Calder v Boyne Smelters Ltd [1990] QSCFC 51 [1991] 1 Qd R 325

,viL 1 \ 0°^ 10 IN THE SUPREME COURT OF QUEENSLAND 1 REVISED COPIES ISSUED Court Reporting Bureau Date: c*L21 i 9° i i fc i <{o(c>S'I FULL COURT BEFORE: Mr. Justice Kneipp Mr. Justice Shepherdson Mr. Justice Cooper BRISBANE, 8 AUGUST 1990 80 of 1989 10 .0 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.) 20 BETWEEN : GEORGE CORMACK CALDER (Plaintiff) -and- BOYNE SMELTERS LIMITED (Defendant) Respondent Appellant 30 40 50 JUDGMENT MR. JUSTICE SHEPHERDSON: In this matter the Court consisted of Mr. Justice Kneipp, Mr. Justice Cooper and myself . I would dismiss the appeal with costs to be taxed. I publish my reasons. I am authorised by Mr. Justice Kneipp to say that he agrees with my reasons and with the reasons of my brother Cooper which he is about to publish. MR. JUSTICE COOPER: I would dismiss the appeal with costs to be taxed. I publish my reasons. MR. JUSTICE SHEPHERDSON: The order of the Court then is that the appeal is dismissed with costs to be taxed. 40 50 60 60 —Govt. Printer, Qld. l [1990] QSCFC 51 -- 1 of 76 -- fc 9oj osi o- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal no. 80 of 1989 BETWEEN: GEORGE CORMACK CALDER ( Plaintiff) Respondent AND: BOYNE SMELTERS LIMITED (Defendant) Appellant KNEIPP J. SHEPHERDSON J. COOPER J. Reasons for judgment delivered by Shepherdson J. and Cooper J. on the 8th August, 1990, Kneipp J. agreeing with the reasons for judgment of Shepherdson and Cooper JJ. "APPEAL DISMISSED WITH COSTS TO BE TAXED." -- 2 of 76 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 80 of 1989 Before the Full Court Mr. Justice Kneipp Mr. Justice Shepherdson Mr. Justice Cooper BETWEEN : AND: GEORGE CORMACK CALDER ( Plaintiff ) Respondent BOYNE SMELTERS LIMITED (Defendant) Appellant JUDGMENT - SHEPHERDSON J. Delivered the Eighth day of August, 1990 CATCHWORDS DAMAGES - Personal injuries - Assessment by trial Judge - Test to be applied by Queensland Full Court. Keefe v. R.T. & D.M. Spring Ptv. Ltd. (1985) 2 Qd.R. 363 not followed . Appeal dismissed. Counsel: Mr. Williams Q.C. and Mr Britton for the Appellant Mr. White Q.C. and Mr McMeekin for the Respondent Solicitors: Feez Ruthning t/a. for Mackenzie-Forbes and Partners, Gladstone, for the Appellant V.A.J. Byrne & Co. for the Respondent Hearing Dates: 28th and 29th May, 1990 -- 3 of 76 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 80 of 1989 BETWEEN : GEORGE CORMACK CALDER (Plaintiff) Respondent AND: BOYNE SMELTERS LIMITED (Defendant) Appellant JUDGMENT - SHEPHERDSON J. Delivered the Eighth day of August, 1990 On 31st January, 1986 the respondent was injured in the course of his employment with the appellant. On 21st November, 1989, after trial of an action in which the respondent had claimed damages for personal injuries, Demack J. assessed his damages at $244,816.84. He deducted from that sum the amount of the Workers' Compensation Board charge - $57,324.92 and gave judgment for the respondent against the appellant for $187,491 .92 with costs to be taxed. The appellant has appealed against the assessment of the damages. Although the notice of appeal states 17 different grounds, the appellant's arguments were that the overall assessment was manifestly excessive, focusing on the components in the award for pain, suffering and loss of amenities, for economic loss to judgment, for future impairment of earning capacity and for future medical costs and an alleged failure by the learned trial Judge to discount the respondent's damages because of alleged proven exaggeration by the respondent of the -- 4 of 76 -- 2 extent of his symptoms and disabilities as a result of the 1986 accident . The appeal also raises a question of the test to be applied by this Court on the hearing of an appeal against the assessment by a trial Judge of damages for personal injury, the appellant contending that this Court should continue to follow its decision in Keefe v. R.T. & D.M. Spring Ptv. Ltd. (1985) 2 Qd.R. 363 and the respondent contending that it should follow the High Court decision in Gamser v. The Nominal Defendant (1977) 136 C.L.R. 145. 1• WHICH TEST SHOULD BE APPLIED In Keefe v. Spring this Court, after a review of the decision of the High Court of Australia in Gamser v. The Nominal Defendant (supra) and the then recent decision of the Privy Council in Lai Wee Lian v. Singapore Bus Service (1978) Ltd. (1984) A . C . 729, decided that it should adopt the approach in principle of the Privy Council in reviewing an award of damages for personal injuries. Williams J. , with whose reasons Campbell C.J. and Connolly J. agreed, considered that the Privy Council approach was not contrary to any decision of the High Court. In Keefe's case, the following passage from Lai Wee Lian was quoted as containing the Privy Council's approach to the problem "In delivering judgment Lord Fraser of Tullybelton said :- 'Before considering the facts of the appeal in more detail, Their Lordships will refer to a question of general importance which arises. Mr. Rashid, on behalf of the respondent, submitted that the Court of Appeal had rightly held that what matters is the global figure and that, if the global figure was reasonable and fair, an appellate court should not increase or diminish a component item of damages on the basis that -- 5 of 76 -- 3 that item was either too low or excessive. He sought to support that contention by reference to the advice of this Board, delivered by Lord Diplock, in Paul v. Rendell (1981) 55 A.L.J.R. 371. It is of course true that at the end of the day the total sum awarded is what matters to both parties. But that does not mean that the component items do not have to be separately considered. They are the necessary parts which make up the whole, and the only proper way of deciding whether the global award is too low or too high is by assessing the separate items and arriving at a fair total ... Of course the assessing Judge has a considerable range of choice because many of the variable elements in the damages cannot be precisely guantified. This applies notably to a plaintiff's loss of future earning capacity, the assessment of which ' involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured' : see Paul v. Rendell 55 A.L.J.R. 371, 372. But if the award for loss of future earnings, or for any of the other items, is so far out of line with what the appellate court considers appropriate as to indicate that the assessing Judge has erred in principle, and if the substitution of an appropriate award for that item would make a substantial alteration in the total award, then the appellate court has the duty to make the substitution and to alter the total accordingly.' (p. 67)." It is fair to say therefore that the ratio of Keefe's is, as the headnote to the report states "Although it is true that at the end of the day the total sum awarded is what matters to the parties, that does not mean that the component items do not have to be separately considered; the only proper way of deciding whether a global award is too high or too low is by assessing the separate items and arriving at a fair total. If the award for any item is so far out of line with what the appellate court considers appropriate as to indicate that the assessing Judge has erred in principle, and if the substitution of an appropriate award for the item would make a substantial alteration in the total award, the appellate court has the duty to make the substitution and to alter the total accordingly." case -- 6 of 76 -- 4 Mr. Williams Q.C. who appeared for the appellant in this Court submitted that the Court should continue to follow Keefe v. Spring . Mr. White Q.C. for the respondent submitted that this Court should follow the High Court decisions in Gamser v. The Nominal Defendant (supra), further submitting that the Privy Council decision in Lai Wee Lian v. Singapore Bus Service (1978) Ltd . was contrary to binding High Court authority, in particular Gamser v. The NominalsPefendant , Miller v. Jennings (1954) 92 C.L.R. 190 and Wilson v. Peislev (1975) 50 A.L.J.R. 207. It will be as -well to now examine Gamser's case. I had occasion to consider in a minority judgment which I wrote in Pair v. Butler and S.G.I.O (Old.) (Writ No. 2719 of 1982 - judgment (unreported) delivered on 25th March, 1985) the question whether Gamser and Lai We Lian conflicted. If the Privy Council decision in Lai Wee Lian conflicts with High Court authority this Court must follow the High Court ( Viro v. R. (1978) 141 C.L.R. 88). If Keefe's case is followed in this Court, any alteration in any component in an award of damages for personal injuries which results in a substantial alteration in the total award is sufficient to justify an Appellate Court interfering with the award (my emphasis). Such an approach, in my respectful view, conflicts with the view of the High Court as expressed in Gamser v. The Nominal Defendant (supra) and in other cases. In Gamser's case there was a bench of five Judges. Aickin J. (with whose reasons Barwick C.J. agreed) in discussing the problems arising when a challenge is made to a trial Judge's assessment of damages said that (at p. 159) he regarded the following observations of Barwick C.J. in Wilson v. Peislev (1975) 50 -- 7 of 76 -- 5 A.L.J.R. 20 7 as apposite in the case then before the High Court : - "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 though 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." Aickin J. then went on:- "In my opinion the proper approach to this case is to look at the total sum awarded as general damages and at all the circumstances, the pain and suffering, past, present and future, the physical disabilities, the medical and physiological problems which are inevitable for the future, the effect on earning capacity and the kinds of additional costs which the appellant will necessarily incur, and to ask oneself whether the sum of $150,000 is 'out of all reason' or 'wholly disproportionate to the circumstances'." In that case the general damages had been assessed in the sum of $150,000.00 without the trial Judge having indicated that he arrived at that figure by a process of attributing particular sums to individual ingredients. Gibbs J. (as he then was) did not approve of the "out of all reason" or "wholly disproportionate to the circumstances" test adopted by Aickin J. He said (at p. 149):- "To say that an award of damages made by a judge must be outrageous, or out of all reason, before an appellate court is entitled to intervene is, I think, with all respect, to state too high a test. However in the present case, in the circumstances stated by my brother Aickin, it should not have been held by the Court of Appeal that the award made by the learned trial judge was a wholly erroneous estimate of the damage suffered, and there was no sufficient ground -- 8 of 76 -- 6 for the Court of Appeal to have interfered with that award." It does appear that Gibbs J. preferred as a test whether the total award was "a wholly erroneous estimate". At p. 149 Gibbs J. referred to the observations of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd, cited with apparent approval by Dixon C.J. and Kitto J. in Miller v. Jennings (1954) 92 C.L.R. 190 at 195-6. Stephen J. did not discuss the test. However, after expressing certain views on the method of assessing a lump sum award he said (at p. 150):- "Having said this I nevertheless conclude that the learned trial Judge's award of $150,000.00 should stand, for the reasons stated by Aickin J." Thus it may be inferred that Stephen J. approved of the "out of all reason" or "wholly disproportionate to the circumstances" test. Murphy J. expressed no views on the appropriate test. In the result, two and apparently three of the five Judges applied the test used by Aickin J. and it is arguable that this test holds the field in Australia unless and until the High Court says otherwise. I should here say that authorities in State Full Courts other than in West Australia show that the current test adopted in Australia (other than in Queensland) and based on High Court authority, including Gamser , is the "wholly erroneous estimate" test. West Australia adopts the Gamser test. It now seems that this Court, if Keefe's case applies, has to ask itself whether any component in the total award of general damages is so far out of line as to indicate an error in principle and then ask whether the substitution of an award for -- 9 of 76 -- 7 that component would make a substantial alteration to the total award. I find the phrase "substantial alteration" to be something quite different from "out of all reason" or "wholly disproportionate to the circumstances" or "wholly erroneous estimate" and in my respectful view this Court must follow the High Court and not the Privy Council. There is a view, to which I shall later refer, that the Privy Council test places on an appellant a lesser burden than the tests applied by Aickin and Gibbs JJ. in Gamser's case. The application of Keefe's test may be illustrated in the following hypothetical example. Assume that in a given case the total damages are assessed at $300,000.00 and the individual heads show one third of the total to pain and suffering, one third of the total to past economic loss and one third of the total to future economic loss. Assume that an appellate court believes that the sum attributed to past economic loss is one third too high. This may mean a substantial alteration in that particular head of damages because there should be a one third reduction. However, the varied component must make a substantial alteration to the total award before the total award can be altered : in this hypothetical case a reduction of one ninth in the total award. Can it be said that the one ninth reduction makes a substantial reduction? I think not, given that the assessment of damages by trial judges in personal injury cases is treated by the High Court as analogous to the exercise of a judicial discretion and as Mason J. (as he then was) said in Wilson v, Peislev (at p. 214):- "The settled rule then is that an appellate court will not disturb a primary Judge's award of damages for personal injury unless it is convinced that he has -- 10 of 76 -- 8 acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered." To return to the instant appeal, the presiding Judge in this Court, Kneipp J., invited Mr. White Q.C. to supply the Court with references to authorities in other States of Australia and in the Federal Court of Australia to try to find out what tests those Courts ^applied in reviewing an assessment of damages awarded by a Judge in a personal injuries action. The Court has obtained a copy of the unreported judgment of the Full Court of .the Supreme Court of Victoria in Thresher & Guzzardi Petroleum Ptv. Ltd, v. Johnston (1984) (No. 71) handed down on 26th June, 1987. The Full Court applied the principles found in the judgment of Gibbs J. in Gamser's case. Murray and Southwell JJ. in their joint judgment said (at p. 9):- "We acknowledge that it has long been established that an appellate court should be slow to interfere with the assessment of damages by a trial Judge. A useful reminder of the applicable principles is to be found in the judgment of Gibbs J. in Gamser v. Nominal Defendant (1977) 136 C.L.R. 145 at p. 148-9. There the 'wholly erroneous' test enunciated by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. ((1942) A . C. 601 at pp. 616-17) was adopted by His Honour. Notwithstanding the difficulty of meeting that test we are satisfied that the appellant has met it and that the scale has 'gone down heavily against the figure attacked'." In that case the trial Judge had assessed damages at $411,200.00 allocating items to each of four heads of damages as well as agreed special damages . The majority in the Full Court took the view that, looked at globally, the award was far too high to be allowed to stand; they also allocated their own approximate assessments for each of the items for pain and suffering, future economic loss, future housekeeping and future medical expenses and thus reduced the general damages from -- 11 of 76 -- 9 $370,500.00 to $250,000.00. Special damages were unaltered at $40,700.00. Gobbo J., the third member of the Court, who dissented really only in so far as he would have dismissed the appeal, applied Gamser's case. He referred to Warren v. Coombes (1979) 142 C.L.R. 531, and especially the following passage which was relied on by the appellants "Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial Judge, but, once having reached its own conclusion, will not shrink from giving effect to it." (at p. 551). Gobbo J., after quoting certain extracts from Gamser's case said (at p. 6 of his reasons) "In my view the above statements of principle do not, in an appeal against an award of damages by a trial Judge as being excessive, enable the appeal court in effect to form its own view of what the appropriate award of damages should be. Even if theoretically it would be possible to say that all the facts were identified and not in dispute, it must be a rare case that in the assessment of damages the facts are undisputed or the subject of such sufficiently explicit findings by the trial Judge as to enable the appeal court to follow the course which the appellant contends should be followed on the basis of the application of the general principle referred in Warren v, Coombes. I leave to one side questions of credibility which are recognised as being an area where the trial Judge has a particular advantage. I refer rather to the fact that in evaluating the degree of pain or distress or interference with enjoyment of life one can seldom, if ever, find an Appeal Court being in the same position as the trial Judge from the point of view of having an explicit finding of fact to use as a foundation for the calculation of an award of damages . For this reason, it is understandable that the more useful approach is likely to be that set out in Gamser's case so that an appeal court should intervene either where it is satisfied that there has been an error in approach or where the disproportion between -- 12 of 76 -- 10 the injury and award is sufficient to make the award quite unreasonable in the circumstances." I turn now to West Australia. The Full Court of the Supreme Court of that State in Lloyd v. Faraone (1989) W.A.R. 154 considered an appeal in which the defendant sought to have a judgment of $40,000.00 damages for personal injuries against him set aside because the learned trial Judge had erred in failing to evaluate evidence:; and make specific findings. Alternatively, he sought to have the damages reduced as being manifestly excessive. Malcolm C.J., with whose reasons Brinsden J. agreed, after referring to Dessent v. The Commonwealth (1977) 51 A.L.J.R. 482 at 486-7 said (at pp. 162-163):- "In my opinion, it is the duty of the trial judge to deal with the evidence relevant to each factor and to make findings assessing the significance of each of them. In Gamser v. Nominal Defendant (1977) 136 C.L.R. 145 at 149 Stephen J. said that:- ' . . . so long as awards of damages for personal injury are to be assessed at first instance by judges rather than by juries, with the accompanying advantage of the existence of stated reasons, those reasons should condescend to some degree of particularity concerning the process by which the particular award of damages has been arrived at. I do not, of course, advocate any process whereby items of damages are quantified in isolation and are then simply aggregated; that is no way to go about the task . But to condemn that approach should confer no merit upon another, no less objectionable, whereby the total amount to be awarded is stated without any disclosure of the mental processes by which that sum has been arrived at. An award of damages is not, nor should it ever be, arrived at intuitively. Only if it were would particularity as to its component parts be otiose; and if an award is to be the result of a process of reasoning, often quite complex, that process should be exposed, both for the satisfaction of the parties and for the enlightenment of appellate courts should there be an appeal . -- 13 of 76 -- 11 So long as compensation takes the form of a lump sum award, arrived at by an evaluation of evidence and by processes of reasoning, there must necessarily be involved some assessment of each item of detriment and some process of computation in order to arrive at the ultimate sum to be awarded. There will very often be detriment suffered or risks of detriment to which a party has been exposed which are incapable of precise quantification. In such cases estimates must suffice and the notion that some false impression of precise mathematical accuracy may be given can readily be dispelled by a few words of explanation. There is no occasion to. .abandon altogether the task of explaining the components of the award' . This passage was approved by Mason and Aickin JJ. in Dessent v. Commonwealth . In my opinion, the approach taken by Stephen J. is that which should be adopted. In some cases, it may be possible for the appellate' court to make an original assessment of the evidence relevant to the factors in respect of which no findings or assessments were made by the learned trial judge and then to determine, in the light of the findings in fact made, whether or not his global award is 'out of all reason' or 'wholly disproportionate to the circumstances' : see Gamser v. Nominal Defendant (supra at 158) per Aickin J. (with whom Barwick C.J., Gibbs and Stephen JJ. agreed)." Malcolm C.J., referring to the appeal then before him, went on to say:- "In view of the unresolved doubts which His Honour expressed concerning the accuracy of the respondent's evidence of her loss of earning capacity and his doubt concerning the extent to which she had suffered the symptoms described by her it is simply not possible for this Court to embark upon the approach which I have described." It is clear therefore that the West Australian Full Court applies the test in Gamser but not the "wholly erroneous estimate" test preferred by Gibbs J. In South Australia, the Full Court of the Supreme Court of that State, in Masson v. Crook (1979) 22 S.A.S.R. 473 considered an appeal against an assessment of damages for personal injuries suffered by a boy when seven years old and who was 16 years at trial. The trial Judge had assessed damages at $210,000.00, -- 14 of 76 -- $60,000.00 of which related to loss of earning capacity. Of the remaining $150,000.00 King C.J., with whose reasons the other members of the Court agreed, said (at p. 473):- "The attack of the defendant's counsel on the award was based on the contention that the amount of $150,000.00 allowed for factors other than loss of earning capacity was excessive. The plaintiff's counsel defended this figure and contended that the amount of $60,000.00 for loss of earning capacity was too low. It is useful to examine these contentions separately, but the final question for this Court is whether the total amount of $210,000.00 is a wholly erroneous assessment as being either too high or too low." His Honour then went on to consider these matters. He concluded that $125,000.00 would be a fair figure for loss of earning capacity and that if that assessment was correct the total award of $210,000.00 left $85,000.00 for other factors. He thought that that figure was justified although he did not think that one could go higher on the facts of that case. At p. 478 he said:- "Although it is often useful for the purpose of working out an assessment, and later for examining its adequacy, to consider economic and non economic factors separately, the final question for an appellate court is whether the global sum awarded is a wholly erroneous estimate of the plaintiff's loss as being either too high or too low." Although the Court did not quote authority in Masson v. Crook it is quite clear that it adopted the "wholly erroneous assessment" test referred to by Gibbs J. (as he then was) in Gamser's case. That phrase, when used as a test on an appeal against the assessment of damages for personal injuries, appears to have been first used in the form "entirely erroneous estimate" by Greer L.J. in Flint v. Lovell (1935) 1 K.B. 354 at p. 360 and later approved by the High Court of the Australia in Miller v. Jennings (1954) 92 C.L.R. 190 at p. 196. At p. 196 in Miller v. Jennings Dixon C.J. and Kitto J. said:- -- 15 of 76 -- 13 "In other words, is the case one to which either branch of the general proposition of Greer L.J. in Flint v. Lovell ((1935) 1 K.B. 354 at p. 360) applies, namely that the appellate court must be convinced either that the Judge acted on a wrong principle or that the amount awarded was so extremely small as to make it, in its judgment, an entirely erroneous assessment of the damage to which the party is entitled." As I shall later point out Greer L.J.'s approach was subsequently modified, approved and applied by courts of high authority including the High Court of Australia. In the Federal Court of Australia - General Division - a Full Court ( Smithers; Nimmo and Connor JJ. ) gave judgment on 22nd May, 1978 in Lavton v. Walsh (19 A.L.R. 594). In that case the trial Judge had assessed the respondent's damages for personal injuries at $156,564.00. Smithers and Nimmo JJ. in their joint judgment considered a number of authorities including Sharman v. Evans (1977) 13 A.L.R. 57, Gamser v. The Nominal Defendant (supra) and especially the judgment of Gibbs J. citing with approval the passage from the judgment of Greer L.J. in Flint v. Lovell (supra) at p. 3 60 and a passage from the judgment of Aickin J. in Gamser's case. Their Honours mentioned also other authorities all dealing with the approach of an appellate court on an appeal against an assessment of damages by the trial Judge. The test ultimately adopted by Smithers and Nimmo JJ. was stated by them at p. 609 in the following way:- "Looking therefore at the total sum awarded the situation is one in which, in the words of Barwick C.J. mutatis mutandis, in Ashford v. Ashford (1970) 44 A.L.J.R. 195 at 197, we cannot say that we are convinced that a comparison of the verdict of the learned trial Judge and what it could produce, with the full extent of the respondent's injuries, and all they involve shows such a disproportion that the amount of his verdict is beyond the limits of a sound exercise of his discretion in awarding damages." -- 16 of 76 -- 14 I mention particularly the reference to discretion as this is an aspect referred in judgments of certain State Full Courts. In Tasmania, the Full Court of the Supreme Court delivered its judgment in McKinlay v. Reading on 1st March, 1977 that is four days after the High Court judgment in Gamser was handed down. Gamser was not mentioned. At p. 16, the Full Court, Crawford, Neasey and Chambers JJ. said:- "The law to be applied on an appeal against an award of damages was recently considered by this Court in Bridges v. Ouarrell (unreported) (Full Court 15th June, 1976) when the Court, following Wilson v. Peisley ((1976) 50 A.L.J.R. 207) held that the test to be applied by an appellate court is whether the trial Judge made a wholly erroneous assessment of the amount of damages appropriate to the injuries and their consequences or, in other words, were so disproportionate to the nature and consequence of the injuries received as to go beyond the range of the exercise of a sound discretion in the awarding of damages. It is not for an appellate court to allow an appeal against damages merely because the members of the court may have awarded a greater sum." I have obtained photocopies of judgments of the Full Court of the Supreme Court of Tasmania in the following unreported cases: Marshall v. Cnossen File No. 24/1985 - judgment delivered 23rd August, 1985; Dodge v. Matcham File No. F.C.A. 188/87 - judgment delivered 26th May, 1988 and Walford v. Milner File No. F.C.A. 132/86 - judgment delivered 24th December, 1987. In Marshall v. Cnossen the Court said that it would not interfere with an award of damages unless there is demonstrated some error in principle or the award is unreasonably disproportionate to the injury citing Gamser. Wilson v. Peislev and unreported Tasmanian authority. In Dodge v . Matcham Cosgrove J., with whose reasons Cox J. agreed, applied comments of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) A.C. 601 at 616-617 which he noted were cited with approval in Miller v. Jennings -- 17 of 76 -- 15 (1954) 92 C.L.R. 190 at 195-196 and Gamser v. Nominal Defendant (1977) 136 C.L.R. 145 at 148-149. All members of the Full Court could detect no error in the trial Judge's award. In Walford v. Milner Underwood and Nettlefold JJ. agreed on the principles on which an appellate court would interfere with an assessment made by a trial Judge sitting without a jury : Nettlefold J. referred to an extract from the judgment of Kitto J. in Minchin v. Public Curator of Queensland (1965) A.L.R. 91 at 95-6 in which extract Kitto J. referred to Miller v. Jennings and Davies v. Powell Duffrvn Associated Collieries . Underwood J. in his reasons referred to authority identical to that referred to by Cosgrove J. in Dodge v. Matcham . It is I believe, quite clear that the Tasmanian Full Court follows High Court authority, treating the assessment of damages by the trial Judge as a discretionary judgment and interfering only when it is clearly shown that the Judge has acted on a wrong principle of law or has misapprehended the facts or has for these or other reasons made a wholly erroneous estimate of the damage suffered. I come now to New South Wales. Moran v . McMahon (1985) 3 N.S.W.L.R. 700 shows that the New South Wales Court of Appeal follows the High Court of Australia in cases of this type. The leading judgment was written by Priestley J.A.. McHugh J.A. expressed entire agreement with Priestley J.A.'s judgment save for making his own comments on the rule laid down in Planet Fisheries Ptv. Ltd, v. La Rosa (1968) 119 C.L.R. 118. The third member of the Court, Kirby P., devoted much of his judgment to support his view that the New South Wales Court of Appeal should reconsider the extent to which observations of the High Court in Planet Fisheries and subsequent decisions of the New South Wales Court itself restrain it from adopting "a -- 18 of 76 -- 16 more normative approach to the evaluation on appeal of damages verdicts in cases of personal injury". Kirby P. concluded his judgment by saying "I am not convinced the verdict here should be challenged" . In Moran v . McMahon the learned trial Judge had assessed damages at $289,020.00 and itemized the various heads of damage. I do not propose to traverse in,great detail the thoughtful and critical judgment of Priestiey J.A. I shall however traverse his reasons because they trace the growth in the High Court of the analogy to a discretionary judgment and the origin of and adoption by the High Court of the "wholly erroneous estimate" test. One of the issues argued in Moran v . McMahon appeal was based on the decision in Warren v. Coombes (supra). At p. 716 Priestley J.A. quoted the following extract from Warren v. Coombes :- "... shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial Judge, but, once having reached its own conclusion will not shrink from giving effect to it." This was the passage cited and relied on in the Victorian decision of Thresher & Anor. v. Johnston (supra). His Honour (at p. 716) pointed out that the majority in Warren v. Coombes regarded Paterson v . Paterson (1953) 89 C.L.R. 212 as correctly stating the law. He went on:- "Thus, if there had been any doubt about it, since Warren v. Coombes there is no question but that Paterson is authority which binds this Court equally with Warren v. Coombes itself. Paterson approves of Owen v. Sykes ((1936) 1 K.B. 192) which adopted the tests stated by Greer L.J. in Flint v. Lovell ((1935) 1 K.B. 354) as applicable in this area." -- 19 of 76 -- Priestley J.A. later discussed a passage in the judgment of Dixon J. in Lee Transport Co. Ltd, v. Watson (1940) 64 C.L.R. 1. In that case the High Court had disagreed with the trial Judge's estimate of £550.00 for pain and suffering, etc. and substituted £1,500.00. Dixon J. had said:- "It is true that an appeal against the quantum of general damages fixed by a Judge is to be determined upon principles analogous to those which govern appeals from the exercise of judicial discretion. The standards by which the amount of general damages is to be fixed are indefinite and uncertain and to estimate the sum to be awarded involves the exercise of a form of discretionary judgment. If the appellate court is satisfied that some error of principle has been made, it must of course review the assessment. It must do so if it positively appears that some material consideration has been disregarded or that extraneous matter has been taken into account. But it ought not to reconsider the amount of damages independently of the assessment made by the Judge whose decision is under appeal. The appeal remains a rehearing ( Reanev v. Co-Operative Wholesale Supply Limited (1932) W.N. 78) but, because of the nature of the duty discharged by the primary Judge, the question whether his assessment or determination of the amount of damages was wrong must be decided, not by the court of appeal making its own estimate but by considering whether a reasonable result has been reached and in the' manner which the law provides. It is enough however to entitle and require a court to interfere if a very great disparity exists between the amount which ought in its judgment to have been awarded and that which has been fixed; if it is 'convinced ... that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff was entitled' . (Per Greer L.J. in Flint ' v. Lovell (1935) 1 K.B. 354 at 360), approved in Owen v. Sykes ((1936) 1 K.B. 192) --- " Priestley J. pointed out that of the three judgments in the Lee Transport case Dixon J. alone referred to the appeal being governed by principles analogous to those applicable to appeals from the exercise of a judicial discretion and that he remained holding this view alone until Miller v. Jennings (1954) 9'2 C.L.R. 190 when Dixon C.J. and Kitto J. both adopted the same approach. Priestley J.A., after referring to the House of Lords -- 20 of 76 -- 18 and Privy Council decisions which had adopted Greer L.J.'s test in Flint v. Lovell quoted an extract from the joint judgment of Dixon C.J. and Kitto J. in Miller v. Jennings (at p. 197) part of which read: - "The appeal must depend simply upon the answer to what must be the ultimate question, namely whether the compensation assessed is so inadequate as to be beyond the limits of what a sound discretionary judgment could reasonably adopt. .We do not doubt that the amount of the compensation awarded is low and we have had some hesitation concerning our decision but we do not think that it is so,:.inadequate as to justify us in reviewing the learned Judge's assessment. It cannot be described as outside the limits of what a sound discretionary judgment could reasonably adopt ... the amount assessed cannot, we think, be regarded as so inadequate or unreasonable as to justify the conclusion that it has been erroneously reached." Priestley J.A. then mentioned a later New South Wales Full Court decision - Wilkes v. Bradford Kendell Limited (1962) 79 W.N. (N.S.W.) 850 at 853 in which he said the Full Court relied on. what had been said by Dixon C.J. and Kitto J. in Miller v. Jennings. At p. 719 His Honour said:- "If it had not been firmly entrenched before, this decision embedded in New South Wales the notion that appellate courts dealing with assessments of damages for personal injuries by Judges sitting without juries should approach them in the same way as when asked to interfere with the exercise of discretion by a trial Judge. This position appears to have been accepted to the present time." The reference in that passage to "this decision" is to Wilkes case. Priestley J.A. then examined later cases including Wilson v. Peislev . He pointed out that the language of both McTiernan and Stephen JJ. in Wilson v. Peislev adopted the criterion stated by Greer L.J. in Flint v. Lovell and that Mason J., who dissented and with whom Gibbs J. agreed, likewise relied on Greer L.J.'s former words in Flint v. Lovell. In the course of his judgment Mason J. had said (50 A.L.J.R. at p. 214):- -- 21 of 76 -- 19 "The settled rule, then, is that an appellate court will not disturb a primary Judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered ." I should perhaps add that Mason J. (as he then was) then went on to mention a further factor which in his view was involved in appeals from the Court of Appeal or Full Court of a State Supreme Court where "--that intermediate Court had disturbed the award at first instance. That factor is not presently relevant. Priestley J.A. then considered Gamser's case. Of this case he said (at p. 721):- "In this case the Court was unanimous that an appeal against a decision by the New South Wales Court of Appeal reducing the amount of damages awarded by a Judge should be allowed and the trial Judge's award restored. Barwick C.J. agreed with the reasons of Aickin J. who relied upon the rule as stated by Barwick C.J. in Wilson v. Peislev . Gibbs J. however said (at 149) that he thought to say that an award of damages made by a Judge must be outrageous, or out of all reason, before an appellate court was entitled to intervene was to state too high a test. His agreement with the decision to reverse the Court of Appeal was based on the Flint v. Lovell test (accepted in the High Court not only by way of the approval in Miller v. Jennings of Davies v. Powell Duffrvn Associated Collieries Ltd, but also through the approval in Paterson of Owen v. Sykes ). Stephen J. appears to have reserved his opinion on the difference in the statement of the test which appeared between Barwick C.J. and Aickin J. on the one hand and Gibbs J. on the other. The fifth Judge, Murphy J., (at 151) simply said that the trial Judge's assessment had been reasonable and appropriate and that the Court of Appeal had underestimated the element in the impairment of earning capacity in holding that the award was excessive. Although he did not say so in so many words, the approach of Murphy J. appears to have been quite different from that of the Chief Justice and Aickin J.." His Honour then considered further authority and at pp. 722 and 723 said:- "The position reached on the authorities as to the position of a court hearing an appeal by way of -- 22 of 76 -- 20 rehearing seems to be that in regard to the proper inference to be drawn from factual matters in the record including inferences such as negligence, and bearing in mind the restraints in dealing with factual matters flowing from the advantage that the trial judge has, from seeing and hearing the witnesses, the appellate court is bound to reach and act upon its own conclusions. In regard to decisions involving the exercise of discretion or so analogous to decisions involving the exercise of discretion as to be assimilated to discretionary judgments the appellate court is not to act upon its own conclusions but only to alter the trial judge's decision in the circumstances enumerated by Greer L.J. in Flint v. Lovell. " I interpret Priestley J.A.'s last stated reference to the circumstances enumerated by Greer L.J. in Flint v. Lovell to be a reference to those circumstances as expanded by Lord Wright in Davies v. Powell Duffrvn Associated Collieries Ltd. (1942) A.C. 601 at p . 617 where he said:- "In effect the Court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law or has misapprehended the facts or has for these or other reasons made a wholly erroneous estimate of the damage suffered". This passage has been adopted and applied by the High Court of Australia for many years (see e.g. Miller v. Jennings (supra) at p. 196). Priestley J.A. then went on to discuss possible difficulties in applying these propositions pointing out that the allowance in a personal injuries case of an item for pain, suffering and loss of amenities of life may well arguably be one not invoking a discretionary approach whereas a component for future economic loss clearly falls within the discretionary approach. I do not see any need to here discuss Priestley J.A.'s discussion on that topic but merely draw attention to its presence . -- 23 of 76 -- 21 It thus appears that in New South Wales, Victoria, South Australia and Tasmania and in the Federal Court of Australia the following is the situation based on High Court authority, specially Miller v. Jennings, Paterson v. Paterson, Warren v. Coombes , Gamser and Wilson v. Peisley :- 1 . On an appeal by way of rehearing, in regard to the proper inference to be drawn from factual matters in the record including inferences such as negligence and bearing in mind the restraints in dealing with factual matters flowing from the advantage the trial Judge has from seeing and hearing the witnesses the appellate court is bound to reach and act upon its own conclusions . 2. An appellate court will not disturb a primary Judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered. In West Australia the Full Court follows the High Court but appears not to have adopted the "wholly erroneous estimate" test but rather the "out of all reason" or "wholly disproportionate to the circumstances" test found in Gamser. I return now to Keefe v. R.T. & D.M. Spring Pty. Ltd, and its subsequent history in Queensland. 1. In Pair v. Butler and SGIO (Old.) (Writ no. 2719 of 1982) - unreported - judgment delivered 25th March, 1985 - Andrews C.J. (with whose reasons Kelly J. agreed) said (at p. 35 of his reasons):- "Some criticism was attempted before us of the approach of this Court, differently constituted in Keefe v. Spring Pty. Ltd. ... in regarding the -- 24 of 76 -- 22 decision of the Privy Council in Lai Wee Lian v. Singapore Bus Service (1978) Ltd. ((1984) 3 W.L.R. 63) as being consistent (sic) with statements in Gamser v. Nominal Defendant (1976) 136 C.L.R. 145. It seems clear to me that in neither case do the various statements attempt anything other than general guidance to assessing courts and in particular that although it is an overall figure which is being regarded, where there are separate components they should be considered separately. I do not think that I would serve any useful purpose by repeating the statements in those cases and am content to say with respect that the method of review adopted in Keefe v. Spring Ptv. Ltd, was correct." 2. In Thorogood & Another v. Davis & Another (Appeal no. 64 of 1985) - unreported -/judgment delivered 15th November, 1985 - Andrews C.J., with-whose reasons the other members of the Court, Kneipp and Macrossan JJ. agreed, after consideration of Gamser's case and Warren v, Coombes, saw no inconsistency with the judgment reached in Keefe v. Spring. 3. In Nugent v. Auliff & Another (Writ no. 4528 of 1981) - unreported - judgment delivered 10th May, 1985 - Williams J., who had written the Court's judgment in Keefe v. Spring again considered the problem and concluded that there was no necessary inconsistency between what the High Court said in Gamser and what was said by the Privy Council in Lai Wee Lian. Ryan J., one of the other members of the Court, agreed with the judgment of Williams J. . The Chief Justice, Sir Walter Campbell, who was the remaining member of the Court wrote and published his own reasons but did not advert to the problem. 4. In Humberdross v. Rapp (Appeal no. 20 of 1989) - unreported - judgment 15th December, 1989 - Kelly S.P.J. considered the problem. He said that he found some little difficulty in reconciling certain of the decisions on the approach which should be adopted in that matter - it was an appeal against the assessment of damages in a personal injury case. He discussed -- 25 of 76 -- 23 Keefe v. Spring and Gamser's case. He thought that the approach which this Court had adopted in Keefe v. Spring by applying Lai Wee Lian "would appear to involve a less stringent test than that adopted in Gamser v. The Nominal Defendant - in that the ultimate question is whether the effect of a variation in an individual component or individual components of the award would be to make a 'substantial alteration' in the total 'and that this was' somewhat different from that total being 'out of all reason' or 'wholly disproportionate to the circumstances'". He went on to say that1 in the case before him if Gamser's test were to be applied he would not think that it could be said that the award made by the learned trial Judge was "out of all reason" or "wholly disproportionate to the circumstances" whereas if the Keefe test were the appropriate one then the reduction effected could, having regard to the amounts involved, be regarded as making "a substantial alteration" in the total award. I interpolate here that the result of that appeal was to reduce the total award by $16,750.00 from $142,921.18 to $126,171.18. Mackenzie J., with whom the other members of the Court agreed, achieved the reduction by : - (a) reducing the component for pain, suffering and loss of amenities (pre and post-trial) from $25,000.00 to $15,000.00; (b) reducing the component for pre-trial loss of earnings from $46,000.00 to $40,000.00 because certain findings made by the trial Judge based on certain documents would not be justified; (c) altering the interest component from $4,000.00 to $2,350.00. -- 26 of 76 -- 24 (I mention that there appears to be an arithmetical error of $1,000.00 in the final result in Humberdross - if the figures in the copy of reasons for judgment which I have are correct) . I must say for my part that I cannot understand how it could be said that the reductions in each of the above items could be regarded as making a substantial alteration in the total award which was $142,921.18. I do not believe that Keefe v. Spring is, with due respect,, authority for an exercise such as was performed in Humberdross. Even Lai Wee Lian recognises that it is the total or global award which matters yet in Humberdross the small alterations in each head were aggregated to achieve what was said to be a substantial alteration in the total award. In any event, in Humberdross , Kelly S.P.J. concluded that it could not be said that the decision in Keefe v. Spring was pronounced per incuriam as the judgments in Gamser v. Nominal Defendant were referred to. He went on to say:- "The decision is certainly not in conflict with the then recent judgment of the Privy Council which it applied although as I would see it, it is when properly viewed, in conflict with the view of the majority of the High Court in Gamser v. Nominal Defendant and indeed with a body of authority which preceded it". Kelly S.P.J. also pointed out that Williams J. in writing the judgment in Keefe v. Spring took the view that the course which the court was adopting was not contrary to any decision of the High Court. In the result Kelly S.P.J. considered that it was not necessary to decide whether Keefe v. Spring should be followed and he agreed with the orders proposed by Mackenzie J. namely that the judgment be reduced as I have earlier set out. It can be seen therefore that since Keefe v. Spring was published its authority has been questioned in this Court on a number of occasions. The situation has now been reached where -- 27 of 76 -- 25 as I see it Kelly S.P.J. (who earlier had agreed with the views of Andrews C.J. in Pair v, Butler) is having second thoughts about whether or not this Court should continue to follow Keefe v. Spring. This is clear from his judgment in Humberdross . Since Humberdross the High Court has delivered its judgment in Nguyen v. Nguyen (1990) 64 A.L.J.R. 222. In that judgment the members of the High Court have expressed their views on reviews by State Courts of their own prior decisions. It suffices if I refer to the joint judgment of Dawson, Toohey and McHugh JJ. At p. 232 their Honours said:- "The Full Court in the present case were unanimously of the view that Seymour was wrongly decided. They were correct in that view. Nevertheless, the majority applied Seymour and Williams v. Fleming , following what was said to be the prevailing practice in Queensland whereby the Full Court regards itself as bound by its own previous decisions. Authority in Queensland upon the point is sparse and not altogether consistent. Perhaps the most authoritative statement is to be found in R. v. Gassman [1961] Qd.R. 381 where the Court of Criminal Appeal held that it was not free to depart from a previous decision. Mack J. said, at 384-385 'There does not seem to me to be any reason why the rule of stare decisis should not be the same for the Court of Criminal Appeal as for the Full Court. The cases in Queensland appeal courts show that the occasions on which previous decisions will not be followed are limited to decision pronounced per incuriam and those in conflict with higher authority.' See also Wilks v. Bugler and Galloway, James Campbell & Sons Ltd. [1930] St.R.Qd. 113 at 120; R. v. Johnson [1964] Qd.R. 1; R. v. Scott-Hogarth [1965] QWN 17; R. v, Kaporonowski [1972] Qd.R. 465. The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself." Later (at p. 232) their Honours said:- "Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously -- 28 of 76 -- 26 and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law : see Queensland v. The Commonwealth (1977) 139 CLR 585, per Aickin J. , at 620 et. seq. This Court has never regarded itself as bound by its own decisions, which is all the more appropriate now that it is a court of last resort for all purposes. There is a point of view that different considerations should govern the situation of an intermediate court of appeal : see Young v. Bristol Aeroplane Co. Ltd. [1944] KB 718; Davis v. Johnson [1979] AC 264; Miliangos v. Frank (Textiles) Ltd. [1976] AC 443. But’ even if that view were correct, now that appeals to the High Court are by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes. There is no. equivalent of s. 12 of the Administration of Justice Act 1969 (UK) to authorise 'leap-frog' appeals which would by-pass those courts as the Court of Appeal may be by-passed in the United Kingdom: see, however, Sanofi v. Parke Davis Ptv. Ltd. fNo. 1 1 (1982) 149 CLR 147. In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasion to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty." In my respectful view this Court, if it continues to apply Keefe v. Spring will be following a course which, as I have endeavoured to show in discussing Full Court decisions from other States and the Federal Court, will be out of line with those decisions each of which applies tests adopted in the High Court of Australia. I do not believe the test in the Privy Council case is on all fours with the High Court test. In my view the tests which this Court should adopt are as follows:- 1. An appellate court will not disturb a primary Judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages -- 29 of 76 -- 27 awarded is so low or so high as to be a wholly erroneous estimate of the damage suffered. 2. On an appeal by way of rehearing in regard to the proper inference to be drawn from factual matters in the record including inferences such as negligence and bearing in mind the restraints in dealing with factual matters flowing from the advantage the trial Judge has from seeing and hearing the witnesses the appellate court is bound to reach and act upon its own conclusion. In test no. 1 above I have omitted the word "inordinately" which immediately precedes "high" and "low" in the above quoted extract from the judgment of Mason J. in Wilson v. Peislev (supra) at p. 214. With respect, I do not think the addition of those words adds anything to the test. After all, the cases show that at the end of the day the appeal court must be satisfied that the total assessment of the damages is "a wholly erroneous estimate" before interfering on that basis. Bearing in mind that this Court in almost all cases of appeal against a trial Judge's assessment of damages for personal injury, is the Court of last resort for all practical purposes, it is to say the least highly desirable that it apply the same tests as do the other Full Courts in Australia, State and Federal, each of which follows High Court authorities. The fact that the other Full Courts do not follow the Privy Council test in Lai Wee Lian v, Singapore Bus Services (1978) Ltd . (1984) A.C. 729 - admittedly that case was not referred to in decisions of the other State Courts to which I have referred - is in itself an indication that this Court may well be wrong to continue to follow the Privy Council. Where there is conflict between the Privy Council and the High Court this Court -- 30 of 76 -- 28 must follow the High Court. 1 recognise that other Queensland Supreme Court Judges and this Court have taken the view that there is in effect no distinction between the tests in Gamser and Lai Wee Lian. Not all are agreed however that this is so and I have referred to the judgment of Kelly S.P.J. in Humberdross ■ If this Court continues to apply Keefe v. Spring and sanctions exercises on appeal of the type performed in Humberdross , there is much toisbe said for the view that Keefe v. Spring imposes on appellants a lesser burden than do the High Court tests to which I have referred. The Keefe v. Spring test as applied in Humberdross , with respect, further negates the High Court test in that it enables an appeal court to more readily substitute its own views and largely erodes the exercise by the trial Judge of his discretion in assessing damages. In short the "wholly erroneous estimate" test is virtually discarded . This Court should decline to follow Keefe v. Spring any further because it conflicts with the authority of the High Court of Australia and this Court should instead approach the present appeal applying the principles which I have earlier set out. To follow the High Court of Australia tests does not mean that trial Judges, when assessing damages for personal injury, will no longer need to disclose the actual processes by which the total sum is arrived at. There must still be "some assessment of each item of detriment and some process of computation in order to arrive at the ultimate sum to be awarded" (Stephen J. at pp. 149-150 in Gamser) . Nevertheless, "there can certainly be no error in refraining from attributing separate amounts to various headings or topics regarded as -- 31 of 76 -- 29 matters to be adverted to in assessing general damages" (per Aickin J. in Gamser at p. 155). In any case of appeal against the assessment of damages for personal injury by trial Judges it is the total sum which must be looked at and this Court applying the principles earlier stated has to ask itself - is it a wholly erroneous estimate. In many cases on appeal against assessment of damages for personal injury arguments are advanced against amounts assigned by a trial Judge in respect of selected heads of damage. The present case is one such. There is I think a danger that in focusing on a particular item attacked as too high or too low as the case may be an appellate court can lose sight of the other heads of damage to which the amounts have been allocated and the possibility that those amounts or any of them may be either on the high side or on the low side and in a particular case offset the amount in the particular head attacked as either too high or too low. All this is to really emphasise the point constantly made in the cases that it is the total sum awarded which must in the final analysis be looked at by the appellate court. As Mason J. (as he then was) said in Wilson v. Peislev (1975) 50 A.L.J.R. 207 at p. 214:- "The settled rule, then, is that an appellate court will not disturb a primary Judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered ." I have not so far mentioned the High Court decision of Planet Fisheries Ptv. Ltd, v. La Rosa (1968) 119 C.L.R. 118 which was referred to in the course of argument and which has been mentioned in a number of the judgments of other State Full -- 32 of 76 -- 30 Courts which I have earlier discussed. In Planet Fisheries the High Court rejected a submission that, to evaluate excessiveness in an award of damages, the Court should seek out a norm or standard in the decisions of the High Court by comparison with which the award could be judged disproportionate. The view in those other States, e.g. New South Wales, is that Planet Fisheries should be followed. In Moran v. McMahon (1985) 3 N.S.W.L.m. 700 McHugh J. at p. 726 said:- "Damages are awarded by considering what the Judge or jury thinks is fair and reasonable in the circumstances of the plaintiff's case not by comparing the similarities and differences of the plaintiff's case with other cases". (at p. 726). Whether this Court should continue to apply the rule in Planet Fisheries was not fully argued before this Court and I would leave this aspect open. 2 • COMPONENT FOR PAIN, SUFFERING AND LOSS OF AMENITIES . Demack J. assessed the damages as follows Past economic loss - Future economic loss - Medical treatment - Special damages including interest - Pain, Suffering & Loss of Amenities including interest - As I have already mentioned he deducted Compensation Board charge of $57,324.92. Mr. Williams Q.C. appearing for the appellant submitted that all amounts fixed by His Honour (apart from the special damages) were excessive. The $80,500.00 included $5,500.00 interest and of the $75,000.00 remaining the learned trial Judge $50,000.00 $66 , 000.00 $25,000.00 $23,316.84 $ 80.500.00 $244,816.84 the Workers ' -- 33 of 76 -- 31 apportioned $25,000.00 for pain, suffering and loss of amenities to the date of judgment. The respondent was born on 22nd January, 1950 - he was 36 at date of injury and 39 at date of judgment. Liability by the appellant was admitted at the trial although an allegation of contributory negligence against the respondent was left to the trial Judge to decide. He found this allegation not made out. The defence on the issue of damages was that the respondent's injuries were minor, that he was a malingerer and that he contributed to his own injuries. The last of these defences failed and his Honour found that the respondent was not a malingerer. The respondent, who the learned trial Judge found a truthful witness, was injured while walking on a walkway near a crane. At one stage while on the walkway he had to pass between the column of the crane and a protruding hydraulic carriage. As he approached the column he turned sideways to pass between the column and the carriage. He did not notice the crane was operating. The column supported the jib on the crane. The jib was also supported by a steel wedge shape bracket adjacent to the column. At the bottom of that bracket was a collar which fitted around the column being in contact with about one quarter of the circumference of the column. As the jib of the crane was rotated by an electric motor the collar moved around a steel band on the column. The collar projected .265 of a metre from the column and once the crane was rotated so that the jib was over the butt-stripper which was associated with the carriage, the width of the walkway between the carriage and the crane was reduced from .370 metres to .105 metres. The respondent was injured when the revolving collar caught him in the back and -- 34 of 76 -- 32 crushed him against the carriage. Apparently the respondent continued to work and completed his shift at about 9.00 p.m. The accident apparently occurred at about 4.00 p.m. In a report of Dr. Jon Douglas a physician dated 27th June, 1986 (Ex. 13) there is evidence of the respondent having filled out an accident report on the way out of the plant at the end of the shift and that the respondent was at that stage beginning to complain of pain .-in the right inguinal area and over the right buttock such that he was apparently given a couple of panadol at the security office. According to Ex. 13 the plaintiff took a couple of dispirins before retiring that night because of continuing pain and stiffness over, the lower abdomen and the following day he noted bruising over the lower abdomen and over the right buttock. He rested the next day and on the Sunday, i.e. two days after the accident, was able to work for a four hour stint. On the Monday he returned to work as planned and saw the Medical Officer at work. Demack J. found that on 6th February, 1986 the respondent consulted Dr. Jan Bowman to whom he was referred by the Sister employed by the appellant and that he then had bruising of the right groin and a diffusely swollen tender right testis. A letter from Dr. Bowman to Dr. Howe at the Gladstone Hospital (Ex. 5) noted that the respondent had been referred to Dr. Gilmore who administered a barium enema and diagnosed marked diverticulosis. The respondent was also told that he had a sperm granuloma of the testis following previous vasectomy. Doctor Bowman had referred the respondent to Dr. Howe for an opinion about the respondent's right testis. Demack J. discussed the opinion of Dr. Howe and Ex. 7 which was a letter from the Superintendent of the Gladstone Hospital to the respondent's solicitors. That letter expressed the opinion -- 35 of 76 -- 33 attributed to Dr. Howe that there was a possibility that the respondent had residual pain from his injury as the injury did involve the right testis. It went on in effect to say that it was quite normal for young people to experience pain in the right testis particularly after straining or heavy manual work and that the pain usually settled spontaneously with time. I should here say that Demack J. had a number of medical reports including reports from doctors who were not called as witnesses. The respondent continued to have pain and on 2nd September, 1986 he consulted Dr. Ganter who was a surgeon. He complained of persistent nagging discomfort of the right testicle. There was marked tenderness. Doctor Ganter expressed the opinion that there had been damage of the vascular structures of the right spermatic cord in the accident resulting in vascular insufficiency of the tissues of the right testicle. He advised recovery "in the fullness of time". However on 19th November, 1986 he surgically removed the respondent's right testicle. Doctor Ganter continued to expect full recovery except for the loss of the testicle. As his Honour found this did not happen and in February, 1987 Dr. Ganter referred the respondent to Dr. Alroe a psychiatrist. In his referral letter Dr. Ganter spoke of an atrophic testicle showing histological evidence of vascular damage. This was a reference to the testicle which had been removed. Impotence was mentioned in the letter and also a complaint by the respondent of being "aware of discomfort in the other organ" . Doctor Ganter thought the left sided symptoms were relatively minor - he did not consider that the complaint had an organic basis, but thought it was probably related to obsessive concern about his symptoms. The referral letter also -- 36 of 76 -- 34 mentioned the respondent's concern about impotence since the accident. As his Honour found, by April 1987, the respondent was complaining of progressively severe pain in the left testicle. Exhibit 10 which was a letter dated 7 th April, 1987 from Dr. Ganter to Dr. J.G. Watson of Brisbane referred to his earlier surgery having relieved the right sided pain but went on to say :- "He now complains of pain in ;the left testicle, again becoming progressively more severe, similar to that which he previously experienced on the right side. He states that he was aware of some discomfort in this organ prior to his right orchidectomy , but as it was of a lesser degree than that on the right, did not - occasion him as much concern as it does now, following relief of his right sided pain. His impotence remains as before". The respondent's complaints of pain in the left testicle and of impotence resulted in a dispute at the trial, that dispute being between expert witnesses as to whether or not the respondent was impotent and whether or not that impotence was due to the incident on 31st January, 1986. Before I come to that dispute I should say that his Honour found that Dr. Gwynne Thomas, a consultant physician in Melbourne examined the respondent on 16th March and 20th April, 1988 and that Dr. Gwynne Thomas ' report (Ex. 20) is a useful summary of the medical opinion up to that time . Clinically he found the respondent "structurally normal". He diagnosed physiological problems and advised against any further surgery. However, as his Honour found, Dr. Peter Mortensen, a urologist of Melbourne, diagnosed a definite tenderness in the head of the epididymis and on 9th June, 1988 he performed a left epididymectomy on the respondent (Ex. 21). As his Honour found - "This produced no change in Mr. Calder's complaints of pain, a result that seems -- 37 of 76 -- 35 to have surprised no one". I note that Dr. Thomas in his report (Ex. 20) opined that the respondent - "sustained trauma to his lower abdomen, right inguinal and genital regions. He has subsequently had ongoing testicular pain leading to a right orchidectomy. He is totally impotent. He has functional problems including anxiety and depression. Clinically he is now structurally normal and all of his tests have revealed nil of note." The learned trial Judge, in his reasons, gave what he said was the briefest summary of a substantial body of medical evidence. This description appears accurate. Demack J.'s findings on this head of damages namely pain, suffering and loss of amenities, which were open on the evidence were not seriously challenged in this Court save for his finding that in the incident of 31st January, 1986 the respondent sustained injuries which have left him impotent. On the aspect of impotence the learned trial Judge had before him evidence from the respondent, from Dr. Jon Douglas a physician, from Dr. Cartmill a urologist and Dr. Chand who practised as a consultant psychiatrist but whose qualifications were Bachelor of Medicine, Bachelor of Surgery, Diploma in Psychological Medicine, Member of the Royal College of Psychiatrists, U.K. and Fellow of the Royal Australian and New Zealand College of Psychiatrists. In his reasons his Honour referred to Exs . 13 and 14 which were reports dated 27th June, 1986 and 29th June, 1989 respectively from Dr. Jon Douglas. In the course of his reasons his Honour noted in Ex. 13 the following passage in the history of the respondent's accident and the onset of his symptoms thereafter "I note that he is married and has twin boys aged 13. He denies any home problems, though his capacity to have intercourse has been diminished somewhat since he sustained the injury at work. He has no problems with -- 38 of 76 -- 36 impotence but certain postures during intercourse are apparently painful for him, and this has interfered with his sex life." Demack J. noted that Dr. Douglas regarded the prognosis as excellent . His Honour in his reasons then quoted the following extracts from Dr. Douglas' report (Ex. 14) which as I have said was dated 29th June, 1989:- "Mr. Calder tells me, on this occasion, that following the accident , the first tried to have intercourse with his wife approximately three weeks after the accident. He apparently was able to have intercourse at that time but had some general discomfort from the continued soft tissue injuries to his lower abdominal wall and right inguinal area at that time. He tells. , me that after that first episode of intercourse following the accident, he had a further two or three attempts at intercourse over the next seven to ten days. On each of those occasions he experienced discomfort with the intercourse. The discomfort was related to the general pain in his lower abdomen and the pain in the right testicular area, in particular. As far as he can remember, he had intercourse on only three occasions following the accident and he can't recall having had any intercourse since approximately March, 1986. Prior to the accident, he was averaging intercourse two to four times per week and this had been the pattern for many years. There is no history suggesting a decline in sexual activity prior to the accident and his sex life had apparently been stable for about ten years prior to the accident. It is now over three years since he last had intercourse. The available evidence suggests that his impotence is a real problem for him. The evidence suggests that the impotence has a psychogenic basis rather than an organic structural basis. I believe the evidence also suggests that his left testicular pain is also a psychogenic problem. It may well be, however, that Dr. Chand is able to produce some evidence that the blood supply to Mr. Calder's penis is not entirely normal and it may well be that this is making a contribution to his problems with erectile difficulties. However it is to be remembered that he was able to have normal erections and intercourse on at least some occasions relatively soon after the accident at a time when his various traumas were presumably at their worst. In the normal course of events, one would have expected that his difficulties with intercourse would have progressively become less with the passing of time as he got further away in -- 39 of 76 -- 37 time from the accident and as his problems with local abdominal discomfort settled." In his reasons for judgment his Honour dealt with the evidence of Dr. Cartmill the urologist who saw the respondent on 24th August, 1987 and 22nd September, 1987. His Honour said that in Ex. 15 (a report dated 4th November, 1987) Dr. Cartmill had significantly noted that - "Assay of pituitary hormones as well as serum testosterone also proved to be normal so that his left testis appears to be functioning normally hormonally. A scan of . the left testis also suggest the blood supply to the testis is normal so that there is certainly no evidence that he is suffering from any form of ischemia to the left testis". Doctor Cartmill referred the respondent to Dr. Rice's pain clinic. His Honour then quoted the following extract from Dr. Cartmill's pre-trial report (Ex. 16) dated 27th June, 1989: — "The clinical history is certainly not typical of an organic impotence. The description of the injury is such that I would not expect an organic impotence to result, so that on a clinical basis I would consider his impotence is likely to be psychogenic in origin. The most accurate way of differentiating a psychogenic from organic impotence would be using the technique of nocturnal penile tumescence studies. These studies are based on the fact that normal tumescence occurs three to five occasions during a night's sleep and would be normally present in a patient suffering a psychogenic impotence but would not be evident in organic impotence." It is apparent from his Honour's reasons that the trial did not conclude on the days allotted. It was adjourned.- In the meantime Dr. Cartmill had the test, i.e. nocturnal penile tumescence study test, performed. In Ex. 43 dated 17th August, 1989, as his Honour pointed out, Dr. Cartmill reported on the results of three tests in the following terms "This is to report on the nocturnal penile tumescence studies performed on your client on the 11th, 12th and 13th August, 1989. During three nights of study two erections only were noted. On both occasions the erection was of poor quality and was judged to be of -- 40 of 76 -- insufficient tumescence to enable normal sexual function. Recording of the penile blood pressure was within normal limits. However the partial erections noted over three nights of normal sleep certainly suggests (sic) this patient does have an organic problem in terms of erectile function. The studies do not offer any precise mechanism of the suggested organic dysfunction." His Honour commented on Dr. Cartmill in the following way:- "When he gave evidence, he recognised that the only causes for organic .impotence in people in their thirties are trauma or some rare problems with the penile tissue itself, (p. 131). However, the history he had seemed to leave him in some doubt, and by the end of his cross-examination, he seemed to have lost some confidence in the nocturnal tumescence studies which he had said were 'most accurate' two months earlier ." I should here point out that before this Court Mr. Williams Q.C. agreed that the evidence of Dr. Cartmill who, he said was more expert than Dr. Chand in this area, did disclose that the respondent had organic impotence. He did not challenge his Honour's finding that the nocturnal tumescence studies showed there - is an organic basis for the respondent's impotence. Mr. Williams' criticism of Demack J.'s approach was his preference for the views of Dr. Chand over those of Dr. Cartmill as to whether or not there was a medical hypothesis to justify a finding of an organic basis for the respondent's unchallenged impotence. I have already mentioned his Honour's comments about Dr. Cartmill's evidence. Doctor Cartmill, who was one of the respondent's witnesses was asked in evidence in chief - "What are the possible causes of organic erectile impotence?" The answer which he gave was:- "Basically, we could say that there are commonly'- a most common cause could be divided into four categories. In our society generally, the most common 38 -- 41 of 76 -- 39 would be arterial insufficiency; meaning, basically, the physiology of an erection - I guess I should say - is that you have got to shunt blood into the spongey tissue of the penis. You do this involuntarily but the mechanism of an erection is that blood is being shunted into the penis in greater volumes and in greater pressure than the normal situation. So you have to have an arterial system that is healthy to shunt the extra blood into the penis. You have to have a venous network that doesn't allow all that blood to leak immediately. So a concept of a venous leak is one cause of an erectile impotence. So an arterial system has to be sufficiently healthy to allow that blood to get into the penis. The penis system has to be operating sufficiently normally to stop excess blood leaking. It is not a status - it is not a flowing phenomenon, the whole time the erection is present, though obviously there has to be normal spongey tissues of, penis to accommodate that extra blood volume. And fourthly, you have to have a normal neurological mechanism nervous system to stimulate this erection to occur." He was later asked - "in order to interfere with the blood flow or the neuronal impulses, would you expect that there would need to be some form of trauma to bring that about, given his age?" He answered :- "In this particular case - I think organic impotence in a person in his 30' s is quite rare and I would not see people in their 30 's with organic impotence other than those that have had some particular trauma or some other particular rare problems with the penile tissue itself." In cross-examination at pp. 134 and 135 the following questions and answers by Dr. Cartmill appear Q. "The four categories of causes of organic erectile impotence were arterial insufficiently, a venous leak, I am not sure what the third one was?" A. "Cavernous tissue abnormality, the tissue that has to accept that blood problem" . Q. "An abnormal neuronal system. Is there, in your opinion, any evidence of arterial insufficiency?" A. "No." Q. "You have seen Doctor Chand's report?" A. "Mmm." Q. "In which he refers to a deficient penile arterial flow on the right side quite significantly different -- 42 of 76 -- 40 from the left side. Did you do any test which would show those things?" A. "We repeated the penile brachial index. We do it because it is simple to do but I'd have to say that clinically I'd be very guarded about an interpretation about the result. I think it is an over-simplification to read too much into that test. ” Q. "if that test were valid, that would indicate arterial insufficiency?" A. "That's why it's done, but it has also been criticised across the western world in centres where a lot of work has been done on impotence ." Q. "It's not a test that you would rely on?" A. "No, the more tests now available - they are not available in Australian centres. The reason for that being it is difficult to act on them anyway. I am sure it's got some connotations legally but it doesn't have a lot of help medically in terms of altering the available treatment." Q. "What about a venous leak? Have you carried out any tests in relation to that?" A. "I didn't, but I understand he's had a papavarine injection. Now that is a test that is based on the fact that if you inject that substance into the cavernous tissue you are actively encouraging the physical response of blood flow into the penis. If you have got an abnormal venous leak the theory is that the papavarine won't allow the erection to occur so if you get a normal erection with a papavarine, that is accepted as excluding a venous leak." Q. "Your understanding is that he had a normal erection with papavarine?" A. "That's my understanding". Later (at p. 136) the following question and answer appears in cross-examination :- Q. "Out of those four categories of organic erectile impotence, you are not able to say on the balance of probabilities that the plaintiff has any one of them. In fact, some are of real doubt?" A. "The venous leakage, real doubt. Direct cavernous disease is unlikely, leaving the other two as possibilities. It is simply my understanding that the injury - the nature of the injuries is such that in my experience I can confidently say it would be unusual for that injury to cause arterial insufficiency or -- 43 of 76 -- 41 neurological abnormality and sufficient severity to cause erectile impotence". At p. 140 Dr. Cartmill in re-examination agreed :- "Trauma could cause this interference with body physiology. What I was trying to convey to you was that I am somewhat surprised that he would have this degree of impairment of erectile function with the described injury, as I understand it". Doctor Cartmill agreed that he did not see the respondent until some time after the injury. At pages 140 and 141 the following questions and answers appeared in Dr. Cartmill's re-examination :- Q. "Now, would a crushing injury of some sort be capable of producing the possible problems or possible causes of his problem?" A. "A crushing injury of some sort, yes, and I mean I could follow it by saying a crush injury to the pelvis is a standard cause of trauma-related impotence. However, there we are implying people that have had a significant crush injury, and, generally speaking, we are talking about, fractured pelvic bone. It doesn't have to be a fracture of the bone but to cause arterial or neurological deficit, you would expect that the crush injury was severe" . Q- A. "If his problems are due to a crush injury, it is not the sort of injury that he could hide? Would that be a fair conclusion". "That's right". It thus appears from these passages in Dr. Cartmill's evidence that he took the view that it would be unusual for the injuries suffered by the respondent on 31st January, 1986 to have caused arterial insufficiency but he did not rule out the possibility. The learned trial Judge, having discussed Dr. Cartmill's evidence - but not in the detail which I have just set out - and the evidence of Dr. Thomas and Dr. Mortensen pointed out that Dr. Mortensen's surgery produced no change in the respondent's complaints of pain and the result seems to have surprised no one. -- 44 of 76 -- 42 His Honour then went on to consider the psychiatric evidence. He said that the respondent had seen four psychiatrists, Dr. Alroe, Dr. Nothling, Dr. Rice and Dr. Chand, that Drs . Nothling and Rice opined that the respondent was a malingerer and that Drs. Chand and Alroe did not agree. He stated also that two psychologists had conducted tests on the respondent, namely Mr. Salzman and Mr. Radell. The trial Judge was alert to the nature of the injuries suffered by the respondent. He; said, and this is not challenged:- "What seems to be clear is that Mr. Calder received significant pressure to his lower trunk in a kind of pincer movement. It broke the skin on his back, he says, and caused tenderness in the lower stomach and groin ." Later in his reasons his Honour referred to Dr. Chand's evidence. Doctor Chand saw the respondent on 26th June, 1989. His report (Ex. 24) was done on 28th June, 1989. This showed that on examination of the respondent he performed a penile photoplethysmography. This test disclosed that the respondent had deficient penile arterial flow on the right side which was quite significantly different from the left side. He opined "The marked difference between the two sides indicate a possible traumatic aetiology rather than an atherosclerotic aetiology. It is likely that the trauma was caused during the accident in January, 1986." Doctor Chand also performed tests to exclude what he called pelvic steal syndrome and penile venous leakage. The latter test was excluded by the respondent being given a papaverine injection intracavernously into the penis which resulted in the doctor excluding penile venous leakage as a cause of impotence. Doctor Chand in oral evidence was cross-examined by the appellant's counsel about the test used by him to measure penile -- 45 of 76 -- 43 arterial flow. The following passages appear in the cross examination:- "You are acquainted with Doctor Cartmill? — Yes. You know he has a significant practice in the area of impotence? -- He has. He does not have available to him penile brachial index measurement. He does mostly prosthesis work. You have specific training in this area? — Yes, I have . I have attended world congresses and gone to centres of human sexuality. I don't know, were you present iniCourt when Doctor Cartmill gave evidence about his views on the tests that you carried out? -- I wasn't. Would it surprise you to learn that he didn't highly regard that test? -- He doesn't have enough experience in that. And you do? — Some people do. You need to take special interest in it because in the curriculum of medicine, sex therapy is not taught. It is something you pick up as a special interest and also things happening internationally. Unless you go for conferences on impotence you don't learn much. You speak about a possible traumatic aetiology for this difference that you found? — Mm. Then you go on to say it's likely that the trauma is caused during the accident in 1986? Mmm. The sort of trauma that you invisage (sic) is physical trauma, is it? — Physical trauma. And physical trauma to the penis? — Physical trauma to the blood vessels especially. This is the right side - this is the back and this is the right. The arteries underlying the penis take a tortuous course from the inside. It comes out from the back, crosses the ischaemial spine, it is a hard spinal process. It crosses that and then goes inside. When it crosses the ischaemial spine it is covered only by gluteus maximus, sort of like a piece of steak. The injury there is what I consider has created the problem for him added to the other injuries at the front. If Doctor Cartmill says that he didn't find any evidence of arterial insufficiency then you would say that is because he didn't do this test that you did? — And also he doesn't have the experience in it in interpreting it. -- 46 of 76 -- 44 This trauma, trauma sufficient to cause this problem, would you regard that as needing to be a quite significant degree of trauma? -- Yes, it has to be. If a person had the degree of trauma necessary to cause this problem, is it likely that he'd be able to walk immediately after the incident? — He would. If you place a glass tube on a bony process, put a piece of steak on it and press it down with a crane, you will not damage the muscle but you will break the glass tube and that is what happened to the inner lining of the artery. Well, if this man was able to achieve what he regarded himself as a normal erection over a period of several weeks following this incident, does that tend to suggest that the trauma was not the cause of the impotence that he now has? — The inner lining when it breaks like a glass tube, it doesn't fibrose{?) until after a couple of weeks like scar tissue. If you have an injury there on the skin it takes two or three weeks for the scar tissue to form and when it forms it constricts. That is when the deficiency starts, not when it's actually injured. So you are saying he could have a normal erection over a period of a few weeks afterwards and then when the scar tissue forms he is not (sic) longer able to do that? -- That's right. What if he was still achieving a normal erection five months after the occurrence of the trauma? Depending on the sexual stimulus, if the sexual stimulus is massive the blood pressure in the penis can be pushed up to such a great degree that it can partially and temporarily overcome the deficiency. It's just like an athlete running and increasing his pulse rate from 120 until it increases up to 185, so if the sexual stimulus is massive it is possible to overcome that for a short period. Well, for five months? -- After five months, yes. What if it were some 11 months, ten or 11 months after the accident? — It doesn't matter. Even if the damage is permanent you can push it up just like - it's a matter of pressure dynamics. If you can increase the pressure by some means you can overcome it temporarily. Is it the case that you are of the view that the, if I can call it, arterial insufficiency, is that what you found? — Yes, that's right. That is only part of the problem and it's also a psychogenic problem in this man? — There is a psychogenic problem, one could say that. The psychogenic problem in your view in this man is a major factor in his impotence, is it? — It's not in his impotence, but it is in his total presentation. -- 47 of 76 -- 45 Do you say it has nothing to do with his impotence? - - It's not an aetiology in the impotence but it is colouring the way he reports it and colouring the way he experiences it, but not in the actual causation of it." Demack J., in the course of his reasons referred to the following extract from Dr. Chand 1, s cross-examination - I have already mentioned it but will repeat it now:- "Well, if this man was able to achieve what he regarded himself as a normal erection over a period of several weeks following this incident, does that tend to suggest that the trauma was not the cause of the impotence that he now has? -- The inner lining when it breaks like a glass tube, it doesn't fibrose(?) until after a couple of weeks like scar tissue. If you have an injury there on the skin it takes two or three weeks for the scar tissue to form and when it forms it constricts. That is when the deficiency starts, not when its actually injured. So you are saying he could have a normal erection over a period of a few weeks afterwards and then when the scar tissue forms he is no longer able to do that? - That's right. What if he was still achieving a normal erection five months after the occurrence of the trauma? -- Depending on the sexual stimulus, if the sexual stimulus is massive the blood pressure in the penis can be pushed up to such a great degree that it can partially and temporarily overcome the deficiency. It's just like an athlete running and increasing his pulse rate from 120 until it increases to 185, so if the sexual stimulus is massive it is possible to overcome that for a short period." After quoting this passage his Honour said:- "With respect to Dr. Cartmill, whose qualifications are unquestioned, it seems to me that this offers an explanation which fully accords with the facts as I have found them. I am satisfied that in the incident of 31st January, 1986, Mr. Calder sustained injuries which have left him impotent." Before this Court Mr. Williams submitted that there was no evidence of injury to the respondent's right buttock suffered in the crushing type accident and no evidence to show that the artery beneath that buttock was damaged. Demack J. however had referred to Dr. Douglas' report (Ex. 13) as containing a very -- 48 of 76 -- 46 full history of the respondent's accident and of the onset of the respondent's symptoms including the onset of pain in the right buttock by the end of the shift in which the respondent was injured. I have already mentioned part of that report which was dated some five months after the accident. Although it is true that Demack J., in his reasons, did say that Dr. Douglas had made a mistake about the sex of the twins in the extract which his Honour quoted because there was a son and a daughter nevertheless his Honour appears to have accepted, as he was entitled to do, Dr. Douglas having recorded a history of pain in the right buttock by the end of the shift, his Honour saying of this - "A matter that does not seem to have been generally noted". Mr. Williams' submissions are in my opinion answered by the decision of the Victorian Full Court in Dahl v. Grice (1981) V.R. 513 in which that Court held "that it was for the tribunal of fact to decide as an ultimate issue, taking account of the evidence of experts as to the existence of a link between the accident and a material condition." (See Gobbo J. in Thresher & Guzzardi Petroleum Ptv. Ltd. v. Johnston (1984) No. 71 (unreported) - judgment 26th June, 1987. In Dahl v. Grice Gobbo J., with whose reasons the other members of the Court agreed, said (at p. 522):- "In the vast majority of personal injury cases the medical expert is not called upon to go any further than to confirm that the injuries are consistent with injuries suffered in a certain class of accident and that the plaintiff's medical condition and symptoms are consistent with such injuries. Where there is a real contest as to causation, this is not resolved by compelling the witness to express his opinion as to the probability of such causation. The tribunal of fact will gain far more assistance if the expert devotes himself primarily to an exposition of the hypothesis that may support a link between the medical condition and the class of accident or injury in -- 49 of 76 -- 47 question. It is never easy to state how the tribunal of fact is to proceed from expert opinion as to medical hypothesis or medical experience of known causal links to a decision in the particular case." In the present case, there was expert evidence from Drs. Cartmill and Chand touching on this link between the class of accident or injury suffered by the respondent and the accepted organic impotency . Doctor Cartmill conceded, as I read his evidence, that that link was "unusual" - I read "unusual" as reading "uncommon". Nevertheless, he conceded the existence of the possibility. Doctor Chand had no doubt about the link - he explained away the respondent's ability to engage in sexual intercourse shortly after the accident. In Tubemakers of Australia Ltd, v. Fernandez (1976) 50 A.L.J.R. 720 - a decision of the High Court discussed in Dahl v. Grice there was evidence which was rather limited linking the medical condition namely Dupuytren's Contracture to a faulty bevelling machine worked by Fernandez which fault was attributable to the negligence of the employer appellant. Fernandez claimed to have injured his right hand through the hand being forced against a tube in the machine. Mason J. reviewed medical evidence led by Dr. Sweeney to support the plaintiff's case. One of Dr. Sweeney's answers namely "There have been cases of minimal trauma being a cause of Dupuytren's Contracture" could, as Mason said, "Well be understood by the jury as signifying that in some cases minimal trauma was the actual cause or at least a probable cause of the onset of the contracture". Mason J., with whose reasons other members of the Court agreed, said (at p. 724):- "In my opinion this evidence left it open to the jury to infer that on the probabilities the injury caused or materially contributed to the occurrence of the condition. In drawing such an inference the jury was entitled to have regard, in addition to the matters referred to by Dr. Sweeney in his evidence, to other -- 50 of 76 -- 48 significant circumstances : (a) that before the accident the respondent had suffered no disability in his right hand; (b) that the condition made its appearance shortly after the accident; and (c) that no alternative cause was established or indeed suggested in evidence. The combination of these circumstances, taken together with Dr. Sweeney's evidence, provided in my opinion a sufficient basis from which the jury could reach an inference favourable to the respondent." In the present case, Demack J. was, on the evidence, well justified in deciding in the manner in which he did that in the incident of 31st January, 190:6 tthe respondent sustained injuries which have left him impotent. Apart from the finding of impotence his Honour made a number of other findings relevant to this head of damages and which were open on the evidence. He found that the respondent's marriage was in tatters, that he needed psychological support, that the accident had caused him serious psychological problems with recurring pain, that it is unknown when he can expect to be fully employed and in what capacity, that future medical treatment will be difficult, that his family life has been grossly disrupted and that life in the work place has been significantly affected, that he has to live with his impotence and the distress that ensues and the suffering of his children - his son left home and his daughter took an overdose of drugs and that the children's suffering is a serious burden for him. It is also clear that the respondent has suffered pain for several years. As his Honour said - "While there is a significant psychological component in the pain Mr. Calder suffers, it is real enough to him" . This pain will continue although it is hoped future treatment will alleviate it. There was some criticism of the respondent having exaggerated in that when a test was administered to the respondent by Mr. Radell the -- 51 of 76 -- 49 psychologist, the result indicated that the test was performed by a person "trying to look bad". Mr. Williams referred to the evidence of Mr. Salzman on this point (at p. 149). His submission was that the learned trial Judge's assessment of $75,000.00 on this head did not properly reflect what Mr. Williams said was "significant exaggeration of the extent of the symptoms and disabilities". The trial Judge was in a much better position than this Court. His Honour believed the plaintiff. He refused to find that he was a malingerer. He found that the respondent was a "difficult" person and as he said - "there are plenty of such people in the community but when an employer injures a 'difficult' employee the results may be very serious. Mr. Calder may be helped to come to terms with his anger but the prospects are not good" . In my opinion, when all findings and matters relevant to this head of damages are taken into account the assessment at $75,000.00 for a 39 year old man, while falling at the top end of the range, is not shown to be other than a sound exercise of a discretionary assessment of damages. 3 - PAST ECONOMIC LOSS . The learned trial Judge found that up to the date of judgment the respondent had not been employable. The reasons for that being "pain in the testis which affected him when lifting plus the psychological factors". The trial Judge had before him the respondent's work history (see Ex. 25). His Honour summarised this as follows "Having completed his apprenticeship as a fitter in January, 1970 he commenced employment as a maintenance fitter. From then until 14th March, 1984 he was regularly employed as a fitter by various companies in the United Kingdom and in Australia. He commenced -- 52 of 76 -- 50 work with the defendant on 14th March, 1984. He worked for the defendant from time to time after 31st January, 1986 until his employment was terminated on 25th August, 1987. He has not worked since." I would add that the plaintiff served his apprenticeship in Scotland. Demack J. had before him material (Ex. 31) showing that had the respondent worked full time for the appellant from 1st February, 1986 to 6th July, 1989 he would have earned (nett after tax) $73,863.03. He also had Ex. 29 showing that in the period from 1st February, 1986 to 25 th August, 1987 the respondent earned $18,304.67 in employment with the appellant. This appears to be a nett after tax figure (see Ex. 28). It may be said then the nett loss was some $55,000.00. The learned trial Judge said "I shall allow $50,000.00 for past economic loss. He has received Workers' Compensation payments and sickness benefits in excess of this". Exhibit 29 showed that the Workers' Compensation Board had paid in lieu of wages $23,178.23 and that between 30th September, 1988 and 6th July, 1989 ..the , respondent received sickness benefits totalling $11,234.00. Mr. Williams in effect challenged the finding of unemployability to trial and judgment because of a later statement by the learned trial Judge when discussing future impairment of earning capacity that "I am sure he is employable". The respondent's prior work history showed regular employment before commencing with the appellant. His quantum statement (Ex. 25) showed that prior to the accident he expected to continue work as a maintenance fitter or in some associated capacity for the rest of his life and that he was happy working -- 53 of 76 -- 51 in his trade. He said he had travelled from Melbourne to take up the position with the appellant. Evidence was also led showing a number of unsuccessful attempts to obtain work of a supervising nature between the accident and trial. The learned trial Judge discounted the nett $55,000.00 for loss to trial and judgment but Mr. Williams submitted that the discount was grossly inadequate. In my view the $50,000.00 awarded on this head was within the competent exercise of the judicial discretion and there is nothing in the award on this head which would warrant interference in the total assessment. 4. FUTURE IMPAIRMENT OF EARNING CAPACITY The learned trial Judge fixed $66,000.00 on this head. He said:- "His average nett weekly pay with the defendant at the date of trial would have been $446.35. I am sure he is employable, and that he may earn more than that. However, the accident has caused him serious psychological problems with recurring pain, and it is unknown when he can expect to be fully employed and in what capacity. Doing the best I can, I shall allow future economic loss of $100.00 per week over 20 years. That takes into account all the usual factors as well as the ones peculiar to this case. I shall allow $66,000.00 for future economic loss." Mr. Williams has submitted that this figure is far too high. I do not read his Honour's reasons as saying that the respondent will commence work immediately judgment was handed down - his Honour expressly said - "It is unknown when he can expect to be fully employed and in what capacity". The nett pay rate of $446.35 is not challenged. His Honour found, as he was entitled to do, that the respondent may earn more than that . In looking at this component I cannot overlook the fact that the respondent will need medical treatment. He has -- 54 of 76 -- 52 psychological problems. Doctor Alroe has said that his aim would be to encourage the respondent to engage in regular psychotherapy probably over a couple of years reasonably regularly initially and tapering off towards the end and that he will need some sort of input for the rest of his life. Presumably that meant further treatment. His Honour, in assessing a sum for future medical treatment, took account that the respondent will attend pain clinics and have on-going psychological counselling as well as other treatment which I shall shortly mention. Obviously the psychotherapy which it seems will involve some trips to Brisbane from Gladstone may well interfere with the respondent's ability to work. If one were to assume that the respondent would not be gainfully employed for some two years from the date of judgment and thereafter would be fully employed for the rest of his working life his future loss, based on the $446.35 nett per week, would be $44,188.00 - using the five per cent tables. There is no guarantee of course that that state of affairs will continue. In my respectful view the course taken by the learned trial Judge does not show that his Honour believed the respondent would be fully employable for the rest of his life. His Honour obviously took the view that as a result of the accident injuries the respondent will continue to suffer some loss due to impairment of his earning capacity. He assessed this at $100.00 per week over 20 years. As Gibbs J. said in Graham v. Baker (1961 ) 106 C.L.R. 340 at 347 "An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss". -- 55 of 76 -- 53 This case was one in which his Honour was required to make an estimate or prediction of the future earning history of the respondent and he has done this. The selection of $100.00 per week as the value of the loss is arbitrary as it must be. The appellant's future economic loss is not capable of scientific proof. ( Malec v. J.C. Hutton Ptv . Ltd. High Court of Australia (unreported) Judgment 29th May, 1990). The choice of a 20 year period - up until about age 60 was in my opinion sensible and reasonable. I am unable to discern any error in his Honour's approach in assessing $66,000.00 for future impairment of earning capacity. 5. FUTURE MEDICAL TREATMENT What his Honour said on this topic was:- "Such is the diversity of medical opinion here that it is impossible to say what treatment is needed and what it will cost. I accept both Dr. Alroe's and Mr. Salzman's opinions that treatment will be difficult. I shall allow $25,000.00 for future medical treatment. That attempts to reflect the kind, of expenses usually associated with pain clinics, plus ongoing psychological counselling, Dr. Chand's treatment and medication." I did not understand Mr. Williams to argue against the opinion of Mr. Salzman and Dr. Alroe. Doctor Alroe had given evidence that a prosthesis could be inserted in the penis at a cost of some $1 ,000.00, that the respondent would need injections, that there would be trips to Brisbane from Tannum Sands (near Gladstone) where the respondent resides, that the programme of regular pain therapy which could require a significant time at a pain clinic could cost about $2,000.00 for a two year period. Doctor Chand gave evidence of the cost of hormonal treatment which was $20.00 each week and of the cost of a papaverine injection into the penis - $10.00 each. It appeared quite likely that in view of one of his experiences the -- 56 of 76 -- respondent would not undergo a papaverine injection. Mr. Salzman, in cross-examination, thought that about ten sessions over a year at a cost of a psychologist's fee which was $108.00 per hour would be needed at the pain clinic. These fees accorded with Dr. Alroe's estimate of $2,000.00 for two years. In addition there was evidence before his Honour as to the past cost of pain killing drugs - digesics especially (see Ex. 36) which cost at the time of trial appeared to have; been averaging about $12.00 to $13.00 per week. I note that between the 2nd and 17th June, 1989 the total cost was $50.85 and between the 4th and 27th May $50.69. A continuing expense of $13.00 per week for say 30 years has a present value of $11,466.00. There was no evidence that the respondent's life expectancy has been shortened. Thus the $1 1,466.00 may well have been increased. The award of $25,000.00 on this head does not condescend to particularity but in view of the evidence of Dr. Alroe that the respondent would need regular psychotherapy probably over a couple of years and some sort of input for the rest of his life the picture I have is that once the two year period is over the respondent will continue to need counselling albeit at less frequent intervals. While the $25,000.00 may be thought to be on the high side this sum is not a defect in his Honour's assessment bearing in mind the difficulties which his Honour faced . The appellant has failed to satisfy me that in accordance with principle the total assessment of damage should be interfered with. The total assessment namely $244,816.84 is not an entirely erroneous assessment of damages for this respondent's injuries and their consequences. I would dismiss the appeal. 54 -- 57 of 76 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 80 of 1989 Before the Full Court Mr. Justice Kneipp Mr. Justice Shepherdson Mr. Justice Cooper BETWEEN: GEORGE CORMACK CALDER (Plaintiff) Respondent AND : BOYNE SMELTERS LIMITED (Defendant) Appellant JUDGMENT - COOPER J, Delivered the 8th day of August, 1990. CATCHWORDS : Counsel: S.C. Williams Q.C. and G.T. Britton for appellant M.W.D. White Q.C. and D.V.C. McMeekin for respondent Solicitors: Feez Ruthning t/a for Mackenzie-Forbes & Partners, Gladstone for appellant V.A.J. Byrne & Co. for respondent Hearing dates: 28 and 29 May, 1990. -- 58 of 76 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 80 of 1989 BETWEEN: AND: GEORGE CORMACK CALDER (Plaintiff) Respondent BOYNE SMELTERS LIMITED (Defendant) Appellant JUDGMENT - COOPER J. Delivered the 8th day of August, 1990. This is an appeal against an assessment of damages for personal injuries. The learned trial judge gave considered reasons. His Honour assessed damages under particular heads of damage as follows :- Past economic loss Future economic loss Medical treatment Special damages including interest Pain, suffering and loss of amenities including interest $ 50,000.00 $ 66,000.00 $ 25,000.00 $ 23,316.84 $ 80,500.00 $244,816.84 After deducting the Workers' Compensation Board charge of $57,324.92, His Honour gave judgment for the respondent in the sum of $187,491.92. The appellant argued that the individual assessments under the heads of past economic loss, future economic loss, medical treatment and pain, suffering and loss of amenities were excessive on the facts as found by the learned trial judge, or -- 59 of 76 -- 2 on such facts as were properly open on the evidence. It was submitted that a proper figure under each head, assessed by this Court, would either individually or collectively bring about a substantial alteration in the total award. Thus, it was submitted, this Court was duty bound to substitute its own view as to a proper amount and to alter the total assessed by the trial judge accordingly. In support of this approach by an appellate court, the appellant relied upon the observations of the Privy Council in Lai Wee Lian v. Singapore Bus Service (1978) Ltd . [1984] A.C. 729 at 735 and their approval by this Court in Keefe v. R.T. & D.M, Spring Ptv. Ltd. [1985] 2 Qd.R. 363. The respondent has contended that this Court has no power to interfere with the assessment of the learned trial judge, unless the total award is shown to be a wholly erroneous estimate of the damage suffered. Such a test, it was submitted, had been authoritatively laid down by the High Court of Australia in Miller v. Jennings (1954) 92 C.L.R. 190, Wilson v. Peislev (1975) 50 A.L.J.R. 207 and Gamser v. The Nominal Defendant (1977) 136 C.L.R. 145. Such a test was binding on this Court and was inconsistent with the approach of the Privy Council in Lai Wee Lian and the decisions of this Court which have followed it. My brother Shepherdson in his reasons has surveyed the various decisions of this Court and the views of its members as to whether or not the inconsistency contended for exists. I do not propose to restate the position. In my view it is clear that there is a divergence of view amongst some members of this Court. More recently this Court in Dodd v. The Minister of Education of Old . Appeal No. 4 of 1990, unreported, 28 June, 1990, said that -- 60 of 76 -- 3 the formulation by the Privy Council, while correct, was not a complete statement of the function of an appellate court when called upon to review an assessment of damages for personal injuries. Although I am of the view that this Court has the power to review its own prior decisions ( Nguyen v. Nguyen (1990) 64 A.L.J.R. 222), I consider that, in the interests of certainty, this Court ought not lightly to depart from its previous decisions . Prior to the decision in Keefe v. Spring the test applied by this Court was that the appellate court would only interfere with a discretionary award of damages where an appellant could demonstrate appealable error of fact or law or where the assessment was a wholly erroneous estimate. (See Re Hatte [1943] St.R.Qd. 1 at 12, 22 and 24 citing Lee Transport Co. Ltd, v, Watson (1940) 64 C.L.R. 1.) This fact, together with the observations of this Court in Dodd , that the view of the Privy Council does not constitute a complete statement of principle, and the opinions of Kelly S.P.J. in Humberdross v. Rapp (Appeal No. 20 of 1989; unreported, 15 December, 1989) and Shepherdson J. in Pair v. Butler and S.G.I.O. (Old.) (unreported, 25 March 1985, F.C.) as to inconsistency with High Court authority, persuade me that this Court should not consider itself bound to follow Keefe v. Spring and should itself consider the question of principle. A proper award of damages represents as between the plaintiff and the defendant fair compensation for the detriments suffered by the plaintiff in consequence of the defendant's unlawful conduct . In the awarding of damages for tortious wrongs the principle of restitutio in integrum applies and an attempt -- 61 of 76 -- 4 is made to restore the plaintiff, so far as it is possible by the payment of money, to the position he or she would have been but for the wrong ( Johnson v. Perez (1988) 166 C.L.R. 351 at 355-356, 367 and 371 ) . Where the plaintiff has suffered personal injuries it is neither appropriate nor possible to attempt to provide "perfect" compensation. This is clear from the observations of Gibbs and Stephen JJ. in Sharman v. Evans (1976-1977) 138 C.L.R. 563 at 585:- "The warning against attempting perfectly to compensate means, we think, in the case of pecuniary loss, no more than the need to make allowance for contingencies, - for the vicissitudes of life, compensating for probable rather than for merely speculative detriments. But when a non-pecuniary detriment is in question the injunction against 'perfect' compensation means rather more. It cannot refer to the exclusion of all question of punishment of the wrongdoer; the word 'compensation' standing on its own would be sufficient to do this; rather is it designed to remind that the maiming of a plaintiff and its consequences cannot wholly be made good by an award of damages and that the recognition of this fact is to be no occasion for any instinctive response that no amount is too large to atone for the plaintiff's suffering. Such a response will be unfair to the defendant and may be of little advantage to the plaintiff; many consequences of injury are not capable of. remedy by the receipt of damages, particularly those of the most personal character - the loss of the opportunity of a fulfilling marriage, of parenthood, of sexual satisfaction, of the realization of ambitions. It is very much at these detriments that the warning against any attempt at 'perfect' compensation must be aimed." See also Barwick C.J. at 568-569. Lord Diplock said in Mallett v, McMonagle [1970] A.C. 166 at 176:- "The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as -- 62 of 76 -- 5 certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards." This expression of the role of the trial court was adopted by Brennan and Dawson JJ. in Malec v. J.C. Hutton Ptv. Ltd. (High Court of Australia, F.C., 90/021 ; unreported, 29 May, 1990 at p. 1 ) . Clearly, the assessment of damages is an area where different minds may properly come to different views. The assessment of damages for personal injuries involves "the exercise of a form of judicial discretion" (per Dixon J. Lee Transport Co. Ltd, v. Watson (1940) 64 C.L.R. 1 at 13; Miller v. Jennings (1954) 92 C.L.R. 190 at 195-196 and Moran v. McMahon (1985) 3 N.S.W.L.R. 700 at 717-723). However, the judgment is a global award to compensate for all the detriments suffered and it is made only once by the payment of one lump sum. Thus, although an assessing judge may allocate particular sums to particular heads of detriment and express them in his reasons, the judgment does not constitute a series of awards under particular heads, nor does it constitute a mere aggregation of the sums separately allocated (see Gamser per Stephen J. at 1 49-150 with whom Gibbs J. agreed at 148 and Paul v. Rendell (1981) 55 A.L.J.R. 371 (P.C.) at 376-377). It is the allocation of particular sums which discloses the process of reasoning which led to the exercise of judicial discretion which itself is given effect to in the final award in the form of a single lump sum ( Wilson v, Peislev (1976) 50 A.L.J.R. 207 -- 63 of 76 -- 6 at 214 per Mason J. with whom Gibbs J. agreed; Gamser per Gibbs J. at 148 and Stephen J. at 149-150; Sharman at 572 per Gibbs and Stephen JJ. with whom Jacobs J. agreed as to the approach of an appellate court; Dessent v. The Commonwealth (1977) 51 A.L.J.R. 482 at 486-7 per Mason and Aicken JJ. ) What is appealed against is the total sum awarded i.e. the discretionary judgment as reflected in the lump sum award. Whether the appeal is successful depends upon the answer to one ultimate question. That question is whether the appellant has demonstrated error which has led to an assessment which is outside the limits of what a sound discretionary judgment could reasonably adopt. The test was expressed by Gibbs and Stephen JJ. in Sharman v. Evans at 589 in this way:- "We have carried out the detailed examination of the factors constituting an appropriate award of damages in order to equip ourselves to determine whether the judge erred in his conclusion on the total amount of • damages appropriate to be awarded. We bear in mind that this is the ultimate question to be decided and that the trial judge had a wide discretion." In Miller v, Jennings at 197 Dixon and Kitto JJ. said:- "The appeal must depend simply upon what must be the ultimate question, namely whether the compensation assessed is so inadequate as to be beyond the limits of what a sound discretionary judgment could reasonably adopt." Mason and Aicken JJ. in Dessent v. The Commonwealth at 487 express themselves as follows :- "All we have said indicates that the award of $8,000 is well below the limits of a sound discretionary judgment and that it should be set aside." For reasons which I set out below the observations in Miller v. Jennings and Dessent v. The Commonwealth should not be -- 64 of 76 -- 7 seen as requiring that the assessment must be shown to be significantly outside the limits of a sound discretionary judgment before the ultimate question will be answered in the affirmative thus allowing an appellate court to intervene. In each case the appellant was seeking to show inferred error in the reasoning of the trial judge, where no actual error of law or fact could be demonstrated. The demonstration of such an error required that the award be substantially outside the available range. As will appear later in these reasons the disparity must be such to show that the original assessment was a wholly erroneous estimate and inferentially it must have been produced by some unknown error which operated in the original process of assessment. The process by which an award is shown to be outside the limits of what a sound discretionary judgment could reasonably adopt, involves the appellant demonstrating that by some error whether of law or fact the trial judge has adopted an erroneous process of reasoning which has resulted in an assessment outside the permissible range. This underlies the statement of Mason J. with whom Gibbs J. agreed in Wilson v. Peislev at 214:- "The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered ." See also McTiernan J. at 211. This formulation is based on a formulation of Greer L.J. in Flint v. Lovell [1935] 1 K.B. 354 at 360 which was approved by the House of Lords in Davies v. Powell Duffrvn Associated -- 65 of 76 -- 8 Collieries Ltd. [1942] A.C. 601 at 616. It is a formulation which can be traced through the judgments of various members of the High Court to the decision in Gamser . The "settled rule" as it was called by Mason J. in Wilson v. Peislev is also stated by the learned authors of McGregor on Damages (15th ed. (1988) paras. 1833-1837 ff.) as the applicable English rule. The settled rule reflects the principles which regulate the circumstances in which an appellate court may review the exercise of a judicial discretionary judgment. Those principles were authoritatively stated in House v. The King (1936) 55 C.L.R. 499 at 504-505 (see Minister for Aboriginal Affairs v. Peko Wallsend (1985-1986) 162 C.L.R. 24 at 47). In House v. The King at 504-505, Dixon, Evatt and McTiernan JJ. said:- "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." When an appeal is brought against the exercise of a judicial discretionary judgment "the existence of an error, -- 66 of 76 -- 9 whether of law or fact on the part of the court at first instance is an indispensable condition of a successful appeal" (per Mason and Deane JJ. in Norbis v. Norbis (1985-1986) 161 C.L.R. 513 at 519; see also Wilson and Dawson JJ. at 535 and Brennan J. at 541). The error must be one that vitiates the original decision (Minister for Aboriginal Affairs v. Peko Wallsend at 48 per Mason J. with whom Gibbs C.J. and Dawson J. agreed). That is, the discretionary judgment must be shown to be wrong. This means "in the ultimate analysis and in the absence of any identifiable error of fact or positive law, the appellate court must be persuaded that the order stands outside the limits of a sound discretionary judgment before it intervenes" ( Norbis v. Norbis at 520). The settled rule, as enunciated by Mason J. in Wilson v. Peislev, has three parts (i) the application of a wrong principle of law; or (ii) a misapprehension of the facts; or (iii) an award which is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered. The application of the third part of the rule is an alternative method of demonstrating error where the judgment appealed is ex facie not affected by error of law or fact. It operates to establish some undisclosed error in the process of reasoning. (See Precision Plastics Ptv. Ltd, v. Demir (1975) 132 C.L.R. 362 at 369 per Gibbs J. with whom Stephen J. agreed; Wilson v. Peisley at 209 per Barwick C.J. who would have reguired that the award be "outrageous", McTiernan J. at p. 211, Gibbs J. at 212, -- 67 of 76 -- Stephen J. at 212, Mason J. at 214; Gamser per Gibbs J. at 148-149, per Aicken J. at p. 159, with whom Stephen J. agreed.) The degree of disparity required by Barwick C.J. and Aicken J. in Gamser before error would be imputed to the assessment, namely, that the original award was "outrageous or out of all reason" was not accepted by the other members of the court. It was not the test applied by the majority in Wilson v. Peisley which applied the "wholly erroneous estimate" test. Care needs to be taken with the operation of the third part of the rule. When it is used in relation to the total sum awarded, if made out, there is established both error and error which vitiates the award. This is because the ultimate question, as to whether the total assessment is outside the limits of a sound discretionary judgment, is answered affirmatively by the answer that the total assessment is a wholly erroneous estimate. However, where the third part of the rule is used to establish error in the assessment under a particular head, it establishes no more than an error in part of the reasoning. In this situation, it advances the matter no further than the establishment of an error of law or of fact under the first or second parts of the rule. It remains to be demonstrated that the ultimate question is to be answered affirmatively . The correct process requires firstly the establishment of error, and secondly, error which is such as to vitiate the decision because it has led to an assessment beyond the limits of a sound discretionary judgment, ignoring variations beyond those limits which are de minimis. This approach is seen in the -- 68 of 76 -- judgment of Mason J. in Wilson v. Peislev at 217 where, after reviewing the reasoning and substituted assessment of the Court of Appeal, he concluded ".... the error viewed in the entire context of the assessment of the respondent's damages, is not one which in my judgment invalidates their final conclusion ." The requirement of a wholly erroneous estimate, while relevant to establish an error in reasoning, ought not to be used to add an additional requirement that, notwithstanding that error of law, fact or imputed error is shown to have vitiated the assessment in the relevant sense discussed above, the original assessment must also be shown to be significantly outside the permissible range of a sound discretionary judgment before an appellate court will set it aside. Where the trial judge has assessed damages under a particular head of detriment and has applied some wrong principle of law, or has misapprehended the facts, relevant' to an assessment under that head, the appellate court will be required to be satisfied that such an error has led to the assessment as a whole being outside the range of a sound discretionary judgment made in accordance with the correct legal principle, or proper appreciation of the facts, before it will intervene. If the original assessment as a total award falls within the range of an award properly assessed the appellate court will not intervene. The appellate court will itself set the maximum and minimum limits of an award applying the correct legal principles or a correct appreciation of the facts under each head. If the original assessment is outside the limits of the range, then the error has vitiated the assessment and the -- 69 of 76 -- 12 appellate court will set aside the award and make its own assessment (an example of this process is to be found in Sharman v. Evans at 589-590). If the error of legal principle, or the misapprehension of the facts, is such that the appellate court cannot itself set the limits of the range of a sound discretionary judgment as, for example, where necessary findings of fact have not been made or further investigation is required, the assessment must be set aside because the "whole decision is vitiated and cannot be relied upon as a lawful exercise of discretion" (per Isaacs J. in Kroehn v. Kroehn (1912) 15 C.L.R. 137 at 147) and "a substantial wrong has in fact occurred" ( House v. The King at 505). In that case, the matter should be sent back to the lower court for reassessment in accordance with the law as declared by the appellate court and such directions or conclusions as to the facts found or to be found as the appellate court shall give (see for example Malec v. J.C. Hutton Pty. Ltd, at 7-8; Pearlow v. Pearlow (1953) 90 C.L.R. 70 at 83). Once a decision is demonstrated to have been vitiated by error then the appellate court has a duty to substitute its own assessment and what falls to be done is a total reassessment. This necessarily follows in my view from the majority view in Sharman v. Evans (Gibbs and Stephen JJ. whose analysis of the approach to review by an appellate court was agreed in by Jacobs J.). At pp. 589-590 of the report their Honours said:- "We have therefore adopted in the process the maximum figures which on the evidence in this case could be accepted under each head of damages. It does not follow that these amounts are those which we would have adopted in the first instance. When the approach which we have thought appropriate in the circumstances of this case is adopted in order to test the award and when consequently maximum figures under each head are -- 70 of 76 -- 13 taken there is of course no room for a further allowance whereby the verdict could be sustained as one within permissible limits. It would be otherwise if less than maximum figures were taken under each head, that is to say, if a court on appeal were to form its own estimate of the appropriate, rather than the maximum, amount of damages under each head. The result of this approach which leaves a sum of $80,000 in respect of pain, suffering and loss of the amenities of life demonstrates that the total amount of the verdict is too high. Pain and suffering and loss of the amenities of life is a head of damages which is peculiarly difficult to assess but when full compensation has been determined in respect of all other heads of damages, it appears to us that an additional sum of $80,000 exceeds what could properly be awarded under this last head. We conclude, therefore, that the amount awarded cannot stand. It is necessary therefore for us to determine what was a proper amount. We make this determination wholly on the basis of the findings of fact . made by the trial judge. It must, however, be made clear that, while the process which we have followed of analysing the separate maximum amounts possible under the various heads of damage will be of assistance in a re-assessment, they cannot of themselves lead to a conclusion on the amount proper to be substituted. In all the circumstances we are of the opinion that a proper amount is $270,547.50." In approaching the task of reassessment the appellate court does not simply adjust the previous award by substituting its own assessment under the head or heads of detriment in respect of which error was established. The appellate court must itself assess under all heads including those heads which have not been the subject of criticism on appeal. The appellate court may or may not be influenced in its view of an appropriate award by the reasoning of the trial judge under those heads which were not subject to appeal or criticism. It is entirely a matter for the appellate court as to what weight, if any, it gives to the trial judge's reasons in determining for itself a sum of fair compensation. -- 71 of 76 -- 14 The approach of the Privy Council in Lai Wee Lian was expressed by Lord Fraser of Tullybelton at 735 thus:- "Before considering the facts of the appeal in more detail, their Lordships will refer to a question of general importance which arises. Mr. Rashid, on behalf of the respondent, submitted that the Court of Appeal had rightly held that what matters is the global figure and that, if the global figure was reasonable and fair, an appellate court should not increase or diminish a component item of damages on the basis that that item was either too low or excessive. He sought to support that contention by reference to the advice of this Board, delivered by Lord Diplock, in Paul v. Rendell (1981 ) 55 A.L.J.R. 371 . It is of course true that at the end of the day the total sum awarded is what matters to both parties. But that does not mean that the component items do not have to be separately considered. They are the necessary parts which make up the whole, and the only proper way of deciding whether the global award is too low or too high is by assessing the separate items and arriving at a fair total: see Lim Poh Chop v. Camden and Islington Area Health Authority [1980] A.C. 174 and Jamil bin Harun v, Yancr Kamsiah [1984] 2 W.L.R. 668. Of course the assessing judge has a considerable range of choice because many of the variable elements in the damages cannot be precisely quantified. This applies notably to the plaintiff's loss of future earning capacity, the assessment of which 'involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured': see Paul v. Rendell (1981) 55 A.L.J.R. 371, 372. But if the award for loss of future earnings, or for any of the other items, is so far out of line with what the appellate court considers appropriate as to indicate that the assessing judge has erred in principle, and if the substitution of an appropriate award for that item would make a substantial alteration in the total award, then the appellate court has the duty to make the substitution and to alter the total accordingly." The final paragraph of the passage seems to me to involve four steps:- (a) the ascertainment by the appellate court of what it considers an appropriate award under a head of detriment; -- 72 of 76 -- 15 (b) a consideration of whether there is such a great disparity between the actual assessment under that head and what the appellate court considers an appropriate assessment as to indicate error in principle; (c) a consideration of whether the substitution of the appellate court's assessment would make a substantial alteration to the total award; and (d) a substitution of the view of the appellate court if it considers the alteration substantial. The approach of the High Court is that the appeal court does not itself assess what it considers an appropriate assessment and determine error by comparing that assessment with the actual award. Error is only to be inferred where the assessment under a head is a wholly erroneous estimate and thus outside the range within which a sound discretionary judgment would be made. The approach of the Privy Council is to substitute significant discrepancy between its own view and the original assessment as the test for inferred error. This is different to the High Court test of inferred error. Further, the Privy Council test substitutes an error leading to a substantial alteration to the total award, for the High Court test of error leading to a total award outside the limits of the range of assessment within which a sound discretionary judgment ought to have been made. The Privy Council test assumes that any alteration under a head of detriment which is substantial in relation to the total award means that the original total assessment is outside the relevant range of a sound discretionary judgment. This -- 73 of 76 -- 16 assumption may or may not be correct in any particular case. In my opinion, for the reasons I have stated above, it is contrary to the principles which have been laid down by the High Court of Australia in the cases I have referred to for this Court to make any such assumption. Nor, in my opinion, is it open to this Court to assess error by making its own assessment of an appropriate award and comparing that with the actual award either in total or under any particular head. There may, of course, be cases where an award under any head of detriment is so obviously in error and so large in amount that it can clearly be seen to place the original total award outside the range without the appellate court finding it necessary to assess the available range of assessments under any other head. However, in that case the answer to the ultimate question is demonstrable and it is not a question of assumption. Indeed, the Privy Council in Lai Wee Lian gave some consideration to assessment under other heads (at 741) and concluded that the variation produced an award "more than 40 per cent in excess of the judge's award". In my opinion the principles which emerge from the authoritative decisions of the High Court are:- (a) an appellate court will not interfere with an assessment of damages simply because it would have awarded a different figure had it tried the case at first instance; (b) an appellate court will not interfere unless there is shown error in the reasoning of the court at first instance which has led to an award of damages which is beyond the limits -- 74 of 76 -- 17 of what a sound discretionary judgment could reasonably adopt; (c) the error may be either an error of principle or the misapprehension of the facts; (d) where no apparent error can be shown, error will be inferred if the court is satisfied that the trial judge has made a wholly erroneous estimate of the damages; (e) once it is demonstrated that error has led to an assessment of damages beyond the relevant limits, the appellate court will intervene and itself assess an award which represents fair compensation as between the plaintiff and the defendant for all the detriment suffered by the plaintiff; and (f) If the error is such that the appellate court cannot determine the relevant limits of an assessment based upon the proper application of legal principle and a proper appreciation of the facts, or the appellate court does not feel it is in a position to itself assess damages, then the appellate court will remit the matter for further consideration by the trial court in accordance with the law as declared by the appellate court and in accordance with its directions, if any, as to the facts found or to be found. I have had the advantage of reading the reasons of my brother Shepherdson as to the reasons and assessment of the learned trial judge in this appeal. I agree with my brother Shepherdson, and for the reasons he has given, that the appellant has failed to show that the assessment of the learned -- 75 of 76 -- 18 trial judge under any head of detriment was affected with error. In my opinion, for the reason given by my brother Shepherdson, the total assessment of $244,816.84 has not been shown to be beyond the limits of what a sound discretionary judgment could reasonably adopt. I would dismiss the appeal. -- 76 of 76 --