Malec v JC Hutton Pty Ltd [1990] HCA 20

High Court of Australia Brennan, Deane, Dawson, Gaudron and McHugh JJ. Malec v JC Hutton Pty Ltd [1990] HCA 20

ORDER Appeal allowed with costs. Vary so much of the orders of the Full Court of the Supreme Court of Queensland by —

(1) setting aside the order "that the Plaintiff recover against the Defendant the sum of thirty six thousand nine hundred and twenty eight dollars and forty seven cents ($36,928.47) together with interest thereon at the rate of ten per cent (10%) per annum for a period of 4½ years" and substituting in lieu thereof an order that the plaintiff recover against the defendant such sum as is assessed by the Master of the Supreme Court of Queensland in accordance with the evidence, the judgment of this Court and, subject to what is said in that judgment, the findings of Carter J. in the Full Court; and

(2) further ordering that the costs of the assessment of damages before the Master be paid by the defendant.

(3) and omitting the words and figure: "which costs for the hearing shall be limited to seven (7) days".

Cur. adv. vult.

The following written judgments were delivered:—

The Court delivered the following addendum to the judgments:—

May 29 Brennan and Dawson JJ.

We are in agreement with the judgment of Deane, Gaudron and McHugh JJ. and with the order that they propose, subject to some brief observations. The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the plaintiff had not been working for some time before the trial and an evaluation of the plaintiff's earning capacity which was destroyed in consequence of the defendant's negligence. The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false — for the plaintiff has been injured — the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past. Lord Diplock said in Mallett v. McMonagle [1] :