5.1COUNSELS’ ADDRESSES – SUBMISSIONS REGARDING QUOTATION OF DAMAGES[1]

  1. As I said to you at the outset, I will now briefly summarise counsels’ final addresses. I say “briefly” because they are relatively fresh in your mind.
  2. Let me summarise the issues that counsel have identified and then, in short compass, refer to the competing arguments of each side on each issue.

….

(Set out the principal issues and the arguments on each issue of counsel in their final addresses. This may not be necessary if the issues have already been addressed in substance in the charge. For instance, in a transport accident at [16] and [17]).

  1. As I have said to you, it is the task of counsel to responsibly put arguments on behalf of their respective clients in relation to assessment of damages. As you have heard, Mr/s [X] on behalf of the plaintiff suggested appropriate compensation for economic loss as follows:

…..

(Set out the submissions put on behalf of the plaintiff under the various categories of damages)

Mr/s [Y] on behalf of the defendant(s) put the following submission:

….

(Set out the figures put on behalf of the defendant(s) under the various categories of damages)

  1. The first point I want to make is that you are not bound by these submissions. If one or other of the submissions accords with your assessment of damages, based upon the evidence, you may use it as you see fit. If it does not, you should reject it.Remember: it is your assessment only which is important.

Judicial Note:
  • A submission to a jury in relation to prospective findings on economic loss is appropriate. It has been the custom for many years for counsel to put figures for pain and suffering and loss of enjoyment of life before a jury. Query whether counsel’s suggested figures in relation to ‘pain and suffering’ truly constitute a submission – Barbaro v R (2014) 88 ALJR 372, 379-380 [42]-[43] in the context of sentencing.
  • It is a matter for the Judge as to whether counsel should be permitted to put figures in relation to pain and suffering.
  • There may be cause for a Judge to adversely comment upon figures put by counsel. For example:
First,
  • Where the figures put represent the personal opinion of counsel, rather than a submission – see Wilson v Collingwood Store Pty Ltd [2014] VSCA 20 at [63]-[70];
  • Where a comparison is made to damages awarded in other cases. It is not the task of the jury to assess damages by reference to ‘comparable sales’ – Wilson supra at [72]. As to principle see Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118;
  • Where figures put by one counsel were said to be ‘ridiculous’ and were known by that counsel to be so – see Baulch v Lyndoch (2010) 27 VR 1 at [27]-[28];
  • Where the figures put were so excessive or so miserly, that no jury, properly instructed, could make such an award;
  • The charge to a jury in such circumstances will depend upon what was said and its capacity to inappropriately influence the jury.
Second,
  • Depending the seriousness of the error of counsel in the course of his/her address, a Judge may interrupt counsel in the course of the address – see Rees v Bailey Aluminium Products Pty Ltd (2009) 21 VR 478, 509 [99] [99].

Last updated: 14 April 2014

[1] Note: This charge is a guide only, and may require modification to fit the facts of an

individual case