requiring some more precise basis of calculation. Nor is it fair to suggest that his Honour failed to give adequate reasons for rejecting those aspects of the plaintiff's evidence which were effectively undented in cross-examination. Much of the assessment of domestic assistance was based upon the circumstances of the family as they existed prior to the fatal accident. The plaintiff's evidence was itself an attempt to extrapolate from past conduct and expectations into the future. Because there must have been an element to which the plaintiff herself was making an assessment of things which were speculative, his Honour was quite entitled to accept that in part only, as he did. 16 In the result, each of the challenges fails, and in my view the appeal should be dismissed with costs. 17 MASON P: I agree, and will just add some additional remarks in response to the submission that his Honour's rejection of the claim for domestic assistance involved an arbitrary discount. 18 The claim for domestic assistance in this case necessarily involved hypothetical issues. Some of the criticisms of the reasoning developed by the appellant's counsel today implied that, unless the trial judge rejected the appellant's own testimony about the specific hours spent in the past by the deceased in various domestic tasks, his Honour was bound to make an award based on the hours claimed by the appellant. In my opinion, there are two problems with this approach, and in pointing to them I shall be seeking to address the particular complaint made in the appeal that the judgment miscarried because the judge did not expose his essential reasoning process. 19 The first problem is that the judge did not accept the appellant in full and he gave reasons why he discounted her evidence. That in part explains why he did what he did and certainly provided reasons that underpin this aspect of his judgment. 20 Secondly, it must be recognised, I believe, that the time that a father spends with his children in their early years does not necessarily reflect the hours spent in later years. His Honour recognised this in his remarks at p 19 of the judgment when he noted that the decrease in hours allowed for the later period reflected, as both parties recognised, "the decreasing degree of domestic assistance likely to have been afforded by the deceased owing to the increasing ability of the children to care for themselves." Children may never cease to need the care of their parents, but that care gets shown in different ways as the children, and indeed the parents, age. 21 The appellant's claim for future domestic assistance was based on the assumption that the deceased would have spent six hours per week "tutoring" his son for nine years between 1998 and 2007, and a similar time each week "tutoring" his daughter for eleven years between 1999 and 2010. Having regard to the deceased's skills and his own field of training, and having regard to the propensities of children as they age to resist parental assistance with homework, I confine myself to the observation that I can see no error in his Honour's reasons or in the conclusions on which they were based in this regard. 22 As indicated, I agree with the reasons of Justice Basten and with the orders that he proposes. They are the orders of the court.

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