STEPANOVIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY JA 7 March 1995, 29 March 1995 [1995] NSWCA 454 DAMAGES — trespass — to the person — compensatory damages — aggravated damages — exemplary damages — plaintiff disbelieved — discount of 45% for contingencies — held: Allowance for duration of aggravation of back condition inadequate — discount excessive — damages recalculated. DAMAGES — exemplary — aggravated — quantification of — deliberate act in causing motor cyclist to fall — allowances of $10,000.00 (aggravated) and $15,000.00 (exemplary) upheld. DAMAGES — motor vehicle accident — deliberate wrongdoing — motor cycle driver recovers damages for trespass to the person — trial judge disbelieves his evidence — accepts previous existence of back disability — enters judgment in favour of plaintiff for $86,629.00 — appeal against inadequacy of judgment — whether appellate court entitled, in the face of credibility findings, to substitute its opinion for that of the trial judge — whether error shown in components of the damages judgment — held: (1) The Court of Appeal was bound to accept the credibility findings made by the primary judge; (2) However, in the determination of the duration of the consequences of aggravation of an established pre-existing back condition, the Court of Appeal was in the same position as the primary judge in making an informed estimate upon the basis of objective evidence; (3) In the objective evidence, the allowance by the primary judge of six months aggravation was inadequate and an allowance of two years should be made; (4) The refusal of the primary judge to allow as compensable an operation conducted more than two years after the accident should be sustained; (5) Consequent recalculation of past economic loss and general damages; (6) A discount of 45% for contingencies was excessive. Todorovic and Anor v Waller (1981) 150 CLR 402, applied; (7) The Court of Appeal should recalculate damages and substitute an amended judgment which should include interest on past economic loss. DAMAGES — exemplary damages — aggravated damages — trespass to the person — motor lorry deliberately causes motor cyclist to fall to the ground suffering injuries — primary judge finds conduct causing damage to be deliberate and contumelious — awards aggravated damages of $10,000.00 and exemplary damages of s15,000.00 — refers to the motor cyclist s lack of social dignity occasioned by his established past conduct — whether comment erroneous — whether damages consequentially inadequate — held: (1) The reference to the motor cyclist's lack of social dignity was inappropriate. Uren v John Fairfax and Sons Ltd (1966) 117 CLR 118, applied; (2) The amounts allowed upon these heads of damage were not shown to be wrong having regard to the finding that the conduct impugned was boisterous rather than wicked. Lamb v Cotogno (1987) 164 CLR 1 applied; (3) In aggravated damages, it was appropriate to take into account both the conduct of the motor vehicle driver at the time of the tort and the subsequent conduct of the litigation; (4) In the exemplary damages it was appropriate to take into account both the punishment of the tortfeasor and the desirability of discouraging by the award of 2 UNREPORTED JUDGMENTS appropriate damages violence and self-help; (5) Aggravated damages of $10,000.00 and exemplary damages of $15,000.00 upheld. Kirby P, Priestley JA This appeal from a judgment for damages for personal injuries, given by Mahoney DCJ, has unusual features. His Honour gave judgment for Mr Zoran Stepanovic (the plaintiff, now the appellant) in the sum of $85,629.05. That sum was made up of - Compensatory damages: General $60,629.05 Aggravated 10,000.00 Exemplary damages: 15,000.00 $85,629.05 The general compensatory damages were, in turn, made up as follows: Out-of-pocket expenses $1,245.00 Past economic loss - $466.05 x 26 weeks 12,117.30 impaired future earning capacity 22,266.75 General damages (pain and suffering, loss of 25,000.00 amenities etc) $60,629.05 The plaintiff has appealed to this Court, claiming that the damages awarded to him were inadequate. Although liability was in issue at the trial (and separately determined in favour of the plaintiff), no cross-appeal has been brought to this Court by the defendant/respondent, Government Insurance Office of New South Wales (the GIO). The judgment was entered in favour of the plaintiff in respect of his claim based upon the tort of trespass to the person. An alternative claim in negligence was not decided by his Honour. No issue of contributory negligence arose, having regard to the finding in favour of the plaintiff in trespass. This determination is also unchallenged by way of cross-appeal. Nor has the GIO contested in any way its liability to indemnify the driver of the insured motor vehicle in respect of the liability found in favour of the plaintiff. See Lamb v Cotogno (1987) 164 CLR 385. Therefore, the appeal has been confined to a review of Mahoney DCJ's assessment of the plaintiff's entitlement to damages. A MOTOR CYCLIST IS DELIBERATELY INJURED The facts are fully set out in the reasons of Mahoney DCJ. We will repeat only such facts as are necessary to explain why we have reached a somewhat different conclusion from the trial judge. The plaintiff was injured on 5 December 1986. The injury occurred when a Ford utility lorry, insured by the GIO, collided with him as he was proceeding on his motor cycle. The plaintiff had made a right-hand turn off Bowden Street, Cabramatta. He had commenced to ride in an easterly direction towards Cabramatta. The Ford lorry came from the west of Bowden Street, along Cabramatta Road. There then occurred a series of incidents involving the driving of the lorry, the actions of one of its passengers and the plaintiff. According to a number of eye witnesses, whose evidence his Honour accepted, the Ford lorry swerved towards the lane in which the plaintiff was proceeding. It went very close to the plaintiff s motor cycle. The precise way in which the plaintiff fell is not entirely clear from the evidence. \GREPANOVIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby B Priestley JA) Mahoney DCJ did not find it necessary, in expressing the reasons for his award of damages, to make findings of the precise way in which the occupants of the Ford lorry interacted with the plaintiff- "These details are not terribly significant. It is their result which is significant. They caused the plaintiff to fall from his balanced position on the moving motor cycle and to end up on the surface of Cabramatta Road." For the respondent it was accepted that the fall of the plaintiff to the roadway was the result of a deliberate and wilful tort of trespass to the person for which it was responsible. Without the benefit of specific findings by Mahoney DCJ, we shall simply assume that the plaintiff's fall was occasioned by serious wrongdoing on the part of the lorry driver or a passenger for whom he was responsible. Mahoney DCJ found that the action was the result of "a boisterous and unruly state of mind [but] not a wicked one". The plaintiff, in his own mind, conceived the idea that the conduct of those in the Ford lorry was politically motivated. This was certainly not proved and no finding to that effect was made by the primary judge. THE COMPETING CASES: A STUDY IN CONTRASTS The cases presented by the plaintiff/appellant and defendant/respondent concerning the damage caused to the plaintiff by the incident described, could not have been more different. For the plaintiff, the case was presented of a man who, before injury had been in the peak of physical and mental good health. He had been the Serbian national wrestling champion. He said he was described at work as "superman". But following the accident, the plaintiff presented a litany of serious physical and mental disabilities. He attributed to them the virtual destruction of his economic capacity and the substantial dislocation of his physical, mental and emotional well-being. In evidence, the plaintiff asserted on a number of occasions the profound impact of the collision: "Q. All the problems you are suffering from started after the accident, is that right? A. Yes. Is it your case that all these matters I have just read out arose as a result of this accident? A. Yes. That you did not suffer from any of the symptoms I have read out before the accident? A. No. Q. In October 1991 did you tell your solicitors that you were not involved in any prior or subsequent accident to the incident of December 1986? A. I was not in any accident. This was a simple case, according to the plaintiff, of an extremely serious injury causing severe symptoms attributable in their entirety to the collision. The history given to the medical practitioners retained in connection with the litigation recorded a similar version of events. Thus, to Dr Raymond Garrick, neurologist, qualified by the plaintiffs solicitors, he gave the following history: "He is not aware of any previous back injury or back aches. To Dr W. Rasanayakam, orthopaedic surgeon, he gave the following history: "He denies having had these problems prior to the accident. Neither to Dr V Maniam nor to Dr Noel Dan, neurosurgeon, who performed in February 1989 an operative procedure on the plaintiff's back, did the plaintiff mention any relevant prior back injury or disability. The defendant's case was quite different. It called upon objective evidence of pre-existing complaints concerning the plaintiff's low back. Certainly, the GIO established there was a pre-existing degenerative condition. This was shown by 4 UNREPORTED JUDGMENTS radiological investigation shortly after the collision. An x-ray on 19 January 1987, i.e. only five weeks after the incident, noted, in relation to the plaintiff's lumbar spine: "Degenerative changes are noted at L4/5 with marked osteophytosis and joint space narrowing at this level. No other abnormality. " The GIO also produced hospital notes which showed that the plaintiff had a long series of injuries and complaints, mostly before the subject incident, but some after. The list of them is set out in summary form in the reasons of Mahoney DCJ. They start with an incident on 24 February 1986 where the plaintiff was taken to Liverpool Hospital by ambulance, complaining of back pain and diagnosed with a head injury. There followed an incident on 6 March 1986 when he attended the hospital with a left elbow injury. He was admitted to hospital on 9 March 1986 after a history of being struck by a motor vehicle whilst riding his bicycle. An x-ray diagnosis suggested a longstanding fracture of the right wrist. Mild frontal lobe atrophy was found. On 12 May 1986, the plaintiff was brought to hospital, again with a head injury. He had bruising around the right eye. The next report was on 5 December 1986, being the incident the subject of the present proceedings. But on 20 June 1987, he was back at the hospital, brought by ambulance, after having been found unconscious in the street. Head injury was diagnosed. On 9 July 1987 he was again brought to the hospital by ambulance. It was thought that he had been the victim of a hit-run motor accident. He was found to be bleeding from the right ear. Head injury was again diagnosed. There was a similar incident on 10 October 1987. Again he was found unconscious in the street. On 5 August 1988, he was brought to hospital with a history of having fallen off his bicycle. Again, head injury was diagnosed. Once again, on 20 August 1988 he was found unconscious in the street. Head injury was diagnosed. The last recorded incident was on 18 October 1991. He was brought to the hospital by ambulance. He claimed that he had been assaulted and struck on the head with a piece of wood. So far as pre-collision back pain is concerned, the only hospital record is contained in the entry for 9 March 1986. This records complaint of dizziness: " Also complaining of "Pain in the skin" between shoulder blades and over chest. Low back pain. Numb hands. Later in the same record, it is stated: "With pins and needles radiating down both arms. Feels hot. Back pain. The medical evidence tendered by GIO suggested that although the plaintiff had a disc lesion, occasioning the operation by Dr Dan, this had been present before the subject accident. Dr Buckley, for example, stated: "Note that the osteophytic changes on the x-ray of the lumbar spine dated 19.1.87 indicate that the disc lesion was present prior to the accident. Dr Ross Mellick, a neurologist qualified on behalf of the GIO, expressed the view that the failure of Dr Dan's operation to repair the symptoms complained of by the plaintiff, combined with what Dr Mellick described as the "bizarre range of responses", led to a conclusion that one ought to entertain doubt as to the link between the symptoms requiring operation and the subject collision. "The failure of the operation, however, to eliminate the symptoms described by Mr Stepanovic casts doubt on the aetiological link between that operative finding and the symptoms which Mr Stepanovic was complaining about prior to the operation... I would consider therefore that the details of history, the findings on a physical examination and the documentary evidence do not establish that this man's complaint of back pain are consequential upon an organically \GREPANOVIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby B Priestley JA) determined disorder resulting from the motor cycle accident.... I am therefore unable to establish that the motor vehicle accident resulted in a structural lesion to the spine and cannot establish either that the pain which he is now experiencing and which he states dates from the time of the accident was aetiologically linked with any organic cause. CRITICAL FINDINGS ON CREDIT Unfortunately for the plaintiff, Mahoney DCJ was unimpressed by him or by his evidence. His Honour made a number of findings about him as a witness. They affected his approach to the calculation of the plaintiffs damages. They are obviously of great importance to the conduct of this appeal. Relevantly, his Honour said: When he was cross-examined, and this was an exercise which was conducted in a most detailed and skilful fashion involving him being confronted with film taken of his activities at various times on 21 August 1991 and 20 October 1991, he was evasive; he contradicted himself, and he was a most unimpressive witness. Having regard to the matters of evidence which I have sought to highlight above, to the balance of the documentary evidence in the case, and to the oral evidence, including my assessment of the plaintiff in the light of his demeanour in the witness box, I have come to the view that he is an extremely unreliable witness and one [on] whom I would not be prepared to rely on any contested matter unless he was independently corroborated on the point. Accordingly, I do not accept the views as to causation of damage, supportive of the case sought to be made on his behalf, in any medical report unless it is abundantly clear that the author of the report has been acquainted with at least a significant part of the full medical history of the plaintiff both before and after 5 December 1986 In his case, the filmed evidence - meagre though it is in scope and not involving any terribly strenuous exertions - is inconsistent with the range of restricted activities and capacities which the plaintiff had been testifying to before the film was shown to him. In short, I am satisfied that the plaintiff has consciously sought to mislead the court about the extent of his injuries and incapacities flowing from the incident on 5 December 1986 " (AB pp. 527N-528M) This and other findings unfavourable to the plaintiff, led to the following concluding observations: "The Plaintiff has undertaken the burden of establishing on the balance of probabilities a causal nexus between all of the injuries and disabilities of which he has complained and the episode on 5 December 1986. He has failed to discharge that burden in respect of a significantly large number of medical attendances and surgical procedures. He has failed to adduce any evidence from Dr Strinich. I draw the inference that if called, Dr Strinich would not have advanced his case. See Jones v Dunkell 101 CLR 298... " (AB p. 530F-N) In the light of these findings, the respondent put forcefully to the Court that Mahoney DCJ was entitled, on all of the material, not to be satisfied that the plaintiff had discharged the onus which he bore. He was entitled to reach the conclusion he did that he would only compensate the plaintiff for those matters listed in the record made shortly after the subject collision. It was open to him to reject the plaintiff's complaints of a continuing high level of symptoms. Upon this basis, the assessment of the damages allowed was within the range of the discretion available to him. ISSUES IN THE APPEAL As the appeal was presented, the following issues were raised for decision: 6 UNREPORTED JUDGMENTS (1) Whether the allowance made for general damages for the injury to the plaintiff's back evidenced error which this Court could correct, notwithstanding the findings as to credibility of the plaintiff; (2) Whether, even accepting the finding as to the effect of the subject injury upon the plaintiffs back, the allowance of $25,000.00 for general damages was adequate in the circumstances; (3) Whether the amount allowed for out-of-pockets was adequate; (4) Whether the discount of 45% for exigencies was excessive in the circumstances; (5) Whether error was shown in his Honour's failure to award interest on past general damages; (6) Whether the amount of $10,000.00 for aggravated damages was appealable inadequate; and (7) Whether the allowance of $15,000.00 for exemplary damages was inadequate. Various other points were raised by the notice of appeal. However, the above are the issues which were argued before us and we confine our opinion to them. ALLOWANCE FOR AGGRAVATION OF BACK DISABILITY Mahoney DCJ found that the allowance that should be made for loss of income relating to the injuries which he was satisfied were sustained by the plaintiff in the subject collision, were to be approached upon the basis that: "the plaintiff would have been incapacitated for work for approximately six months as a result of the orthopaedic injuries he sustained in the incident on 5 December 1986." Upon this basis, his Honour found that: "any loss of income after about June 1986 [semble June 1987] has no causal nexus with the incident on 5 December 1986." We acknowledge that there are reasons for leaving the approach of his Honour undisturbed in this appeal: (a) The plaintiff, initially at least, presented a case that the subject collision had been the sole cause of all of his disabilities, including his back disabilities. He did not present a case of temporary aggravation of the back or of an underlying condition of the spine. Upon the basis of factual and radiological evidence, it was certainly open to the primary judge to hold that the plaintiff had a disorder of the spine prior to the subject collision. The appearances in the x-ray of January 1987 could not have developed within a space of five weeks. (b) The plaintiff failed to call the treating medical practitioner whom he consulted immediately after the subject collision (Dr Strinich). In a case where so many other medical practitioners were called, and where the plaintiff's credibility was in issue, it was open to the primary judge to conclude that Dr Strinich was not called because his evidence would not help the plaintiffs case; (c) Dr Noel Dan, who performed surgery on 14 February 1989, does not specifically express an opinion that the condition found on operation was caused by the subject collision. Such an opinion is left to inference; (d) The medical opinions provided to the GIO sustained a judicial conclusion that the disc injury of which the plaintiff complained was not caused by the subject collision. It was open to his Honour to accept that evidence; and (e) This was especially so, once it was found that the plaintiff s evidence as to the causation of his damage could not be believed, that he was an unreliable witness, and that his testimony could not be accepted in any contested matter unless independently corroborated. \GREPANOVIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby F, Priestley JA) In the light of the foregoing, we do not consider that it would be open to this Court to disturb the fundamental opinion reached by Mahoney DCJ, viz that the persistent back pain claimed by the plaintiff, requiring operation by Dr Dan, did not have its origin entirely in the injuries sustained in the subject collision. There were, after all, competing possible causes, including the later established condition of his back and the numerous other traumatic incidents to which (as the hospital records disclose) he was exposed. However, that determination is not an end of the matter. It remains for this Court to review his Honour's conclusion that the effect of the trauma suffered in the subject collision lasted for no more than six months. There was no specific evidence to sustain this period. It represented no more than an informed guess on the part of Mahoney DCJ of the duration of the "aggravation or exacerbations caused by the incident of 5 December 1986. In our opinion, this Court is in as good a position as his Honour was to make such an informed guess. For a number of reasons, we are of the view that the period of six months allowed does not take appropriately into account the objective facts established by the evidence. In this regard, we refer to matters which were incontrovertibly established or not contested. Upon such matters, the Court is not reliant upon the evidence of the plaintiff found to be unreliable by the judge who saw him give evidence. The objective considerations to which we refer are as follows: (i) There is no doubt that prior to the subject collision, the plaintiff had been engaged in heavy work for Humes Pipes Ltd. That work was described in evidence by the plaintiff, and was not the subject of any cross-examination: "Q. How would you describe yourself physically before the accident? A... Not to boast, they called me, they gave me the name "Superman" I could roll, I could jump, I could do anything. Q. What sort of work did you do at Humes? A. As a labourer. I could not speak English. Q. What sort of labouring work did you do? A. I was carrying heavy loads, pipes, cables, other steel pieces. Q. Was that heavy work? A. Yes. For everybody it was heavy. For me at that time it was not. Q. How did you compare with other men of the factory in terms of strength? A. For instance, three men would carry a wheel with steel which I would carry myself. The boss would find out that is me and call me 'Superman " " Because the plaintiff was not challenged at all on this evidence, it is reasonable to assume that the objective fact is that his pre-injury work (whatever problems were latent in his back) was heavy. No evidence was given to suggest absences by reason of back pain; (ii) Such evidence as was given as to the plaintiffs earnings prior to the subject collision indicate that, when overtime was available, he worked it. He gave evidence that on one week he earned $1,250.00 nett although the average was considerably less. This suggests that, where required and when such work was available, the plaintiff could, before injury, sustain prolonged, heavy work. GIO investigators took film of the plaintiff's activities. It is open to inference that they would have investigated his pre-injury work. It would have been open to the GIO to prove (if it had been the fact) that the plaintiff had lost time before injury by reason of complaints of back pain. There was no such evidence; (iii) Whilst it is true that the x-ray taken on 17 January 1987 showed a condition already in existence at the time of the subject collision, this was known to medical experts such as Dr Ehrlich who, notwithstanding the pre-existence of 8 UNREPORTED JUDGMENTS "some instability at L4/5 joint", were prepared to accept the impact of the subject collision. In that sense, the pre-existing condition merely made the plaintiff more vulnerable to the aggravation caused by the accident; (iv) The primary judge accepted that the subject accident occurred and that it had disabling consequences. So far as the wrist was concerned, he was prepared to accept that these consequences would endure indefinitely. Determination of relevant back symptoms attributable to the trauma was unexplained and to a large extent arbitrary. Certainly, the very incident of the kind found by the primary judge was such that it was liable to cause an aggravation or exacerbation of an existing spinal weakness. The plaintiff fell with force from his motor cycle onto the road and rolled in a way that would have subjected his spine to great immediate trauma; and (v) The various trauma noted in the pre-accident hospital records were mainly to the plaintiffs head. The complaints of pre-existing back pain are minimal and certainly did not constitute the principal problem which took the plaintiff to the hospital. In these circumstances, it would have been important to avoid over-estimating the significance of the pre-collision back pain. At the least, it did not stop the plaintiff from performing his heavy work with Humes. Taking the foregoing considerations into account and accepting as the Court must, the principal conclusion of Mahoney DCJ, we nonetheless feel with respect, that his Honour has understated the duration of the aggravation caused by the subject collision. We are entitled to give effect to this differing conclusion because it rests upon evidence in respect of which this Court is as well placed to make its estimate as Mahoney DCJ was. His Honour allowed 26 weeks at $466.05. In our opinion, the preferable view is that the disability for which the plaintiff was entitled to recover from the GIO would have endured for about two years, making the total allowance for past economic loss $48,469.20. Consistent with the approach of Mahoney DCJ, we would not attribute the costs of the operation (nor the incapacity occasioned by it) to the collision. By the time the operation was performed, it must be accepted that the aggravation of the subject collision had been overtaken by the condition which preceded the compensable trauma. For the GIO it was urged that significance should be attached to the fact that the plaintiff transfered, after a period of three to four months, from sickness benefits to unemployment benefits which he then continued to receive. In our opinion, this is not a convincing argument. There could have been many reasons why such a transfer was made. It does not require a conclusion different from that stated. GENERAL DAMAGES The adjustment of the duration of the aggravation caused by the subject collision requires a proportional alteration in the general damages which Mahoney DCJ approached upon the footing that the compensable allowance should be limited to a duration of six months. By way of general damages, his Honour allowed a sum of $25,000.00 "to take account of the pain and suffering, the loss of amenities of life during the period he was affected by the episode". In our view, this sum should be increased to $40,000.00. This is to take into account the longer period to which we would, on the objective evidence, attribute the duration of pain and suffering, loss of amenities etc., to the compensable trauma. OUT-OF-POCKET EXPENSES. To a very large extent the approach to be taken to the out-of-pocket expenses depends upon the determination of the duration of compensable incapacity. The major complaint of the plaintiff was that Mahoney DCJ had denied him recovery \GREPANOVIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby 9. Priestley JA) for the costs of and incidental to the operation by Dr Dan. However, for the reasons we have stated, we feel obliged to terminate the compensable recovery prior to the performance of that operation and to attribute it to the plaintiffs undoubted underlying condition, not to the consequences of the trespass for which he recovered damages. There may have been some minor additional out-of-pockets during the longer period for which we would allow recovery. These have not been proved. We are therefore inclined to treat them as de minimis and as adequately dealt with in the allowance for general damages. The out-of-pocket recovery should remain $1,245.00, as found by his Honour. We would also adopt his approach to the calculation of future economic loss. Strictly speaking, this amount would need to be reduced to adjust for the longer period allowed for initial recoverable incapacity. However, we think it appropriate in the circumstances to accept the sum allowed by his Honour, viz $40,485.00, as the basis for allowance for future economic loss. In such matters, mathematical precision is unattainable. DISCOUNT FOR VICISSITUDES Mahoney DCJ made a discount of 45% for vicissitudes in calculating the amount which the plaintiff should recover for future economic loss. He explained this larger than usual discount in these words: "This figure [$40,485.00] will have to be adjusted for vicissitudes. That adjustment will be by way of a reduction because of such factory as his father's death at 36 years of age from a heart attack, that of his brother, the son of the same father, and previously about his own age, who has already died of heart disease; his own degenerative spinal condition as revealed by x-rays shortly after the incident on 5 December 1986; his well documented and demonstrated proclivity for drinking greatly to excess and involving himself in escapades in which he has been subjected to acts of violence of one form or another. All of these circumstances and proclivities indicate that a proper discounting figure for vicissitudes should be in the order of 45%. Accordingly, in respect of impaired future earning capacity, there will be included in the global verdict the sum of $22,266.75." With respect, we consider the discount of 45% to be excessive. As has often been said, there is no magic in the allowance of 15% discount, being the conventional provision. Professor Harold Luntz has suggested that even 15% discount may be excessive in the context of the life expectancies of Australians today. There appear to have been a number of considerations which were overlooked or overvalued by Mahoney DCJ in reaching the figure of 45%. The mere fact that the plaintiffs father died at an early age (already overtaken by the plaintiff) is no reason to assume that the plaintiff carries the same gene. For all the Court knows, he may enjoy the (unknown) good health of a mother or other progenitor. There was no evidence as to the cause of the brother's demise. For all the Court can know, the father's death may have derived from poor medical care available in the former Yugoslavia. It is fair to assume that medical attention in Australia (which the plaintiff has regularly been able to get) is of a higher order. It reduces the significance of the possible impact of heart disease which, without clear evidence, Mahoney DCJ was inclined to attribute to the plaintiff. It was certainly appropriate to take into account the many injuries to which the plaintiff was subjected. However, these appear to have reduced as the plaintiff grew older. In all of the circumstances, we incline to the view that it would be more appropriate to fix the discount in this case at 30%. This already represents twice 10 UNREPORTED JUDGMENTS the conventional discount which is based upon broad statistical considerations. See Todorovic and Anor v Waller (1981) 150 CLR 402, 426. Upon this basis, the discounted allowance for future economic loss should be a global sum of $26,990.00. INTEREST ON PAST ECONOMIC LOSS The plaintiff complained that Mahoney DCJ had failed to provide, as is conventional, interest upon the past economic loss found. No reasons were given by his Honour for this omission. It was conceded for the GIO that it appeared to be a slip. The GIO urged that, if this were the only error found, the judgment should not be disturbed. It would have been open, before orders were entered, for the plaintiff to have sought an amendment or a correction under the slip rule. However that may be, as this Court is now recalculating the plaintiff's damages, it is appropriate to make provision for past economic loss. Although the provision of interest is discretionary, its purpose is to compensate a plaintiff for the true measure of the loss suffered. See Falkner v Bourke (1990) 19 NSWLR 574 (CA); Government Insurance Office (NSW) and Ors v Healy [No. 2] (1991) 22 NSWLR 380 (CA). It will be appropriate for the final recalculated judgment to include interest at the prescribed rate pursuant to s83A(1) of the District Court Act 1973. The parties agreed that the appealable interest rate for past economic loss should be averaged at 16% over 7.86 years on the sum awarded. This is a sensible agreement. The Court will give effect to it. AGGRAVATED AND EXEMPLARY DAMAGES It was not contested that the plaintiff should recover allowance for both aggravated and exemplary damages. For the plaintiff it was merely said that the amounts allowed by Mahoney DCJ were inadequate.' So far as the allowance for aggravated damages (which are a form of compensatory damages), specific complaint was made of the following comment by Mahoney DCJ: "The dignity of the plaintiff has been seriously interfered with, not only by the fact of being knocked from his motorcycle and being caught up in the sequelae of examination, treatment and convalescence, but also by having his version of the events impeached at the hearing in no uncertain manner and over a very searching and lengthy cross-examination - with no retraction or apology tendered at an time. Had the level at which his dignity is to be found been of a higher order then I would have awarded a substantial sum for aggravated damages. But as I have indicated elsewhere, this plaintiff is not nearly as zealous in maintaining his social dignity as are most citizens. In the circumstances, a further inclusion of $10,000 for aggravated damages will be appropriate." The reference to the dignity of the plaintiff appears to be an application of the comment of Windeyer J in Uren v John Fairfax and Sons Ltd (1966) 117 CLR 118, 151: "The theory is that in such a case the damages are still only compensatory because the more insulting or reprehensible the defendant's conduct the greater indignity that the plaintiff suffers and the more he should receive for the outrage to his feelings. The defamation may produce indignity and humiliation and that these can attract monetary compensation is no new doctrine... In 1928 Higgins J remarked that it 'seems to be right so long as the theory stands that 'the jingling of the guinea helps the hurt that honour feels'"." Tf all that Mahoney DCJ was suggesting, by his comment about social dignity, was that the damages to be calculated for the affront of the conduct of the driver for whom the GIO is in law responsible, must be calculated by reference to the loss suffered by the plaintiff, there would be no proper complaint. All compensatory damages (including aggravated damages) must be calculated by (GREPANOVIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby f, Priestley JA) reference to the compensation of the particular plaintiff before the court. It is the notion that this plaintiff was less worthy of damages because of a diminished social standing, which is objectionable. For the plaintiff it was pointed out that in his own circle, he had social standing. He had been his nation's wrestling champion. He was the father of two children. He enjoyed trade certificates which he had brought to this country from his land of birth. If his life had not been easy, this was in part, at least, the result of dislocation and personal and marital problems which can happen to anyone. As a human being he had dignity and was not to suffer penalty or disadvantage in a court of law because of a record of injury and trauma, some at least of which may have been suffered without any fault on his part. We are sympathetic to these criticisms of the language used by the primary judge in explaining his award of aggravated damages. However, as has often been stated, this Court's function is not to correct the language of judicial reasons. We review the orders of the District Court. We must therefore concentrate on the amounts which Mahoney DCJ allowed under the claims for aggravated and exemplary damages. It is not presently permissible, except in a general way, to compare the allowances made in other cases. See Planet Fisheries Pty Ltd v La Rosa and Anor (1968) 119 CLR 118, 124. Lately, this rule appears to be coming under review. See, e.g. Carson v John Fairfax and Sons Ltd (1993) 67 ALJR 634 (HC), 647f. In terms of the collective experience of the Court, there is little guidance about the award of aggravated and exemplary damages in cases analogous to the present. One of the few such cases is Lamb v Cotogno (above), where exemplary damages were provided. Apparently in that case, aggravated damages were for some reason not claimed. It was pointed out that exemplary damages were payable not only to punish the tortfeasor and to demonstrate that crime does not pay. It was also to discourage violence and self-help. Despite the serious and gross behaviour described in that case, an allowance of $5,000.00, admittedly awarded more than ten years ago, was upheld as appropriate. We are affected by Mahoney DCJ's estimate (sustained by the facts proved) that the conduct for which the GIO is responsible in law, was more boisterous and untidy than wicked. In these circumstances, we do not believe that it has been shown that the allowances respectively made of $10,000.00 for aggravated compensatory damages and $15,000.00 for exemplary damages, were wrong. Save for the inappropriate comment about the dignity of the plaintiff, we see no error in the general approach of Mahoney DCJ to the calculation of damages under these heads. On the contrary, his Honour appears to have approached this task with care and accuracy. Cf. H. Luntz, Assessment of Damages for Personal Injury and Death, Butterworths, Sydney, 1990, 3rd ed, 60. We would adopt his allowances in this Court's recalculation. RECALCULATED DAMAGES No reason has been shown why this Court should not proceed to a recalculation. Having regard to the history of this case, it is highly desirable that the litigation should be brought to a close. We consider that it is safe, in the way in which we have approached it, to proceed to recalculate the plaintiff's proper damages and not to remit the matter for retrial. The result is that the damages for the plaintiff, upon recalculation, should be: Out-of-pockets $1,245.00 12 UNREPORTED JUDGMENTS Past economic 48,469.20 loss General 40,000.00 damages Future 26,990.00 economic loss Aggravated 10,000.00 damages Exemplary 15,000.00 damages $141,704.4 To the above must be added interest at the agreed rate of 16% on past economic loss of $48,469.20. The agreed period is 7.86 years. Thus the agreed interest on the awarded sum is $60,954.87. The result will be that the appeal will be allowed; the judgment of Mahoney DCJ will be set aside. There will be substituted a judgment containing the components indicated above. This results in a judgment in the sum of $202,659.07. 4. 5. Order that the respondent pay the appellant's costs of the appeal to this 1. Appeal allowed; 2. 3. In lieu thereof, enter judgment in favour of the plaintiff in the sum of Set aside the judgment of his Honour Judge Mahoney QC; $202,659.07, such judgment to take effect from 5 March 1993; Confirm the costs order at trial; and Court. COUNSEL: Appellant: D.W. Elliott Respondent: R.F. Sutherland SOLICITORS: Appellant: Milicevic Solicitors Respondent: Solicitor for the GIO of NSW