SANTIAGO v BARCLAY BROS [1995] NSWCA 416

SANTIAGO v BARCLAY BROS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY JJA and GILES AJA 23 March 1995, 4 July 1995

[1995] NSWCA 416

PERSONAL INJURIES — appeal on adequacy of damages — appellant severely injured on a construction site — suffered paraplegia and total loss of earning capacity — trial judge awarded damages under various heads — appellant challenged adequacy of following components: future economic loss; cost of swimming pool; future services; future medical and other treatment; general damages. Held: trial judge was justified, on the basis of the available evidence, in making the awards that he did, except in two respects — (1) the trial judge was in error in assessing the need for future services on the basis of two hours services per day — past care assessed on the basis of three hours services per day and little prospect of a lesser need for services in future; (2) on the basis of the medical evidence, the trial judge should have allowed for annual endoscopy testing.

Mahoney JA I agree with the judgment of Giles AJA. Because of the nature of the plaintiffs claim and the importance of the matter to him, I shall add some short observations of my own.

The award of general damages $240,000 is high: it is, in my experience, one of the highest awards for this aspect of loss. As the arguments in the present appeal have suggested, no sum of money can replace the loss for which it is given. The award is - to adapt the language which has been used in some cases of authority - a solatium, to provide, by what it is and what it can buy, something to offset the tragic results of what has happened to the plaintiff. The amount to be given for this purpose has conventionally been assessed having regard to the general experience of verdicts in analogous cases; more accurately, perhaps, it is assessed according to the reaction of a judge or a court in the light of the experience of the judge or the court and of others as to the general level of compensation awarded for physical injuries.