HARPER v BANGALOW MOTORS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CLARKE JJA 8 June 1990, 24 July 1990 [1990] NSWCA 85 Appeal — damages — review of — proper approach of appellate court — discussion by Mahoney and Clarke JJA of the principles involved in an appellate court interfering with, and recalculating an assessment of damages. Moran vy McMahon (1985) 3 NSWLR 700 applied. DAMAGES — motor vehicle injuries — malunited fracture to left femur in previously active woman aged 24 — calculation of general damages — held: (1) (allowing appeal from Loveday J) (per Kirby P, Mahoney and Clarke JJA) The trial judge's award for general damages was manifestly inadequate given that the assessment of compensation for impairment of earning capacity from the date of trial proceeded upon the basis that although the appellant would be able to exercise residual earning capacity she would do so only with difficulty; (2) (per Mahoney and Clarke JJA; Kirby P dissenting) No error was shown in the trial judge's assessment of loss of earning capacity; (3) (per Clarke and Mahoney JJA; Kirby P contra) Upon a recalculation, general damages increased from $60,000 to $80,000 and judgment including interest increased accordingly. Kirby P would have increased general damages to $75,000. ANTI-DISCRIMINATION — grounds of sex — female plaintiffs in personal injury claims — severe orthopaedic injury interferes in return to preinjury heavy physical work — retirement from work force for pregnancy — probable duration of (observations by Kirby P on) need to avoid unfairness to female plaintiffs in economic social circumstances today by presuming prolonged removal from the workforce following pregnancy. Burden v Rath (1986) Aust Torts Reports 80-050 applied. Kirby P The appellant was injured in a motor vehicle accident which occurred on the Icely Road near Orange, New South Wales, on 9 September 1980. She was the passenger in the front seat of a vehicle which left the road and collided with nearby guide posts. At the trial, the respondents admitted liability to the appellant in negligence. The assessment of the appellant's entitlement to damages came before Loveday J in the Supreme Court. On 23 February 1989, his Honour entered judgment in favour of the appellant in the sum of $217,411.59. He directed the respondent to pay the costs of the trial. The appellant has appealed to this Court claiming that the amount of damages awarded was inadequate. She alleges that the inadequacy could be demonstrated by errors in his Honour's mathematics and reasoning. It could also be demonstrated by comparison of the amount of certain of the components of the judgment with the uncontested facts proved at the trial. Calculation of damages for injured plaintiff In order to delineate the issues in the appeal, it is appropriate to state, at the outset, the components of Loveday J's judgment. It will then be possible to identify those components which are in dispute. As appears from his Honour's reasons, the judgment was made up as follows: 1. Out of pocket expenses $18,411.59 2. Griffiths v Kerkemeyer claim 7,000.00 2 UNREPORTED JUDGMENTS 3. Future operations 6,000.00 4. Past economic loss 25,000.00 5. Future economic loss 80,000.00 6. General damages 60,000.00 7. Interest on past general damages 6,000.00 8. Interest on past economic loss 25,000.00 TOTAL $227,411.59 The sum of the components which appear in Loveday J's judgment is $10,000.00 more than the sum in which judgment was entered by his Honour. It was agreed by both parties before the Court that this represented a mathematical mistake of $10,000.00 in the addition. The respondents agreed that the appeal would have to be allowed to provide for the correction of the judgment to that extent at least. The appellant agreed that if this were the only error found by the Court, it would not carry the costs of the appeal. The appellant accepted items 1, 2, and 3 of the components allowed by Loveday J. However, all of the other components were. It will be necessary to turn to the criticisms of them. Principally, the appellant argued that the allowance for past economic loss should be increased from $25,000.00 to $40,000.00; that the allowance for future economic loss should be increased from $80,000.00 to $123,750.00; and the allowance for general damages should be increased from $60,000.00 to $80,000.00. If these increases were accepted, two of them (relating to past economic loss and that component of general damages which relates to the past) would, in turn provide a basis for an arguable increase in the amount allowed for interest on past damages. The appellant claims that adjustment. She also asserted that, on its face, the judgment was unsatisfactory in failing to give reasons for the amount allowed for interest. In default of reasons, the appellant argued that the allowances made by his Honour were unpersuasive and apparently erroneous. Upon that ground too it was claimed that error had been shown which would authorise this Court to set aside the judgment. Legal Principles governing appellate review The enquiry which the appeal occasions can be limited to the arguments about interest and to the components of the judgment which are in dispute. In performing its review, the Court must bear in mind two considerations which derive from legal principle. (1) The task of assessing damages in a claim for personal injuries is not a normative one. There are no fixed rules or formulae from which allowances for economic loss, general damages or even discretionary interest, can be derived. The determination of such components a of judgment has been described as discretionary or quasi discretionary in character. See Moran v McMahon (1985) 3 NSWLR 700 at 709, 717. Accordingly, an appellate court does not interfere in the assessment made by the trial judge unless that assessment is shown to be wrong in some material respect. See F Sherman v Evans (1977) 138 CLR 563, 565. Such error can be shown by the expression of an incorrect principle or by the demonstration of an incorrect finding of fact on the part of the trial judge. Alternatively, it can emerge from a comparison of the amount awarded with the apparent requirements of the evidence proved; and (2) The appeal to this Court is by way of a rehearing. However an appellate court, even conducting a rehearing, will bear in mind the advantages which a trial judge enjoys. These include seeing the evidence unfold in sequence and having the opportunity to consider the case as a totality, at the end of all of the evidence. See Lend Lease Development Pty Limited v Zemlicka and Others (1985) 3 URJ HARPER v BANGALOW MOTORS PTY LTD (Kirby P) 3 NSWLR 207, 209. By conventional theory and authority of law it also includes the advantage derived by a trial judge from observing witnesses. Chambers v Jobling (1986) 7 NSWLR 1, 9. In damages actions, the advantage of observing the plaintiff include the opportunity that is provided (however brief) of assessing the personality and attitudes of the plaintiff and deriving from that assessment some impressions (which are necessarily not available to the appellate court) of the impact of the tort and its consequences upon the plaintiff. In the present case, the first consideration is important. Unless error is shown, this Court should not disturb the assessments of Loveday J. As to the second consideration, the Court has a record of Loveday J's favourable impression of the appellant. He said: "I was most impressed by the plaintiff who tends to understate her disabilities. As an example, she was asked did she have any troubles about her knee giving way, and she said, somewhat reluctantly it appeared to me, "occasionally" or words to that effect. It later emerged that by 'occasionally* she meant not every few months or so, as I would have interpreted, but about once a week". There are some respects in which, in the nature of the evidence in this case, Loveday J had particular advantages over this Court. They include the assessment of the cosmetic disabilities caused by the subject accident. Loveday J described these in brief terms as "quite unsightly". His Honour also had certain advantages in considering the psychological impact of the trauma upon the appellant and the consequence which it, and its after effects, had upon her personality and the breakdown of her marriage. He expressed himself to be satisfied that "physical and psychological problems associated with the accident contributed to the failure of her marriage". The Court did not see the appellant. However, because of the record of Loveday J's general good impression of the appellant and his acceptance, in her favour, of significant cosmetic and psychological injury, this Court can safely approach the task before it (including, if need by, a reassessment). It can do so because there is not in this case (as sometimes occurs) any relevant reflection adverse to the appellant on her credibility nor any finding adverse to her concerning intangible damage and losses. All of the findings in this regard are favourable to the appellant. This Court should approach its task from that standpoint. The injuries and their impact on the appellant's life The appellant accepted the findings of Loveday J both concerning the injuries which she had suffered and the disabilities which followed. His Honour found that, as a result of the accident, the appellant had suffered the following injuries: 1. A comminuted fracture of the lower shaft of the left femur, extending into the knee joint; 2. Lacerations and abrasions to the left side of the face, nose, left eyebrow and chin; 3. Slight compression fractures of the second and third lumbar vertebrae; 4. Bruising to the upper arm, left hip and chest; and 5. Bruising and crushing to both ankles. Unfortunately, the treatment of her major injuries, being the serious fracture to the left lower limb, resulted in a complication. On her initial admission to hospital a Steinmann pin was passed through her left tibia to provide for mending of the fracture. Her left femur was immobilised in a Thomas splint. She was kept in traction for nearly a month, after which the pin was removed under general anaesthetic. She remained in hospital for a further two months, such was the severity of the trauma. But then it was discovered that the fracture had not united in a good alignment. As a result the appellant was readmitted to hospital on 21 4 UNREPORTED JUDGMENTS July 1981 and an osteotomy on the left femur was performed. This involved the refracture of the bone, an endeavour to place it in improved alignment, the insertion of a plate and a further period of prolonged immobilisation. The plate was not removed until March 1984. As a result this repeated trauma to her left lower limb, the appellant suffered a shortening of the left leg of between 1.5 and 3 centimetres. This, in turn, resulted in an unnatural posture which produced neck problems. The refracture of the femur, added to the traumatic injury set in train a process of degenerative change. It was estimated that this would become worse over fifteen to twenty five years. In due course it would require the operation for which Loveday J made an allowance which is not challenged. The appellant was born in Sydney in 1956. She attended the Methodist Ladies' College at Burwood, leaving school in 1971 at the age of 16 years. She then attended a secretarial college and later secured work as a secretary. Between 1974 and 1976 she worked as a nurse's aide in a number of nursing homes. At the same time she worked part time for the Kentucky Fried Chicken organisation. In 1976 the appellant went to Canberra on a working holiday. She worked there as a shop assistant returning to Sydney in January 1977. Shortly afterwards she went to Cowra to work as a general hand on a country property. She did that work until May 1977 when she suffered a fracture of the ankle. This injury caused her to return to Sydney. She did not work until some time after March 1978. She then met her future husband, Mr Harper. She began to live with him. She worked in a nursery owned by Mr Harper's parents. This was heavy work but she was able to manage it. Although she gave evidence that this work endured for twelve months, other evidence suggests that it was for about two years. In about March 1980, the appellant joined Mr Harper in the demolition operations in which he became engaged. By her description, this involved very heavy work: pulling down walls, taking out windows, carrying bricks and so on. She was able to perform this work with him. In about September 1980, Mr Harper secured a demolition contract in Orange. It was this contract that took the appellant with him to Orange where she met with her accident in September 1980. The evidence discloses that the appellant was not paid money for the work she did with Mr Harper and his parents between 1978 and the date of the accident. That fact adds a complication to the case. However, this much is clear. She performed, and was able to perform, heavy physical work. If there was no remuneration, it was certainly not because the work lacked economic value. It was, inference, because other arrangements appropriate to their relationship had been made between the appellant and Mr Harper. The appellant's evidence about her preinjury injury intentions The appellant gave specific evidence concerning what had been her intention to do had she not been injured. That evidence was not attacked in cross examination. Far from disbelieving the appellant, Loveday J apparently accepted her evidence. This is what was said: "Q. Had you not been injured what did you hope to do so far as your ability to earn an income was concerned? A. I would have gone back to nursing fulltime. Q. At what stage? You see, at the time of the accident you were assisting Mr Harper in demolition work, how long did you see that as lasting? A. Probably until the finish of that job. Q. And then what? A. And then we may have moved back to Sydney and I probably would have resumed nursing then. URJ HARPER v BANGALOW MOTORS PTY LTD (Kirby P) 5 Q. On return to Sydney what about your relationship with Mr Harper at the time of the accident? Had you any immediate intentions about your marriage? A. Yes, we had spoken about it. Q. You had intended to marry when? At what time? A. We hadn't set a date. Q. Did that depend upon when you had a family? A. Yes. Q. How far had your thinking along those lines developed past returning to Sydney, taking up nursing again? Had you worked out when in the future you might have married, worked out how long you were going to work before you were married? A. We probably would have been married sooner. Q. Having married and then had children, would you have continued working whilst you had children? A. Yes, we had goals to reach. Q. Was that something that could be managed while raising a family at the same time? A. Yes. Q. Assuming you had assistance during the day? A. Yes. Q. What was your goal that you had hoped to achieve had you not been injured? Back into nursing, raising a family? To what end were your ultimate goals? A. My ultimate goal was to buy a house. Q. Whereabouts? A. Around where my mother-in-law lives. Q. Dural, Glenorie? A. Around there with acreage. Q. What was the reason for a property with acreage? A. Because I've always had a lot of animals and horses. Q. You mean pets, dogs, cats? A. Anything. Q. Do you ever keep poultry? A. Yes, I've always had chooks, ducks and cows and goats. Q. So that the rural atmosphere was of importance to you? A. Yes. Q. Hopefully with your husband to develop to the stage of having a home on acreage near your husband's parents? A. Yes. Q. In that area was there an opportunity for you to live in as a nurse's aide? A. There's quite a few nursing homes around that area, yes. Q. Subject to the children, after they were attending school and so forth, what hours did you see yourself working in the nursing industry? A. Fulltime. Q. What does that mean, 40 hours? A. Forty hours, yes. Q. So you would be looking for permanent work, fulltime, albeit shift work and rostered work? A. Yes." Instead of following the course which the appellant had in mind, the injuries in September 1980 altered her life. It is true that they probably brought forward her marriage to Mr Harper. This took place in February 1981. In May 1981 she fell pregnant. But this pregnancy had to be terminated in preparation for the surgery which was performed to correct the malunion of her fracture in July 1981. After that surgery she was discharged on crutches and was required to undergo prolonged physiotherapy. She suffered a miscarriage in 1981. But in July 1983 a daughter was born. A son was born in February 1985. By July of that year the appellant and Mr Harper had separated. They had not resumed their relationship at the time of the trial. The appellant, with two young children went to live with her parents. Her mother was ill and later died. Meanwhile, the appellant endeavoured to resume working as a nurses aide. However, after a time she found that this work was too arduous. Eventually, she gave it away. She expressed a hope in her evidence that she could find work in an antique shop or otherwise restoring old furniture. She was subject to critical cross examination suggesting that she had not really tried hard enough to get back to work. However, the medical evidence on her loss of 6 UNREPORTED JUDGMENTS economic capacity was virtually unanimous. Doctor DG Seaton in a report, admitted into evidence and dated 2 February 1989 reflected on her work capacity: "The outlook in this lady is gloomy because she has obvious deformities in both the back and the left knee with shortening in the left leg which will guarantee the fact that she will have ongoing problems with lumbar spondylitis, at the level of the third lumbar vertebra, and osteoarthritis of the knee. The actual time span that will be incurred before this arthritic change develops cannot be really stated with any accuracy but it will occur and it is inevitable." Doctor John Douglas, an orthopaedic surgeon in a report of 19 October 1988 expressed this opinion on her fitness for work: "She would have difficulty resuming work as a nurse with the lumbar disability and the left knee disability. Similarly she would have trouble working outside on a property or in a demolition team. However, she is coping with her own housework and would probably be able to handle a secretarial job satisfactorily in the future." Error in the calculation of Interest Loveday J provided an amount of $25,000.00 as interest on the past loss of earnings which he calculated at $25,000.00. His Honour did not specify precisely how his calculations of interest were arrived at. It is unfortunate in a judgment that is otherwise admirably clear, that his Honour's reasoning on the critical issues before this Court is, to a large extent, left to inference and surmise. It was submitted that his Honour had allowed an amount of interest of approximately 12% over the 8.45 years between the injury and the trial. Such an allowance would produce the result of $25,000.00. When it comes to the interest on the past component of the award for general damages, the position is even less clear. His Honour simply said: "For general damages I propose to allow the sum of $60,000.00 and for interest on so much of that sum as is attributable to the pain and suffering and loss of enjoyment of life to date, I allow $6,000.00." This means that for the pain and suffering, Interference in the enjoyment of life and other heads of damage in the 8.45 years up to the date of trial, his Honour designated a sum on which only $6,000.00 was added for interest. As the respondents properly conceded, it was difficult to justify this sum. It was suggested that his Honour might have apportioned $20,000.00 of the $60,000.00 allowed for general damages as to the past. If this was so, the rate of interest which would produce the figure of $6,000.00 if spread over the 8.5 years is little more that 3%. The respondent suggested that the explanation was that his Honour had allowed interest only from the time of the bringing of the proceedings. It was argued that the $6,000.00 represented interest at 7.5% for four years. In default of explanations by Loveday J, I do not believe that this Court should speculate as to what led to the award that was made. Such an award is, of course, discretionary. However, the discretion must be exercised according to proper principles. It does not appear proper to have adopted an entirely different principle in relation to the award of interest on past general damages and on past loss of earnings. Accordingly, an error has been shown in the interest component of the judgment which goes beyond the mathematical mistake which the respondents conceded. This error would, without more, authorise the Court to set the judgment aside and proceed (the case being otherwise suitable for that purpose) to a recalculation of the appellant's damages. Perhaps that would not be done were the apparent error in the calculation of interest (or in the provision of URJ HARPER v BANGALOW MOTORS PTY LTD (Kirby P) 7 reasons for that calculation) the only errors of the judgment. But the appellant attacked three substantive components of the judgment. To those criticisms I now turn. Past loss of earnings Loveday J faced a difficulty in calculating the amount to be allowed for the appellant's loss of earnings (or allowance for loss of earning capacity) between the injury and the trial. That she had a preaccident history of strenuous physical work was proved by the uncontested evidence. That she was unfit for such work was also clearly proved. Her indication of her projected intention to return to work as a nurse's aide was not challenged. Accordingly, the earnings of such employment became the best criterion for calculating her loss between the injury and the trial. The award rates for a nurse's aide were proved by a letter from the Department of Industrial Relations and Employment. It showed a weekly gross award rate of $190.50 in July 1980 rising to $369.80 in September 1988. There were two complications in the appellant's case. The first was that, when working in demolition for Mr Harper, she had drawn no actual wages. The second was her plan for marriage and children. Various approaches were suggested to measure the loss of earnings or the allowance to be made for loss of earning capacity taking these complications into account. One approach involved a broad brush treatment. Allowing that at various times during the 8.45 years involved the appellant might have earned no wages or might have been off work with young children, it was suggested that a fair calculation for the whole period would be to allow an average of $100.00 per week net loss. This would represent about a third of the wage loss as a nurses aide at the time of the trial. It would represent about half of the net wages in the earlier period. The discount would, it was said, adequately protect the respondents. A somewhat more detailed approach had been adopted in submissions to Loveday J at the trial. This provided for an allowance equivalent to the net wages of a nurse's aide between September 1980 and December 1982. It then provided for four and a half years absence from the work force whilst having children. It was then assumed that the appellant had returned to work in March 1987 as a nurses aide working two and a half days a week, ie parttime. Such calculations tended to accord with the projected intentions of the appellant, as set out in the evidence quoted above. The result of the calculations based upon this hypothesis was a total wage loss just short of $40,000.00. However, as the Court pointed out, it would be necessary to deduct from this sum the amount actually earned by the appellant between March 1987 and August 1988 when she returned to some part time nurse's aide duties. She performed these duties intermittently and finally gave them away because she found that they were too heavy for her. The exact amount earned during that time was not proved in evidence. But a fair allowance for it would appear to be approximately $3,000.00. Thus the loss of wages on this approach would produce a total loss of $37,000.00. If the broad brush approach, as I have described, were taken, it would produce a figure of $40,000.00, ie approximately the same amount as produced by a detailed analysis according with the evidence. Instead of that sum, Loveday J allowed $25,000.00 for past wage loss. His Honour gave only the briefest explanation of how that figure was arrived at. He said: "T propose to allow for past loss of earnings the sum of $25,000.00, most of which is attributable to the period shortly after the accident." 8 UNREPORTED JUDGMENTS A further clue to his reasoning is given in the brief statement: "(Counsel for the plaintiff) concedes that there are real difficulties associated with the claim for the period whilst the children were small but says that by now she would have been earning full wages." linfer that Loveday J concluded that the appellant would, in the period beyond that "shortly after the accident", have discontinued work anyway in order to look after young children. Assumptions should not be made about his Honour's reasoning unless borne out by what he said. However, in default of full explanation, it is necessary to speculate to some extent on how his Honour reached the sum of $25,000.00. If it was by contemplating that the appellant would have retired entirely from the work force to the task of rearing young children, it is necessary to say that such an assumption should nowadays have been accepted with caution. Whereas in earlier generations fewer women worked; nowadays most do. Whereas in earlier times young women who did work normally retired permanently or for an extended period during and after pregnancy, that is not now the universal position. Furthermore, the phenomenon of marriage breakdown, which is such a feature of our time, must be taken into account today. The high numbers of single mothers in the community, with primary obligations to care for young children from their own incomes, must be recognised and taken into account in prognosticating the future of a female plaintiff. Even without the obligation of rearing young children alone (as is the case now with the appellant) it is not at all uncommon today for young women to return to the work force soon after pregnancy. They may do so to support themselves and their children or they may do so because they find domestic life uncongenial. It is essential that judges take the changing social and economic circumstances of women into account in calculating the damages to which female plaintiffs are entitled. Cf Burden v Rath (1986) Aust Torts Reports 80-050; Watson v McHale (1970) 1 SASR 301, 307; K Cooperstephenson, "Damages for Loss of Working Capacity for Women", (1978-9) 43 Sask L Rev (No 2) 7, 23. In the present case there was no reason to disbelieve the appellant in relation to her predictions of her future. Indeed, the trial judge found her evidence to be reliable and, if anything, understated. She sketched fairly precisely what she had in mind. The proper way therefore, to calculate her loss of earning would be accept her prognostications and to calculate the damages accordingly. Upon that approach the proper allowance for loss of earnings (or loss of earning capacity) between the accident and the trial was of the order of $37,000.00 to $40,000.00. Her energetic past employment record added credibility to her own prognostications. Had her energies been translated into full time work as a nurse's aide, working part time after the birth of children, it is very likely that her income would have been substantially more than award rates. An allowance of $25,000.00 cannot therefore be sustained, except by disbelieving the appellant's evidence (which his Honour disclaimed) or by making too high a deduction for her projected retirement from the work force to have children (which would not be warranted). In my view, therefore, error has been shown in the computation of the past economic loss. This warrants intervention by this Court. It necessitates either a retrial or a recalculation of the appellant's damages. Both parties accepted that this Court could proceed to recalculation. Although there are some disadvantages in doing so (notably the assessment of the cosmetic and psychological areas) I URJ HARPER v BANGALOW MOTORS PTY LTD (Kirby P) 9 consider that it is safe for the Court to proceed in that way. I therefore turn to the other two elements in dispute which need to be recalculated before the recalculation can be attempted. Future economic loss The appellant argued that the proper approach to the calculation of her future economic loss was to ground it in what she would have earned as a nurse's aide. The evidence suggested that the average award wage at the time of trial (gross) for this position was $369.00. This sum would be reduced to about $280.00 net. Having regard to her age it was assumed that the appellant would have continued to work for about twenty seven years after the trial. This period was not in contest. She claimed a loss of $150.00 a week over that time because of the interference in her capacity to perform work of a nurse's aide or in other vigorous physical work. She suggested that an average net weekly wage loss of $150.00 was established. Calculating that sum over twenty seven years on the 3% tables and deducting from the product the conventional figure of 15% (being the allowance for vicissitudes of life) the resulting amount was $123,750.00. Loveday J allowed $82,000.00. Although not explained, it appears that this sum represented a calculation based on a loss of $100.00 a week. That sum extended over twenty seven years at 3% and with the conventional reduction produces a figure of approximately $82,500.00. Once again, there is little indication of why Loveday J chose the figure he did. He pointed out that there were obviously many jobs open to her. But he acknowledged that many of them were likely to cause her discomfort and pain. Properly, the respondents pointed to the evidence that the appellant had undertaken early training as a secretary; that she had undergone a business management course; that she some skill in purchasing and restoring antiques and that she had made tentative steps towards work in the last mentioned area. The respondents suggested that the amount allowed by his Honour was not unreasonable. The difficulty which I have with that suggestion is that the appellant's unchallenged evidence was that work as a secretary created difficulties for her because of the trouble which she had with her neck, and with posture consequent upon the leg injury. She had frequently to get up to relieve that trouble. It seems unlikely therefore that secretarial work will be suitable. The managerial, promotion and other work might be suitable but its availability is much less likely, even with the benefit of the lump sum of her damages judgment. Her background was in arduous physical labour not managerial board rooms. Physical work was also, apparently, the kind of work she liked. By reason of her injuries she was deprived of that class of employment activity. Although I recognise that there is no science in the calculation of the sum for future loss of earnings, it does seem to me that Loveday J may have, once again, overestimated the allowance which should be made for the interference in the appellant's working life by reason of her having children. His Honour said: "She has two children, a daughter born on 10 July 1983 and a son born 7 February 1985; still too young to attend kindergarten. Her children's needs would have posed problems in any event in her engaging in employment and continue to do so." Especially as a single parent (a not uncommon status in today's society) every pressure would have been upon the appellant to return at least to parttime work. There was evidence that there was parttime nurse's aide work available. I am, therefore, inclined to believe that the true loss suffered by the appellant was somewhere between the amount claimed for her ($150.00 per week net) and the 10 UNREPORTED JUDGMENTS amount accepted by Loveday J ($100.00 per week). If a figure of $125.00 per week is chosen, extended by the same tables at the same rate of interest and subject to the same deduction of 15% for the vicissitudes of life, it produces a loss of $105,000.00. On a recalculation of her damages, that sum more closely 5 represents the appellant's economic loss in the future. General damages For general damages, Loveday J, without elaboration, allowed a sum of $60,000.00. The appellant claimed that sum was too low. She pointed to the major insult to her leg with all of its consequent complications. She also laid 10 emphasis upon the psychological and cosmetic injuries which, it was claimed, his Honour (whilst accepting) had significantly undervalued. The respondent pointed out that the appellant swims regularly, goes to a gymnasium, walks as far as she needs to, engages in jogging, and does heavy cleaning work around the house. All of this is true. But the evidence suggests that she has had to restrict herself to low 15 impact exercises in the gymnasium. Many of the physical activities were pursued specifically on medical advice for the purpose of strengthening her lower limb. There is no gainsaying the uncontested evidence that the appellant suffered severe orthopaedic injuries. An emotional reaction was entirely understandable in the circumstances. 20 Once again, there is no science in the exercise of calculation. But, by the range of comparable damages awards observed in this Court, I believe that, on recalculation, the proper allowance to be made for general damages for the appellant would be $75,000.00. Of that sum $30,000.00 should be apportioned to the past. 25 A recalculation of interest will be required having regard to the alteration of the base sums upon which interest is to be computed. Past economic loss of $35,000.00. Interest should be allowed at the rate of 8% over 8.45 years. This produces a figure for interest of $23,660.00. Interest on the past general damages of $30,000.00 should likewise be allowed 30 at 8% over the 8.45 years. This produces a figure of $20,280.00 Conclusions, recalculation and orders The resulting recalculation of the appellant's judgment is therefore made up as follows: Hospital and medical expenses $18,411.59 Domestic assistance 7,000.00 Future operation 6,000.00 Past loss of wages earning capacity 35,000.00 Future loss of earning capacity 105,000.00 General damages 75,000.00 Interest on past economic loss 20,280.00 . Interest on past general damages 23,660.00 OTAL $290,351.59 I would round that sum to $290,000.00. That should be the appellant's judgment. It should take effect from 23 February 1989, the date upon which 45 Loveday J made his assessment. To give effect to these conclusions, I would propose the following orders: 1. Appeal allowed; 2. Set aside the judgment of Loveday J dated 23 February 1989; 3. In lieu thereof enter judgment in favour of the appellant in the sum of 50 $290,000.00. 4. Such judgment to take effect from 23 February 1989. SIDARwWHE URJ HARPER v BANGALOW MOTORS PTY LTD (Mahoney JA) 11 5. Allowance to be made for the sum already paid to or on behalf of the appellant by the respondents or their insurer; 6. The defendants to pay the plaintiff's costs of the trial. 7. The respondents to pay the appellant's costs of the appeal. Mahoney JA The facts are detailed at length in the judgments of the President and Clarke JA which I have had the opportunity of reading. I shall therefore confine what I say to the three basic matters in issue between the parties: general damages; past economic loss; and future economic loss. 1. General damages: The learned trial judge assessed general damages at $60,000. My brethren are of the opinion that a different sum may be awarded for this component of the plaintiff's damages: the President would award $75,000 and Clarke JA $80,000. The nature of an award of general damages in a case such as the present and the limitations upon what an appellate court may do upon a rehearing have been referred to frequently: see Miller v Jennings 92 CLR 190 at 195-6; Moran v McMahon (1985) 1 NSWLR 700 and the cases there referred to. A significant part of the award for general damages in this case would go to compensate the plaintiff for matters such as pain, discomfort and the loss of some of the amenities of her life. Were the matter to stand alone, I would be of the opinion that, upon the principles to which I have referred, this Court should not interfere with his Honour's assessment. However, in view of the conclusion arrived at by Kirby P and Clarke JA the court must enter upon a general reassessment of the damages. It is not, in the relevant sense, appropriate in this case to segregate the award of general damages and reassess that element of the damages alone. Upon such a reassessment, it is, for the reasons which will appear, appropriate that I agree with the assessment made by Clarke JA, viz, $80,000. 2. Past economic loss: Damages for economic loss are, in principle, awarded to compensate for loss of economic capacity: Redding v Lee 151 CLR 117 at 134, per Mason and Dawson JJ. But, in a case such as this, it is appropriate, in order to assist in the assessment of the compensation appropriate for the particular loss of capacity, to consider what the plaintiff uninjured would have earned; and to compare it with what, in her injured state, she could and should have earned to the date of trial. That was the course followed by his Honour in the present case and it is the course adopted or followed by the parties before this Court. In relation to the first of these, certain things are, I think, reasonably clear. The plaintiff intended to marry Mr Harper; she intended to have children; she would not have worked during the period when it was necessary for her to remain at home to care for the children; at the end of that period she would have returned to full time or part time work; and that work would probably or primarily have been in the area of nursing or the like. Therefore, in calculating what the plaintiff, uninjured, would have earned, the main uncertainties are: when she would have married; when she would have had children; how long her period off work would have been; and when that period would have commenced. It was necessary for his Honour to take these uncertainties into account in assessing the compensation to be awarded under this heading. It is necessary, on a reassessment, for this Court to resolve them. The chronology of the main events here relevant is as follows: 9/ 9/1980 Plaintiff injured. 21/ 2/1981 Plaintiff married. 12 UNREPORTED JUDGMENTS May 1981 Plaintiff's first pregnancy terminated for surgical reasons. 1981 Miscarriage. 10/ 7/1983 Birth of plaintiff's daughter. 17/ 2/ 1985 Birth of plaintiffs son. July 1985 Separation of plaintiff and her husband. Feb 1989 Plaintiff's son first in Day Care Centre (four years of age) two days a week. Daughter starts school. 23/ 2/1989 Trial and judgment. 1990 Proposed date for son to enter school. In considering what, uninjured, the plaintiff would have done, it is relevant to consider what in fact the plaintiff did following her injuries in relation to her two children and the arrangements which became necessary for their care and schooling. The plaintiff was asked questions in cross examination directed to ascertaining the extent to which her care of the children had in fact prevented her accepting employment. The following evidence emerged: "Q. I suggest to you that there are a number of types of employment that you could have been actively engaged in if you so wished and there has been ability on your part since shortly after the accident in 1980? A. Well, not in the circumstances. Q. As of now, apart from the children and the necessity for the need to look after them, is there anything that prevents you from doing work other than nursing work? A. No, that's why I have had my boy in two days a week at the Day Care with the intention of working those days. Q. Since August 1988 when you ceased the nursing activities, have you tried any other form of employment? A. No, I haven't. Q. Why is that? (No answer). Why haven't you tried other forms of employment since August 1988? A. I haven't been able to find anything that would fit in with my children's times. I have only got two days a week, that's the maximum I can get at the Day Care Centre and, apart from that, my boy's not ready for me to undertake a fulltime job but I am prepared to take - it is only since the beginning of this term I have had my boy in the Day Care Centre. Q. So up until the present time, am I incorrect in suggesting to you that at best, you would have, only because of family commitments, been able to work two days a week? A. Would I be able to -? Q. Am I correct in suggesting to you that since August 1988, leaving the accident aside, because of your domestic situation, you would not be able to work any more than two days a week? A. No, I can't work more than two days a week at this point in time. Q. How long has that situation been that you could only work for two days a week? A. Only since this year, since I have been able to get my son into a Day Care Centre and I have asked for extra days when they come up. Q. Prior to this year what has been the maximum number of days you would be able to work? A. I haven't been able to because I have had my son booked in for two days only and my daughter only started school this year. Q. When does your son start school? A. Next year. Q. So, at best, between now and next year, your domestic situation will only allow you to work a maximum of two days a week in any event? A. I have put in for two extra days for him. URJ HARPER v BANGALOW MOTORS PTY LTD (Mahoney JA) 13 Q. There is nothing stopping you, is there, from attempting to do secretarial work when your son starts school and you have got a free hand, as it were? A. Mm. I don't think that I would be able to sit and do secretarial work all day." I would infer from this that the plaintiff had in fact concluded she should not commence work until her son was able to attend a Day Care Centre and, perhaps, her daughter was able to commence school. I appreciate that her decision was taken in an injured and not an uninjured state. I have assumed also that, had she not been injured, she would have had children at or about the time when in fact they were born. But these matters do not, I think, falsify the inference which I would draw, namely, that had she not been injured the plaintiff would have followed a generally similar course and so would not have returned to the workforce until some seven years after her marriage. In fact, she remained out of the workforce during the period 21 February 1981 to February 1988. Iam conscious that the plaintiff said, in her evidence in chief, that during the period from March 1987 to August 1988 she did some work and that she this because she "organised to take" the children "to a Day Care Centre". In cross examination she said, as I have indicated, that "it is only the beginning of this term I have had my boy in the Day Care Centre'. It may be accepted that there was some confusion at the trial as to the period when, being able to put her son in day care, she was free to undertake part time work. But, however that be, the inference is that, for the period of seven years or perhaps slightly less, she in fact saw her care of the children as requiring that she not take paid work. And, as I have said, it is proper to infer that, uninjured, she would have done the same. It was in this context that his Honour was required to assess what, uninjured, the plaintiff would have earned. His Honour had before him calculations made by counsel showing that, had she worked full time between the date of the accident 9 September 1980 and 30 December 1982 (when she was pregnant with her first child) she would have earned some $23,460. The amount of that loss would not, I think, be seriously in question. The uncertainty was to determine the period during which, uninjured, the plaintiff would have worked prior to 23 February 1989, the date of the trial. Had she worked full time at approximately $240 per week (the sum that had been suggested for full time work in the period 1987-1988) she would have earned some $6240. Had she worked part time for that period she would, on the figures submitted to the learned judge, have earned some $3120. Appropriate calculations may be made in respect of periods dating back to August-September 1987. His Honour would, in my opinion, properly have seen these matters as affected by other uncertainties. I would conclude that it was unlikely the plaintiff would have worked, uninjured, as a full time nurse or otherwise full time in that regard from the date of her injury, 9 September 1980, to 30 December 1982. What compensation she should have had had she been working, unpaid, in Mr Harper's family nursery or otherwise is not clear. Taking into account these uncertainties, I would see no error in the sum adopted by the learned judge in this regard, namely, $25,000. It is a sum which, on a recalculation, I would think it appropriate to adopt. 3. Future economic loss: As the judgments of the President and Clarke JA have indicated, the correctness of his Honour's assessment of this component of the damages at $80,000 depends upon whether the plaintiffs ongoing loss of income due to her injuries should be assessed at $100 or $150 per week. It has not been suggested 14 UNREPORTED JUDGMENTS that an assessment of a loss on a weekly basis such as this is not, in practice, a proper basis for assessment of future economic loss in this case. In this regard also it is necessary to determine what, uninjured, the plaintiff would have done and what, in her injured state, she can do. And, in this regard, the basic uncertainty lies in the effect upon the exercise of her economic capacity of the requirements and her decisions as to the care of her children. It is, in my opinion, proper to infer that, uninjured, she would have worked part time for some period, perhaps until the son entered ordinary school, and then would have worked, albeit on a shift basis, on a full time basis. There appears to have been no substantial contest at the trial in this regard. The other area of uncertainty lies in what, in her injured state, the plaintiff can do and, as I have said, whether her capacity to earn should produce $100 or $150 per week for the future. The learned judge assessed the plaintiffs continuing loss as $100 per week: it was suggested in argument that this should have been $150 per week. Were I considering the matter as on an appeal by way of rehearing: Supreme Court Act s75A(5); I would not be satisfied that the learned judge's assessment was wrong. In the present case, the judge was required to form an assessment of what the value of the plaintiff's loss of capacity was and to do that he was required to form an assessment of what, injured, the plaintiff could and should do. To do this he had to take into account factors which, of their nature, were simply uncertain in the sense that it was not possible to arrive at any reasoned conclusion as to what the content of them would be. In such a case, I incline to the view that, unless there be an error of principle or the assessment is beyond the range which, in the exercise of a sound and discretionary judgment, a judge would make, a judge of appeal on a rehearing should not interfere. It has not, I think, finally been settled whether a judgment of the present kind is a discretionary judgment in the sense referred to by Priestley JA in Moran v McMahon (1985) 3 NSWLR 700 at 722-3. I shall, without deciding, assume that it is not. On that assumption, where the judgment is to be made on an appeal by way of rehearing and in accordance with the principles established by Warren v Coombes 142 CLR 531, the appellant is, absent other factors, entitled to have the conclusion of the appeal court upon the matter. But often, in such a case, the uncertainties are such that an appeal judge can give no better reason for preferring his conclusion to that of the trial judge than that it is his. And, as has frequently been said, in such a case a judge will be slow to substitute his own conclusion for that of the judge: see De Martin v Williams (Court of Appeal, 24 September 1982, unreported). But to put the matter in that way does not, of course, lay bare the principle on which, legitimately, the appeal judge must act. It has been said that the appeal judge must act with "judicial restraint" but what this means has been expressed in different ways. In Powell v Streatham Manor Nursing Home (1935) AC 243 at 255, Lord Atkin saw judicial restraint as derived from the nature of what the appellate court does. In a passage cited by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes: at 539; Lord Atkin said: "The Court has to rehear, in other words has the same right to come to decisions on the issues of fact as well as of law as the trial judge. But the Court is still a Court of Appeal, and in exercising its functions is subject to the inevitable qualifications of that position. It must recognise the onus upon the appellant to satisfy it that the decision below is wrong: it must recognise the essential advantage of the trial judge in seeing the witnesses and watching their demeanour." URJ HARPER v BANGALOW MOTORS PTY LTD (Mahoney JA) 15 The remarks of Lord Macmillan: at 256; were similar in effect: an appeal will be upheld "when (the appeal court is) satisfied that the Courts below have erred on a question of fact". In Cashman v Kinnear (1973) 2 NSWLR 495 at 498-500, Jacobs J referred to this matter. In passages cited with approval in Warren v Coombes: at 549; Jacobs J said: "Even though a finding of negligence was open on the evidence, the question still remains whether the conclusion of the trial judge that there was negligence was right or wrong. If I finally reach the conclusion that it was right, the appeal fails. If I finally reach the conclusion that it was wrong, then in my view the appeal succeeds. No 'judicial restraint' should lead me... to refrain from giving effect to that conclusion of fact to which I finally come. It appears to me, though I speak with some diffidence and with great respect, that the only stage at which 'judicial restraint' can properly be exercised is upon the initial question whether or not I should arrive at a different conclusion from that of the trial judge. If I apply that restraint... I will give great weight to the conclusions of the trial judge. In cases where the credibility of witnesses is involved the weight is so great that an appellant who seeks to overturn findings of fact so based faces an almost, but not quite, insuperable task. But even in cases of the latter category the weight of the trial judge's conclusion is very great. Even if I am inclined to a different view it is likely that the weight of the trial judge's view will outweigh that inclination. If, however, on final balance it does not, then I am bound to say that the conclusion of the trial judge is wrong.... Thus, if by judicial restraint is meant the lack of overweening certainty in one's own opinions so that respect and weight is given to the opinion of the judge below, then it is something always to be sought. The effect of that respect and weight will vary depending upon the subject matter and will greatest where the opinion involves a discretionary judgment and next where the subject matter is one of conclusion or evaluation drawn or made from the facts found. But in truth this quality respect must be all pervading whether the subject be fact or law. However, if it be suggested that by judicial restraint a judge exercising his office under the Supreme Court Act 1970 and its predecessors should restrain himself from giving effect to his own conclusion once he has, after applying to himself the mental restraint that flows from the process which I have described, finally reached that conclusion then it is in my view a suggestion contrary to that Act and its predecessors and I do not think that it should be adopted in the absence of a clear authority binding this Court." After having considered the authorities, Gibbs ACJ, Jacobs and Murphy JJ: at 552; said: "Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment." 16 UNREPORTED JUDGMENTS In all of these passages, there occur comments such as "has decided that he (the trial judge) is wrong". And it is the meaning and significance of this which, in the end, is in issue in cases such as this. We are here considering a finding of fact in which it is, in the ordinary sense, not possible to say that one judge is wrong and the other judge is right. I mean by this that, in assessing what is proper compensation for matters such as general damages and in deciding from uncompelling material what a party would have done, there is involved an element of assessment or, perhaps, judicial guesswork. There is no way in which - if the proper principles be applied and the decision is not beyond the range appropriate for a sound discretionary judgment - it can be demonstrated objectively that the decision is right or wrong. Within such a range a judge is, in reality, wrong only if he has erred in the principles which he has applied. To say that, within that range, one assessment or finding is right and another wrong, is, I believe, to mistake the nature of error and to attempt to give to decisions a greater degree of accuracy than the subject matter legitimately can bear. It is in this context that it is necessary to determine what is meant by the statement that an appeal court may intervene where it "has decided that he (the trial judge) is wrong". If error is demonstrated merely by the fact that, within the permitted range, the assessment or decision of the appellate judge is different from that of the trial judge, then nothing is added by saying that an appeal court may intervene when satisfied that the trial judge was wrong. In such a case, it must always intervene where its assessment or decision differs from that of the judge. I am inclined to the view that there is, in the relevant sense, no error where, within the appropriate range, no more can be said than that the appeal judge differs from the trial judge. There are, of course, cases in which the question to be determined and the nature of the case permit of a decision which objectively can be shown to be right or wrong. But where that is not so then, as at present advised, I incline to the view that, if the trial judge's decision is within the range and there be no other error, the appeal court should not have intervened. However, in this case it is not necessary to express a final view upon this question. Because the President and Clarke JA have found error in other aspects of the decision of the trial judge, this Court must reassess the damages and form its Own opinion upon these matters. The evidence before the court was that, in the 1987-1988 period, the difference between the net earnings in nursing aide work upon a full week and a half week basis was broadly of the order of 50 per cent or something over $100 per week. The evidence as to the difference in earnings between what the plaintiff can now do and what, uninjured, she could have done was not compelling. In the end, I would conclude that the plaintiff had not established an ongoing loss greater than that which, in fact, the learned judge adopted. Mr Leslie QC, for the plaintiff, pressed for a higher amount of loss. Reference was made to the fact, as I think the suggestion was, that it is known and or accepted that women with young children and women suffering physical disabilities arrange their working habits so as to achieve an appropriate degree of income notwithstanding their family or other difficulties. With respect to what was put by Mr Leslie, I do not think that general assertions of this kind are of assistance in the determination of a particular case, particularly a particular case of the present kind. URJ HARPER v BANGALOW MOTORS PTY LTD (Clarke JA) 17 The question of what assumptions a court can or should make has arisen from time to time in argument. In Fleming v Watson (Court of Appeal, 1 June 1981, unreported) the suggestion was that what the plaintiff in that case would be apt to do could be inferred from or by reference to "what married women do in the community these days". I there said: "A good deal of actual reasoning of the courts is based upon unarticulated factual assumptions, drawn from the store of information to which courts may have regard without proof. But there are limits to the assumptions which may be so made, and to the inferences which may be based upon them. The court can, no doubt, accept without proof that, in the community as it presently is structured, a substantial number of women who are married have employment in unskilled work of the kind here relevant and therefore that, presumably, such work is, to some extent, available. But how far the facts which can be so accepted can extend to detail is a matter which, in cach case, will require careful consideration. How far women with several children and otherwise supported by their husbands take employment, of what kind, and during what hours, is a matter upon which | do not think that the court is able to made particular assumptions. And, whatever the assumptions made, the question remains, in the end, whether it can or should be inferred that the particular plaintiff would have acted in such a way." In the present case, some attention was directed to ascertaining what this particular plaintiff would or might have done in relation to the various matters to which I have referred. I would base my conclusions upon the evidence that was given, scanty though it be, and the inferences which, in such a case as the present, can be drawn from it. The members of the Court have differed as to the quantification of the damages in this case. As my views in relation to past and future economic loss accord more with those of Clarke JA than with those of the President, I shall concur in the assessment of general damages made by Clarke JA and accordingly with the orders which he has proposed. Clarke JA In Wilks v Bradford Kendall Ltd 79 WN 850 the Full Court of the Supreme Court of New South Wales said (at 853) in dismissing an appeal from an assessment of damages by a judge sitting without a jury: "Because it is firmly established that interference by a court of appeal with an assessment of damages made by a judge sitting without a jury can be justified only upon a basis analogous to that upon which such court will interfere with the exercise of a discretion conferred upon a single judge, it will be convenient to state the grounds which, generally speaking, will justify the court in interfering with such an assessment. These may be summarised as follows: (1) If the judge has acted upon a wrong principle; or (2) If he has given weight to extraneous or irrelevant matters; or (3) If he has failed to give weight to relevant matters; or (4) If he has erred in his finding as to any fact upon which his estimate of the amount of damages is founded in whole or in part; or (5) If, notwithstanding that the precise nature of the error is not discoverable, the result is so unreasonable or plainly unjust that the court will infer that an error has been made." That statement was based primarily upon the judgment of the High Court in Miller v Jennings (92 CLR 190, at 195-6) in which the Court relied on a passage from the speech of Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd (1942 AC 601, at 616-7) and implicitly improved the judgment of Greer LJ 18 UNREPORTED JUDGMENTS in Flint v Lovell, ({1935] 1 KB 354, at 360). Furthermore, as Priestley JA pointed out in Moran v McMahon, (1985) 3 NSWLR 700, at 719, in a judgment in which his Honour analyses most, if not all, of the cases which are relevant to the subject under discussion, Wilks embedded in this State the notion that appellate courts dealing with assessments of damages for personal injuries by judges sitting without juries should approach them in the same way as when asked to interfere with the exercise of discretion by a trial judge. Although, however, the general principle must be taken as accepted Priestley JA in Moran pointed to the differences between the task of assessing compensation for pain and suffering on the one hand and the past impairment of earning capacity on the other in expressing the tentative view that discretionary considerations did not pervade the latter task with the consequence that an appellate court should, in determining that element of compensation, apply the principles articulated in Warren v Coombes, 142 CLR 531, at 552, viz: "The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their judgment." In expressing those views his Honour was conscious of the fact that the authorities which culminated in Wilks were concerned, in the main, with the ultimate figure awarded rather than the sums awarded for particular elements of the claim. They did not, for instance, distinguish between general damages for pain and suffering, which are plainly to be regarded as in the discretionary or quasi discretionary area, and claims for economic loss flowing from personal injury. The reason for this approach would appear to be that until relatively recently the courts concentrated upon the total sum which was awarded as compensation for the losses suffered by the plaintiff. This approach is best exemplified by Barwick CJ's reference to "global sums" in Arthur Robinson (Grafton) Pty Ltd v Carter, 122 CLR 649, at 660. What his Honour said was: "Tt is preferable, in my opinion, that the jury be invited to consider directly what global sum in their judgment represents fair compensation for the injuries than that they be asked to work out separately the compensation for each of the elements of the compensation which they should have in mind." His Honour made similar statements, in the context of a nonjury trial in Wilson v Peisley, 50 ALJR 207, at 210, when he said: "Tt is perhaps unfortunate in this case that the judge, quite unnecessarily, though understandably, disclosed the amount of some of the integers which he considered in arriving at his total award. The unwisdom of such a course is evident." But since Wilson the practice has changed. Trial judges are now required to assess damages by considering individually the separate heads of damage and allocating specific sums to each as a starting point. This change, which according to Professor Luntz, ("Assessment of Damages", Luntz, 2nd Ed, p 43) was initiated by this Court in a series of decisions the first of which was decided in 1969, became accepted following a series of cases in the High Court in 1977 (Sharman v Evans, 138 CLR 563, 571-2; Gamser v Nominal Defendant, 136 CLR 145, 147-50; Griffiths v Kerkemeyer 139 CLR 161, 162-3, 188-9; Dessent v The Commonwealth, 13 ALR 437, 446-7.) URJ HARPER v BANGALOW MOTORS PTY LTD (Clarke JA) 19 Since this change in practice the High Court has not been called upon to determine whether the discretionary approach applies to all the elements upon which an award for compensation are based or whether it is limited to specific heads of damage. However, in Burden v Rath (NSW Court of Appeal, 29 August 1986) unreported, Priestley JA returned to the topic. He there expressed the view that two questions remained to be decided. The first was whether in an appeal by way of rehearing from an award of damages, which was arrived at by a method containing distinct parts, some of which standing alone would not require the discretionary approach and some of which would, the appellate court should apply the discretionary principles or those which emerged from Warren. In regard to this question his Honour reiterated his earlier provisional opinion that so long as an appeal could be dealt with in distinct parts it was appropriate to deal with those parts according to the approaches required in discretion and nondiscretion appeals as the case may be. The second question which was identified was whether the evaluation of impairment of earning capacity after the date of trial should be approached by the method adopted in appeals from discretionary judgments or those in which factual disputes had been determined. In this respect his Honour reiterated his earlier tentative view that the discretionary approach did not appear to be appropriate. Glass JA did not agree with this view saying that, in his opinion, an assessment of damages for impaired earning capacity "will necessarily be discretionary in nature so far as concerns those elements which lie in the future'. In the present case the questions raised by Priestley JA are not unimportant. For instance Loveday J dealt with the claim for the impairment of past earning capacity in a succinct manner which disclosed no explicit error and the appellant's counsel has submitted only that the award was an inadequate reflection of the loss. In those circumstances it is relevant to determine whether to apply the Wilks test or whether the Court should, if it concludes that it would have allowed a different sum to compensate for this element of the damages, substitute the figure which reflects its own opinion. Returning to the first question which Priestley JA posed I would express my concurrence in his Honour's tentative conclusion. If, as is now accepted, it is appropriate in many cases separately to consider the elements which go to make up the award of damages then it would seem to follow, as a matter of principle, that the approach which should be applied to each element should reflect the nature of the inquiry (ie whether that element of damages involved a determination which was discretionary in nature or whether it involved a simple fact finding exercise). This is the manner in which an appellate court approaches an appeal which is brought from a judgment in which a number of separate and different issues are determined, only some of which involve the exercise of a judicial discretion. In damages the position is no different. An ultimate award of damages is constituted, in general, in accordance with the more modern approach, by adding together the determinations in respect of the individual components in respect of which damages are claimed. In the present case the plaintiff alleged that she had incurred out of pocket expenses, been subjected to pain and suffering, incurred a loss of income (or suffered an impairment of earning capacity) between the date of accident and the date of trial and had a lessened earning capacity as a consequence of her permanent injuries. In addition there was a claim for the cost of future medical attention. Separate reasons were given by the trial judge in support of his 20 UNREPORTED JUDGMENTS determination in respect of each of those issues and it is now accepted that the Court should, on appeal, direct consideration to each of the issues separately in order to determine whether error has occurred. The more difficult question is whether it is appropriate to apply the Warren test in determining whether error has occurred in respect of any of the separate determinations which together constitute the final award of damages. In Moran Priestley JA expressed the opinion that the aspect which had given rise to the application of discretionary considerations was the difficulty of translating into money terms the noneconomic effect of the plaintiff's injury upon his life. That is certainly a most important consideration but I do not think it is the only one which has led to the approach for which Miller stands. It seems to me that the cases have proceeded upon somewhat wider considerations. In Miller itself the majority relied upon the speech of Lord Wright in Davies. In that speech his Lordship said, inter alia: "An appellate court... is particularly reluctant to interfere with a finding on damages which differs from an ordinary finding of fact in that it is generally much more a statement of speculation and estimate. No doubt this statement is truer in respect of some cases than others. The damages in some cases may be objective and depend upon definite facts and established rules of law, as, for instance, in general damages for breach of contract for the sale of goods. In these cases the finding as to amount of damages differs little from any other finding of fact, and can equally be reviewed if there is an error in law or in fact. At the other end of the scale would come damages for pain and suffering or wrongs such as slander." Then later: "The appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages." Similarly, in Paul v Rendell, 55 ALJR 371 Lord Diplock, in delivering the judgment of the Privy Council said (at 372): "The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured." What one draws from these statements is that the intuitive nature of, and the speculation involved in, awards of damages make it inappropriate to apply the principles applicable in an appeal from a finding of fact. Of course there may be determinations which involve little, or no, speculation. For instance, the success of a claim for past loss of earnings (and I use that expression as a convenient way of describing the impairment of past earning capacity) may depend, in essence, upon the resolution of a disputed issue of fact, such as whether the plaintiff is truthful in his assertion of incapacity. Similarly the resolution of a claim for damages in respect of a permanent impairment of earning capacity may depend substantially upon a finding on incapacity. At the other end of the scale there are cases in which the trial judge will be required to reach a conclusion based on a high degree of speculation. In these cases the choice accorded to the trial judge URJ HARPER v BANGALOW MOTORS PTY LTD (Clarke JA) 21 must lie within a wide range and, in my opinion, the decision which reflects that choice can only be reversed in accordance with the test in Miller. Obviously that test is not to be applied automatically to all elements, economic and non economic, of the claim for damages. Whether that test is applied in respect of claims for economic loss will depend upon the facts of the given case. If the assessment is based essentially on factual determinations then no reason would appear to me why the Warren rule should not apply. Such a case would be one in which the allowance of a particular medical expense depended upon a determination whether the expense was payable in respect of the tortiously inflicted injury - the result depending upon the factual determination whether a causal link between the tort and the medical condition in respect of which the expense had been incurred had been established. If, however, the decision reflects a degree of judicial prophesy or speculation then I think that Miller must apply. I turn to consider the various challenges to the trial judge's assessment of the damages with these principles in mind. IMPAIRMENT OF EARNING CAPACITY Past Loss of Wages The appellant's injuries and disabilities have been set out in the judgment of the learned President, a draft of which I have had the benefit of reading, and I will not repeat them here. The trial judge found that the appellant was totally incapacitated for 15 months after the accident and partially incapacitated thereafter. This finding has not been challenged. In addition, his Honour after noting that the appellant had two children, a daughter born on 10 July 1983 and a son born on 7 February 1985, observed that her children's needs would have posed problems in any event in her engaging in employment and continuing to do so. At the trial the appellant claimed the sum of $40,000 based, in part at least, upon a claim using figures from the Nurses' Award. We were told during the hearing of the appeal that this claim was put in two ways. First, as an unparticularised global sum which properly reflected the degree of the impairment of earning capacity (the wholly intuitive approach); secondly upon the basis of a table of economic loss which was based on the Nurses' Award and which was handed to his Honour. In dealing with this claim his Honour noted that counsel for the appellant had conceded that there were real difficulties associated with this claim in respect of the period whilst the children were small and proceeded to allow the sum of $25,000. The submission that error occurred was put in two ways. First it was said that, having regard to the period between accident and the date of trial and the serious nature of the injuries, the sum was patently inadequate. Secondly, it was said that reference to the table which had been handed to his Honour indicated that his Honour had failed properly to reflect in money terms the interference with the plaintiff's earning capacity. I do not find the wholly intuitive approach helpful although I recognise the fact that in the end the particular assessment of past earning loss reflects a judgment based on a degree of speculation. In my view it is more helpful to have regard to the table presented by the appellant's counsel as providing a rough guide for use in assessing an appropriate figure. There are, however, it seems to me, difficulties with this table. Although allowance is made for a period, slightly in excess of 4 years, when the appellant would have been unable to work because 22 UNREPORTED JUDGMENTS of the need to look after her children it proceeds upon the basis that the appellant was totally incapacitated for a period of two years and three months which is quite contrary to his Honour's finding. Furthermore, it compensates the appellant for total incapacity for the period of slightly under six months immediately preceding the date of trial. If adjustments are made to the table to take account of these factors, which do not conform with his Honour's unchallenged findings, the figure which results is approximately $25,000. Although one cannot be certain about this matter it would seem that his Honour made the adjustments to the claimed figure to take account of the findings I earlier stated. Whether or not he did so, however, is of no moment. What is important is that the limited evaluation of this element of the damages which is facilitated by the table would suggest that his Honour's award was a proper assessment upon the unchallenged findings. Having regard, therefore, to the multiplicity of difficulties involved in the assessment of this component in the circumstances of this case I would conclude that the appellant has failed to demonstrate error. Impairment of Working Capacity from the Date of Trial The trial judge found that the appellant had undoubtedly suffered a substantial loss of earning capacity. He considered that there were many jobs open to her although in his view all of them would be likely to cause her discomfort and pain. He also thought that there would be many occasions when she was not able to work because of the pain that she was suffering. The allowance of $80,000 by his Honour for this element of damages was based upon a continuing average loss of $100 net per week. Discounting this sum for 27 years in accordance with the 3 per cent tables, and making allowance for a 15 per cent deduction for vicissitudes, results in a figure of $82,501. In order to arrive at $80,000 his Honour rounded off the award which, broadly speaking, should be seen as an allowance based on a measurement of the loss of earning capacity at $100 per week. The appellant has not been able to demonstrate any explicit error in his Honour's approach. Senior Counsel submits, however, that $100 per week was an inadequate reflection of the effects of the accident upon the appellant's work capacity. He submits that an appropriate figure upon which to base was $150 per week. The task of assessing this element of the damages involved many imponderables and required the exercise of the art of double prophesy about which Lord Diplock spoke. It is impossible to pretend that anything approaching mathematical certainty could be achieved. The trial judge's intuitive reaction to the evidence was that the impairment should be measured at $100 per week. Given the difficulty of the task confronting him and approaching this aspect of the appeal upon the principles applicable to a judgment of a discretionary nature I am unable to conclude his Honour's assessment is outside the range of permissible awards. I would reject this ground of appeal. General Damages His Honour allowed $60,000 for this sum. It is said that this is so inadequate that error should be inferred. Again, it must be accepted that the range of permissible awards was necessarily wide. But there was, in my opinion, one important factor which his Honour was required to bear in mind. The assessment of compensation for impairment of earning capacity from the date of trial proceeded upon the basis that although the appellant would be able to exercise residual earning capacity she would only do so with difficulty. I have already recorded the finding to that effect and it is a finding which should be reflected in 10 $23,660. URJ HARPER v BANGALOW MOTORS PTY LTD (Clarke JA) 23 the award for general damages. Having regard to the severity of the injuries and disabilities, the range of awards observed in this Court and the need to take account of the not unimportant factor I have mentioned I am of opinion that the sum of $60,000 was quite inadequate. While, therefore, I approach this element 5 of damages upon the basis that the rules relating to discretionary judgments apply I would conclude that the allowance is manifestly inadequate and should be increased to $80,000. For the purposes of the interest calculation I would apportion $35,000 of this sum to the past which attracts interest, at the rate of 8 per cent for 8.45 years, of I would, therefore, allow the appeal. In lieu of the judgment below I would direct judgment for the plaintiff for $265,000.00 made up as follows and rounded off:2.4. 5. 6.8 T . Hospital and medical expenses $18,411.59 . Domestic assistance 7,000.00 . Future operation 6,000.00 Past loss of wages/earning capacity 25,000.00 Future loss of earning capacity 80,000.00 . General damages 80,000.00 . Interest on past economic loss 25,000.00 Interest on past general damages 23,660.00 OTAL $265,071.50 In accordance with these calculations I would direct judgment for the appellant for $265,000 to take effect from 23 February 1989. Accordingly, I propose the following orders: 1. 2. 3. 4. 5. Allowance to be made for the sum already paid to or on behalf of the 6. 7. The respondents to pay the appellant's costs of the appeal. Appeal allowed; Set aside the judgment of Loveday J dated 23 February 1989; In lieu thereof enter judgment in favour of the appellant in the sum of $265,000.00; Such judgment to take effect from 23 February 1989; appellant by the respondents or their insurer; The defendants to pay the plaintiff's costs of the trial; Counsel for the Appellant: A LESLIE QC and M G CUMMINGS Counsel for the Respondent: C T BARRY Solicitors for the Appellant: PAUL A CURTIS and CO Solicitors for the Respondent: GM MEADOWS