STAVROULAKIS v JEWELL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KiRBY P, MEAGHER JA and HANDLEY JA 5 November 1993 [1993] NSWCA 255 DAMAGES — personal injuries — $50 000 general damages — total judgment $72 302 — woman 43 years — injuries to knees and cervical spine — appeal challenges general damages — held: General damages discretionary in nature — no significant error to justify disturbance by Court of Appeal — appeal dismissed. Moran v McMahon (1985) 3 NSWLR 700 (CA) considered. Kirby P. I shall ask Meagher JA to give the first judgment. Meagher JA. In this appeal the appellant comes with an award of $70,000.00 for general damages given by his Honour Judge Sinclair in favour of the respondent, Miss Jewell, who was injured in a motor car accident on 21 June 1993. Liability is not in issue. The plaintiff was aged forty-three at trial and her injuries were injuries to the knees and cervical spine. The evidence has been summarised by his Honour in the passage which is accepted by both parties as follows: The plaintiff suffered: 1. Musculo-ligamentous injury to her neck and an internal disc injury which aggravated pre-existing but symptom free degenerative changes in her cervical spine. 2. Traumatic injury to her knees affecting the patello-femoral joints as described in the reports of Dr Carr and Dr Benanzio. 3. As a result of such injuries the plaintiff had a degree of permanent disability in her neck and knees. 4. While the degree of discomfort in her neck and knees is not great it causes substantial limitation of her activities and interference with her lifestyle and is likely to be temporarily aggravated from time to time. 5. Iam not satisfied that the occasional pain the plaintiff suffers in her hip is a result of the motor vehicle accident. 6. Special damages to date are in the sum of $2,302.38 which includes $341.84 economic loss. 7. Although the plaintiff's continuing disability causes some diminution in her earning capacity it is unlikely to cause any significant economic loss in the future. For those findings his Honour ordered general damages in the sum of $20,000, together with interest therein in the sum of $3,600.00 and for the future awarded $50,000. His Honour, somewhat surprisingly, came to the conclusion there should therefore be a verdict of $72,302.23. This verdict consists almost entirely of an award for general damages and has now been challenged by the defendant. In my view, that challenge cannot be made out. It is extraordinarily difficult to know what is an appropriate figure in any case for general damages and the cases make it clear enough, while all damages are discretionary, an award of general damges is the most discretionary of all damages awards. In these circumstances we have no business to interfere unless it is manifestly and absurdly incorrect. 2 UNREPORTED JUDGMENTS In my view his Honour's award is not. I propose the appeal be dismissed with costs. Kirby P. I have always held the view that the calculation of damages, in the nature of general damages, is a judicial act in the nature of a discretionary decision. This view is supported by the authority of the Court in decisions such as Moran v McMahon (1985) 3 NSWLR 700 (CA). Accordingly, I believe the Court should approach the matter in hand as it would in a review of a decision which is discretionary in nature. This does not necesarily require proof of the fact that the damages awarded are manifestly and absurdly incorrect. The appellant has, after all, an appeal by Statute to this Court which must proceed by way of rehearing. The amount which has been awarded must be shown to be sufficiently over that which the Court, looking at the matter in the re-hearing, would consider to be appropriate so that it is authorised to intervene. In this case, the damages that have been awarded by way of general damages do not reach that standard. They are, in my respectful view, higher than I would myself have awarded. However, having reached that view, I am not authorised to intervene. This Court should, therefore, dismiss the appeal with costs. Handley JA. I agree. I myself would not have awarded quite as much as the sum of $50,000 for future general damages. Nevertheless the difference between the sum Iwould have awarded and the sum awarded by his Honour does not establish that his Honour's award, although high, was outside the range of a sound discretionary judgment. The award is to compensate the plaintiff for the disabilities referred to by my brother Meagher JA for a period in excess of thirty-three years. It seems to me therefore that the appeal properly fails. Kirby P. The order of the court therefore, is that the appeal is dismissed and the appellant must pay the respondent's costs. Orders accordingly. Counsel for the appellant: G R Petty Solicitors for the appellant: G M Meadows (Solicitor for GIO of New South Wales) Counsel for the respondent: C M Simpson Solicitors for the respondent: Bolzan and Princi