JAMES HARDIE & COY PTY LTD v TOMPSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, BEAZLEY JJA and ROLFE AJA 22-23 April, 5 May 1998 [1998] NSWCA 114 DAMAGES FOR PERSONAL INJURIES The Dust Diseases Tribunal of New South Wales Action for damages for personal injuries a single cause of action compensated by the award of a single capital sum: hence payments made pursuant to s8(1)(a) of the Workers Compensation (Dust Diseases) Act 1942 even where no claim for past or future economic loss must be deducted: James Hardie & Coy Pty Ltd v Newton (1997) 42 NSWLR 729 followed. Leave to Appeal As the damages are by way of the award of a single capital sum, which constitutes a "final decision" pursuant to s32 of the Dust Diseases Tribunal Act 1989, leave to appeal is not required where the amount of the judgment exceeds $10,000 although the component thereof which is attacked is less than $10,000: Dunn v Ross Lamb Motors & Anor [1978] 1 NSWLR 26 distinguished. Damages In assessing the rate per hour for the award of Griffiths v Kerkemeyer damages his Honour was not shown to be in error. Priestley JA There were only a few live issues when this appeal came on for hearing. They are all identified in the reasons of Rolfe AJA which I have had the advantage of reading. For the reasons he gives I agree that the first respondent did not need leave to cross-appeal, and that extension of time to bring a cross-appeal should be granted. LT also agree that no error was shown by the first respondent to have been made by the trial judge on the Griffiths v Kirkemeyer point. This seems to me to follow inevitably once the facts are understood in the way Rolfe AJA has set them out, with which I agree. The cross-appeal should therefore be dismissed. Also, I agree with the reasons given by Rolfe AJA for deciding to make no order for costs in favour of any of the parties to the proceedings. Beazley JA I agree with Rolfe AJA. Rolfe AJA Introduction The plaintiff/first respondent, Mr Bruce Stanley Charles Tompson, ("Mr Tompson"), for whom Mr J T Rush of Senior Counsel and Mr R A Sorby of Counsel appeared, was born on 15 November 1927. He left school in about 1940, entered the workforce at the age of fourteen years in 1941, and engaged in various manual occupations until becoming an employee of the second defendant/appellant, James Hardie & Coy Pty Ltd, ("James Hardie"), for which Mr C G Gee of Queen's Counsel and Mr D E Graham of Counsel appeared, in 1949, when he was aged twenty two years. He was employed by James Hardie in premises adjacent to those on which the first defendant/second respondent, Goodyear Australia Ltd, ("Goodyear"), for which Ms D G Stewart of Counsel appeared, carried on its business. 2 UNREPORTED JUDGMENTS He continued in his employment with James Hardie until about 1982, when he retired. He married on 14 September 1980. In September 1996 he developed symptoms, which were diagnosed as mesothelioma by February 1997. He is suffering from that terminal illness and his life expectancy was estimated, in August 1997, to be a "matter of months". The Proceedings Before The Dust Diseases Tribunal of New South Wales Mr Tompson brought proceedings against Goodyear and James Hardie in the Dust Diseases Tribunal of New South Wales. They were heard by his Honour Judge Armitage on 10, 11 and 12 November 1997, and, on 12 November 1997, he delivered an ex tempore judgment. Before his Honour Mr Rush appeared for Mr Tompson, Ms Stewart for Goodyear and Mr J A McIntyre of Counsel for James Hardie. The liability of Goodyear and James Hardie for breaches of common law and statutory duty was not in issue, and they agreed on the way in which the damages, which, for all intents and purposes, are assessed as common law damages, should be apportioned between them. His Honour found that Mr Tompson was entitled to a judgment in the sum of $142,063. The component parts thereof were $115,000 for general damages, $15,000 for general damages for loss of expectation of life, $8,500 for damages based on Griffiths v Kerkemeyer (1976-1997) 139 CLR 161, $2,250 for damages for loss of services, $1,250 for interest on past general damages and $63 for interest on past Griffiths v Kerkemeyer damages. The claim for Griffiths v Kerkemeyer was based on the services Mrs Tompson rendered gratuitously to her husband. James Hardie's Appeal In November 1997 James Hardie filed a Notice of Appeal in which it asserted that his Honour erred in failing to deduct from the award of damages the amount of certain statutory weekly compensation paid and to be paid to Mr Tompson by the Workers Compensation (Dust Diseases) Board pursuant to s8(1)(a) of the Workers Compensation (Dust Diseases) Act 1942; in the awarding of damages pursuant to Griffiths v Kerkemeyer and by way of general damages and damages for loss of life expectancy; and as to costs. On 8 April 1998 James Hardie abandoned all save the first ground of appeal. Before the appeal was heard, it was agreed that conformably with this Court's decision in James Hardie & Coy Pty Ltd v Newton (1997) 42 NSWLR 729, in which judgment was delivered on 22 December 1997 ie some six weeks after his Honour gave judgment, his Honour was in error in failing to deduct the amount of such payments. Their amount was agreed between Mr Tompson and James Hardie as $13,633.88 and, to that extent, it was agreed that the judgment should be reduced. No application was made on behalf of Mr Tompson for leave to re-argue that decision, nor was it submitted that it was wrong. Before dealing further with the appeal it is necessary to note that on 3 April 1998 Mr Tompson made an application to his Honour by a Notice of Motion, pursuant to s13(6) of the Dust Diseases Tribunal Act 1989, seeking to have him reconsider the portions of his judgment that dealt with the applicable rate to award for past Griffiths v Kerkemeyer. His Honour was requested to re-determine that rate at $18 per hour in lieu of $12 per hour, which he found in his original judgment. He declined the application, not because he thought it was without merit, but because he considered that he was constrained to do so by the decision of this Court in CSR Ltd & Anor v Bouwhuis (1991) 7 NSWCCR 223. Towards the conclusion of his reasons he said:- URJ JAMES HARDIE & COY PTY LTD v TOMPSON (Rolfe AJA) 3 "T am of the view, though reluctantly, that the principle of the rarity of the circumstances in which applications for reconsideration should be granted under s13(6), as referred to by the judgments from which I have quoted in Bouwhuis, is of greater importance than the merits in this case because of the consideration powerfully adumbrated by Mr Parker (with whom Ms Stewart, counsel for the first defendant, associated herself in her submissions in this respect) to the effect that there must be finality to litigation, and that it is not a sufficient justification for reconsideration that an argument put at a hearing, which appeared at the time to the trial Judge to be correct, now appears to that same person to be incorrect. This is, I think, one such case. For that reason and that reason alone, although I think the merits favour the plaintiff on this application, I think I should decline it and I therefore dismiss the Notice of Motion." That judgment was delivered on 3 April 1998. His Honour ordered each party to pay his and its own costs. No appeal or application for leave to appeal has been brought in respect of that decision. The only possible relevance of it to the present appeal is on discretionary issues to which I shall refer, although, on reflection, I do not think it is relevant to them. It cannot have any effect upon, nor can it influence, the view this Court should take in relation to the matters of substance argued on the appeal. They stem solely from the judgment of 12 November 1997. On 8 April 1998 there was a directions hearing before the Registrar of this Court at which James Hardie abandoned Grounds 6 to 16 of its Notice of Appeal leaving the deductibility of the payments as the only issue. At that directions hearing Goodyear advised that it would "probably not be pursuing its cross-appeal", and those representing Mr Tompson advised that he would be pursuing a cross-appeal on the Griffiths v Kerkemeyer damages. On the same day notice was given that not only was there a dispute about the rate of $12 per hour, but also that the duration his Honour allowed for future care was too short. This latter point was not pursued on the hearing of the appeal. Mr Tompson's Notice Of Cross-Appeal When the appeal came on for hearing Mr Tompson applied to bring a cross-appeal asserting that his Honour erred in:- (a) applying the rate of $12 per hour in relation to the commercial cost of services provided to him by his wife pursuant to the principles in Griffiths v Kerkemeyer; (b) failing to give reasons for applying that rate; (c) failing to consider the evidence of Dial-An-Angel "being the only evidence in relation to the commercial cost of services" so provided; (d) failing to apply the rate of $18 per hour in relation to those services; and (e) discounting his award in relation to those damages and doing so by the amount of 33.5%. Two preliminary questions were raised in respect of this application. Firstly, it was submitted that Mr Tompson required leave to cross-appeal pursuant to the provisions of s32 of the Dust Diseases Tribunal Act. That section provides a right of appeal to this Court by a party dissatisfied with a decision of the Tribunal, but an appeal will lie only by leave if it is from an interlocutory decision, a decision as to costs only, or an appeal from a "final decision" awarding an amount less than $10,000. The Act does not define "final decision", but it defines "decision" as including a "judgment, order and ruling". It was submitted on behalf of James 4 UNREPORTED JUDGMENTS Hardie that this was an appeal from the award of damages in relation to the Griffiths v Kerkemeyer claim, which did not exceed $10,000 and, accordingly, leave was required. It was submitted on behalf of Mr Tompson that the relevant figure to which regard had to be had was the total amount of the judgment, which obviously exceeded $10,000. It was further submitted that the fact that one was only looking to a component of that judgment, which in itself may not exceed $10,000, was not the appropriate test. In James Hardie & Coy Pty Ltd v Newton Handley JA said, p731:- "Mr Newton had a single cause of action for damages for the personal injuries he suffered as a result of contracting mesothelioma: Brunsden v Humphrey (1884) 14 QBD 141 and Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 780. At common law, which applies without modification in this case, these damages must be assessed once, and once only, by the award of a single capital sum to compensate the plaintiff for all his losses, past, present and future." Stein JA, with whom Cole JA agreed, approached the matter on the basis that the issue was whether collateral benefits were deductible from common law damages: p734. His Honour said, on the same page, that if the respondent in that case had been making a claim for economic loss, the pension payments would have been deductible. In my opinion, the relevant words of s32 direct attention to the "final decision". In this case that was his Honour's judgment for Mr Tompson which was for an amount in excess of that for which leave to appeal is required. Once that is established the fact that only a component of that judgment is attacked does not, in my opinion, mean that leave to appeal is required. The legislature has shown, as I will demonstrate, that it is well able to accommodate the position when it wishes to make an appeal on the component parts of a decision subject to leave. It was submitted on behalf of James Hardie that the decision of this Court in Dunn v Ross Lamb Motors & Anor [1978] 1 NSWLR 26 required the Court to look at the individual components, which were in issue on the appeal, to determine the amount involved. That is undoubtedly so having regard to the terms of the legislation there under consideration. In that case the Court was concerned with s130 of the District Court Act 1973, which provided that an appeal lay to the Supreme Court:- "Where the application or appeal involves directly or indirectly any claim, demand or question to or respecting any property or any civil right amounting to or of the value of.." At the relevant time leave was not required if the amount so involved was $3,000 or upwards, but otherwise it was. In that case the plaintiff had been awarded $10,562.46, which the trial Judge had reduced by twenty five per cent, ie $2,640.61, for contributory negligence. The matter sought to be put in issue on the appeal was the amount of contributory negligence. Reynolds JA, with whom Moffitt P and Hope JA agreed, noted that the appeal did not seek a new trial on all or any issues, but was "only against the finding of contributory negligence". His Honour stated that if the wording of the District Court Act had followed 35 of the Judiciary Act 1903, there would be no doubt about the competency of the appeal, because it would be in respect of a judgment given or pronounced in respect of a matter at issue amounting to $3,000. He referred to Moller v Roy (1975) 132 CLR 622 at p624, and continued, p28:- "The framers of the District Court Act 1973 were not faced with the same problem, and have not chosen to URJ JAMES HARDIE & COY PTY LTD v TOMPSON (Rolfe AJA) 5 relate the test for appeals as of right to the amount of the judgment below. It is the appeal that must involve directly or indirectly the claim, demand or question to or respecting any property or any civil right amounting to or of the value of $3,000 or upwards. This appeal as constituted plainly does not involve such a matter, and leave is required." (His Honour's emphasis.) That statement, in my respectful opinion, points up the difference between the two statutory provisions and, having regard to the amount for which his Honour ordered judgment in the present case, there is an appeal as of right, notwithstanding that only a component of that judgment, which concerns an amount which does not exceed $10,000, is involved. The second objection is that the cross-appeal is out of time. So much was not in issue and the question was whether leave should be granted to extend the time. James Hardie submitted that leave should not be granted essentially because it had been required to contest the review proceedings before Armitage J on 3 April 1998 and, notwithstanding that it was successful in its opposition to the orders Mr Tompson then sought, it was not awarded its costs. Rather his Honour ordered that each party pay his and its own costs. In these circumstances it was submitted that not only had Mr Tompson availed himself of a potentially available remedy in which he had failed, but that James Hardie had been put to the expense of successfully opposing that. In this way it was submitted James Hardie suffered prejudice, such that the time should not be extended. On the other hand from the time of filing its Notice of Appeal until 8 April 1998 James Hardie had had in issue the appropriateness of the Griffiths v Kerkemeyer award. In those circumstances it was reasonable to anticipate, at least until 8 April 1998, that that would be an issue on the appeal, although if James Hardie had not been successful in contesting his Honour's findings that would not have meant, of itself, that Mr Tompson would have had that part of the judgment reconsidered, in the absence of a formal application on his part. This is a matter which I think can be taken into account in considering any assertion of prejudice. So far as that matter of asserted prejudice is concerned it could, in my opinion, have been sought to have been overcome by seeking leave to appeal against his Honour's decision not to award James Hardie, which was undoubtedly the successful party on the review application, its costs. No such application was made and, in the circumstances, it cannot be said that James Hardie has suffered any prejudice. Even if I be wrong in this view, I am of the opinion that the relevant prejudice, for present purposes, is a prejudice relating to the way in which the party complaining of it has conducted the litigation, or is prejudiced in meeting the claim being propounded. In the absence of prejudice of that type, and having regard to the particular circumstances of this case, I would be prepared to extend to Mr Tompson the time for filing the Notice of Cross-Appeal. The Court decided that it would hear argument on the two preliminary points and the substance of the appeal and give its decision on all matters at the one time. I would propose that the objection to Mr Tompson's cross-appeal on the ground that leave is required be rejected, and that Mr Tompson be granted an extension of time to bring the cross-appeal. The Substance Of Mr Tompson's Cross-Appeal Before turning to the precise complaints raised by the cross-appeal to which I have referred, I should record that this matter was heard at first instance as one of extreme urgency because of the critical medical condition of Mr Tompson. His Honour gave an ex tempore judgment and, we were informed from the Bar table 6 UNREPORTED JUDGMENTS without objection, that he indicated to the parties during the hearing that he proposed to do so. The judgment ran to some twenty five pages dealing with the various heads of damage. It is obvious that his Honour relied upon the submissions made to him on the evidence and, in effect, "argued out" with counsel during submissions the appropriate orders to make. This, if I may say so with respect, was a very sensible course to take having regard to the exigencies of the situation. It also meant, in my opinion, that it was incumbent upon counsel to afford his Honour every assistance, which, from the submissions which have been transcribed and form part of the appeal book, they did. However, in considering any criticism of his Honour's reasons, it is appropriate to do so against this background, although if those reasons demonstrate appellable error or errors, the fact that the proceedings were dealt with in this way is not a reason why any error should not be corrected. The decision in Griffiths v Kerkemeyer established that in general the value of gratuitously rendered services should be calculated by reference to their standard or market costs, the justification for the allowing of such compensation being the need for the provision of the services by reason of the defendant's negligence. In Van Gervan v Fenton (1991-1992) 175 CLR 327 (a decision of all Justices of the High Court) the question was revisited. Whilst the propositions that generally speaking the value of the services should be assessed by reference to standard or market costs, and that the services must be required to fulfil a need were repeated, there was a division among the Court as to the regard to be had to services, which a person, and particularly a wife, would have rendered to the injured party in any event. As I understand it Mason CJ, Toohey and McHugh JJ in their joint judgment, and Gaudron J in her separate judgment concluded that it was inappropriate to have regard to that. Brennan J, and Deane and Dawson JJ in their joint judgment, allowed exceptions in limited circumstances. It was also acknowledged that the award of such damages is not a precise exercise. In the present case his Honour was called on to assess the level at which Mr Tompson should be compensated, having regard to standard and market costs, for the fulfilment of the need created by the wrongful conduct of Goodyear and James Hardie. Put shortly the issues were whether he approached that task having regard to the evidence of the standard or market costs in the context of fulfilling the need. So far as the future was concerned the fulfilment of the need demanded that he should have regard to the vicissitudes, both favourable and adverse, in the context of a terminal illness which would shortly end Mr Tompson's life. There could be no doubt on the evidence that Mrs Tompson will continue to render services until Mr Tompson's death, subject to her not experiencing an adverse vicissitude such as injury or ill health, nor that as Mr Tompson becomes more ill there will be greater demands on her and also the need for more professional help. His Honour was acutely aware that in this latter regard he must be careful against allowing "overlapping" or "double dipping". There was, accordingly, committed to his Honour the discretionary task of assessing damages conformably with the principles to which I have referred and the way in which the case was presented to him. It is only if it appears that he has not applied the applicable principles, or has reached a manifestly unreasonable decision from which the proper inference is that he did not apply the proper principles, that appellable error will be demonstrated. URJ JAMES HARDIE & COY PTY LTD v TOMPSON (Rolfe AJA) 7 The Trial Judge's Approach His Honour commenced to deal with this head of damage at red appeal book, ("RAB"), p40. He said:- "The plaintiffs claim under this head is that for a short period of time, for three weeks or so following his surgery on the date abovementioned, he was cared for intensively by his wife, and that since then until the present time, he has received care from her, principally in the form of cooking for him in a more energetic and enterprising way in the way described above, and providing psychological support as well as attending to him when he wakes at night, and that this process will continue in a greatly increased way until his death. Without recording the submissions of counsel in relation to these issues, which are recorded on the transcript, and which were respectively to the effect that I should award somewhat above and below what I propose to award, the damages I propose in relation to the services of the plaintiff's wife pursuant to the principles in Griffiths v Kerkemeyer, are as follows.." The rate per hour his Honour applied was $12 and in respect of each figure he "rounded out", the amount. The first amount was for three weeks' care following surgery at four hours a day for seven days, which, calculated on a strictly mathematical basis, came to $1,008. His Honour allowed $1,000. There can be no complaint about this. The second period was for fourteen weeks for two hours per day after the initial period, which has already been undertaken, and which, on a strictly mathematical basis, came to $2,352. His Honour rounded this out to $1,500. The third and fourth periods related to future care. The first is for four hours per day for twelve weeks, which calculated mathematically is $4,032 and which his Honour rounded to $3,000. The second is for eight hours per day for eight weeks, which calculated mathematically comes $5,376 and for which he allowed $3,000. His Honour, accordingly, reduced the second amount by approximately thirty four per cent; the third amount by approximately twenty five per cent; and the fourth amount by approximately forty five per cent. Mr Tompson has submitted there should have been no such deduction or, if there was, it should not have been to that extent. His Honour was satisfied that Mr Tompson had received care from his wife and that the amount of the care would "greatly increase". He also allowed for the contingency for which counsel on behalf of James Hardie contended that Mr Tompson would require the care of professional carers in the future. He continued:- "The rounding out process which I have engaged in above, it will be observed, has resulted in the plaintiff receiving somewhat less than the total calculation according to the figures I have set out above. The reason I have engaged in this rounding out process is that I must reflect the contingency that an increasing proportion of the plaintiffs care, which proportion is impossible to calculate with precision, will be afforded by professional carers as the plaintiff becomes more and more infirm, and as the process of caring for him day by day becomes more and more difficult for his wife to undertake alone. I have therefore, I hope, done justice to the defendants' submissions that the plaintiffs wife will not care for him alone and without assistance for the entirety of the time until he dies, despite her and the plaintiff's best intentions in this respect. I have also taken into account in the rounding out process the fact that as Mr McIntyre submits, some of the activities which the plaintiff's wife will ordinarily undertake are not particularly 8 UNREPORTED JUDGMENTS personal, nor involving day by day intimate contact with the plaintiff (for example such matters as shopping and making beds and the like) and it may well be that as was put to her, the plaintiffs wife will more readily seek the assistance of others with these matters in the future." This passage, in my respectful opinion, makes clear that that to which his Honour was directing his attention was the compensable need the defendants had created. Towards the end of his reasons on this aspect his Honour said, RAB44:- "The customary charge in the community, Mr McIntyre submits, is to be found in the report of Dial-An-Angel signed by Dena Blackman, both annexed to the particulars pursuant to Pt33 r8(a) filed in this case and exhibited in the plaintiffs case, where the figure of $12 an hour is referred to. This figure indeed forms the basis of my calculations in relation to the plaintiffs award of Griffiths v Kerkemeyer damages in respect of his wife's gratuitous services as set out above." The report of Ms Blackman, which was admitted without objection, commences at RAB16 and is dated 3 November 1994. It is not a report in respect of Mr Tompson, but of another client of his solicitors. I do not say this critically, but to explain the date. At RAB21 it stated that the live-out (visiting) domestic assistance, on an "as required" basis, was $50 minimum charge for three hours and $12 net for each additional hour. Accordingly for the first three hours the amount would be $16.66 per hour, but if the shift was of eight hours it would be $50 plus $60 ie $110 or $13.75 per hour. On the following page it stated that there was a $2.50 per hour loading to those rates if personal care was rendered in conjunction with domestic assistance. A question would arise whether that loading was justified, but, if it was it would increase the rate per hour for an eight hour shift to $16.25. This may well be the reason why Mr Rush, in his submissions to his Honour, adopted primarily the figure of $16 as the proper hourly rate. However, I have been unable to find anything in the submissions which drew his Honour's attention to the loading. I can well understand that if his Honour was referred only to the first figures the evidence of the commercial rate would not justify a figure of $16 per hour. The figure for which Mr Tompson contended on appeal was $18 per hour, although if the Court is of the view that a lesser figure should be awarded it was not suggested that the Court should not give effect to that view. I have not been able to find any submission in which Mr Rush contended to his Honour that $18 was the correct hourly rate. Rather the final submissions ranged, on the basis of the Dial-An-Angel report, from $12 to $16 per hour, with Mr Rush contending for $16. The submissions on this aspect are to be found in the black appeal book, ("BAB"). The first issue was whether such damages could be awarded at all in this claim. That is no longer in issue. Nextly Mr Rush's submissions considered the periods for which such care would be required. There was no dispute before us that his Honour allowed the appropriate periods. Reference was made to the evidence of Dr Gianoutsos, which established that Mrs Tompson's role would increase, to which his Honour responded that he had to take into account the likelihood, as Dr Gianoutsos put it, that the District Nursing Service would assist and balanced that against that increase "in order to prevent double recovery". Mr Rush responded:- "Yes, your Honour, we would submit that your Honour should do that." (BAB131) URJ JAMES HARDIE & COY PTY LTD v TOMPSON (Rolfe AJA) 9 Thus his Honour was entitled to approach the matter on this basis. His Honour sought assistance in carrying out that exercise and it is clear from the transcript that he discussed with counsel the matters concerning him. At BAB136 Mr Rush said that the appropriate award depended "on the individual circumstances of any given case...", which must obviously be correct. His Honour then started to work through the figures with Mr Rush in detail. In answer to a question from his Honour, Mr Rush said that the mathematics was "very much dependent on where your Honour sees it going": BAB139 line G, and, later on that page Mr Rush submitted that $21 per hour came from the Dial-An-Angel report, although when Mr McIntyre questioned that Mr Rush seems to have withdrawn the suggestion, saying it was probably referable to a gardener. Mr McIntyre was then contending for $12 per hour. At BAB140 his Honour directed attention to $50 for the first three hours and $12 for each additional hour and Mr Rush pointed out that $50 for the first three hours was in excess of $18 per hour, whereupon Mr McIntyre said:- "Perhaps whilst my friend is doing that, I could just observe, in Luntz, the authorities would suggest - it states that you cannot look at a minimum rate because the person providing it is there, there is no minimum charge and one looks at the actual hourly rate that could be charged, and that also in Luntz, at the top of p216, the allowance should be based on a shorter period of time with a meal charge, that would seem to suggest that one looks at the hourly rate not the minimum.." His Honour said:- "Yes. So, that it takes it back to $12 an hour does it not?" with which Mr McIntyre agreed and to which Mr Rush responded that Mr Tompson was contending the appropriate rate was "of the order of $16 per hour, having regard to the date of this document and the range of figures that are set out in it". Mr McIntyre said he would not be agreeing with $16 per hour, but contending for $12 per hour, whereupon Mr Rush said "we contend that $16 an hour, having regard to the rate would be an appropriate rate for your Honour to award". His Honour said:- "T am a bit of the view that $12 might be more appropriate, frankly, if that is the evidence and the defendant wants me to adhere to it, I find it hard to see how Ican make some sort of judicial assumption or take judicial knowledge of the fact that things have gone up since 1994, they might not have in relation to a certain area - probably have but I do not know about it." At this stage it is quite clear that Mr Rush was contending for $16 per hour having regard to two factors, namely that the report was dated 1994 and the range of figures set out in it. His Honour was obviously aware that there could have been an increase, but he considered that there was no evidence to that effect. I should note that the submissions do not contain any reference to the additional $2.50 per hour and, particularly at BAB143, Mr Rush's submissions were based upon $16 per hour or $12 per hour. Counsel returned to their submissions on this aspect at BAB151 and his Honour then went through the figures, worked out the precise mathematical figures and discounted them. Mr Rush opposed the discount, but his Honour took the view that he should allow a discount and a rate of $12 per hour. 10 UNREPORTED JUDGMENTS There was some suggestion that Mr MclIntyre's submission based on what appeared in Luntz may have led his Honour to a misapprehension. I am not satisfied that if his Honour was under any misapprehension that was carried into his reasons and, in any event, Mr Rush had ample opportunity, if he thought that there may have been some basis for a misunderstanding, to remedy it. His Honour discounted the second figure from $2,352 to $1,500. He did so in the light of an express submission by Mr McIntyre, BAB152, "that there has been no specific need created by this disability yet, which requires other than simple emotional support which one would expect from friends or family whether they are present or not". The submission was cast in the light of need and the requirement for his Honour to exercise his discretion. No submission was put by Mr Rush that in considering need there was no evidence to support the submission or to invalidate the view to which his Honour came. His Honour's reasons have to be considered in the light of the detailed submissions the parties put to him and of his exposing, during the submissions, the reasoning processes he intended to adopt. If those reasoning processes were appellably wrong and that error infected his judgment then the way in which the case was conducted would not, necessarily, preclude this Court's interfering. However, I think it is clear from a reading of the transcript that his Honour had a clear understanding of the issues and, in particular, that he appreciated that the range of figures being submitted to him was from $12 per hour to $16 per hour. Thave also noted that there was no submission put to his Honour of the additional $2.50 per hour. Conclusions In their submissions Counsel accepted that the Dial-An-Angel report provided the starting point for determining the rate to be awarded. This is obviously correct. Thereafter, and consistently with the relevant principles, his Honour was obliged to find the market cost for services, on the basis of the evidence and the submissions made to him, and the amount by reference to that cost and hourly needs that Mr Tompson needed by way of compensation for the injury the defendants caused him. This included an assessment of the amount of time that would be required towards the end of his life, so far as Mrs Tompson was concerned, when more specialised help would be necessary. His Honour directed himself to all these issues. No criticism was directed at the first minor discount his Honour made. Significant criticism was directed to the second, not on the basis, necessarily, that there was a discount, but because of the amount of the discount. However, in my opinion, his Honour was entitled to take into account the matters to which I have just referred and to accept, at least to the extent he did, Mr MclIntyre's submission. I am not in any way satisfied that the exercise of his discretion in awarding damages is shown to have been infected with discernible error of principle or failure to have regard to the evidence, or to be so unreasonable as to be the product of error, which cannot be ascertained. The third and fourth elements can, in my opinion, be treated essentially in the same way, although I think there are other stronger reasons for supporting the discounts so far as they are concerned. Firstly, one must have regard to the vicissitudes, which apply not only to Mr Tompson, but also to Mrs Tompson. In having regard to them it is necessary to bear in mind that they apply both favourably and adversely, but in the present context they also apply to Mrs URJ JAMES HARDIE & COY PTY LTD v TOMPSON (Rolfe AJA) 11 Tompson, who through injury or illness may become unable, in the future, to give Mr Tompson the assistance she is now providing. That is something to which his Honour was entitled to have regard. The awarding of damages is essentially a discretionary exercise. Before this Court will interfere with an award of damages it must be satisfied that it is either so large or so small that it falls respectively above or below what is regarded as the appropriate range. The consideration of a range in dealing with damages is an acknowledgment that different minds will bring to bear upon the facts and circumstances a different assessment of the proper amount required to fairly and justly compensate a plaintiff, without being over generous or unduly niggardly to him or her in approaching that task. The award of damages is, of necessity, in the circumstances of the present case one on which minds can justifiably differ. However, before this Court interferes with an award made by a specialist tribunal after a detailed consideration of the evidentiary material, it must be satisfied that there has been a failure to properly address the relevant principles, or that the result is so unreasonable that it should not be allowed to stand. My review of his Honour's reasons does not lead me to the conclusion that he fell into appellable, or indeed, any error. In my opinion the cross-appeal should be dismissed. Costs Submissions, both oral and written, in relation to costs were inordinately lengthy. Before dealing with them, to the extent to which I think it is necessary, I should note what I understand to be the result of the proceedings. Firstly, James Hardie, as appellant, has been successful in the appeal to the extent that it pursued the one matter and, indeed, it had to be successful on that issue in this Court. Equally it has been successful in resisting Mr Tompson's cross-appeal which, I should have noted earlier, was supported by Goodyear. On the other hand James Hardie abandoned many of its grounds of appeal on 8 April 1988. Uninstructed by the attitude of the parties I would have formulated orders to give effect to these various results as between James Hardie and Mr Tompson. However, the last written submissions of those parties acquit me of the necessity to deal with all those problems. Mr Gee submitted:- "Tf the Court of Appeal is minded to find for the Appellant on the cross-appeal, the appropriate order is that there be no order as to the costs of the cross-appeal or of the appeal. (That way, the first respondent is not out of pocket for the appellant's costs, but nor is the appellant out of pocket in respect of costs because it effectively gets a 'set off' as between the portion of the first respondent's costs it will likely be ordered to pay in respect of the appeal and the costs the first respondent would otherwise be ordered to pay to the appellant in respect of the cross-appeal)." (Mr Gee's emphasis.) Mr Rush submitted:- Scenario B- 2.2.1 Cross-appellant has right to appeal - leave to appeal out of time is granted - cross-appellant loses appeal - 2.2.2 Each party pay own costs on basis of partial success." Each written submission is addressing what has happened. There is, as I see it, no difference in substance between the submissions. I propose, therefore, that as between James Hardie and Mr Tompson the order for costs be that each party pay its and his own costs of the appeal and the cross-appeal. 12 UNREPORTED JUDGMENTS The only question remaining is the costs as between James Hardie and Goodyear. Although Goodyear played no part in the appeal, in the sense of directing any submissions to the Court on the substantive orders, it submitted that its costs of that cross-appeal be borne by James Hardie on an indemnity basis because, it was submitted, the appeal was not initiated by it; it consented to the application for expedition, it consented to the orders sought on that application; it prepared an application for the filing out of time of a cross-appeal, a supporting affidavit and a proposed cross-appeal which was then not pursued; and it was unaware that James Hardie proposed to change its posture from that adopted originally. The submissions on behalf of Goodyear contained a number of assertions, which I have no reason not to accept as such, but which are not the subject of evidence. This was pointed out to Ms Stewart on the hearing of the appeal. Although I have read all the submissions with care and sought to analyse the position for which Ms Stewart contended, it seems to me that the position adopted by Goodyear on the appeal really did not require it to take any active part in the appeal. In the end I am not satisfied that Goodyear is entitled to its costs, it not having been successful in any aspect of the appeal. On the other hand I do not see any reason why Goodyear should contribute towards the costs of James Hardie, which has, in effect, given up such rights to costs it may have against Mr Tompson. In the result I am of the view that Goodyear should pay its own costs of the appeal. 1. The appellant's appeal in relation to Ground 1 of its Notice of Appeal filed on 20 November 1997 be allowed. 2. The judgment of the Dust Diseases Tribunal of New South Wales dated 12 November 1997 be set aside and in lieu thereof judgment be entered for the first respondent in the sum of $128,429.12. 3. The first respondent be granted leave to file a cross-appeal out of time. 4. The first respondent's cross-appeal be dismissed. 5. No order as to the costs of any party. Counsel for the appellant: C Gee QC/D Graham Solicitors for the appellant: Allen Allen & Hemsley Counsel for the first respondent: J T Rush QC/R Sorby Solicitors for the first respondent: Turner Freeman Counsel for the second respondent: D G Stewart Solicitors for the second respondent: Hunt & Hunt