CONNOR v HATGIS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Kirpy P, PRIESTLEY JA and POWELL JA 4 May, 5 September 1995 [1995] NSWCA 91 DAMAGES — personal injuries — past economic loss — future economic loss — young woman injured in motor accident — assessment of damages — intermittent pre-accident employment — determination of average earnings for calculation of past loss and loss of future economic capacity — trial judge (Studdert J) finds that plaintiff's working history was anything but settled — awards past economic loss of $23,000 and future economic loss of $30,000 — permanent loss of function in left wrist has significance for plaintiff whose pre-injury work involved strapping and riding horses and work in hotel bar — whether Court of Appeal forbidden to disturb having regard to advantages of the primary judge — held: (Priestley JA, Kirby P concurring; Powell JA dissenting): (1) In the circumstances, the Court was not prevented from disturbing the trial judge's conclusions but would pay regard to the advantages which the trial judge enjoyed. Devries v Australian National Railways Commission (1993) 117 CLR 472 applied; (2) In the facts, the trial judge had under-estimated the but for injury earnings having regard to the pre-accident employment record of the plaintiff; (3) The past economic loss should be increased to $46,000 and the future economic loss to $60,000, being twice that found by the judge; (4) Appeal allowed. Kirby P. I agree with Priestley JA. Priestley JA. This is a plaintiff's appeal against the amount of damages awarded to her by Studdert J. The defendant admitted liability for a collision between his car and a motor bike being ridden by the plaintiff. The only question before Studdert J was the amount for which he should assess the plaintiff's damages. The plaintiff was born on 12 April 1970. The accident happened on 16 May 1989. Studdert J heard and decided the case in June 1994. Studdert J entered judgment for the plaintiff for $141,009.58. That figure was the sum of the following elements: General damages $ 74,200.00 Out of pocket expenses $ 13,809.58 Past economic loss $23,000.00 Future economic loss $ 30,000.00 In the plaintiff's appeal against the inadequacy of the judgment amount, her argument was limited to the amounts assessed for past and future economic loss. Neither party raised any question concerning the judge's findings on the medical evidence. In summary these were as follows. The plaintiff suffered concussion in the accident. She was taken to hospital where she was found to have suffered a fracture of the left femur, fractures of her pelvis and a fracture of her left wrist. The fractured pelvis healed without any residual problems. It became necessary for her to have further surgery for her left 2 UNREPORTED JUDGMENTS wrist and later, her left knee and left femur. She was left with problems in both affected limbs. Their strength, and her ability to carry heavy objects was diminished. Her left knee remained unstable and caused pain from time to time. There was also some loss of feeling where the femur was fractured. The femur was also markedly scarred. The plaintiff also became scarred on the rib cage where bone was taken for use in the graft that was performed on the femur. Medical reports accepted by Studdert J showed that the left wrist was permanently affected. The plaintiff had permanent loss of function there due to the presence of pain and some loss of movement. She was advised to use a simple wrist guard for heavier activities. She had a permanent disability in her left knee and a permanent loss of function below the knee of 15%. This was because, as Dr Hefner said, it had become 'a cruciate minus knee'. Stated in broad terms, from the point of view of economic loss, the result of the accident was that the plaintiff could not do heavy manual work or cope with bar work. Studdert J said, 'The injuries sustained have resulted in disabilities which do restrict the plaintiff in what she can do and what she has been able to do'. He was satisfied that as well as being precluded from heavy manual work and bar work she would not be able to work as a strapper (as she had once done) and that her ability to ride had been markedly affected. In approaching the assessment of the plaintiff's economic loss between the date of the accident on 16 May 1989 and the date of his judgment on 20 June 1994, Studdert J took account of the fact that nine months after the accident, on 25 February 1990, the plaintiff was involved in a second accident, the effects of which completely resolved by February 1991. Studdert J concluded that the later accident made no material difference to the plaintiff's ability to work except in this period. Studdert J also accepted the plaintiffs evidence that she was unable to do any work before February 1993 because of the sequence of operations which she had as a result of the first accident. In February 1993 the plaintiff was assessed for rehabilitation purposes. She was advised to seek work in looking after disabled persons. She accepted this advice and from then on was looking for work of that kind. To the time of trial however she had only been able to get such work on a voluntary basis and then only one day per month, except that very shortly before the trial she had begun taking out a disabled girl for which she was paid $50 an outing. She was doing this every second week. Studdert J noted that the plaintiff was persisting in her efforts to get regular employment in caring for disabled persons, and was hopeful that she would get such work in the future. There was no evidence before him as to the opportunities for such work. The plaintiff's claim for past economic loss was put on the basis that had she not been injured she would have worked as a barmaid. Calculations were put before the trial judge based on her working in that occupation for ten, fifteen, eighteen and forty hours per week. Studdert J said however that he was not satisfied that but for the accident the plaintiff would have had steady employment from May 1989 to June 1994. He thought it more probable than not that uninjured she wouldhave done bar work, but irregularly. He thought there would have been periods when she did not work and other periods when she may have worked up to twenty or twenty-five hours a week. He then calculated the past economic loss on the basis that uninjured she would have averaged ten hours bar work a week during the period. Using the URJ CONNOR v HATGIS (Priestley JA) 3 calculations provided by the plaintiff as a guide, and awarding nothing for the twelve months she would have been unable to work because of the second accident, he assessed a figure of $23,000. For the future, he noted the plaintiff's continuing and permanent disabilities which have already been mentioned and that there were some kinds of work she would be unable to do. He gave as examples working as a barmaid, a jillaroo, or a strapper, noting that these were all jobs for which she would have been suited but for the accident. He also said she would not be fit in the future for any work requiring her to use her left hand in lifting and carrying heavy things or putting undue stress on her unstable knee. On the other hand he held there would be many jobs for which she would be suited. One of these was that of looking after disabled persons. Others were as a check-out operator at a supermarket, a console operator at a service station and "a wide range of sedentary and semi-sedentary positions'. Studdert J then mentioned the difficulties in the circumstances of the case in making a satisfactory assessment for future loss of earning capacity. He repeated that he was not satisfied that, uninjured, she would have pursued regular full time employment. His conclusion was that $30,000 was a fair allowance. He tested that by putting it into terms of a weekly allowance to age sixty with a 15% discount for vicissitudes; doing this showed that the $30,000 figure approximated $40 per week. In the course of his reasons the trial judge set out the basis for not having been satisfied that the plaintiff, uninjured, 'would have pursued regular full time employment': The plaintiff's pre-injury working history was anything but settled. Having left school without completing her School Certificate year the plaintiff had a number of positions but none of them for very long. The plaintiff worked first at a stud but only for two months and she then took a position with Woolworths as a check-out assistant. She only did that work for three months and her next position was as a mill hand. That work was heavy and the plaintiff did not persist in it. Her next position was as a casual shop assistant for a period of some three months. There then followed a period of twelve months when the plaintiff was unable to find remunerative work so she did unpaid work as a strapper. Then in September 1988 the plaintiff obtained work as a bar attendant, working part-time of the order of fifteen to twenty hours. The plaintiff remained in that work for a period of approximately four months and then set out on a holiday to Victoria. Whilst there the plaintiff found work for a month as a bar stewardess and returned to Grafton in May 1989. Before the accident the plaintiff had applied for a position at the Grafton Hotel and the manager of the hotel, Mr Bailey, gave evidence which I accept that after the plaintiff had worked for two days on trial he offered her casual work which she was to commence within days after the accident. To begin with the plaintiff was going to be offered only ten hours work per week but the opportunity existed for the hours of employment to be increased if the plaintiff proved satisfactory. The accident in May 1989 deprived the plaintiff of the opportunity of taking up the work I accept was on offer. Mr Murray QC, counsel for the appellant, put his client's case on appeal very simply. He said the grounds of appeal were within a very narrow compass and that the real basis of the appeal was the submission that the conclusions Studdert J drew from the plaintiffs pre-accident work history were unjustifiably too unfavourable to her and had led to under assessment of both past and future economic loss. 4 UNREPORTED JUDGMENTS I think there is merit in this submission. In considering it, I start from my opinion, reached after carefully reading Studdert J's reasons with thisquestion in mind, that his views on what the plaintiff's regularity of work would have been, had she not been injured, were not influenced by any unfavourable assessment he formed of the plaintiff in this connection. The way in which Studdert J stated his reasons leaves me with the clear impression that his assessment of what the plaintiff, uninjured, would have done in the way of work, was based entirely on the objective facts of what she had done from the time when she first began to work until she was injured. I get this impression not only from the passage from his reasons I have set out above but from his reasons as a whole, in the course of which he explicitly accepted the plaintiff on a number of matters and at no stage indicated any criticism of her reliability as a witness in any respect. Turning to the passage I have set out, it seems to me the period it deals with will be better understood if the passage is read bearing in mind the comparatively short period within which the work history it describes took place. The plaintiff left school in August 1986. She immediately did the work at the stud referred to by Studdert J. Her following jobs as a checkout assistant and a mill hand took her through to the beginning of March 1987. There was then a gap to June 1987 from which month she worked at a supermarket for three months. Thus, for the first thirteen months after leaving school, she was employed for between nine and ten of them. Then followed the period of twelve months when she was out of work and receiving unemployment benefits. She gave evidence about her attitude during this twelve months: Q. Then after that, did you help work for Steve Donnolly, who was a horse trainer. Is that right? A. That's correct, yeah. Q. Did you work as a strapper for him? A. That's correct. Q. Was that voluntary work. You didn't get paid for that. You did it because you liked horses, did you? A. No, well, I did it mainly because, yeah I love horses, but I couldn't find work at that time, and I wanted to do something, so that when I did find work I wouldn't be, like too tired, like or too lazy. You know, I wanted to keep trying, going, so I did that in the morning, and looked for work during the day. Q. During that time, I am talking now from September 1987 to September 1988, that's precisely a year, did you obtain unemployment benefits? A. Yes. Q. Were you looking for work at that time? A. Yes, I was looking for work. Q. Had you registered with the Commonwealth Employment Service? A. Yes. There was no cross-examination of the plaintiff on this evidence. Next, according to her evidence, which was not challenged in this respect, she started a job at the Royal Hotel, Grafton, in September 1988 and worked there through to February 1989. She was not asked the precise finishing date of that job, the evidence being left in the following state: MURRAY: Q. Did you go down to Victoria on a holiday, did you? A. Yes, with some friends, and then I found some work, yes, while I was down there. Q. Did you stop at Hampton and do that month's work that I have just referred to? URJ CONNOR v HATGIS (Priestley JA) 5 A. Yes, that's correct. Q. Did you come back to Grafton in about May 1989, and did you again seek work in the hotel industry? A. That's correct. As to the job as a bar stewardess which she was going to start on 18 May 1989, had the accident not intervened, it is possible to work out from some details given in her evidence, that she trialled for that job on the nightof 12 May 1989, and presumably it was at least some short time before that that she had applied to Mr Bailey, the manager of the hotel, for work. This would seem to show that she did not lose much time after coming back from Victoria in seeking a job. As [have already indicated, my understanding of Studdert J's reasoning is that he reached his conclusions about what the plaintiff, uninjured, would have done in the way of looking for and staying at work from her objective working history before the accident. I think that this is, in general, a sounder approach than one which is based on a plaintiff's statement of future intentions and hopes. However, using the same material as that used by Studdert J I reach a different opinion from his. The plaintiff seems to me to have shown by what she did after leaving school that although she may not have been destined for long term employment in any particular job, she both wanted to work and was capable of obtaining and doing jobs such as bar work and supermarket work and working at them with a fair degree of continuity even though she changed employers from time to time. Translating this into the terms the trial judge used in dealing with past economic loss, it seems to me with due respect to him, that it was a mistake to take an average of ten hours work per week as a barmaid as the basis of his calculation, and that a much sounder approach would have been to take twenty hours as the basis. I repeat that I reach this conclusion on the footing that I am using precisely the same materials in doing so as those on which Studdert J based himself. In my opinion it is plain from the way Studdert J stated his view, and the basis for it, that he was intending to exclude subjective considerations, such as the subtle influence of demeanour, from his assessment. Studdert J made it plain in regard to his assessment of future economic loss that he took into account in reaching his assessment on that head also his view about the plaintiff's future working prospects, had she remained uninjured. As to the future he of course also took into account the extra factor of the plaintiff's remaining working capacity, of which he took a guardedly optimistic view. Even if his view about her actual future prospects were fully accepted however, it seems clear from his reasoning generally that had he taken the same view as I have arrived at concerning the plaintiff's future work prospects had she remained uninjured, his assessment of future economic loss must have been greater than the one he arrived at. Having now stated my own reaction to the submission made on behalf of the plaintiff I must refer to what was put by the defendant's counsel, Mr Tonner. His submission was that the findings of the trial judge which were attacked by the appellant, an attack which on reflection I have concluded was soundly based, were in that area of judicial decision with which an appellate court should not interfere. He submitted that the judge had 'had to make an overall assessment presumably based on her presentation and work record'. On this footing, the line of cases of which Devries v Australian National Railways Commission (1993) 177 CLR 472 is a recent example would mean this court should not disturb the trial judge's conclusions. 6 UNREPORTED JUDGMENTS This court routinely observes the rules as stated in Devries, not only because they are backed by the authority of the High Court, but also because, in the cases to which they apply, they represent what is in my opinion the only sound policy. On many factual questions a trial court inevitably has more data than an appeal court upon which to base factual or quasi factual conclusions. In the general run of cases it is not sensible for a court with less data to take it on itself to change a finding of another court arrived at on moredata, unless that other court has clearly made a mistake on the totality of the evidence before it. For the reasons J have indicated earlier, it seems to me that it was Studdert J's intention to confine the material upon which he based the conclusions which are challenged in this case to that material which now appears in the appeal papers before this court. Taking that fact together with what seems to me to be his general acceptance of the plaintiff and the absence of any questions in her cross-examination going to her willingness and intention to obtain work had she been uninjured, I think the present case does not fall into the class relied on by the respondent, and that it is competent for this court to come to its own conclusion on what the plaintiff's future work prospects were had she been uninjured. Counsel's submission assumed that in dealing with the assessment both of past and future economic loss on appeal, the court would use the appeal principles referable to factual rather than discretionary type assessments. This is the basis on which I have so far dealt with the matter. It must in my opinion be right in regard to past economic loss. My view is that it is also appropriate for future economic loss, for reasons I indicated in Moran v McMahon (1985) 3 NSWLR 700 at 723. No submission to the contrary was put. On this 'factual' approach, what Walsh J said in Edwards v Noble (1971) 125 CLR 296 is applicable: ... the court has a duty to make up its own mind. It will do this taking into account the judgment of the primary judge and recognizing that it ought not to be set aside merely because of a slight preference for a different view upon a question upon which two views are open and as to which there is no definite preponderance of one view over the other. Subject to that limitation and subject to the well recognized limitations concerning conflicting testimony and the credibility of witnesses, the appellate court should give effect to its own conclusion.' (at 318: see also Moran at 722)Should the better view be that future economic loss requires assessment by reference to the approach of the discretionary kind rather than the factual, I would still conclude that this court should interfere because, for reasons already given I think the trial judge failed properly to take into account the evidence before him concerning the appellant's past work history in the light of her age and abilities. I therefore think the appeal should be dealt with on the basis of the opinion I earlier indicated I have formed concerning the average number of hours a week the plaintiff would have worked had she been uninjured. Adopting the same approach to calculation as was used by the trial judge, and differing from him only in thinking that an average of twenty hours a week is the proper conclusion on the evidence rather than the ten hours per week he adopted for his calculations, I reach the conclusion that the figure that should be assessed for past economic loss is of the order of $46,000. In regard to future economic loss, the further factor must be taken into account of the plaintiffs remaining working capacity. My view about this is that the degree of the plaintiff's impairment from the accident, as accepted by the trial judge, has had a more severe impact on the plaintiff's capacity to earn than the figure assessed by the trial judge would properly compensate. Here, I think the URJ CONNOR v HATGIS (Powell JA) 7 plaintiff's work history since the accident shows rather plainly, notwithstanding the jobs which in theory are available to her, how difficult it is for her in her present state to obtain employment. Although this is my conclusion, I can see that there is a much wider range within which a proper figure could be selected by sound judgment in regard to the future than the period between accident and trial. Accordingly I give little weight to this factor in the assessment. My conclusion is that in the circumstances and againusing the same method as the trial judge, a proper figure for future economic loss is $60,000. In my opinion therefore the court should in this case set aside the judgment of the trial judge, adopt his figures for general damages and out of pocket expenses and increase the total figure for economic loss from $53,000 to $106,000 and enter judgment for $194,009.58 in place of the existing judgment. The new judgment should take effect from the effective date of the prior judgment, 20 June 1994. Studdert J made a special costs order, after hearing argument. This court has not heard the parties on what orders should be made for the costs of the trial and the appeal in light of the substantive orders which in my opinion the court should make. I therefore suggest that written submissions on costs should be lodged with the court's Registrar within seven days of the date of the publication of the court's judgment. The court would then either make costs orders, or, if thought desirable, call for further submissions on the matter. Powell JA. In this matter if have read, in draft, the Judgment which has been prepared by Priestley JA, with which Judgment I understand Kirby P to agree. I regret, however, that I am unable to share his Honour's conclusions as to the Orders properly to be made in order to dispose of this Appeal. Although the approach to be applied by an appellate court when a challenge is made to an award of damages upon the ground, either, that it is excessive, or, that it is inadequate, may have been differently expressed by differing judges, the general effect of those various statements is, in my view, the same, and might conveniently be found summarised in the following passage in the Judgment of Barwick CJ in Wilson v Peisley!: — The setting aside of an award of damages in a trial which has not been irregular or unfair and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion, be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable, indeed outrageous in the circumstances, whether by being too great or too small: and therefore of itself a demonstration of error present although otherwise undisclosed. The less ponderable the elements of the damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of a trial not blemished by error or irregularity. (see also Precision Plastics Pty Limited v Demir?; Gamser v The Nominal Defendant?). The reason for such an approach is not difficult to discern: it is that, as there is generally so much room for individual choice as to the facts to be brought into account and as to the weight to be accorded to such facts as are brought into account, the assessment of damages — and, in particular, the assessment of damages for past, and future, economic loss — is more like an 1. (1975) 50 ALJR 207, 209; 7 ALR 571, 576 2. (1975) 132 CLR 362, 369; 49 ALJR 281, 285-286, 6 ALR 311, 317 per Gibbs J (as he then was) 3. (1976-1977) 136 CLR 145, 159; 51 ALJR 315, 321; 13 ALR 387, 399 per Aickin J 8 UNREPORTED JUDGMENTS exercise of discretion than an ordinary act of decision, and, thus, may only be challenged successfully upon grounds akin to those upon which a discretionary judgment may successfully be challenged. With respect to those who are of a different view, it seems to me that the present is pre-eminently a case in which the Court should be reluctant to intervene with the assessment by a trial judge of damages for personal injury. I say this since, as I believe Priestley JA's Judgment makes clear, it has not been suggested that the trial before Studdert J was in any way irregular or unfair, nor is it suggested that the findings of primary facts made by his Honour cannot be supported, nor is it suggested that his Honour has misconceived the effect of the evidence, nor is it suggested that there is such a disproportion between the injuries sustained by the Appellant and the award of damages made in her favour that it must be assumed that for some other unexpressed reason the trial judge's discretion miscarried. On page 5 of his Judgment, Priestley JA has set out that part of Studdert J's Judgment in which, as Priestley JA would have it, "the trial judge set out the basis for not having been satisfied that the Plaintiff, uninjured, "would have pursued regular full-time employment". His Honour does not, however, set out that part of Studdert J's Judgment which reveals the basis upon which his Honour calculated the sums which he was to award for past, and future, economic loss. In that part of his Judgment, Studdert J said: — It is the plaintiff's case that because of the subject accident she has been and will remain unable to do bar work. On my assessment of the evidence I accept this contention. I do not consider that the effects of the later accident would have prevented her from doing bar work other than over the period of the first twelve months after it. Detailed calculations have been made on the loss of wages for the past on the assumption that the plaintiff would have worked as a bar maid. The calculations have been based on ten hours work per week, fifteen hours work per week, eighteen hours work per week and forty hours per week. Iam not satisfied that had the subject accident not occurred the plaintiff would have pursued steady employment over the course of the last five years. Her pre-injury working record renders this unlikely. I do consider it to be more probable than not that if the plaintiff had not been injured she would have worked as a bar stewardess but irregularly. The probabilities are that there would have been periods when the plaintiff did not work and other periods when the plaintiff may have worked up to twenty or twenty-five hours per week. I havecome to the conclusion that a fair approach to the past is to allow the claim calculated on the basis of an average of ten hours work per week as a bar maid over the past five years. The loss calculated on this basis would be measured in the sum of $29,000 but the fact that the plaintiff would have been unable to work for twelve months because of the later accident must be brought into account. One cannot be mathematically precise about this but on the approach which I take to the matter and using the calculations provided by the plaintiff as a guide I allow the plaintiff for past economic loss the sum of $23,000. In allowing this figure I do not overlook the plaintiff's capacity for work since February 1993, but in all the circumstances of this case I fix $23,000 as a fair assessment of the plaintiff's past economic loss. I turn to the future. URJ CONNOR v HATGIS (Powell JA) 9 Accepting as I do that the plaintiff has continuing disabilities in her left wrist and her left knee, and that these will be permanent, there are certain areas of employment which she will be unable to pursue. I consider, for example, that the plaintiff would be unable to pursue regular employment as a barmaid, or as a jillaroo, or as a strapper, and these were all avenues of employment for which the plaintiff would have been suited but for her accident. The plaintiff would not be fit in the future for any form of employment that requires her to use her left hand in lifting and carrying heavy objects or which exposes her unstable knee to undue stress. This means that the plaintiff will be disadvantaged when seeking employment which would otherwise have been available to her. Nevertheless there remain many forms of employment for which the plaintiff would be suited. I am satisfied on the evidence that the plaintiff would be suited for full time employment looking after disabled persons, assuming she succeeds in finding work in that field. The plaintiff would be capable of working as a check-out operator at a supermarket, which is work as a console operator at a service station and should be capable of a wide range of sedentary and semi-sedentary positions. How then is the loss of capacity to be measured in monetary terms? If the plaintiff was now working forty hours per week as a barmaid (and I consider it unlikely that she would have been working such hours had she remained uninjured) the plaintiff would have been capable of earning $423.55 nett per week. There is no evidence as to what the plaintiff would be able to earn as a disabled person carer but a vocational report from Ms Moylan dated 10 November 1993 provided 1992 average weekly wage rates for sales assistants, ticket sales persons and service station attendants and, allowing for increases in rates since that report was prepared, I doubt that work as a bar stewardess would be better paid than work the plaintiff can still do. However Mr Bailey's evidence suggests that bar work would have been readily available and work now within the plaintiffs capacity may not be. I find this case a difficult one in which to arrive at an appropriate allowance for future loss of earning capacity, particularly since the evidence does not satisfy me that the plaintiff would have pursued regular full-time employment even had she remained uninjured. Nevertheless the plaintiff will be limited in the work she can do, and will be disadvantaged on the open labour market in the result. Ihave reached the conclusion that a fair allowance for future economic loss in all the circumstances of this case is $30,000, and testing that allowance on the actuarial tables I note that it approximates to an allowance of $40 per week to age sixty with a fifteen per cent discount for the vicissitudes.' With respect to those who are of a different view, it seems to me that there is nothing in that part of Studdert J's Judgment which has been set out by Priestley JA in his Judgment, nor in that part of Studdert J's Judgment which I have just set out, which, consistently with the principles to be applied by this Court, would justify this Court intervening in order for itself to reassess damages. The contrary, as it seems to me, is demonstrted by the following passage in Priestly JA's Judgment: — As I have already indicated, my understanding of Studdert J's reasoning is that he reached his conclusions about what the plaintiff, uninjured, would have done in the way of looking for and staying at work from her objective working history before the accident. I think that this is, in general, a sounder approach than one which is based on a plaintiff's statement of future intentions and hopes. However, using the same material as that used by Studdert J I reach a different opinion from his. 10 UNREPORTED JUDGMENTS The plaintiff seems to me to have shown by what she did after leaving school that although she may not have been destined for long term employment in any particular job, she both wanted to work and was capable of obtaining and doing jobs such as bar work and supermarket work and working at them with a fair degree of continulty even though she changed employers from time to time. Translating this into the terms the trial Judge used in dealing with past economic loss, it seems to me with due respect to him, that it was a mistake to take an average of 10 hours per week as a barmaid as the basis of his calculation and that a much sounder approach would have been to take 20 hours as the basis. > Such an approach, as it seems to me, is impermissible, for it demonstrates that what is here being done is that the Court is deciding foritself what it considers is the amount appropriate to be allowed by way of damages, rather than, as is its proper role, first determining whether or not the amount of damages which has been allowed is so disproportionate to the injury suffered that the Court's intervention is justified. As will be apparent from what I have written above, I am of the view that the Appeal should be dismissed with costs. 1. Appeal allowed; 2. Set aside the judgment of Studdert J in the Common Law Division of the Supreme Court; 3. In lieu thereof: enter judgment for $194:009.58. Such judgment to take effect from 20 June 1994; 4. Reserve the costs of the trial and of the appeal; and 5. Direct the parties: within seven days of this date: to lodge with the Registrar of the Court of Appeal written submissions on costs. Counsel for the appellant: B F Murray QC / G W McGrath Solicitors for the appellant: Pollack Greening and Hampshire Counsel for the respondent: R C Tonner Solicitors for the respondent: S Mills: Solicitor for GIO Australia Ltd