Campus v Onion & Anor [1991] QSCFC 8

*/\{ 00$ IN THE SUPREME COURT O F QUEE N SLAND t | FULL CO URT I BEFORE: | i | Appeal No. 31 o f 1990 t REVISE, The Chief Justice (Mr. Justice Macrossan) Mr. Justice Derrington — Mr. Justice de Jersey J j Coun BR ISBANE. 22 FEBRUARY 1991 SUfQo reali 15/ s (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: MARIA CAMPUS DARRYL ONIONS (Plaintiff) -and- (First Defendant) -and- VILLAGE MOTORS (QLD) PTY . LTD. (Second Defendant) JUDGMENT Appellant First Respondent Second Respondent MR. JUSTICE DERRINGTON: The Court in this matter consisted of The Chief Justice, Mr. Justice de Jersey and - myself. In my view, save as indicated below, the judgment and Orders below should be set aside and there should be judgment for the appellant against the first respondent in the sum of $5,181.92 together with her costs of the action. The order that the appellant should pay the second respondent its costs of the action is confirmed. There is no order as to the recovery by the appellant from the first respondent of the costs which, she is ordered to pay the second respondent. 50 60 —Govt Printer, Qic! 1 [1991] QSCFC 8 -- 1 of 14 -- 10 The first respondent is to pay the appellant two-thirds of her taxed costs of the appeal. There will be no order for costs in respect of the second respondent in relation to the appeal. There will be no order under the Appeal Costs Fund Act. I publish my reasons. I am authorised by the Chief Justice to say that he agrees with the orders proposed and the reasons contained in my judgment. "z-S'r-- MR .jr JUSTICE _de JERSEY: I agree -:with the orders propose_d.- by my brother Derrington and with his reasons. MR. JUSTICE DERRINGTON: The judgment and orders of the Court are as indicated. -o 50 60 —Govt, Printer. Qld. 2 -- 2 of 14 -- IN THE SUPREME COURT OF QUEENSLAND fc Vt! FULL COURT APPEAL 31 OF 1990 BETWEEN: AND : AND: MARIA CAMPUS (Plaintiff) Appellant DARRYL ONIONS 1 (First Defendant) First Respondent VILLAGE MOTORS (QLD) PTY.LTD. (Second Defendant) Second Respondent THE CHIEF JUSTICE DERRINGTON J de JERSEY REASONS FOR JUDGMENT DELIVERED BY DERRINGTON J ON 22ND FEBRUARY, 1991. THE CHIEF JUSTICE AND de JERSEY J AGREEING WITH THE REASONS AND ORDERS MADE "APPEAL ALLOWED, THE JUDGMENT BELOW SET ASIDE AND ORDER THAT THERE BE JUDGMENT FOR THE APPELLANT AGAINST THE FIRST RESPONDENT IN THE SUM OF $5181.92 WITH HER COSTS OF THE ACTION. FURTHER THE ORDER THAT THE APPELLANT PAY THE SECOND RESPONDENT ITS COSTS OF THE ACTION BE CONFIRMED. FURTHER ORDER THAT THERE BE NO ORDER AS TO THE RECOVERY BY THE APPELLANT FROM THE 1ST RESPONDENT OF THE COSTS WHICH HE IS ORDERED TO PAY THE SECOND RESPONDENT . FURTHER ORDER THAT THE FIRST RESPONDENT PAY THE APPELLANT TWO-THIRDS OF HER TAXED COSTS OF THE APPEAL . FURTHER ORDER THAT THERE BE NO ORDER FOR COSTS IN RESPECT OF THE SECOND RESPONDENT IN RELATION TO THE APPEAL . FURTHER ORDER THAT THERE BE NO ORDER UNDER THE APPEAL COSTS FUND ACT." -- 3 of 14 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 31 of 1990 Before the Full Court The Chief Justice Mr. Justice Derrington Mr. Justice de Jersey BETWEEN : AND: AND: MARIA CAMPUS (Plaintiff) Appellant DARRYL ONION (First Defendant) First Respondent VILLAGE MOTORS (OLD) PTY . LTD. (Second Defendant) Second Respondent JUDGMENT - DERRINGTON J. Delivered the 22nd day of February, 1991. CATCHWORDS : Damages - Interest - Costs — Whether Bullock order - Successful defendant joined to enhance plaintiff's prospects of recovering fruits of judgment only - Vicarious liability only alleged Counsel: Mr. J. Griffin Q.C. with Mr. G. Sowden for appellant Mr. P. Feely for first respondent Solicitors: Deacon & Milani for appellant Patrick T. Murphy, town agents for Peter Wallace & Co. for first respondent Neil O'Sullivan & Rowell for second respondent Hearing date: 24th October, 1990 -- 4 of 14 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN : AND: AND: Appeal No. 31 of 1990 MARIA CAMPUS (Plaintiff) Appellant DARRYL ONION (First Defendant) First Respondent VILLAGE MOTORS (OLD) PTY . LTD. (Second Defendant) Second Respondent JUDGMENT - DERRINGTON J. Delivered the 22nd day of February, 1991 The appellant as the plaintiff won a judgment for damages against the first respondent in an action in the District Court for assault. Her action against the second respondent alleging vicarious liability for the conduct of the first respondent who, like herself, was an employee of the second respondent was dismissed because the first respondent was not shown to be the servant or agent of the second respondent in committing the assault . The second respondent was joined as a defendant by the plaintiff only for the purpose of enhancing her prospects of recovery of the fruits of any judgment and not out of necessity from some doubt as to which of the two defendants should be liable to her. On the pleadings the second respondent could only have been liable to the appellant vicariously through the first respondent. While by his defence the first respondent admitted -- 5 of 14 -- 2 that at all relevant times he was acting as the servant or agent of the second respondent,, it was denied by the latter as part of its general denial. In his brief judgment the learned trial Judge found that there was an unlawful assault, saying that he believed the evidence of one McCarthy who was the spare-parts manager of the second respondent. That witness had said that the appellant had resumed work on the relevant day after an absence due to injury to her right shoulder in a motor vehicle accident. While asking her for a spare part the first respondent made an unpleasant remark as to her return, followed soon after by some mutual unpleasant name-calling begun by the first respondent and precipitated by a mistake by the appellant as to the part required. Apparently stung by the appellant's response the first respondent struck out at her with a flicking blow on her left upper arm in the muscle area. It is uncertain whether his hand was clenched or half-clenched. McCarthy intervened and adverted to the appellant's recent injury. After five or six seconds she became upset enough to cry and ran to the back of the premises. The blow was not a light friendly tap nor was it a "direct hard hit" which was hard enough to unbalance the appellant or shake her in any way . As the result of this she suffered some aggravation of her injured clavicle and was obliged to absent herself further from work for about six months. However only approximately three months of this was attributable to the effects of the assault, and for three weeks of that period the second respondent paid her full wages. -- 6 of 14 -- 3 General damages were assessed by the learned trial Judge in the sum of $2,000.00 to which he added interest of $163.00. This will be discussed in more detail below. He also awarded the sum of $2,304.00 for damages for loss of earning capacity and $312.00 for special damages. There was no discussion whatever as to interest on these components. Together all the items of the award led to judgment for $4,779.00. Upon being informed that an offer of $5,000.00 plus costs had been made pursuant to r. 112 of the District Court Rules, His Honour ordered that the first respondent pay the appellant's costs up to a time two days after the service of the notice and that the appellant pay the respondent's costs of the action thereafter. He also ordered that the appellant pay all the costs of the second respondent. Prior to the announcement of the offer which had been made, he had made a Bullock order whereby he ordered the first respondent to pay to the appellant the costs which the latter had been ordered to pay to the second respondent, but no such order was finally made after the offer was revealed. As it has been noted the only interest which was allowed was that relating to the award of general damages from the date of the assault to the date of judgment, and in that exercise the rate adopted was six per cent over the whole period. No interest was allowed in respect of loss of earning capacity or special damages. Apart from the failure by the first respondent to comply with the Rule of Court relating to the making of the offer, which he now concedes, the grounds of the appeal are designed to demonstrate that for various reasons the amount of the award -- 7 of 14 -- 4 should have exceeded $5,000.00 so that in any case the amount of the offer was inadequate. Logically, this should be considered before any other issue. First it is argued that the assessment for loss of earning capacity should have been increased by $256.00 being one week's wages of the appellant. The learned trial Judge obviously assessed the loss by reference to a figure representing nine weeks' loss of wages. The appellant says that it should have been ten weeks wages, being three months absence due to the relevant injury less three weeks during which she was paid. However the evidence of her doctor which was accepted by the learned trial Judge was that the period of her absence due to this injury was "approximately three months". No doubt it was due to this inexactitude and the appellant's onus of proof which caused the learned trial Judge, who was very experienced in the assessment of damages, to have been conservative upon the point, particularly as it was also open to him, and indeed correct, to allow some small discount for the contingencies of life. It should be remembered that the award is not for loss of wages but for loss of earning capacity suffered at the time of the injury. There is therefore nothing in this point. The next means whereby the appellant seeks to enlarge the award comes within the subject of interest. The complaint takes two forms, the first being that His Honour's discretion' was wrongly exercised in respect of the rate of interest allowed in respect of the component for general damages, and the second relating to his failure to allow any interest at all upon the other components. -- 8 of 14 -- 5 As for the former, it is said that if, as is conventional in this Court in such cases, a rate of twelve per cent is adopted unless there be shown to be reasons to the contrary then His Honour approached the matter incorrectly. Customarily when such a rate is adopted in respect of pain and suffering and loss of amenities to the date of trial, then because these losses are spread across the entire period it is also usual in the mathematical part of the exercise to calculate the interest upon the entire sum for the entire period but to halve the interest rate; and it is argued that this is probably what was done by the learned trial Judge in the present case. However that course is said to be inappropriate here because all of the appellant1 s injuries for which she is to be compensated were suffered within the first three months after the assault. Therefore, it is claimed, it is justifiable to work upon six per cent for the first three months only, and the full twelve per cent Should have been applied thereafter. This produces a total of $190.00 for the period up the date of the notice or $250.00 up to the date of judgment compared with the sum of $163.00 which was allowed. By the same method of calculation, it is said that the interest on loss of wages as assessed by His Honour should have been $218.82 to the date of the notice and $287.50 to the date of trial though, because the plaintiff received her wages for three weeks these figures should be $208.24 and $276.92 respectively; and the interest on special damages should have been $29.64 and $39.00 to the same respective dates. There is substance in these complaints. While the trial Judge's discretion to award interest is unfettered and should -- 9 of 14 -- remain so, it must be exercised judicially, that is, it must be founded on reason. In this case, the presence of the usual considerations. suggest that unless there are good reasons, it might be expected that the discretion would be exercised in the usual way. The absence of any apparent reasons to the contrary and more particularly the absence of any expression of such reasons by the learned trial Judge lead to a strong probability that he simply failed to advert to the rather unusual variation of circumstances in the component for which he did award interest, and that he overlooked the question of interest upon the other components. In this he did not have the benefit of any reminder by either counsel, but it may well be that they were all immediately distracted by the announcement of the existence of a notice of offer. This may have deprived them all of the opportunity of reflection upon and review of the judgment in a way that usually detects these oversights when they occur. In any case,, it seems that the Judge's discretion was not exercised or when it was exercised it was defectively applied, and that position should be remedied. Interest should be awarded for the amounts proposed by the appellant. The effect of this will appear below. Finally in her exercise of seeking to enlarge the damages, the appellant complains of the trial Judge's refusal to award exemplary or aggravated damages. The factors relied on are that the assault was unprovoked and committed on a fellow employee, that she was a twenty-five year old woman, that no apology was offered and that the first respondent's conduct was high-handed and calculated not only to hurt her feelings but also to prejudice her employment. However, although there was no provocation sufficient to excuse the assault at law, it is not -- 10 of 14 -- 7 true to say that there was no provocation at all, for immediately before the assault the appellant had called the first respondent a very unpleasant name, albeit in response to his name-calling, and the first respondent, on the accepted evidence, was upset by it and struck the blow in the heat of the moment. It is true that his attitude to her prior to that had been somewhat high-handed and that he did not apologise after the event, particularly for having struck a woman. However, an altercation of this description is not of the kind which attracts exemplary damages, even where the attitude of the offending party is at fault, for it is often so. This reluctance in the award of such damages is particularly present where the party assaulted does not hesitate to engage in the altercation though at a lower level of combat. Consequently, there is no case here for an award of exemplary damages and His Honour was correct in refusing them. In any case the award of general damages appears to be reasonably generous and may reflect some allowance for any small factor of this nature capable of being entertained. The appellant does not succeed on this issue. In summary the award should have been as follows :- General damages $ 2,000.00 Interest to judgment $ 250.00 Special damages $ 312.00 Interest ; $ 39.00 Loss of earning capacity $ 2,304.00 Interest thereon $ 276.92 $ 5.181.92 If the interest were adjusted to about the date of receipt of the notice of offer, the resulting figure is $5,054.46, which -- 11 of 14 -- 8 exceeds the offer. As it may therefore be disregarded, it is unnecessary to consider the consequences of its defects. It also follows that there must be a total reconsideration of the orders made for costs below which were founded upon an incorrect belief in the sufficiency of the offer. Despite the small value of the excess of the award over the amount offered, (cf. Potts v. Commissioner of Public Works (1939) S.A.S.R. 400) it was not argued that in these circumstances there is any reason why the first respondent should not pay to the appellant her costs of the action. Nor is there good reason why the appellant should not pay to,the second respondent its costs of the action, and the only question is whether the first respondent should reimburse the appellant for them by way of a Bullock order. In Gould v. Vaqgelas (1985) 157 C.L.R. 215, the High Court held that provided the unsuccessful defendant's conduct justified the imposition on it of some liability for the successful defendant's costs, the decision to make a Bullock order lay within the discretion of the Judge and should not have been upset. At p. 229, Gibbs C.J. said: "Obviously a Judge should make a Bullock Order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or over-caution." Compare Johnsons Tyne Foundry Ptv. Ltd. v. Maffra Corporation (1948) 77 C.L.R. 545 per Dixon J. (as he then was) at p. 566 where in upholding the making of such an order he noted that the plaintiffs took reasonable and proper caution in joining O O o o -- 12 of 14 -- 9 the successful defendant and that they were induced to do so by the erroneous attitude adopted by the unsuccessful defendant. This exemplifies how there should be some factor which makes it just and reasonable to indemnify the plaintiff. There may be a reasonable need to join the successful defendant because of a wrongful denial of the unsuccessful defendant; or it may be that the plaintiff does not know which of two defendants is liable. This may be compared in principle with the liability of a plaintiff for the costs of third parties whom a defendant has brought in as a matter of necessity: Edcrinton v. Clark (1964) 1 Q.B. 367; Thomas v. Times Book Co. Ltd. (1966) 1 W.L.R. 911. The distinction in principle where a Bullock order will be made or refused is demonstrated in Leaver v. Golsbv (1964-5) N.S.W.R. 1833. There is nothing of that nature in the present case. The appellant's sole reason for joining the second respondent was to enhance her prospects of recovery of any sum awarded. No doubt the appellant saw this as a desirable precaution in her own interests, but it was not necessary in order to establish liability: cf. In re Salmon. Priest v. Upplebv (1889) 42 Ch. D. 351 , 361 ; Allman v. Daly (No. 2) (1959) . V.R. 614 at p. 621. Indeed, if the appellant had failed against the first respondent, she would have necessarily failed against the second respondent. For these reasons she is not entitled to any Bullock order. As for her costs of the appeal, the appellant was successful on some issues against the first respondent and should therefore be entitled to costs, but because she was unsuccessful on some distinct issues which occupied a substantial part of the argument, they should be limited to two-thirds of her taxed costs . -- 13 of 14 -- 10 The first respondent has applied for relief under the Appeal Costs Fund Act , but there is no good reason for granting it. The oversight of the trial Judge as to interest should have been drawn to his attention or appropriate offers made upon receipt of a notice of appeal. Instead, the matter was fully contested. The application should be refused. Although the second respondent is shown in the title as a party to the appeal and the notice of appeal is not enlightening upon the point, it appears that it had no cause to appear, did not do so and incurred no costs, so it should be disregarded in respect of any question of costs of the appeal. n o :.) -- 14 of 14 --