SYMONS v CERRUTO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY (1) P, MAHONEY (2) AND CLARKE (3) JJA 21 July 1990, 17 October 1990 [1990] NSWCA 198 DAMAGES — personal injuries — general damages — brain damage — remedial high school teacher suffers serious memory loss — inability to remember facts in teaching and social circumstances — necessity to keep notes to prompt memory — other multiple abrasions — scars — dental and jaw injuries — trial judge awards $50,000 — held: (per Mahoney and Clarke JJA; Kirby P dissenting) The sum awarded was not so low as to justify intervention by the Court of Appeal. Reference made to the advantages enjoyed by the trial judge. Miller v Jennings (1955) 92 CLR 190; Moran v McMahon (1985) 3 NSWLR 700 referred to. DAMAGES — future medical expenses — possibilities of incurring — proper approach to awarding damages — uncontested evidence suggests various possible future operative treatment of temporo mandibular joint dysfunction — trial judge awards $2,500 — held: (per Mahoney and Clarke JJA; Kirby P dissenting) The award was open to the judge on the evidence notwithstanding contrary medical evidence and the acceptance of the truthfulness of the plaintiff who said she would have the operations. Malec v JC Hutton Pty Ltd (1990) 64 ALJR 316, 318 referred to. APPEAL — Court of Appeal — damages appeal — discussion by Mahoney JA of the proper approach to a review of a damages award — consideration of the advantages of the trial judge — Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 (HL); Miller v Jennings (1955) 92 CLR 190; Skelton v Collins (1966) 115 CLR 94; and Fitch v Hyde Cates (1982) 150 CLR 482 discussed. Supreme Court Act 1970, s75A(5). Kirby P Before the Court is a plaintiff's damages appeal which the defendant resists. The defendant seeks to uphold the assessment of the trial judge (Whealy A-DCJ) or alternatively, by notice of contention, asserts that over compensation of the plaintiff on one head of damages outweighs any under compensation on others. Assessment of damages: narrow issues The plaintiff in the District Court, Mrs Kathleen Symons (the appellant) was injured in a serious motor vehicle accident on 9 October 1982. She suffered personal injuries which occasioned significant disabilities and losses. As a consequence she sued Mr John Cerruto (the respondent) claiming that her injuries and losses were caused by his negligence. The liability of the respondent was admitted at the trial. It therefore fell to Whealy A-DCJ to assess the amount of the appellant's damages. In thoughtful reasons dated 7 December 1988, his Honour gave judgment in favour of the appellant in the sum of $137,298.04. The appellant has appealed to this Court claiming that the damages awarded to her were inadequate. The appeal falls to be determined in accordance with well known principles governing such appeals from judgments which are discretionary or quasi discretionary in character. Judgments of damages for personal injuries are of that kind. The 2 UNREPORTED JUDGMENTS principles which govern the appellate function of this Court in reviewing the damages awarded by Whealy A-DCJ are not relevantly in doubt so that I will not discuss them. They are conveniently collected in Moran v McMahon (1985) 3 NSWLR 700. To say that there is no objectively correct sum in cases of this kind or that there is no empirical norm against which the judgment at first instance may be measured is, with respect, to state the obvious. It cannot relieve this Court of its appellate function by way of rehearing. This is so, for the simple and equally obvious reason that Parliament has so provided. Moreover it is a function which the Court shoulders day by day. The resolution of the issues in the appeal is made still more simple by the fact that there is no dispute between the parties about many of the issues which were litigated at the trial. Whealy A-DCJ found that the appellant was an impressive person and a reliable witness. He preferred the principal case which was brought for the appellant to that for which the respondent contended. The chief battleground at the trial concerned whether the appellant's disabilities were the result of organic brain injury (and therefore likely to be permanent and unlikely to improve) or functional or psychological in character (and therefore more likely to be temporary and to resolve over time). His Honour preferred the former case. That conclusion was not challenged in the appeal. It is therefore the basis upon which his Honour's assessment must be considered. Similarly, Whealy A-DCJ preferred the complaints of the appellant about her injuries and disabilities to any suggestion that they had been overstated or exaggerated. This conclusion, necessarily based in part at least on the advantage which his Honour enjoyed as the trial judge in assessing the appellant, is sensibly accepted by the respondent in this Court. The components of the judgment entered by his Honour were as follows: "Past loss of earning capacity 4,629.84 Past out of pocket expenses 1,231.70 Future out of pocket expenses 2,500.00 Future loss of earning capacity 55,598.50 Loss of future superannuation benefits 16,184.00 General Damages 50,000.00 Interest on past general damages 6,473.00 Interest on past loss of nett income 681.00 $137,289.04 Of the foregoing components in Whealy A-DCJ's assessment three only are challenged by the appellant in her appeal. They are the amounts allowed for general damages, for future out of pockets (medical and dental expenses) and interest. The challenge in relation to interest is parasitic, in the sense that it depends upon the success of the first two attacks on his Honour's assessment. Likewise, the respondent did not contest that, if the appellant were to succeed in disturbing the amount allowed for general damages, interest, appropriate to any increase in the sum attributed to past general damages, would need to be increased accordingly. In this way, the issues raised by the appellant's appeal came down to two questions. Was the amount allowed for general damages appealably inadequate? Was the amount allowed for future treatment expenses so erroneous as to permit this Court to intervene and substitute another sum? If both or either of these questions were answered in the affirmative, the respondent by a notice of contention asserted that the judgment entered by Whealy A-DCJ would nonetheless be sustained upon the basis that the allowance made by his Honour for future loss of earning capacity and for loss of superannuation benefits was excessive. When an appropriate deduction was made for this excess (so it was said) the judgment entered in favour of the appellant would be sustained as right. URJ SYMONS v CERRUTO (Kirby P) 3 The injuries and disabilities proved In order to resolve these contending arguments, it is necessary to understand something of the life of the appellant and the injuries and disabilities she suffered as a consequence of the subject accident. Again, there was no substantial contest, at least in this Court, about these matters. The evidence emerged, typically in this case, from a limited amount of oral evidence. Only the appellant and her husband gave such evidence. The rest of the evidentiary material, which was quite bulky, was a mass of medical and hospital reports, taxation and employment records and an actuarial opinion. The appellant's injuries occurred when she was travelling as a passenger in the front seat of her husband's car. The respondent's vehicle veered onto the incorrect side of the road and collided with the vehicle in which the appellant was travelling. It did so with great force. The appellant was wearing a seat belt at the time. However, she was thrown forward with considerable force. She suffered injuries by way of abrasions to her forehead, lacerations to her left eye and cheek, bruising to the sternum and left ribs and abrasions caused by the seatbelt. She also suffered lacerations to the right knee and ankle and partial loss of skin about the left knee. As well, she suffered injuries to five teeth, a fracture of the nasal bone and trauma to the temporo mandibular joints. As a result of the impact she was rendered unconscious. She remained unconscious for a time until shortly before she reached hospital. Immediately she noticed vertigo. This condition persisted. But most importantly, she noticed a serious loss of memory which has also persisted. It must now be regarded as permanent. It obstructs short term recall. Dr Bruce Petersen, a clinical psychologist, found a 70 to 80% loss of recent post distractional memory. This significant disability was caused by the trauma, evidenced by the immediate loss of consciousness and resulting in frontal lobe dysfunction. The appellant is a young woman now aged 33 years. She was 31 at the time of the trial. She was, and still is, a teacher employed by the Department of Education. She was described in the report of one medical witness as "'a stranger to ill health". She had had no prior workers compensation or injury claims. She had been a good student both at school and at university. She aspired to higher office in the profession of teaching. She admitted to bitterness that colleagues of lesser ability now passed her by. At the time of the injury, the appellant was teaching OA classes - special classes for remedial instruction of children with behavioural problems. She had lost only 18 days off work following the injury. She went back to her former work and persisted with it until 1983. However, she found it more difficult to cope with special teaching, especially because of her constant memory loss and failure of concentration. She therefore asked for a transfer into the mainstream of teaching within the Department's service. She said that this request, and the known basis for it, effectively marked the end of her prospects of promotion as a teacher in the special education stream. Whealy A-DCJ found that the appellant's memory impairment was such as "to preclude her from applying for promotion". In the light of the evidence, this finding seems entirely reasonable and proper. The allowance for general damages His Honour allowed a lump sum of $50,000 for general damages. The appellant says that, in the findings which Whealy A-DCJ recorded, and in the light of the evidence which was not substantially challenged, this sum was an insufficient allowance for her serious injuries, her continuing disabilities and the interference which they caused to here enjoyment of both professional and social life. The criticism of the amount allowed by his Honour was advanced upon three bases. 4 UNREPORTED JUDGMENTS First, it was said that the trial judge had failed adequately to reflect the impact upon the appellant of her memory loss. It was said that this impact was specially devastating because of her demonstrated sensitivity and devotion to learning. As a teacher she was dependent for here professional success and satisfaction upon her intellect and personality. In such a life, her capacity to recall was even more important than for the ordinary person suffering such disability. Her insight into her loss was therefore greater and should be compensated accordingly. The appellant described her retention as "extremely poor". She said that in remembering facts she was "no good at all". She would misplace bills and important letters. The disability impacted both her social and professional life: "Q: What about things like social occasions, does it have any impact there? A: Yes, people talking about, just in general conversation, talking about politics or anything in the current affairs, I always feel sadly lacking because I don't recall current events and things like that, I just tend to sit back and say little in case I make a mistake. Q: Before the accident, to what extent would you have participated in that sort of discussion? A: Fully. Q: At school, in the straight teaching situation, what sort of an impact has it had on you there? A: A big part of it is with the actual content of what I am teaching, I cannot recall the facts. If we are doing any social studies unit I have to constantly revise that unit and even then the children will ask me a question and I will turn around and say, "That is a good time for you to do research' because I cannot recall the answer. So I have to get them to do the work." The appellant gave evidence that to compensate for her loss of recall, she adopted various stratagems. She kept a pinboard at school on which she would put notes. She kept a day book in which she recorded points which she would otherwise forget. She had difficulty remembering even the names of the children in her class. She needed to consult her notes for that purpose. She felt that her memory of important events in her past life was decreasing. All of this added to stress, frustration and tension. It is true that the trial judge had an advantage in seeing the appellant and assessing the impact of her memory loss on her. However, in this regard his Honour carefully recorded his impressions of the appellant. He accepted her as an honest witness. It is therefore appropriate for this Court to approach the task of assessment by accepting the appellant's testimony. To that extent, this Court is in as good a position as Whealy A-DCJ was in measuring the impact of the injuries and disabilities upon the life of the appellant. To perform our undoubted appellate function, in the appeal by way of rehearing, the affirmative finding about the appellant's credibility removes one of the obstacles which sometimes impede the performance of the appellate task. Secondly, the appellant complained of difficulties with her jaw and with her teeth. There is a prospect of further pain in the jaw which will probably require future surgical intervention. The complaint about the amount allowed by his Honour under this head is the subject of a separate ground of appeal. But the appellant contended that the prospect of increasing pain and the possibility, at least, of future surgical interventions must be weighed in assessing the dislocation of her life for which general damages must be allowed. The respondent contended that, with conservative treatment, it might be that the appellant would avoid the necessity of operation on her jaw. But the appellant pointed out that, if this were so, allowance should be made for the prospect of increasing pain and discomfort which she would have to endure in preference to URJ SYMONS v CERRUTO (Kirby P) 5 an operation. One way or the other, the serious injuries to the appellant's teeth and jaw had to be reflected in a substantial sum for general damages. Thirdly, the appellant referred to the effect of scarring. In this respect, Whealy A-DCJ had distinct advantages over this Court. The Court had the benefit of photographs which were taken soon after the injury. They show scars on various parts of the appellant's body but most noticeably a long and prominent scar under the left eye. This scar was reduced by cosmetic procedures. But it remains a significant blemish. For this and the multitude of abrasions as well as continuing back pain, the appellant was entitled to be compensated. In defending the allowance of $50,000 general damages, the respondent laid emphasis upon the quasi discretionary nature of the sum allowed. As to the memory loss, it was pointed out that adopting the improvisations which she had taken, the appellant was able to cope with her professional life. She had not forgotten anything major. She had not lost any extensive time from work. Although "brain damage" sounds dramatic, the appellant had coped very well with the serious nature of the trauma to which she was subjected. As to the dental injuries, four of the five teeth damaged in the accident had been successfully capped. One only required further attention. The dysfunction of the temporo mandibular joint was being treated conservatively and might continue to be so. The scars did not overly embarrass the appellant. AS to her stress and tension, she had improved and her prognosis on this score was considered to be good by Dr Hugh Jolly, a psychiatrist consulted to review her case. One of her major continuing disabilities was exceptional fear in traffic, particularly as a passenger. Dr Jolly suggested that she would be helped by a number of sessions with a consulting psychiatrist. When pressed by the Court, counsel for the appellant suggested that the "bottom of the range" for general damages of the magnitude suffered by the appellant was $70,000 to $80,000. I do not consider that this represents an exaggerated claim. Determining the amount of general damages for any injured person is not a normative exercise. There is no science to it. An appellate court will not disturb the assessment of a trial judge simply because it would be inclined to substitute a greater or a lesser sum. Error must be shown. It may not be shown by comparison to other specific cases. Planet Fisheries Proprietary Limited v La Rosa (1968) 119 CLR 118. But the function of this Court, in conducting appeals by way of rehearing in a large number of damages cases is, in a very general way, to review the amounts allowed by different judges. The Court may draw upon its general experience. The appellate facility is a safeguard against awards that are clearly too high or too low. By these standards, and with every respect to the trial judge whose judgment has been of great assistance to this Court and is most thoughtful in its expression, I believe that the award of $50, 000 for general damages is too low. I would substitute $70,000. A primary award of a considerably higher sum would not, in my view, have been disturbed. Future medical and dental expenses Whealy A-DCJ found that an amount should be allowed for future medical and dental costs. However, the sum allowed for this purpose ($2,500) is challenged by the appellant. It is important to see the context in which, and the reasons for which, his Honour fixed the sum which is in dispute. He said: "As to future out of pockets relating to the possibility of a further operation and further consultations, I am not satisfied that it is the 6 UNREPORTED JUDGMENTS appellant's intention at this stage to undergo the operation although I am satisfied she will seek further treatment and advice for both problems. I am prepared to award $2,500 under this head." It is clear from the context that the "further consultations" referred to relate to the consultations which Dr Jolly had proposed with a psychiatrist for the purpose of promoting relaxation and improving the appellant's anxiety state. The "operation" referred to clearly relates to procedures connected with the dysfunction of the appellant's temporo mandibular joint. The oral evidence concerning the issue was brief in the extreme. However, the appellant said this: "Q: How long is it since you have seen a doctor for any treatment in relation to your facial scarring or any other problem associated with the injuries to your face? A: Including the jaw? Q: Yes? A: Sorry, did you say actually seeing or getting treatment? Q: Getting treatment? A: I think I had the jaw splints at the end of last year. Q: Do you intend to seek any more treatment for the facial injuries including the jaw? A: Yes, I think I will have to because it is getting worse. Q: So you intend to have the operation proposed by (Dr Norman)? A: I intend going back and seeing hi(m), that is the only (sic) option available. Q: You have been told that there is no more operations available to you for the scars on your face? A: That's right. Q: No prospect of getting any more treatment for your nose or eye problems? A: I don't think so." As previously stated, Whealy A-DCJ accepted the appellant as an honest and reliable witness. Nothing was put to her in cross examination to suggest that she did not intend to have an operation on her jaw or that it was false to say that it (meaning the jaw) "is getting worse". The evidence about the needs for, and cost of, future operative treatment on the appellant's teeth and jaw was given by way of reports of Dr JE De B Norman. He is a highly qualified medical practitioner and dental surgeon. He reported that one further fused porcelain to gold crown was necessary to repair the left maxillary central incisor. He also recommended certain orthodontic treatment. He then turned to the temporo mandibular joint dysfunction. He expressed the opinion that this required treatment. He proposed that the treatment should begin with a conservative regime followed by the use of a maxillary full arch occlusal splint. However, if these measures were unsuccessful, he recommended manipulation of the jaw joints under anaesthesia. As to whether anything further would be required, diagnostic arthrography would be necessary, Dr Newman concluded: "If, as I suspect, her symptoms do not respond to skilled conservative treatment... an operation may be required and the costings of this hypothetical... operation are included in annexure A. A conservative arthroplasty would be carried out, viz mandibular condylar neck osteotomy (open condylotomy) plus precision scaphoid staple osteosynthesis plus modified Annandale type meniscoplasty." The cost of the hypothetical osteotomy (as the procedure may for brevity be called) was estimated by Dr Norman at $6,100. This Sum included surgeon and assistant surgeons' fees, the fee of an anaesthetist, pathology, radiology, physiotherapy and other costs as well as hospital and operating theatre fees. Dr Norman was pressed to give a further report setting out the possibilities of various forms of treatment. These range from the entirely conservative to the most pessimistic, viz arthoplasty. Upon these possibilities he expressed the following opinions If the appellant did not undertake conservative treatment he said: "I believe that her temporo mandibular joint symptoms will progress (become worse). I have described... gross and sustained crepitus (joint noise) in URJ SYMONS v CERRUTO (Kirby P) 7 both the right and left jaw joints palpable... and audible and, of course, evident on auscultation (ie with a stethoscope). It was a machinery like crepitus in both the opening and closing cycles and evident on both sides. The noise indicates significant internal derangement (ie derangement of the soft parts of the joint)." Asked about the possibility of success of treatment of a conservative character, Dr Norman said: "I do not believe that conservative treatment on its own will be occasioned by success." He went on: "I believe that the crepitus will become even more evident and joint locking more frequent and joint pain and otalgia (earache) will eventually become intolerable." He suggested that without operation in such circumstances the appellant would suffer exacerbation of joint pain making it difficult for her to continue with her duties as a high school teacher. She would become more depressed, dependent on drugs and face the risk of developing a functional condition. As to the ultimate "worst case", Dr Norman suggested that its possibility had to be taken into account. Although he believed that the osteotomy would succeed, if it were unsuccessful arthroplasty would have to be undertaken: "This would involve replacement of a ball of the joint and possibly the socket. At the time of dictating this further opinion... there is no indication whatsoever... to even contemplate such an operation... I indicate the strength of possibility on a scale of 1:10, I would suggest in the region of 1:5." The precise future needs of the appellant for dental and psychiatric consultations were of course, unknown at trial. As Dr Norman neatly put it: "We are now entering the realm of the ballo di crystallo". Such is the case whenever a court looks to the future and seeks to calculate damages for events which have not yet unfolded and, indeed, may never do so. The proper approach to the performance of this task has lately been considered by the High Court of Australia in Malec v JC Hutton Pty Ltd (1990) 64 ALJR 316. Deane, Gaudron and McHugh JJ (at 318) explained the approach to be taken: "When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical event of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent 8 UNREPORTED JUDGMENTS probability of occurring. Thus, the court assess the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded." On the possibility of osteotomy Dr Norman, with a commonsense appreciation of what was reasonable, virtually anticipated the approach of the common law later to be expounded in the foregoing passage in Malec. The risk that such an operation would be necessary is about 15%. He did not with the same precision identify in percentage terms the likely necessity of moving from a purely conservative to an operative procedure of osteotomy. But he did express an opinion that conservative treatment "on its own" would not "be occasioned by success". He was therefore saying that the need for an osteotomy operation was greater than 50%. In these circumstances, given the indication by the appellant (whose testimony was found to be credible) that her jaw was getting worse, that splints were not succeeding and that she would indeed return to Dr Norman for an operation as "the only option available", Whealy A-DCJ's conclusion that he should allow only $2,500 for all future medical and dental treatment appears wrong. The cost of the remaining dental crown and orthodontic treatment alone was of the order of $1,100. Deferring this sum for say nine years, an allowance of $842 would be appropriate for that minor treatment. In addition the conservative treatment for the jaw would involve the appellant virtually immediately in outlays of the order of $850. Consultations recommended by Dr Jolly would cost also virtually immediately, the sum of $1,450. Thus the sum allowed by Whealy A-DCJ made no allowance at all for the future possibility of operation on her jaw. Yet, at the very least, an osteotomy was said to be likely and the more serious and expensive arthroplasty had a 15% chance. The osteotomy would cost $6,100. The arthroplasty, according to Dr Norman, would cost about $9,000. In each case the appellant would require 28 days convalescence. Having regard to the appellant's net average salary at the date of trial the proper allowance for at least the time of convalescence during the osteotomy would be approximately $1,300. In my view it is necessary to add to the sum allowed by Whealy A-DCJ the sum of $8,000. This represents a proper reflection of the evidence of Dr Norman which was neither challenged nor contradicted by the respondent. It allows the appellant the cost of the great part that would be involved if she were to proceed to osteotomy. It takes into account the possibility, though small, that she might eventually need the more serious arthroplasty. It allows not only for the medical and hospital expenses, appropriately deferred. It also allows for the loss of income during such periods of convalescence as may possibly be necessary. Future loss of earning capacity The foregoing conclusions suggest the need to proceed to a recalculation of the appellant's damages. In the event that the Court was of the opinion that error had been shown, it was the common submission of the parties that the matter should not go back for retrial but that the Court should proceed to a reassessment for itself. No reason has been shown why this should not be done. Save for the cosmetic injuries (partly illustrated by photographs) this Court is fully able safely to proceed to reassessment without seeing the plaintiff and her husband give evidence. It will be recalled that no other oral evidence was given. This Court has all of the reports which were before Whealy A-DCJ. By its notice of contention, however, the respondent urged that recalculation was not necessary because his Honour had overcompensated the appellant in the allowances made for future loss of earning capacity and for loss of URJ SYMONS v CERRUTO (Kirby P) 9 superannuation benefits. It was argued that his Honour had merely accepted the actuarial calculations which were based upon the assumptions that the appellant would have proceeded through the stages of progression in her employment as a high school teacher. The respondent attacked these assumptions (which affected the calculations) for loss of earning capacity and for loss of superannuation benefits attaching to promotion salaries upon two bases. First, it was said that the appellant would, had she not been injured, have had to run the gauntlet of successive inspections, assessments, the opinion of her superiors and the availability of vacancies. In all of these, chance factors had to be allowed which were insufficiently reflected in his Honour's acceptance of the actuary's assessment. As well, the respondent urged that insufficient allowance was made for the fact that the appellant would have taken time off work during and after pregnancy for a child (or children) which she was planning with her husband. Her husband gave evidence that he and his wife hoped to have a child. He indicated that they had been married for ten years and that the appellant had entered an IVF programme. It seems that, at least to the time of trial, it had not been successful. Although not spelt out, it appears that the appellant was having difficulty in becoming pregnant. Her husband was asked: "Q: It is still the wish of you and your wife to have a child? A: Yes, it is. Q: So will you continue with attending that (IVF programme) or some similar programme? A: Yes, we will. Q: What were your plans in relation to your wife's employment if you are to have a child, is it contemplated that she will stop work for some time? A: She planned to take the normal maternity leave which is available from the Education Department. Q: That would be 12 months? A: Yes. Q: Only three months of which would be paid leave? A: Yes. Q: Have you discussed what she might do after the 12 months was up? A: Yes. She didn't want to leave teaching altogether, she would prefer to carry on on a casual basis or maybe after two or three years and then start fulltime again after that. Q: That is the pattern among female school teachers, is it quite common to do that? A: Yes. Q: So for at least two or three or even four years after the birth of a child she would have a reduced income from teaching? A: Yes. Q: Can I ask you about your long term goals, would you and your wife wish to have more than one child? A: We would, we are not sure if that is going to be possible." Whealy A-DCJ allowed a 15% deduction from the lump sum of the future loss of income and superannuation benefits which he attributed to the appellant's loss of promotion prospects. He concluded: "I think I am entitled to accept the plaintiff's evidence as to the steps which are taken when a teacher applies to go to the next list and to the procedure involved in the examination of such a teacher for promotion and I am satisfied that the evidence is, as I have stated it, namely that the plaintiff's memory impairment is such as to preclude her from applying successfully for promotion." Having accepted the loss of the prospect of promotion (with the loss of superannuation and income attached to it) his Honour concluded: "As to future loss of income and superannuation it is necessary for the Court to compensate the plaintiff for the diminution in earning capacity which has occurred as a result of the accident. It is necessary that the Court should take into account the vicissitudes of life in coming to an informed judgment. On the other hand the Court must, doing the best it can, consider the normal eventualities in life that are likely to affect this particular plaintiff. Mrs Symons is, at present, very devoted to her work. There is no indication that her disabilities have soured in any way her determination to be a good teacher. Despite the daily problems of coping with 10 UNREPORTED JUDGMENTS parents, teachers, children and the curriculum in the light of her disabilities she has continued in a very determined fashion. I believe it is probable she will remain in her profession while ever her health and determination allow her to do so. Of course she and her husband wish to have a child or children. If this is to happen she will take leave but it is her intention according to her evidence to return to work about a year after the birth. It is possible and I put it no higher, that as her child or children grow into their teens she may, as many teachers or mothers in the workforce do, feel she should spend more time with them. This may have some bearing on her staying at work. I must take all these varying factors into account. I am determined that the mathematical calculations in (the actuary's report) referable to compensation for loss of future income and loss of future superannuation benefits should be reduced by 15 to reflect these variables." The respondent states that the percentage chosen is the standard or usual percentage for ordinary vicissitudes of life. It makes no (or insufficient) allowance for those features which are special to the appellant and which have been set out above. On the other hand, the teaching profession is more cloistered and orderly than many other vocations (at least under present arrangements and on the evidence before the trial judge). It is not exposed to the same risks of injury which other forms of employment can cause and which often attract a greater discount for vicissitudes. The appellant's hopes for children appear, in her case, to have run into difficulties as reflected by her participation in the IVF programme. In all of these circumstances, I am not disposed to believe that the 15% allowance made by the trial judge was wrong. It is clear that his Honour had in mind the necessity for a discount. If the respondent had wished to lay emphasis upon the matters now urged in advocacy in this Court, it could, for example, have called evidence from the Education Department about the number of teachers who progress through the promotion ranks, and those who do not. It failed to do this. In these circumstances, I can detect no error in the way in which Whealy A-DCJ approached the calculation of the loss of future income and superannuation benefits. Nor do I see error in the discount of 15% which he provided. This discount is conventional; but it is not fixed by law. Courts must be careful to avoid penalising female plaintiffs upon assumptions that, for pregnancy, they will retire from the workforce for the lengthy periods which were formerly customary. Harper v Bangalow Motors Pty Ltd, Court of Appeal, unreported, 24 July 1990. In modern circumstances this is less common than once it was. Female employment, equal job opportunity and even marriage breakdown have contributed to the desire (and sometimes necessity) of women returning more speedily to their employment activities. Particular care must be exercised in a case such as the present where the evidence shows (or at least clearly suggests) that the appellant was experiencing difficulty in achieving pregnancy such that she had to resort to the IVF programme. Conclusions and orders The result is that two of the points raised in the appeal by the appellant should in my opinion succeed. The general damages should be increased by $20,000. The allowance for future dental and medical treatment should be increased by $8,000. A portion, $6,000 of the additional general damages (in the same ratio as adopted by the trial judge and at the same rate of interest) produces an additional award of interest of $2,520. As a result, I would increase the judgment in favour of the appellant by $30,520. No other head of damage (save from those dealt with in these reasons) has been criticised. I therefore see no reason, on a recalculation, to alter the allowances made by URJ SYMONS v CERRUTO (Mahoney JA) 11 Whealy A-DCJ for them. The result is that I would propose the following orders: 1. Appeal allowed; 2. Set aside the judgment entered by Whealy A-DCJ; 3. In lieu thereof, enter judgment in favour of the plaintiff in the sum of $167,818.04; 4. Direct that the judgment have effect from 7 December 1988; 5. Order the defendant to pay the plaintiffs costs of the trial; and 6. Order the respondent to pay the appellant's costs of the appeal but to have, if qualified, a certificate in respect thereof under the Suitors' Fund Act, 1951. Mahoney JA The plaintiff has appealed to this Court against the judgment of Whealy A-DCJ by which he awarded her $137,298.04. She has contended that the judge erred in relation to three matters: (a) the amount to be awarded for future out of pocket expenses; (b) the general damages and (c) interest on the general damages. (a) Future out of pocket expenses: I am not satisfied that his Honour erred in the amount awarded. His Honour was obliged to take into account and balance, inter alia, two things: the sum presently appropriate to compensate the plaintiff for the fact that she is now subject to the risk or possibility that, at an indefinite time in the future, she may feel it necessary to incur expenses in respect of the relevant surgical operation: see Malec v JC Hutton Pty Limited (1990) 64 ALJR 316; and the amount which, appropriately invested, would be sufficient to fund the costs of the operation at the time when it was apt to be undertaken. If it were to be concluded that she would undertake the operation, it would be necessary to determine when she would have it and to provide a sum which, appropriately invested, would meet the then costs of it. But, for the reasons to which Clarke JA has referred, the learned judge was not satisfied that she would undertake the operation. I do not think this Court should differ from that conclusion. Therefore his Honour's task was to provide a sum to compensate her for the possibility that, no doubt because her condition had become such as to warrant the decision, she would decide in the future that she should have the operation. I am not satisfied that what his Honour did was wrong. I would, on that basis, arrive at a similar conclusion. (b) General damages: For the reasons given by Kirby P, this is a sad case. The plaintiff suffered substantial injuries and she has, no doubt, been left with feelings of emotional upset and frustration. I am conscious that her appeal comes to this Court as on a rehearing: Supreme Court Act s75A(5); Moran v McMahon (1985) 3 NSWLR 700 at 714 et seq. But it is important to have clearly in mind what, on an appeal such as this, the duty of this Court is. This has been settled by the decision of the High Court in Miller v Jennings 92 CLR 190 and the cases in which that decision has been applied. What this Court is to do is to determine "whether the compensation assessed is so inadequate as to be beyond the limits of what a sound discretionary judgment could reasonably adopt": at 197. In that case, the High Court considered an appeal direct from a decision of a trial judge of the Supreme Court of Western Australia: at 192-3. However, in formulating the principles to be applied, it referred to and adopted the principles formulated in the House of Lords and the English courts in considering the role of "an appellate court" in England, where the appeal from a trial judge is by way of rehearing: see at 195-6. Miller v Jennings has been repeatedly applied by this Court in such appeals as this. It has, in this regard, been said repeatedly that the appeal court, on a rehearing, does not interfere merely because it would, if sitting at first instance, have assessed the compensation at a different sum. In Miller v Jennings: at 195-6; Dixon CJ and Kitto J cited and applied the statements of Lord Wright in Davies 12 UNREPORTED JUDGMENTS v Powell Duffryn Associated Collieries Ltd (1942) AC 601 at 616-7. Lord Wright there said: "Where, however, the award is that of the judge alone, 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. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer LJ in Flint v Lovell (1935) 1 KB 354 at 360. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency". And Dixon CJ and Kitto J added, as far as is here relevant: "In other words, is the case one to which either branch of the general proposition of Greer LJ in Flint v Lovell applies, namely that the appellate court must be convinced either that the judge acted on a wrong principle or that the amount awarded was so extremely small as to make it, in its judgment, an entirely erroneous estimate of the damage to which the party is entitled.": at 196. The reason why an appellate court may not merely substitute its own assessment of general damages but may intervene only in the circumstances to which their Honours referred derives, I think, not from an arbitrary limitation of what a court may do on a rehearing but from the nature of what a trial judge does when he assesses the compensation appropriate as general damages for what a plaintiff has suffered. I refer in this regard to what is ordinarily comprehended by an award of general damages: loss of amenities of life, pain and suffering, and similar matters. What a trial judge does in assessing such general damages is not to value objectively in money terms that which has been lost by the plaintiff. His task is to assess a sum which, in accordance with accepted community values, provides a compensation for those elements of suffering included in general damages. That this is what a judge does appears from the passages cited and approved in Miller v Jennings. In Davies case, in the passages cited by Dixon CJ and Kitto J: 92 CLR at 195; Lord Wright said: "An appellate court is always reluctant to interfere with a finding of the trial judge on any question of fact, but it 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 matter of speculation and estimate. No doubt, this statement is truer in respect of some cases than of others. The damages in some cases may be objective and depend on 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 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. These latter cases are almost entirely matter of impression and of common sense, and are only subject to review in very special cases." Dixon CJ and Kitto J, having considered what was there said and having referred to the judgment of the trial judge, said: at 197: "The appeal must depend simply upon the answer to what must be the ultimate question, namely whether URJ SYMONS v CERRUTO (Mahoney JA) 13 the compensation assessed is so inadequate as to be beyond the limits of what a sound discretionary judgment could reasonably adopt. We do not doubt that the amount of the compensation awarded is low and we have had some hesitation concerning our decision but we do not think that it is so inadequate as to justify us in reviewing the learned judge's assessment. It cannot be described as outside the limits of what a sound discretionary judgment could reasonably adopt." The view that, in general damages of this kind, the award to the plaintiff is not the money equivalent or value, objectively determined, of what the plaintiff has lost but a sum given on a different basis and for a different purpose, has been consistently adopted in England. Thus, for example, in Oliver v Ashman [1962] 2 QB 210 at 231-2 Holroyd Pearce LJ said: "One cannot seek for precision or certainty in many cases which are tried by the courts in their anxious task of weighing imponderables. Often, there is a norm, whether established by common sense or reason or the convention of the courts. Then one can decide how great a departure from it justifies the description 'wholly erroneous'. But here there is no such norm." His Lordship was considering a plaintiff who had received serious brain injury and suffered, inter alia, a reduction in the expectation of his life. In considering the sum awarded for general damages, his Lordship said: "I myself would feel inclined towards a larger figure, but Lord Parker CJ and my brethren all think otherwise. I can give no adequate reason to support a higher figure or to show that one figure is more right than the other. There is no norm by which one can say that this figure is right and the other wrong. To say in Shelley's words 'I cannot argue I can only feel' may be permitted in a juryman but it is rarely a sound foundation for a judgment. Here, Lord Parker CJ has impeccably balanced all the relevant matters with sympathy and anxious consideration and arrived at a conclusion. One certainly cannot say that it was wholly erroneous." The decision in Oliver v Ashman has been the subject of critical examination in Australia: see Skelton v Collins 115 CLR 94; Fitch v Hyde Cates 150 CLR 488; in relation in particular to damages for loss of expectation of life. But, in relation to general damages, the English view of the nature of the award for them has remained the same. Thus, in Wright v British Railways Board (1983) 2 AC 773 at 781, Lord Diplock said: "My Lords, just as the lump sum of money assessed as being the appropriate compensation for past and future pain and suffering and loss of amenities cannot be other than a conventional figure, since such noneconomic loss is not susceptible of measurement in money, so too an award of simple 'interest'...". In Australia, the analysis of the nature of the award of general damages has, in my respectful opinion, been developed more incisively. In Skelton v Collins at 129 et seq, the mattex was analysed by Windeyer J. The court was there considering an award of general damages and the amount to be assessed for loss of expectation of life where a plaintiff was permanently unconscious. Windeyer J: at 128; came to consider, inter alia, the general damages to be awarded to a plaintiff in such circumstances. His Honour said: at 129: "The general principle that damages are compensatory yields what seem to me to be some equally sure, but more particular, doctrines. The first is that a plaintiff is entitled to be recompensed for expenses, such as for medical and nursing attention, that he incurs, or that are incurred on his behalf, as a consequence of his injury. The next tule that, as I see the matter, flows from the principle of compensation is that anything having a money value which the plaintiff has lost should be made good in money. This applies to that element in damages for personal injuries which is 14 UNREPORTED JUDGMENTS commonly called 'loss of earnings'. The destruction or diminution of a man's capacity to earn money can be made good in money... The next matter depends upon very different considerations. It turns upon the plaintiffs being deprived of something that he could not have sold, his ability to enjoy in the way that he formerly could whatever life should offer. A man whose capacity for activity, mental or physical, is impaired, so that no longer can he get satisfaction and enjoyment from things that he was accustomed to do and cannot do what he had planned or hoped to do, has not lost a thing the value of which for him can be measured in money by any process of calculation or estimation that I can understand. This consequence of an injury may be called by the convenient phrase, 'loss of amenities', or be described more elaborately and in more elegant words.... Iam unable myself to understand how monetary compensation for the deprivation of the ability to live out life with faculties of mind and body unimpaired can be based upon an evaluation of a thing lost. It must surely be based upon solace for a condition created not upon payment for something taken away." Subsequently, having considered the nature of "life" and "happiness", his Honour: at 131-2; said: "I do not for a moment doubt that a man who has been deprived of the opportunity to live his life as he would have wished, and for as long as he might have expected, may, if he retains sufficient intellectual capacity to know his misfortune, feel distressed and frustrated. He is, I do not doubt, entitled to compensation for what he suffers. Money may be a compensation for him if having it can give him pleasure or satisfaction. If his expected years of life have been made less, money may enable him to cram more into the time that remains. If he has been deprived of the ability to do some things that he had enjoyed doing or had hoped to do, then money may enable him to enjoy other things instead. But the money is not then a recompense for a loss of something having a money value. It is given as some consolation or solace for the distress that is the consequence of a loss on which no monetary value can be put.... The words do not matter however, for the distinction between a loss of a thing on which a money value can be put and the distress of mind and sense of loss for which money is only a solace is, I consider, basic and real.... The correlatives of the two kinds of damage are the two grounds of damages, which I have called 'recompense' and 'solace'. This, I think, provides a solution to the question we have to consider. Of course, recognising that general damages for 'loss of amenities', including distress and concern caused by a knowledge of the curtailment of life, are by way of solace does not help much towards determining what amount it is proper to award in a particular case.... The only guide suggested is fairness and moderation, whatever those may denote. It is the same perplexity that surrounds the measuring of damages for pain and suffering. It may be that giving damages for physical pain that is wholly past, not continuing and not expected to recur, is simply an anomaly, for there can be no solace for past pain." What follows from the fact that this is the nature of an award for general damages? It follows that, because of the nature of that for which damages are to be given, there is no single sum which, objectively, is the correct compensation, to the exclusion of all other sums. A sum given as a consolation or solace for such pain and distress and the like can be assessed only according to what existing social values warrant, taking into account, as I think the Court must, the sensitivities of and otherwise the effects of the injuries upon the particular plaintiff. To suggest that there is but one sum which is correct for this purpose URJ SYMONS v CERRUTO (Clarke JA) 15 would be to assume that a greater degree of certainty can be arrived at in respect of an assessment of these matters than the nature of the process rationally will allow of. It follows also that the judgment which a trial judge gives in making that assessment is, in the relevant sense, a discretionary judgment. "Discretion" and "discretionary judgment" are terms which comprehend several quite different reasoning processes: see generally Rosemary Pattenden "The Judge, Discretion and the Criminal Trial" at 1-10; DW Skubik "Judicial Discretion and Legal Reasons: Rochin Revisited"; Bulletin of the Australian Society of Legal Philosophy, Vol 11(April 1987) 2 at 13 et seq. What a judge does in identifying, evaluating and weighing the relevant criteria to determine what is the appropriate sum to provide consolation or solace in this regard is of its nature discretionary. And it follows that what an appellate court may do on appeal from such a judgment is limited. There is, in the abstract, no reason of principle why an appellate court, in the rehearing of a matter in which such a judgment has been given, should not substitute the result of its discretionary judgment for that of the trial judge. But it is, of course, firmly settled that the appellate court should not do so except in the circumstances which have been defined. It may intervene to set aside the discretionary judgment of the trial judge only in the limited circumstances referred to in Miller v Jennings. The justification for this restriction upon the powers of the appellate courts need not be pursued. It is, I think, recognised that, as in this case, the views of judges as to what sum will constitute consolation or solace of an appropriate order for what the plaintiff has suffered will differ and that, if no reason other than Shelley's can be given for preferring one to the other, it is both expedient and just that the appellate court not interfere. But that, of course, does not finally determine the present case. It remains to decide whether $50,000 is so small as to be beyond the range of the sound discretionary judgment to which Dixon CJ and Kitto J referred. The present case is one in which there is the additional uncertainty of the assessment of the plaintiff's evidence. The learned judge gave the acceptance to her evidence to which Kirby P and Clarke JA have referred. But within the bounds of that acceptance, it lay with the judge to determine the impact of the injuries upon the plaintiff and the significance of what she could and could not do. In Miller v Jennings, Dixon CJ and Kitto J said of the judgment there in question: at 197: "It cannot be described as outside the limits of what a sound discretionary judgment could reasonably adopt. It is in fact a sum reached after a very full and careful examination of the facts of the case and it represents an informed judgment upon a matter which must largely be one of opinion and must be governed to a not inconsiderable degree by an estimate formed of the witnesses and in particular the appellant. The amount assessed cannot, we think, be regarded as so inadequate or unreasonable as to justify the conclusion that it has been erroneously reached..." I have come to a similar conclusion in the present case. (c) Interest: In the light of the conclusions which I have reached on other matters, it is not necessary to consider this matter. In my opinion, therefore, the appeal should be dismissed with costs. Clarke JA The facts concerning this appeal are set out in detail in the judgment of the learned President which I have seen in draft form. I will not repeat those facts. 16 UNREPORTED JUDGMENTS The central question is whether, having regard to the appellant's injuries and continuing disabilities an award of $50,000 for general damages was appealably low. The principles upon which the Court should act are not in doubt. The award is in the nature of a discretionary judgment and, in the circumstances of this case, the court should not interfere unless it concludes that the award is a wholly erroneous estimate of the damage suffered. My first reaction to the general damages award was that while it may not be regarded as a generous one it was within the permissible range of verdicts. The appellant's major complaint was significant memory impairment consequent upon the brain damage which his Honour found she had suffered. In addition she had anxiety, scarring and continuing problems with her jaw. She had, as his Honour noted, suffered severe injuries in a violent accident and been in considerable pain for a number of days. Furthermore, her memory impairment affected her significantly both in her work and at home. The appellant's counsel argued that his Honour had failed to pay due regard to the appellant's continuing disabilities. In particular he argued that the manifestations of the brain damage alone justified an award of the size given by his Honour. In this respect he pointed to her need to adopt a number of compensating mechanisms in order to carry out her work, her difficulty in remembering names with consequent embarrassment, her loss of promotional prospects and her embarrassment and frustration at memory lapses which have led to her taking a less active role in life generally. According to the appellant's counsel the trial judge had also failed to recognise that the appellant's dental and jaw problems may well get worse and that she could suffer severe pain from the jaw disorder in the future. In addition there is a prospect that she will need to undergo surgical treatment. Finally, counsel submitted that his Honour obviously overlooked the significance of the scarring and her evidence that not only is she embarrassed by it but it has led to her becoming anxious when she meets people for the first time. These are all matters of great significance. It should, however, be recognised that his Honour was in a particularly advantaged position in this case. He saw the appellant and was able to observe her for a fairly lengthy period while she was in the witness box. He was much better placed to assess the significance of scarring and its likely impact upon the appellant than this court is. Furthermore, having seen the appellant perform under what his Honour described as a careful and thorough cross examination he was in a much better position to evaluate the effects of the brain damage, which he found to have occurred, than this Court is. It is well established that the advantaged position of a trial judge is a factor which leads appellate courts to exercise caution in interfering with awards, particularly discretionary awards, of trial judges. In my opinion that factor weighs heavily in this case. There is another matter to which, in my opinion, regard should be paid. The judgment under appeal is a careful and closely analysed one. In what his Honour has said he has shown a particular sensitivity to the problems of which the appellant complained. Her counsel does not point to any significant omission in the judgment but is forced back to the argument that the amount awarded is so low that his Honour either failed to recognise the severity of the impact of the accident upon the appellant or must have omitted consideration of one or more of her problems. URJ SYMONS v CERRUTO (Clarke JA) 17 The case is a difficult one for, as I have said, the amount awarded does not appear over generous. Nonetheless, I am driven to the conclusion that it has not been shown to be so low as to lead to interference by this Court. I would dismiss this ground of appeal. There is also a ground of appeal challenging the award of $2,500 for future medical expenses. The attack upon this award was based primarily upon the premise that there was a probability that the appellant would be exposed to the payment of sums far in excess of the $2,500 in respect of operative treatment to her jaw. The appellant's evidence was that initially her jaw had been very painful, it had then settled a bit but recently had got worse. She was then asked whether she intended seeking any further treatment for the jaw and said she thought she would have to. Finally the following question was asked: "Q. So you intend to have the operation proposed by Dr Newman (it should be Dr Norman)?" To which she answered: "I intend going back and seeing him that is the only option available." Two reports of Dr Norman, who was not a treating doctor, were received in evidence. In the first, which was dated 9 October 1987, the doctor expressed the opinion that if, as he expected, her symptoms did not respond to conservative treatment a conservative arthroplasty may be carried out. The cost of this treatment, including hospitalisation would be likely to range from $5,000. In the later report, dated 18 November 1988, the doctor amplified opinions which had been expressed in the earlier one. He did not, however, see the appellant again. In this report he itemised five different hypothetical situations and detailed the costs of another possible operation which, he said, would be likely to range from $8,000. His Honour observed that there had been tendered before him evidence as to the cost of a future operation for her jaw injury. He thought it was somewhat sketchy and that may not be an inaccurate observation. His Honour also noted that she was likely to undergo some future treatment by way of consultation to improve her anxiety state. The conclusion to which he came was that he was not satisfied that it was the appellant's intention at the time of trial (which was about fifteen months after she saw Dr Norman) to undergo any of the suggested operations although he thought she would seek further treatment and advice for her problems. In my opinion this Court is not in a position to interfere with his Honour's assessment that the appellant would be unlikely to undergo an operation at this stage. Certainly the appellant did not say in evidence that she would submit to operative treatment. It follows that this element of the award was required to compensate the appellant for the possibility that she might in the future undergo an operation. Furthermore, one should not overlook the fact that although Dr Norman felt able to outline a number of hypothetical situations he was unaware of the precise nature of her internal derangement. What the doctor said was: "You will appreciate that I have not examined any contrast arthrogram of this patient and I have indicated that temporo mandibular arthrography (ie. the contrast xray films) are necessary to determine precisely the nature of her internal derangement. Notwithstanding this, I proceed on the basis that she has a lesion (disorder) of the meniscus and that this is responsible for the joint noise and locking." 18 UNREPORTED JUDGMENTS His Honour was obviously somewhat sceptical of the picture painted by Dr Norman. While he accepted the appellant as a very impressive witness this was not an important factor in the present context as the appellant gave no evidence as to her willingness to undergo operative treatment. Although there is a relatively small amount of money involved I have found the particular problem quite difficult. My mind has wavered but in the end I do not think, bearing in mind the highly speculative nature of the exercise being carried out by his Honour, that this court should interfere with this element of the award. The respondent filed a notice of contention pursuant to which his counsel submitted that an error by the trial judge in the appellant's favour should be taken into account in deciding whether to uphold the appeal. The suggested error was the allowance of a 15 per cent discount for vicissitudes. It was said that this was too low. Although it is unnecessary for me to deal with this argument I should indicate that I can seen no reason to interfere with his Honour's conclusion. Appeal dismissed with costs. Counsel for the Appellant: P MENZIES QC / P McGONIGAL Counsel for the Respondent: C T BARRY Solicitors for the Appellant: KENNETH BOYD Solicitors for the Respondent! G M MEADOWS (GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES)