Bresatz v Przibilla [1962] HCA 54

High Court of Australia Dixon C.J. McTiernan, Windeyer and Owen JJ. Bresatz v Przibilla [1962] HCA 54

ORDER Appeal allowed. Order of the Supreme Court of South Australia varied by substituting the sum of £23,715 14s. 0d. for the sum of £16,576 3s. 5d. wherever mentioned in the said Order and substituting the sum of £3,659 14s. 5d. for the sum of £799 5s. 0d. wherever mentioned in the said Order. Respondents to pay appellants' costs of the appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 24 Dixon C.J.

I have had the opportunity of reading the judgment of Owen J. and I agree in his Honour's conclusion and his reasons.

McTiernan J.

I agree that the order of the Supreme Court of South Australia should be varied in the manner stated in the order made by this Court.

I agree with the reasoning of Windeyer J.

Windeyer J.

The main facts of this case are set out in the judgment of my brother Owen. I need not repeat them. It is easy to understand the difficulty that the learned trial judge felt in assessing damages, for it is almost impossible to arrive at any logically satisfying conclusion in a case like this. Nevertheless, for reasons that I shall give, I consider that his Honour's assessment was erroneously based, inadequate, and that we should amend it.

Dealing first with the case of the wife: The general damages she has suffered include two elements of economic loss that, although not in any exact sense predictable are yet in some degree susceptible of calculation; and they should, I think, be the starting point of any attempt to assess damages. The first of them is the loss that arises from the destruction of the plaintiff's earning capacity, commonly described as a future loss of wages. The second is expenditure that in the future may be expected to be incurred as a direct consequence of the plaintiff's injuries. The amounts which should be awarded under these heads are, of course, not precisely determinable, for some of the relevant factors are at best uncertain inferences. And I appreciate that attempted calculations sometimes only give a pseudo-scientific appearance to what in the last resort is an arbitrary determination, not a necessary conclusion from ascertained fact. Nevertheless, an attempt to calculate damages under these two heads does, I think, provide a basis for making an assessment as well as providing a test of the validity of an assessment appealed from. This is because some figure is arrived at for matters that are in a sense calculable before consideration is given to amounts to be allowed for matters that are wholly insusceptible of calculation such as pain and suffering and the depreciation of the enjoyments of a normal and full life. Yet the sum finally awarded for general damages must be that thought proper for the whole loss; and it is not made up of rigidly separated components. So that in the end there is a wide range within which opinion may differ. And it is this that must make an appeal court hesitate to set aside the opinion of the trial judge.