GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v COLLIER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and SHELLER JJA 3 April 1992, 29 May 1992 [1992] NSWCA 80 ADMITTED ERRORS IN ASSESSMENT OF SEVERAL COMPONENTS — CAN ERRORS BE CORRECTED ON APPEAL? — HELD: ERRORS SHOULD BE CORRECTED ON APPEAL APPEAL from District Court — Assessment of damages — Several admitted errors in assessment of several components — Can errors be corrected on appeal? — Whether to be inferred that Judge's approach was fundamentally flawed — Correction of errors where assessment of plaintiff's credibility involved. HELD: Errors should be corrected on appeal. Orders (1) Appeal upheld. (2) Judgment set aside. (3) Judgment for plaintiff for $170,461.45 to take effect from 4 June 1990 (4) Plaintiff to pay defendant's costs of the appeal and, if entitled, to have a certificate under the Suitors Fund Act. Mahoney, Priestley and Sheller JJA On 9 September 1986 the plaintiff Mrs Collier was injured in a motor vehicle accident. She sued the defendant Office as the appropriate defendant in such a proceeding. On 4 June 1990 his Honour Judge McDevitt gave judgment for the plaintiff for $315,369. The defendant has appealed to this Court against his Honour's judgment. His Honour's award was made up of the following components: General damages $95,000 Interest on past pain and suffering $18,375 Past economic loss $47,782 Interest on past economic loss $25,000.85 Future economic loss $129,127 Mr Petty, for the appellant/defendant, and Mr Foord QC, for the respondent/plaintiff, are agreed that there are in his Honour's award at least six errors of substance. These are: (1) An error in the addition of the component parts of the judgment. They total $315,284.85 and not the sum of $315,369 which his Honour awarded. (2) His Honour omitted to include in the judgment the out of pocket expenses totalling $4730.34 which, it was agreed, should be so included. (3) The award of interest upon pain and suffering to the date of trial ($18,375) should not have been made. To award that sum was contrary to s35D of the Motor Vehicles (Third Party Insurance) Act 1942-1984. (4) The amount of $47,782 awarded for past economic loss is wrong: it is agreed that this loss, at a maximum, cannot exceed $37,581.15. The basis on which the learned judge awarded the additional amount of $10,200.85 cannot be explained. 2 UNREPORTED JUDGMENTS (5) The award of interest on past economic loss $25,000.85 was calculated upon a wrong basis. The interest rate adopted should have been half that adopted by the judge. (6) The amount awarded for future economic loss $129,127 was wrongly calculated. The judge appears to have used the 3 per cent tables: this was contrary to s35B of the Motor Vehicles (Third Party Insurance) Act 1942-1984. The 5 per cent tables should have been used. Even upon that basis, no explanation can be given of the way in which the sum of $129,127 was arrived at. The submissions made by Mr Petty for the defendant suggest, inter alia, the following: (a) that the judgment given is so affected by admitted error that the trial has miscarried and there should be a new trial; (b) that the agreed errors cannot, at least as to some of them, be corrected by this Court and that therefore there must be a new trial; (c) that the judge failed to decide issues of fact and credibility essential to the understanding of the judgment given and _ that accordingly there should be a new trial; (d) that the awards made by the learned judge for general damages, past economic loss and future economic loss are erroneous and are not capable of correction; and (e) that if the errors made by the judge can be corrected by this Court, the amounts awarded for general damages, past economic loss and future economic loss should be substantially reduced. It is necessary to refer to the facts. The learned judge's findings in this regard were as follows: "This plaintiff sues for damages for injuries which she received on 9 September 1986 when she was a passenger in a motor vehicle driven by her husband. The vehicle in which she was riding was executing a right hand turn when it was struck by a vehicle from behind. She said in evidence that at impact she was thrown forward and then backwards. She felt a sharp pain in the neck and then was taken to Wallsend Hospital but was allowed to go home four hours later. The following day she consulted Dr Shah who sent her to Dr Isaacs. She had neck pain and low back pain. The low backpain radiated along the backs of both legs and there was pain in the cervical spine without radiation. At that time, 30 January 1987, Dr Isaacs expressed the opinion that she had suffered soft tissue injury to the cervical spine without any cervical nerve root irritation, as well as soft tissue injury to the lumbar spine and also disc damage at the L4/5 level resulting in bilateral aspect nerve root irritation. A CT scan of the lumbar spine showed that the L4/5 disc was prolapsing backwards. Some nine months later her symptoms were the same and she had not worked. In May 1988 her symptoms were the same with the main problem being the pain in the lower back and left leg rather than the neck. The neck pain was aggravated on and off by certain activities, otherwise she was able to manage her neck pain. By February 1989 the pain in the lower back and the radiating pain down the back of the left leg had gradually got worse. Arrangements were made for her admission to Lake Macquarie Hospital and on 16 March 1989 under local anaesthetic the L4/5 disc was excised from the left side. At that time a discogram was performed for the L3/4 disc and it was noted that this disc had ruptured anterially as well as laterally. She recovered well and after her discharge on 17 May 1989 she told Dr Isaacs that although the left leg pain and pain behind the right leg had disappeared she was still getting some pain over the right groin. Dr Isaacs reported, and I accept, that her symptoms are directly related to the injuries she received in September 1986. In October 1989 she was still seeing Dr Isaacs for neck problems. Dr Plowman examined her for the defendant. He reports that (GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v COLLIER (Mahoneg Priestley and Sheller JJA) it is probable that her low back pain will restrict her with regular domestic and cleaning work, especially if there is a lot of bending over, lifting or carrying. She is an uneducated manual worker having been previously employed as a nurse's aid in a hospital. She had suffered a work related shoulder injury in 1983 which had precluded her from working since then. She had arranged to start employment in a sandwich shop in 1986 when she was involved in this motor vehicle accident. From 1983 to 1986 she had been on workers' compensation payment. I accept on the balance of probabilities that her capacity to earn income has been very largely destroyed except perhaps from light, occasional part time jobs." The plaintiff and the defendant filed written submissions and, in accordance with the relevant practice note, outlined the facts as they submitted they should be found to be. In the determination of matters in the running list of personal injury cases, it is of assistance to this Court that, in any written submissions, an appropriate outline of the facts be provided. This is a practice which should be observed. The outlines presented in this case have been of particular assistance. The plaintiff's submissions included the following: "The picture presented by the evidence was that the respondent, aged 40 at trial, had injured her right shoulder while working as a nursing aide in 1983. Although that injury was repaired at surgery in 1984, she remained disabled for that employment. On 9 September 1986 in the subject road accident, she sustained the following injuries: 1. Severe whiplash injuries and soft tissue injuries to cervical and dorsal spine including left shoulder with aggravation of dorsal spine spondylosis, headaches, dizziness, anxiety and shock.... 2. An intervertebral disc lesion (the L4/5 disc) and an anterior rupture of disc L3/4.... Initially the neck symptoms were acute but low back pain developed and it was described by the plaintiff... and her general practitioner, Dr Shah, and Dr Isaacs, orthopaedic surgeon... The medical reports were tendered without objection as were those of Drs Opitz and Bookallil in the respondent's case and Dr Plowman in the appellant's case." The defendant's submissions included the following: "4. The plaintiff (who was born on 22 September 1949 and was aged 40 at the trial) was injured in a motor vehicle accident on 9 September 1986. Her case was that she suffered injury to the cervical and upper thoracic spine and to one or more of the intervertebral discs of the lumbar spine. She was taken from the scene of the accident to the Wallsend District Hospital where she was treated in the casualty section for pain in the left side of the neck, that being the only area that was then symptomatic. Two days later the plaintiff consulted her local practitioner, Dr Shah, complaining of symptoms in the cervical and thoracic spine. She had xrays of those regions that day. She was reviewed by Dr Shah on 18 September 1986 physiotherapy having been undertaken in the interim. 5. At some later stage (which was not identified in the evidence) the plaintiff developed pain in her lumbar spine. The first recorded complaint of this is to be found in the entry in Dr Shah's notes for 11 October 1986 'backache + sciatica +'. Dr Opitz (who was qualified) examined the plaintiff on 8 October 1986. He recorded the following history: 4 UNREPORTED JUDGMENTS 'In the past week she has had lower back pain, soreness extending mainly onto the front of the left thigh as far as the knee but only when she takes a step forward.' 6. Eventually the plaintiff was referred by Dr Shah to Dr Isaacs, orthopaedic surgeon, by whom she was first examined on 30 January 1987. She was then complaining of pain in the neck and lower back. Dr Isaacs continued to treat her. On 16 May 1989 the plaintiff underwent a discogram (demonstrating a rupture of the L3-4 disc) and a percutaneous excision (under local anaesthesia) of the L4-5 disc. She was in hospital three days. The discectomy gave some but not entire relief from constant pain and sciatica. At the trial the plaintiff gave evidence of low back symptoms 'it's just like a backache' and of episodic sciatica. Her neck was then the worst area. 7. It is convenient at this point to refer to the plaintiffs social and industrial history. From her first marriage the plaintiff had four children who were born between approximately 1966 and 1974. Between 1976 and 1984 the plaintiff worked as a nurse's aide in a nursing home. In about 1983 (probably about 5 May 1983) the plaintiff suffered in the course of her employment a rotator cuff injury to her right shoulder for which she ultimately had surgery by Dr Plowman and which left her with ongoing disability (about the extent of which there was a serious dispute at the trial). The shoulder injury eventually put the plaintiff out of work as a nurse's aide. She received periodic worker's compensation until her rights were redeemed on 27 August 1986. The motor vehicle accident occurred some two weeks later. 8. The plaintiff said that she had arranged work with a Mrs Skeffington (who owned a sandwich shop in Wallsend) but was unable to commence work because of the motor vehicle accident. Mrs Skeffington gave evidence confirming this and that there was such an arrangement was accepted by the trial judge. The sandwich shop was sold in late 1987. There was no evidence from the new owner. The plaintiff had not sought work between the accident and the trial. At the time of the trial she was in receipt of sickness benefits." 1. General mistrial: Parties to legal proceedings whether before a judge alone or before a judge and jury are entitled to have the issues raised by them determined in accordance with law. If the determination is not made in accordance with the relevant law, to that extent the court may, if justice so requires, direct a retrial: see generally Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1; Jones v Dunkel (1959) 101 CLR 298 at 314; Holford v Melbourne Tramways and Omnibus Co Ltd (1909) VLR 497. But a retrial is an evil; it is a solution which, if it be possible, the court should avoid. And it will not ordinarily be ordered if the errors which have been made can be corrected by the appeal court and there will be no unacceptable residue of injustice: see generally Burchett v Kane (1980) 2 NSWLR 266(n) at 276 and the cases there referred to. The defendant has submitted that some but not all of the admitted errors affecting the judgment of McDevitt DCJ cannot be so corrected; the plaintiff has submitted that all of the errors can be corrected and that there is therefore no need for a retrial. To that matter we will refer subsequently. But the defendant's submission for present purposes is that, even if the errors can be corrected, the fact that the particular errors were made and that so many of them were made warrants the inference that there was not in truth a proper trial of the issues. The submission has suggested that the true issues posed by the parties were in fact not considered by the judge. \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v COLLIER (Mahoneg Priestley and Sheller JJA) There are no doubt cases in which the judgment given in a proceeding, though regular in form, is so affected by error that it is proper to conclude that the judge either did not appreciate the principles upon which the issues fell to be determined or did not properly apply his mind to the application of those principles in the particular case. In such a case, it would be proper to conclude that there had been a mistrial and that a new trial was necessary. Such a conclusion is not one to which an appellate court should come lightly: cf Jones v Dunkel (1959) 101 CLR 298 at 313, per Windeyer J. It should accord to the trial judge at least the presumption that what he did was done in accordance with the submissions made by the parties at the trial and the issues which they chose to fight. And it should recall that not infrequently the issues chosen by the parties may differ from those which, without knowledge of the trial, would be inferred from the pleadings or court documents: see generally the cases referred to in Burchett v Kane (1980) 2 NSWLR 266(n) at 271 et seq, 275 et seq. The submission in this regard was pressed by Mr Petty and, having regard to the errors made by the judge, there is force in it. In relation, for example, to the calculation of past and future economic loss, the amounts awarded by the learned judge have not been able to be explained by either party: the parties agreed that no suggestion could be made which would explain the principles on which either of the amounts was calculated. In a case such as that, the proper inference may arguably be that the judge must have applied wrong principles in arriving at the sums selected by him. However, for the reasons which subsequently will appear, we do not find it necessary to form a concluded view upon this submission. It is possible to adjust the sums to be awarded to the plaintiff so as to arrive at a proper judgment. 2. Past economic loss: The judge awarded for this element of the plaintiff's loss $47,782. This amount, it is agreed, cannot be justified nor can the assessment of it be explained. The difficulty arises in the following way. It was not in contest at the trial that for some years prior to 9 September 1986, the date of the accident, the plaintiff had been unemployed. She had, in previous years, worked as a nurse's aide. In or about 1982 she had suffered an arm injury. She received periodic payments of worker's compensation in respect of that injury up to August 1986 when her claim to compensation was ultimately settled by compromise. During this period she had, in addition, suffered from back pain and significant sciatica: that condition had existed from at least 1981. Shortly before the accident, the plaintiff had arranged to undertake employment with a Mrs Skeffington in a sandwich shop. She would have received for that work $280 per week, which has been assumed to be a net wage. In fact, because of the accident, she did not commence that employment. It was agreed between the parties that, if it were found that the plaintiff would have worked for the whole of the period from the proposed commencement of the employment to the date of trial, her loss would have been no more than $37,581.15. That was an agreement made by the parties at the trial and the judge was informed of it. The agreement involved that the plaintiff did not contend that, uninsured, she would have earned more than that sum. But the defendant contended that, during that period, the plaintiff would not have earned that sum. There were, it was submitted, two main reasons for this: the plaintiff's preexisting medical condition was such that she would not have continued with that work or continued without interruption; and, in any event, the 6 UNREPORTED JUDGMENTS sandwich shop was sold by Mrs Skeffington approximately one year after the date of the accident. The suggestion was that the plaintiff would not have obtained other employment. It is, of course, accepted that the inclusion in the judgment of $47,782 was wrong. It is therefore necessary for this Court to determine whether it can properly arrive at an award for past economic loss and (if it can) what that award should be. In order to determine what the plaintiff uninjured would have earned during the pretrial period, it is necessary to determine what her capacity for work was. As has been said, she already had a back condition involving pain and sciatica. This, Mr Petty submitted, emerged only in cross examination when, examined from the notes of her doctors, Dr Shah and Dr Isaacs, the plaintiff accepted that the "muscular pains" in the back to which she had referred had in fact involved pains in the back accompanied by sciatica which occurred from time to time and for which she was receiving analgesic and antidepressant medication for some time before the accident. Her condition was, as Mr Foord QC described it in argument, "nurse's back". In addition, she had suffered from pain in her dominant right arm. For this she had been receiving worker's compensation and because of this, or, at least, because she was receiving worker's compensation for it, she had not worked for several years prior to the accident. It was after the settlement of her worker's compensation claim that she proposed to accept employment with Mrs Skeffington. Mr Petty's submissions suggested that these two conditions involved that, at the date of the accident, the plaintiff had a capacity for work which was, at best, limited and that it was necessary for the trial judge (and, on review, for this Court) to determine what that capacity was. To do this, it was submitted that it is necessary to form a conclusion as to the credit worthiness of the plaintiff because it is important to assess the accuracy of what she said concerning her condition. This, the submission suggested, cannot be done by an appellate court and accordingly there must be a retrial. We do not think that this part of Mr Petty's argument should be accepted, at least to its full effect. We are conscious of the requirements of s107 of the Supreme Court Act 1970 in relation to jury trials and the analogous restrictions upon the assessment of damages by this Court upon a rehearing following a trial by a judge alone: see Shehata v Montague L Meyer Pty Ltd (1977) 51 ALJR 77 at 79; Agbaba v Witter (1977) 51 ALJR 503 at 506. We are satisfied that we are fully able to assess the damages and it is clearly desirable that the court should, within these principles, exercise its powers for the purpose of avoiding another trial. We have in this regard taken into account what has been put by counsel as to the way in which the court can and should proceed. Having regard to the way in which the matter has proceeded, we are satisfied that we can form proper assessments of the plaintiffs condition and of the matters which depend upon it so as to enable the damages to be assessed. We accept that a court will not ordinarily be able to exercise its power to reassess damages where that assessment depends upon an assessment of the plaintiff's credibility as a witness of truth and accuracy. Thus, there may be a contest as to what was the plaintiff's condition before the accident or what it is because of the accident. The plaintiff may have given evidence as to either of those and that evidence may be in contest upon the ground that she is unreliable or inaccurate. If and insofar as the acceptance or rejection of that evidence is \GROVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v COLLIER (Mahoney, Priestley and Sheller JJA) affected, or is apt to be affected, in a real sense by the observation of her as a witness, this Court will ordinarily not be able to make an appropriate assessment of the plaintiff's condition. But the proper assessment of the plaintiff as a witness will not always make it necessary that she be seen when giving her evidence. For example, it may emerge in argument that it is accepted that her evidence may be sufficiently assessed upon the transcript. Counsel may be prepared to proceed upon the basis that, in respect of the relevant matter, what she said in evidence may be discounted by the court without seeing her, that an assessment may be formed having regard to written records or that the level of acceptance of her advocated by the other party may be acted upon. It may be, perhaps, that this Court may infer that the trial judge accepted the plaintiff as a credible witness and that, in accordance with the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167, this Court should act upon the basis that her evidence was in that sense accepted. In the present case, it is clear, and Mr Petty accepted, that before the accident the plaintiff had capacity for the employment she proposed to undertake with Mrs Skeffington, notwithstanding the condition of her right arm and her previous back injuries. After the accident she did not have that capacity. Prima facie, therefore, she could uninjured have commenced in the employment offered by Mrs Skeffington. The argument for the defendant in this regard must therefore be that, because of her previous medical condition, she would not uninjured have been able to work as such a shop assistant continuously for the period of some four years to the date of trial and so the accident and its effects were to that extent the less. In order to determine whether this was so, no doubt an assessment must be made of her previous medical conditions. But we do not think that to assess them it is necessary that the court form a detailed assessment of the plaintiff's credibility such as was suggested by Mr Petty. The extent to which her preaccident conditions would have involved her, for example, in taking time off from work as a shop assistant may, we think, be appropriately measured without a precise evaluation of her credibility. The assessment of a person's capacity for work necessarily involves broad general inferences even where the relevant facts are proved precisely. In order to decide whether, had it not been for the accident, the plaintiff's conditions would have led to her having time off from the suggested employment, it is not necessary to know precisely the extent of those conditions. Such a general assessment may be made in this case upon the basis of the facts which are clear and have been conceded by the plaintiff. The thrust of the evidence as to her previous medical conditions, insofar as it is necessary to determine it for this limited purpose, is clear enough: the court may for this purpose accept the general thrust of the case advanced in this regard for the defendant. Nor is the matter concluded by the fact that Mrs Skeffington sold her business a year after the accident. The plaintiff had capacity to work, to a limited extent, as a shop assistant. She had problems with her right arm and consequently with, eg, high lifting or the like. The court does not know what small businesses existed in the area of her employment. But, again, any assessment of the loss which a plaintiff has suffered in circumstances such as this must necessarily be based upon imprecise estimates or predictions as to what, uninjured, she would have earned. Notwithstanding the state of the evidence, an assessment of this kind can be made in the present case. The assessment is not, as such, dependent upon the 8 UNREPORTED JUDGMENTS plaintiffs credibility. It is, we believe, proper to act upon the basis that some work of the kind that she could do may well have been available during the period. There are, as the defendant submitted, difficulties in forming a precise estimate of the work which, injured, she would have done and the money she would have earned during the pretrial period. The court can therefore make no more than a general estimate of the loss based upon the possibilities inherent in the plaintiff's situation. It was assumed at the trial that a weekly wage of $280 net was appropriate. We conclude that a fair measure of compensation would be one based upon the assumption that she would have worked as suggested for approximately one half of the time involved. On that basis, the proper award would be $18,790.58. Interest should be awarded on this sum as follows: $4932.53 being 7% for 3.75 years on $18,790.58. On the evidence before the court, we do not think that social security payments or sickness benefits should be taken into account. 3. Future economic loss: The judge's award of $129,127 must, it is agreed, be set aside. The trial proceeded upon the basis that a wage of $280 per week net is the appropriate basis for calculation. The judge concluded and it is not, we believe, wrong that, notwithstanding her injuries, the plaintiff may be able in the future to find appropriate light part time work. The judge assessed her residual earning capacity as $120. That amount is not, we believe, seriously in contest: if it is, it is an assessment which we accept. Accordingly, the plaintiff's future loss is of the order of $160 per week net. The plaintiff was forty years old at the date of trial. The judge assessed future loss over a twenty five year period. We do not think that that is the appropriate period. Having regard to the plaintiffs admitted medical difficulties in relation to her arm and her back prior to the accident, the likelihood is that she would have continued to work only to about age fifty five or at most to age sixty. She was not asked what her intentions were in this regard. It is, we believe, appropriate to assess this compensation by reference to a seventeen year period. The assessment must be made by reference to the five per cent discount tables. On this basis, the amount to be awarded for future economic loss is the present value of $160 per week for 17 years $96,480. The rate of discount to be applied, taking account of her medical difficulties and the effect already given to them in assessing her likely working life, should on balance be 15%. Discounted by 15% to take account of her anticipated vicissitudes and contingencies, it is $82,008. 4. General damages: An assessment of general damages involves that the court determine first what the plaintiff's condition was at the date of trial and, second, to what extent, having regard to her previous medical condition, the defendant's negligence brought about that condition. The court has before it in evidence, the record cards of the plaintiff's general practitioner Dr Shah and several reports of Dr Shah and Dr Isaacs, the consultant to whom the plaintiff was referred and who attended her. It has, in addition, reports from Dr Opitz, an orthopaedic surgeon who examined the plaintiff for medico legal purposes. As we have indicated, the considerations referred to by Barwick CJ in Agbaba v Witter do not require that, in every case in which a full assessment of a plaintiff's condition would require the formation of an opinion as to the plaintiff's credibility or accuracy, a new trial must be had. The cost, delay and inconvenience of a new trial are apt to be great and it is proper to consider (GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v COLLIER (Mahoneg Priestley and Sheller JJA) whether that which must be determined, though affected by a plaintiff's credibility and accuracy, really requires a new trial. It is proper that the court consider, for example, what findings of fact it is necessary to make and then determine whether those findings can be made without a new trial. Thus, in some cases the full and precise determination of what a plaintiff has suffered or will suffer may require the determination of whether the full detail of, eg, her account of her condition is credible and/or accurate. But the full and precise detail of the plaintiff's sufferings may not be necessary in order to make the broad assessments on which an award of general damages may be made. It may be that sufficient is able to be determined without entering into matters in which the plaintiff's credibility and accuracy need to be assessed. What can be done will depend on the circumstances of the particular case and the court will proceed with care in its analysis of what should be found in order to base the assessment to be made. But in some cases a new trial may be avoided. The present is such a case. There is not complete agreement as to the plaintiff's present condition but, we believe, the area of disagreement in that regard is not great. There is, we believe, no reason why, subject to what has been said, the court should not accept and draw inferences from the medical records of Dr Shah and Dr Isaacs, the terms of which have not been significantly in contest before this Court. The plaintiff's post accident condition is, as such, not seriously contested: at least, there is little difference as to what it is in relation to the matters relevant for the assessment of damages. The plaintiff has suffered significant pain. We accept that the pain due to the injuries to, eg, her cervical spine and her lumbar spine caused by the accident has been real and substantial. She was required to undertake an operation, under local anaesthetic, to remedy the prolapsed disc L4-5 and the associated condition and she continues to suffer pain and discomfort to a significant degree. This will continue indefinitely. That pain and the conditions from which it flows impose restrictions upon what she may do. In assessing the relevance of this, it is proper to observe that, on the one hand, with increasing age the things which she would wish to do and cannot may diminish or at least alter and that, on the other hand, age may bring its own complications. There was dispute as to the plaintiff's preaccident conditions. A proportion of her pain has resulted from her preaccident conditions. Notwithstanding Mr Petty's submissions, we accept that a sufficient assessment of the plaintiff, pre and post accident, can be made by this Court. We have referred to these aspects in relation to past economic loss: in general terms, similar considerations and similar reasoning may be adopted in this regard. It is upon that basis that we come to consider the appropriate amount of general damages. We are conscious of the limitations upon interference by an appellate court with an award of damages for matters of this kind. In particular, an appellate court is loath to interfere with compensation for pain and suffering alone is involved. Pain provides a substantial amount of the plaintiffs deficit in the present case. However, bearing these matters in mind, we are yet of the opinion that the award of $95,000 is beyond the range of a sound discretionary judgment exercised upon the facts of the present case. In our opinion, the appropriate award in this regard is $60,000. 5. General matters: 10 UNREPORTED JUDGMENTS It is agreed that, having regard to the conclusions at which this Court has arrived, it is proper to include in the judgment the amount of the agreed out of pocket expenses $4730.34 which was omitted by the learned judge. Accordingly the judgment of McDevitt DCJ should be set aside. There should be substituted for that judgment a judgment for $170,461.45 made up as follows: General Damages 60,000.00 Past Economic Loss 18,790.58 Interest on Past Economic Loss 4,932.53 Future Economic Loss 82,008.00 Agreed out-of-pockets 4,730.34 $170,461.45 Judgment should take effect from 4 June 1990. The plaintiff should pay the defendant's costs of the appeal and, if entitled, have a certificate under the Suitors Fund Act. ORDERS (1) Appeal upheld. (2) Judgment set aside. (3) Judgment for plaintiff for $170,461.45 to take effect from 4 June 1990. (4) Plaintiff to pay defendant's costs of the appeal and, if entitled, to have a certificate under the Suitors Fund Act. Counsel for the appellant: GR Petty wth H Delaney Solicitors for the appellant: Stephen Mills (solicitor for GIO) Counsel for the respondent: JM Foord QC with KJ Ryan Solicitors for the respondent: Armstrong and Partners