SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The respondents were each found to have unlawfully converted the appellant's property when, in February 1997, they sold the appellant's belongings which were being stored by the first respondents after the appellant had vacated rented premises managed by the second respondent.  There is no appeal in respect of those findings, this appeal turning solely on the question of the quantum of awarded damages.

2. The appellant's first ground of appeal is that the learned trial judge erred in law in not accepting the appellant's evidence as to which chattels were taken possession of and converted by the respondents. This ground was not developed in the appellant's oral argument or in the appellant's written outline relied upon at the appeal. In any case, the learned primary judge gave sufficient reasons to justify his preference for the evidence of the first respondents' employees and their contemporaneous inventories of goods originally taken for storage and those later returned to the appellant.

3. The appellant's primary submission is that the learned trial judge erred in refusing to accept the appellant's evidence as to the value of items taken. This evidence was largely given by way of a schedule to her affidavit in which she noted:

"13. In listing my chattels which are the subject of my claim in these proceedings, I have endeavoured as best I can to describe each item and its approximate size and what it was constructed of my estimations of size are not precise.

14. I have also endeavoured to estimate the date which I acquired each item, however I cannot be certain of these dates. …

15. ... I cannot be certain of where I purchased each individual item or otherwise where I acquired each individual item.

…

16. Similarly, I have endeavoured as best I could to state the price which I paid for each item.  I cannot be certain of the exact price which I may have paid for each item in that all of my financial records were taken by the First [Respondents], along with my other chattels."

The schedule, which comprised in excess of 60 pages, was divided into a number of columns and included the following headings: "Particulars of Chattels", "Quantity", "Price" and "Value".  Whilst each item listed in the schedule was given a monetary figure by the appellant under the heading "Value", the column headed "Price" invariably remained blank.  In addition to the schedule, three receipts for items purchased from Retravision and the appellant's statement of account with AGC were also exhibited to the affidavit.

4. His Honour found the appellant's evidence as to the value of each item was inadmissible as it was opinion evidence which the appellant was not qualified to give.

5. The evidence of the appellant as to her belief as to the value of the goods was opinion evidence; opinion evidence is not ordinarily admissible unless the witness is an expert in such matters;^[1] the appellant was not.  The appellant was, however, entitled to give evidence as to the price she paid to purchase an item as that is evidence of a fact, not opinion, and is relevant to, although not conclusive of, the subsequent value of the item.

6. The approach taken by the primary judge in excluding the appellant's evidence as to the value of the goods was consistent with that taken in Wise v Musolino^[2] where evidence of a non-expert police constable as to the value of a motor vehicle being less than £10 and therefore within the summary jurisdictional limit was held to be inadmissible.  The court noted without comment that the evidence at trial disclosed the vehicle had been purchased for £10 and that considerable alterations to the vehicle had been effected in respect of which in excess of £12 had been agreed to be paid.  The court further noted that:

"… any witness may express his opinion as to the value of an article where no specialized knowledge is necessary, and the Court may act on it, as in The King v Beckett, (1913) 8 CrApp 204. …

In the present case the justices were not competent to find the value of the vehicle without some skilled assistance.  The reason for admitting opinion evidence of experts as to value is that if the opinion be accepted by the Court it is the basis of the Court's judgment on a fact which without evidence would 'remain unproved'.  See Starkie on Evidence, 4th ed., p. 273.  The vehicle in question must have a market value, and for a witness as to value to be competent he must be acquainted with the current market values of second-hand motor vehicles.  No such qualification can be possessed by [the police constable]."

7. The appellant relies on the following comments in The Iron-Master,^[3] a 19th century decision of Dr Lushington in the High Court of Admiralty:

"… The best evidence is, first, the opinion of competent persons who knew the ship shortly previous to the time it was lost: that evidence is manifestly intitled to most weight, because, assuming their competency to form a just judgment, they had a personal knowledge of the state and condition of the vessel herself, whereas all other persons, however skilful, could only draw general inferences from their acquaintance with the prices of vessels somewhat similar about the same time."

8. This statement refers to an "opinion of competent persons", that is, the opinion of witnesses with some expertise in valuation of the items, something the appellant lacked.

9. The appellant also relies on The Clyde^[4] and The Harmonides.^[5]  Both cases support the uncontroversial proposition that the original cost of an item is admissible, but not necessarily conclusive, evidence of its subsequent market value at the time of the loss.

10. The appellant's difficulty is that she gave no clear evidence of the price she paid for the items but rather purported to give evidence of their value in the schedule to her affidavit. His Honour correctly found such non-expert evidence inadmissible and went on to assess the value of the non-jewellery items in a schedule attached to his reasons for judgment, doing the best he could on the unsatisfactory evidence. The appellant has not shown any reason warranting an increase in those valuations.

11. The primary judge accepted the jewellery items claimed by the appellant had been converted by the respondents. His Honour noted:

"I suspect that in total [the jewellery] was worth a considerable sum.  The [appellant] is still entitled to be compensated for the loss of her jewellery and I am bound to err on the side of caution."

12. His Honour awarded the appellant $3,000 for the converted jewellery. The appellant claims this was inadequate on the evidence and that his Honour erred in taking a conservative approach to the value of the jewellery which the respondents had unlawfully converted, leaving the appellant unable to have her jewellery satisfactorily valued; in those circumstances, the most favourable valuation for the appellant should have been adopted unless the respondents produced the jewellery and contrary valuation evidence: see Armory v Delamirie.^[6]

13. In Ley v Lewis^[7] the Victorian Full Court limited the principle established in Armory v Delamirie to cases where there is no evidence of the description and condition of the converted property and where the appellant is unable to adequately describe the items and their condition.

14. The appellant did not give clear evidence of the price paid for any items of jewellery but purported to value it at $12,710, evidence correctly found to be inadmissible by the primary judge. His Honour found that the evidence of the appellant's valuer, Mr Stroud, which was based on depreciating the appellant's inadmissible opinion as to the value of items, was generally unacceptable but nevertheless demonstrated the upper limit of the replacement value of items, including jewellery.  The respondents' jewellery valuer, Mr Shorey, who was accepted by his Honour and preferred to Mr Stroud, found it impossible to value the items of jewellery from the information provided by the appellant.  There is little wonder that his Honour referred to the task of assessing quantum as "a nightmare".  His Honour rightly concluded that the evidence of the value of the jewellery was "entirely unsatisfactory" and, as he was unable to reach a figure from the valuation evidence of either expert, was compelled to arrive at his own assessment.  His Honour's assessment of $3,000 is considerably lower than the appellant's inadmissible valuation, but the primary judge was effectively left with no jewellery valuation.  In those circumstances, his Honour's assessment of the value of the jewellery at $3,000 is not inadequate.

15. The appellant's final submission is that the trial judge erred in refusing to award an additional sum by way of aggravated damages, whether as an independent head of damage or incorporated in a more generous award of compensatory damages.

16. His Honour declined to award separate aggravated damages but did award $7,000 for the hurt and distress caused to the appellant in losing personal items such as photographs, poems and her grandmother's ashes.

17. There is of course a distinction between aggravated damages and exemplary damages; the former are to compensate a plaintiff for the harm done by a wrongful act aggravated by the manner in which it was done, whilst the latter are to punish a defendant: see Uren v John Fairfax & Sons Pty Ltd.^[8]

18. The judge found that the appellant did not inform the respondents of her contact address as she should have done and that the respondents were not engaged in or motivated by personal malice. On those findings, it was inappropriate to award exemplary damages; nor was an additional award for aggravated damages required.

19. It follows that I would dismiss the appeal with costs.

20. PINCUS JA:  I have had the advantage of reading the reasons of the President.

21. The learned primary judge had before him evidence as to the value of the jewellery, given by the appellant plaintiff, and also evidence given by Messrs Stroud and Shorey. The evidence of the appellant was held to be inadmissible on the basis that she was unqualified to speak of jewellery values. Mr Shorey was helpful only in a negative sense. He said that he was unable to value the items of jewellery in question because there was inadequate information about those items. By way of example, Mr Shorey referred to insurance valuations he did which were dependent on the characteristics of individual gems, such as quality, size, cut, colour and clarity.  No such information was available to either of the experts called.

22. The judge had to assess damages as well as he could, despite the difficulties, as long as the proofs advanced were reasonably certain: Ratcliffe v Evans [1892] 2 QB 524 at 532-533, followed in Ray Teese Pty Ltd v Syntex Australia Limited [1998] 1 Qd R 104 at 110.  There was, in the present case, room for argument as to whether what was put forward in proof of the value of the jewellery taken was sufficient and the judge's assessment might have been open to criticism on the ground that it was a mere guess; but in my opinion the learned primary judge was right to take the course he did, which was to make what he regarded as a reasonable estimate, based on the unsatisfactory material available.

23. It was argued that the judge was in error in holding that the appellant's own evidence of value was inadmissible. Armory v Delamirie (1772) 1 Strange 506; 93 ER 664 is authority for the proposition that where, in an action for conversion of chattels, the defendant refuses to produce the chattels so that their description and condition cannot be proved, then it will be presumed in favour of the plaintiff that they are of the best condition and quality.  Those circumstances do not exist here; but in Smith Ltd v Great Western Railway Co [1921] 2 KB 237 at 258, Atkin LJ treated Armory v Delamirie as a "well known instance" of a wider principle expressed in the doctrine omnia praesumuntur contra spoliatorem.  Had it been the case that, because of the conversion, it was impossible or impracticable to establish the characteristics of the jewellery, so as to enable it to be valued properly, then consistently with the principle underlying the maxim the judge might have been justified in letting in the appellant's estimates of value, on the ground that it was the wrongdoer's fault that no better evidence was available.  Further, the English decision in Beckett [1913] 8 Cr App R 204, illustrates that courts need not be too rigid in insisting on special qualifications in proffered witnesses as to value;  some lay persons have sufficient experience to make worthwhile estimates of the value of common objects, for example, motor cars and houses.

24. In the present case, it is my opinion that the primary judge was right to exclude as inadmissible the appellant's estimates of the value of the jewellery. To supply a qualified person with such information about the characteristics of each piece as to enable a reasonable estimate of its value to be made would, no doubt, have been time consuming and tedious, but it could have been done.  It should be added that as the President's reasons point out, evidence of the original purchase price of each item would be admissible as some evidence of value; unfortunately, it is not clear from the schedule sworn to by the appellant that the figures given were statements of price.

25. The appellant also complains of what is said to be a failure to award aggravated damages. The judge held that many of the items in question had considerable sentimental value and that the appellant should be compensated "for the loss of property which cannot be replaced, to the extent that money can do so". His Honour referred to the loss of the ashes of a grandmother of the appellant and to other items having emotional significance. His Honour said:

"The loss of these items has caused considerable distress to the plaintiff.  In my view she is entitled to be compensated significantly for such loss.  I allow $7,000".

26. His Honour then went on to deal with and, it appears, to reject a claim for aggravated damages; this was done on the assumption that no part of the $7,000 was in that category. In Lamb v Cotogno (1987) 164 CLR 1 at 8, it was said that aggravated damages are "compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like".  The expression "and the like" presumably includes the matters referred to by Windeyer J in a defamation case, Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151:  indignity and hurt feelings.  It has been said that aggravated damages are available to compensate for conversion:  Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Tort R ¶81-397 at 63,535 per Batt J.

27. It appears to me that in awarding damages to compensate for the distress due to loss of items of sentimental but not commercial value, the judge did in fact award damages within the category defined in Lamb v Cotogno (above).  The judge having awarded damages to cover emotional hurt, it does not appear to me that there is any ground on which one could interfere with his Honour's assessment;  in that field the trial judge had a distinct advantage in having absorbed the atmosphere of the case and assessed the appellant's feelings about her loss.

28. It should be added that his Honour gave specific consideration to the question whether aggravated damages should be awarded on the ground that the respondents' conduct or any malice on their part justified such an award, in addition to the value of what was taken and compensation for emotional distress because of its loss. The judge, for reasons which appear to me to justify that course, declined to make an award on that basis.

29. I agree, for the reasons given above and in addition those set out by the President, that the appeal must be dismissed with costs.

30. JONES J:  I have had the advantage of reading the reasons of the President and Justice Pincus.  I agree with their separate reasons and the orders proposed.