A judgment on liability leaves the amount to be decided. Order 10 Division 3 of the National Court Rules 1983 governs how that is done.
Rule 17
(1) Subject to sub-rule (2), where judgement is entered for damages to be assessed, the proceedings shall, unless the Court otherwise orders, be set down in accordance with Division 1 for trial for assessment of damages under the judgement.
(2) Where judgement is entered against a party for damages to be assessed and the proceedings are carried on against that party on any claim not determined by the judgement, or against any other party, the assessment shall, unless the Court otherwise orders, be held together with any other trial in the proceedings.
Rule 18 — the same applies to a judgment for the value of goods to be assessed, with or without damages.
It is set down under Division 1 like any other trial, and conducted under Division 2 — opening, evidence, closing addresses. The plaintiff calls witnesses and tenders documents, and the defendant may cross-examine and call evidence in answer.
Sub-rule (2) avoids the obvious waste of two hearings where part of the case continues. If a claim against a second defendant is still live, the assessment against the first is heard with it.
Three routes to an assessment
| Route | Provision |
|---|---|
| Default judgment for unliquidated damages | Judgment on liability; damages assessed — O 12 Div 3 |
| Summary judgment on liability | O 12 r 38 |
| Separate decision of liability as a question | O 10 Div 4 |
A defendant who has had judgment entered against them on liability may still contest every element of the claim. That is expressly preserved by Order 8 Rule 21(3): an allegation of the suffering of damage, or of an amount of damages, is taken to be traversed unless specifically admitted.
So the plaintiff must prove the loss with evidence — receipts, invoices, pay records, medical reports, valuations. A plaintiff who obtains default judgment and then arrives at the assessment with nothing but assertion will recover little.
Rule 19
(1) Where damages are to be assessed in respect of —
(a) any continuing cause of action; or
(b) repeated breaches of recurring obligations; or
(c) intermittent breaches of a continuing obligation,
the damages shall be assessed down to the time of assessment, including damages for breaches occurring after the commencement of the proceedings.
(2) This applies to assessments under this Division or otherwise.
Ordinarily a plaintiff recovers for loss suffered up to the date the proceedings began. Rule 19 extends recovery to the date of assessment where the wrong is continuing or recurring — a continuing trespass or nuisance, unpaid instalments falling due under a contract, recurring rent.
Note the reach of sub-rule (2): the rule applies to assessments “or otherwise”, not only to assessments under Division 3.
It sits with Order 8 Rule 17, under which a party may plead any matter notwithstanding that the matter has arisen after the commencement of the proceedings.
What to bring
- Plead the loss properly first. In a death or personal injury claim, Order 8 Rule 33 requires full particulars — injuries, treatment, permanent disability, each item of special damages including wages and other economic loss, present and future, average weekly earnings before and after, employer payments during incapacity, and dependants.
- Do not quantify general damages in the prayer. Rule 33(2) requires the claim to conclude with a summary of relief without quantifying either general damages or costs.
- Prove special damages item by item, with documents.
- Call the expert evidence foreshadowed at the mention, where expert or independent assessment is a checklist item.
- Deal with mitigation. A defendant will say the loss could have been reduced.
- Ask for interest — see interest on a judgment.
A defendant is entitled to appear, cross-examine and call evidence even after judgment on liability. Two further tools are worth remembering: a medical examination under Order 9 Division 4, and a payment into Court, which puts the plaintiff at risk on costs if they recover no more than the sum paid in.
A different regime
Exemplary damages. The Claims By and Against the State Act 1996 restricts what may be awarded against the State — see exemplary damages against the State.
Getting paid. There is no execution against the State. Satisfaction follows the statutory certificate process, not Order 13 enforcement. See how a judgment against the State is paid.
Where the claim is for the benefit of a disabled person, remember Order 5 Rules 30 and 32: the Court may direct how money recovered is dealt with, and money recovered for such a person is ordinarily paid into Court rather than paid out.
The commonest error at an assessment is to treat the earlier judgment as having settled more than it did. A default judgment, or a judgment on liability after a split trial, resolves whether the defendant is liable. It resolves nothing about how much.
So every head of loss must still be proved by admissible evidence at the assessment: medical reports for injury, wage records and employment evidence for lost earnings, receipts and invoices for out-of-pocket expenses, and valuation evidence for property. A plaintiff who arrives with a schedule of figures and no supporting material will recover only what the evidence carries, and may recover nominal damages only.
Nor does the earlier judgment insulate the plaintiff from the pleadings. Damages not pleaded, and particulars not given, may not be recoverable — which is why heads of loss should be pleaded fully at the outset rather than assembled after judgment.
Sources
- National Court Rules 1983 — O 5 rr 30, 32; O 8 rr 17, 21, 33, Div 6; O 9 Div 4; O 10 rr 17–19, Divs 1–4; O 12 Div 3, r 38; O 22
- Claims By and Against the State Act 1996 — ss 12–14
- Wrongs (Miscellaneous Provisions) Act (Chapter 297)
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.