Pamment v Pawelski [1949] HCA 43

High Court of Australia Latham C.J. Dixon and McTiernan JJ. Pamment v Pawelski [1949] HCA 43

ORDER Appeal allowed with costs. Judgment of Supreme Court varied by substituting therein for the sum of £1,712 6s. 4d. wherever appearing the sum of £2,912 6s. 4d.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 27 Latham C.J. McTiernan J.

On 11th November 1946 the appellant Raymond Murray Pamment (then fourteen years of age) was seriously injured by a motor lorry driven by the respondent John Edward Pawelski which struck the rear of a bus in which the plaintiff was travelling. The appellant sued the respondent for damages for negligence. Liability was admitted. The case was tried before the Supreme Court of South Australia (Napier C.J.) without a jury. Special damages were agreed (including loss of wages to 30th June 1948, hospital charges, cost of artificial limb &c.) at the sum of £412 6s. 4d. Judgment for the plaintiff was given for £1,712 6s. 4d., that is, for £1,300 in addition to the special damages. The plaintiff appeals to this Court, contending that the amount of damages awarded is inadequate.

In some cases it is possible to measure with accuracy the damage which has resulted from a defendant's breach of duty. In many cases where general damages are recoverable it is impossible to lay down any precise rule whereby the loss of the plaintiff can be translated into pecuniary figures. This is most obviously true in the case of personal injuries. Most people would not be prepared to lose a leg or an arm in return for the payment of any sum of money that could be stated, but it has never been the rule that therefore in such cases there was no limit to the amount of damages which can be awarded. Special damage representing proved loss directly attributable to the wrong of which the plaintiff complains is recoverable. Further damages must be assessed in respect of past pain and suffering of the plaintiff and in respect of prospective damage in the form of future probable pain, suffering or inconvenience, probable loss of earning power and inability to live a full life and to enjoy the amenities of living. It is impossible to measure pain and suffering in money with mathematical precision and the same observation applies to damage suffered by reason of the loss of a limb or of eye-sight or other grave personal injury. Loss of future earnings is also a matter into which a large element of uncertainty enters.