Assessment of damages and guesswork

Greg Condon Transport v Gordon [2011] QDC 7

Baulch SC DCJ

[58] I have no reason to think that the Plaintiff was dishonest when he gave the evidence that he gave in respect of the replacement of the vehicle. I do, however, think that the Court is entitled to expect that evidence proving a significant claim for damages ($30,400) would be provided with some more certainty than was provided here.

[59] It would have been a relatively simple matter for the Plaintiff to produce evidence from A H Pastoral Co Pty Ltd confirming the plaintiff’s evidence concerning the matter.

[60] I am assisted in respect of this part of the matter by the decision in JLW (Vic) Pty Ltd & Tsiloglou & Ors[1] where there is a significant review of the authorities concerning a Plaintiff’s obligation to produce evidence to establish the loss in the judgment of Brooking J. where he said (at p. 241):

“The nature of the damage may be such that the assessment of damages will really be a matter of guesswork, as in the well-known case of Chaplain v Hicks (1911) 2 K.B. 786 where the plaintiff has lost a chance of winning an engagement as an actress as a prize. So damages will be assessed for wrongful detention of a racehorse even thought it may be necessary to guess at the amount: Wilson v Matthews (1913) VLR 224; compare Howe and Teefy (1927) 27 S.R. (NSW) 301. Claims for damages for loss of publicity are another example of cases of inherent difficulty in assessing the plaintiff’s loss with any approach to certainty …”

Later (at p. 242) he said:

“It all depends on the circumstances. Where a vessel is 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. The plaintiff may have been fortunate in the briefly noted case of Bovet v Walker (1917) 62 Sol. Jo. 104 where no evidence to enable the diminution in value to be quantified seems to have been led; I should have thought that expert evidence would have been available and should have been called.”

Still later (at p. 243):

“There is no rigid dividing line between cases in which guess work is permissible in assessing damages and cases in which it is not. The borderline between guesswork and rational assessment is itself indistinct as is the line between evidence that is ‘precise’ (the Permanite case dictum) and evidence that is not.”

[61] I identify two difficulties with the evidence called in relation to this aspect of the damages.

[62] First, it was apparent from the evidence of Mr Condon that he and Mr Pimble (the proprietor of A H Pastoral Co Pty Ltd) were friends and enjoyed a close working relationship. Where a claim of this sort is made and it is admitted that no actual payment is made but rather that some sort of “contra” arrangement between the parties has occurred, I would have thought that the minimum evidence that would be produced would include evidence from the recipient of the benefit. As I have said, the absence of such evidence is simply unexplained but has a significant effect on the weight to be given to the evidence which was produced[2].

[63] Secondly, it seems that the estimate of an appropriate weekly rate for the hire is based entirely on inadmissible hearsay evidence obtained by Mr Condon from an organisation called “Rentco”.

[64] It was clear on the evidence that A H Pastoral Co Pty Ltd were not in the business of renting vehicles and it seems that Mr Pimble simply accepted the information passed to him by Mr Condon.

[65] In my opinion, there is no admissible evidence as to what is a reasonable rate for a replacement vehicle.

[66] Counsel for the Plaintiff accepted that it was the Plaintiff’s obligation to prove not only the loss but that the amount claimed was a reasonable amount.

[67] I find it impossible to conclude on the evidence before me that the rate claimed was a reasonable rate.

[68] For those two reasons, I find myself not satisfied that the Plaintiff suffered loss quantified in paragraph 11(d) of the further amended Statement of Claim and I do not make any allowance for damages under that heading.

Brisbane Barrister – David Cormack

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