Hamood & Anor v Tones [2010] QDC 422

Issue: an appeal from a magistrate’s decision not to allow damages, despite being satisfied as to liability. The basis for liability was a fire from an adjourning property. The appeal was allowed and damages ordered in the sum of $32,000.

The decisions referred to are a reminder of the principles involved.

Samios DCJ

[31] Regarding the assessment of damages Brooking J in J.L.W. (VIC.) Pty Ltd v Tsiloglou & Ors (1994) 1 VR 237 gathered a number of the decisions. At p. 241 he said:

“A plaintiff cannot recover substantial as opposed to nominal damages unless he proves both the fact and the amount of damage: The Commonwealth v. Amann Aviation Pty Ltd (1991) 174 C.L.R. p. 64; [1991] HCA 54; 104 A.L.R. 1, at C.L.R. p. 80, per Mason C.J. and Dawson J., at C.L.R. p. 99, per Brennan J., at C.L.R. p. 118, per Deane J. and at C.L.R. pp. 137-8, per Toohey J. If he proves the fact of the loss but does not call the necessary evidence as to its amount he cannot be awarded substantial damages (McGregor on Damages, 14th ed., pp. 190 and 222): he must put the tribunal in the position of being able to quantify in money the damage he has suffered: Watts v. Rake [1960] HCA 58; (1960) 108 C.L.R. 158, at p. 159, per Dixon C.J. So juries in personal injuries cases are often directed that the plaintiff must prove to their satisfaction what he has suffered and will suffer and what is fair and reasonable compensation in respect of that. It is often said that the amount of the damage must be proved with certainty, but this only means as much ‘certainty’ as is reasonable in the circumstances: Ratcliffe v. Evans [1892] 2 Q.B. 524, at pp. 532-3. Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can: Biggin & Co. Ltd. v. Permanite Ltd. [1951] 1 K.B. 422, at p. 438; The Commonwealth v. Amann Aviation Pty. Ltd., at C.L.R. p. 83, per Mason C.J. and Dawson J…”.

“…It all depends on the circumstances. Where a vessel was damaged by negligence and there was evidence that it was impossible to make a reasonably accurate estimate of the cost of repairs, the Full Court of Queensland upheld a direction that in estimating the cost of repair the jury must do its best on what seems to have been the exiguous material before it: Wheeler v. Riverside Coal Transport Co. Pty. Ltd. [1964] Qd. R. 113.

[32] On the hearing of the appeal I was also referred to Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 where at p. 143 Dixon J and McTiernan J said:

“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.”

[33] I was also referred to Wheeler v Riverside Coal Transport Co Pty Ltd and Others (1964) Qd R 113 at p. 124 where Philp A.C.J. said:

“As to ground (a) there was no evidence of the probable cost of repair of the launch. The onus was on the plaintiff to prove the quantum of damages and it might be said that he could have proved it by showing the diminishing market value of the damaged launch or by showing the probable cost of repair … But where the circumstances are such that a reasonably certain estimate cannot be given the court must assess the damages as best it can.”

[34] Finally I was referred to The Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 where at p. 83 Mason CJ said:

“The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v. Schiffmann Menzies J. went so far as to say that the ‘assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation’. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.”

Brisbane Barrister – David Cormack

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