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Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 (11 March 1968)

CATCHWORDS

Appeal and new trial - Excessive damages - Personal injuries - Discretion - Manifestly excessive.

HEARING

DECISION

2. There is no dispute as to the respondent's physical condition as the result of the overturning of the appellant's car after running off the Pacific Highway near Bulahdelah, north of Newcastle. To use the description of the learned trial judge, he is "almost a quadriplegic. He has paralysis below the chest level . . . and paraesis of both arms with the consequent disabilities that flow from such a dreadful incapacity." The physician who attended him in hospital with a considerable degree of success says in substance that he has now reached his maximum recovery. I extract the physician's principal conclusions as expressed by him in evidence.

"He has got, I think, full use of his shoulder girdle muscles
and these are quite all right. . . . The patient is able to move
his wrists. There is not much power in these movements
of his wrist. . . . He has function in his thumbs and in his index
finger, which is not a full function. Again there is not much
power in it, but the movements are such that . . . they give
him the possibility of gripping things even if this grip is not
too strong. It is better on the left side. It is worse on the
right side. He is very weak in his three last fingers on either
side. . . . He has got a lot of wasting in his hands, small
muscles which are enervated from the roots just below the
area of lesion, but this amount of movement . . . allows him
to hold, for instance, his shaving apparatus, if not shave
himself, it allows him to light a cigarette, it allows him to
feed himself . . . it should be qualified as only very partial use
of his hands and fingers. . . . It is very restricted . . . first of all,
from the power point of view . . . and also from the movement
point of view, in the last fingers."

3. At the time of the accident, he was twenty-eight years of age, married, with one child, a boy thirteen months of age. He was employed as a spare miner in a coal mine at Nymboida, on the north coast of New South Wales, where he had been continuously employed for about nine years. He could not read and could write no more than his own name. He was living at Grafton in a home which he was purchasing and which was stilted above the ground because of the likely effects of the flooding of the Clarence River on which the City of Grafton stands. Apparently he was quite healthy, though he had had rheumatic fever in his youth. As he said, he had "no actual sport, I was just a working man". He had his own motor car and was fond of taking care of that. (at p651)

4. His wages, as a spare miner, according to group certificates tendered in evidence relating to the two and one half tax years prior to the accident, were, for 1962-63 1,223 Pounds ($2,446) gross and 1,065 Pounds ($2,130) net and for 1963-64 1,402 Pounds ($2,804) gross and 1,250 Pounds ($2,500) net and for 1964 July to August 807 Pounds ($1,614) gross and 722 Pounds ($1,444) net. He seems to have been committed to employment in the coal mining industry which has a compulsory retirement age of sixty. There was no suggestion of any likelihood of improvement in his level of employment beyond that of a miner which would bring him in an additional $10 per week gross. (at p652)

5. Evidence was given by a general practitioner as to what assistance the respondent would need because of the condition which I have briefly described. It will be as well that I quote the relevant parts of the doctor's evidence :

"This man is very dependent on help and his needs are
such that he requires, particularly, attention to bladder,
bowels, plus normal maintenance of his skin and plus feeding
and general observation to detect should there be any
deterioration
in his condition."

"It would be expensive. It would be in the vicinity of
about $65, $66. I cannot work it out. One would need to
be a statistician to work it out actually, but I think
something
in the vicinity of $65, $66."

"Somewhere in the vicinity of $40. I am basing this on a
scale of payment for assistants in nursing, which is current at
one of the obstetric hospitals here, untrained personnel who
are experienced."

6. During the eleven months which elapsed between the date of the respondent's discharge from hospital and the date of the trial, his wife, without any nursing training or experience and without any assistance had attended to all the respondent's needs, though the doctor said that this had been a comparatively trouble-free period for the respondent, and that his wife had done extremely well to handle him and to keep him as well as he then was. (at p653)

7. In cross-examination, the doctor indicated that an opinion given daily as to the respondent's condition by a trained person was advisable but he seemed to accept the position that a distric nurse, calling daily, could perform this function, the remainder of the twenty-four hours being serviced by two experienced nurses. (at p653)

8. A specialist neuro-surgeon, giving evidence, thought that one full-time qualified nurse was required, with the further assistance of a less qualified help, who could even be a domestic help. A regular check each fortnight by a medical practitioner was also necessary. Given care, the respondent's expectation of life was quite normal. As to the provision of a trained nurse, the following question was put and answer given :

"Q. And what I am suggesting is that there would be no
need to have in addition to this person" (an experienced
nurse) "and his wife some trained sister in attendance all
the time, that is what I am putting to you ?
A. Well, I still feel that the aim here is to provide the
conditions as they should be, not as they can be. I think
that a fully-trained nurse full time, I think this is the situation
with a quadriplegic." (at p653)

9. There was no objection to the summing up of the trial judge. It will be convenient if I quote some of the actual directions he gave. In emphasizing that the award must be of a lump sum once and for all, he said :

"A lump sum is awarded which compensates the plaintiff,
not only for what he has lost and suffered in the past, but
also for what he will probably lose and suffer in the future.
Essentially, you ask yourselves : What would this plaintiff's
future probably have been if he had not met with this
catastrophe?
And then you ask yourselves : What will his future
probably be, he having met with the injury, and you
compensate
him for the difference. My analysis, however, which
I will put before you in the minimum of time, is to examine
the two capacities that I see as having been gravely reduced,
if not obliterated ; they are the capacity of the plaintiff to
earn his living and the capacity of the plaintiff to enjoy his
life. I think you will find that caught up in those two headings
there is every aspect of this case. I think it is proper to say
that no precise arithmetical approach is possible. That, of
course, is a truism when you realize that you have to deal
with such matters as the future even on the economic aspect
of the case and the damages to be awarded for the injury to
the plaintiff's capacity to enjoy his life. As you have to
bring back a sum of money, some arithmetical approach, of
course, is necessary. The figures can only be a guide. These
tables have been put before you and they have been emphasized
through being put before you. The tables are to give you
some idea of the present value of a sum spread over many
years, and it is important that you should only take the present
value into account. On the other hand, they are arithmetical
calculations which make no allowance for the vicissitudes of
life ; they take no account of the many things that can happen
to a person in the course of his progress through life, from his
late twenties until the time that he ceases to be gainfully
employed or until the time of his death. But they are some
sort of a guide. Slavish adherence to them is not
recommended;
however, they should not be ignored because of
their arithmetical value. Your award must be fair from the
point of view of both parties. You can only give him a sum
of money which you think is a reasonable sum as between the
parties." (at p654)

10. The Supreme Court in analyzing the verdict first of all computed the present value of the total amount of wages which the respondent if regularly and continuously employed would have earned in his working life as a miner taken as $60 net per week and to this added the out of pocket expenses incurred and the wages lost to the date of trial. Both these latter two items were treated - as both parties at the trial treated them - as special damages totalling $8,500, of which sum the "lost wages" account for $4,920. The Court treated the jury as entitled to regard those elements which might cause a diminution in earnings to be equally offset by other elements which would have increased them, referring in this connexion to its own decision in Thurston v. Todd (1966) 84 WN (Pt 1) (NSW) 231 . Having by this means obtained a sum of $45,000 for "lost earning capacity" and $8,500 for special damages, it was said that the jury were entitled to conclude from the evidence that the respondent's nursing requirements would be $120 per week. Capitalized at six per cent this gave a further figure of $90,000. Thus a total of $143,500 for special damages, nursing and medical requirements and lost earning capacity was reached. It was then said that $23,340, the balance of the verdict, could not be regarded as excessive to cover the loss of amenities of life, notwithstanding that in the earlier items sums would have been provided to ameliorate his conditions. It was held that "large as the verdict is", the Supreme Court "cannot interfere" : accordingly, the appeal was dismissed. (at p654)

11. The proper approach to the problem by a court when asked to set aside a jury's verdict as excessive is not in doubt. In the course of the years it has been variously expressed but I see no need to cite and compare the cases in which particular formulations have been made. Suffice it to say that, in my opinion, in relation to verdicts for personal injury, the question is whether the verdict is unreasonably disproportionate to the circumstances of the injury in question. Whether or not it is so must in the nature of things depend upon the individual judgment of those comprising the appellate tribunal. In this field, as in other areas, it is fundamental to the law and to its administration that what is reasonable and what is not reasonable are respectively considered to be susceptible of determination, ultimately and authoritatively, by the final court of appeal. If the mind is not convinced of the unreasonable quality of the verdict then there is no ground for intervention, however much those hearing the appeal would have differed from the primary tribunal of fact. But, however difficult it may be to mark out the boundary of the reasonable and the unreasonable in this field of the estimation of what is just and fair compensation for personal injury, a judgment must be formed by the appellate court and, being formed, made effective. (at p655)

12. It is the verdict as a single sum which must be juxtaposed to the condition of the plaintiff which has resulted from the jury and its propriety considered. So to say is not to deny the utility of segregating some of the items which would necessarily have to have been considered in arriving at the ultimate figure. But, in my opinion, this does not justify deciding the proportion or the lack of proportion of the verdict to the injury merely by quantifying those items in isolation and then aggregating them to compare their total with the verdict. The course taken by the Supreme Court in this case is illustrative of what, in my respectful opinion, is not justifiable however useful the knowledge of present values of money receivable or payable in the future might be. To this aspect I shall later return : but in passing I would point out two matters. First, that there is considerable overlapping of the areas the isolated items are meant to cover the extent of which it is not really possible to determine and, secondly, the aggregate sum arrived at by the Supreme Court includes the total of the present value of several regularly recurrent weekly sums. (at p655)

13. The Supreme Court's order dismissing the appeal is clearly a judgment from which an appeal lies to this Court. I do not pause to consider the question whether as of right or only by leave. It is true the order was made by the Supreme Court upon a motion for a new trial in an action tried with a jury. It is also true that such a motion is a means by which that Court maintains the regularity of its own proceedings and is not in strictness an appeal. That circumstance may in some cases give greater significance to the exercise by the Supreme Court of a discretion in dealing with its own proceedings. But, in my opinion, it does not require this Court to refrain from expressing and giving effect to its own views as to the correctness of the decision of the Supreme Court. The present case is not one in which a discretion has been exercised by the Supreme Court. It is one in which a judgment in point of law has been made. It is none the less, in my opinion, a matter of law that the legal ground for setting aside the verdict is the unreasonableness in point of fact of what the jury has done. But there is undoubtedly the significant circumstance that the Supreme Court, Court of Appeal Division, has unanimously expressed the view that the jury's verdict is not unreasonably large and therefore not excessive : and has expressed its inability to interfere. It goes without saying that this Court should and will give great weight to such an opinion and will not set aside the order based upon it unless convinced that it is erroneous. But, if in the Court's view it is erroneous, it is then not merely within the Court's power, but it is, in my opinion, the Court's duty to set aside the order of the Supreme Court. (at p656)

14. It is profitable, in my opinion, in approaching the question whether a verdict of a jury for personal injuries is unreasonably disproportionate to call to mind what the verdict should represent. It ought to be a fair and reasonable compensation for the injuries received. A fair compensation is, of course, less than the removal of the disabilities which the injuries to be compensated entail. It is compensation to the particular claimant, bearing in mind what he was, what he now is, and how he is likely to meet his disabilities. In this respect I agree with the views of the Supreme Court in Thurston v. Todd (1966) 84 WN (Pt 1) (NSW) 231 which deny that there is any "conventional sum" or conventional range upon which or within which the award of damages for particular classes of injuries should be confined. Comparisons with amounts awarded in other cases in near comparable or even in comparable circumstances ought not, in my opinion, to be used to achieve so called uniformity but merely used as an assistance in judging what in the community at or about the time the matter has to be decided is or has been regarded as fair : though even for this purpose I doubt that such comparisons have any great utility. (at p656)

15. Doubtless, the exercise of judgment by each jury and by individual judges will not produce uniformity. This is not surprising and, in my view, need not be deplored. The facts and circumstances of each case vary infinitely - so often subtly. The application of judgment to them is, in my opinion, preferable to any attempt to apply a rule or to draw a conclusion or discover a norm from awards made in other circumstances. (at p657)

16. Too little emphasis it seems to me is usually given to the moderation with which the assessment of damages for personal injuries should be essayed by the jury. Mere statement that the compensation is to be fair does not seem to me to be enough. The concept of fairness, with its concomitant moderation, needs explanation and emphasis and the jury needs to be carefully and specifically warned against attempting a perfect compensation. As I shall later point out, they should also be warned against any pseudo scientific or seemingly mathematical calculations. (at p657)

17. It must be remembered that the plaintiff and the injuries are prominent in the trial. However much deficiencies in the evidence as to the extent of the injuries may be thought to be supplied by reliance on the maxim that all things are presumed against the wrongdoer, fairness is denied if in the assessment of damages as well as in the decision as to liability the position of the defendant is ignored and left out of sight. Emphasis on fairness may well be coupled with a warning against the inclusion of any punitive elements in the assessment. (at p657)

18. I now turn to consider the present verdict in relation to the injuries sustained. No one would wish to minimize the plight of the respondent nor the tremendous change in his manner of life which the injuries have wrought. He has lost his earning capacity, so far as the evidence goes, all earning capacity. In this connexion, however, too little attention it seems to me is paid to the possibilities which have and will yet open up for paraplegics and quadriplegics : but this ought to be the subject of evidence and not of mere suggestion on the part of judge or advocate. He has lost a great deal of the enjoyment of life. Again, too little attention is paid in these cases to the capacity of human beings to accommodate themselves to changed circumstances and to the great readjustments which are made by persons in the situation of the respondent : these elements are, I think, sufficiently within common knowledge for them to be available for the consideration of the jury without evidence of them. But no doubt the evidence of those with special knowledge and experience in this field could assist. (at p657)

19. The compensation for the injury in this case must cover loss of earning capacity, necessary recurrent expenditures flowing from the injuries and loss of the amenities of life. (at p657)

20. I should like to say something about each of these. The respondent is not to be compensated for loss of earnings but for loss of earning capacity. However much the valuation of the loss of earning capacity involves the consideration of what moneys could have been produced by the exercise of the respondent's former earning capacity, it is the loss of that capacity, and not the failure to receive wages for the future, which is to be the subject of fair compensation. In so saying, I realize that many statements may be found in the reported cases where loss of earnings has been the description of this element in special damages. But I do not find that in these it was necessary to consider or draw the distinction between the loss of earnings and the loss of earning capacity. But where in Australia attention has been drawn to the distinction, authoritative expressions with which I respectfully agree have indicated that it is loss of earning capacity and not loss of earnings that is to be the subject of compensation. But though this is I think the recognized position in Australia, the wages which would have been earned between the receipt of the injury and the date of trial are somewhat illogically, as I think, calculated and treated as special damages. In my opinion, it would be better that they should not be so treated for amongst other things, such treatment tends to plant in the mind the idea that it is the loss of the earnings which is to be compensated. On the other hand, not to so treat them would help to emphasize that it is the loss of earning capacity which is the subject of the damages. However, in most cases they may have but small practical significance ; and in this case, in relative terms, none. In any case, the inclusion of the amount of $4,920 for loss of wages up to the date of trial was a matter of concession by the appellant. (at p658)

21. Of course, the rate of wages being earned and the rate of wage likely to be earned in the future afford a basis for assessing compensation for the loss of earning capacity. So also, expectation of working life is an element in that assessment. Because a present payment for the loss of earning capacity in some sense anticipates the product of that capacity, the present value of a dollar paid each week for the length of the estimated working life is properly evidenced to afford a guide but only a guide to judgment by those without access to tables or the ability otherwise to reckon that value. But to take the present value of a regular weekly wage paid continuously for the estimated working life and then attempt to discount that figure to allow for the many factors of which it takes no account is not to my mind a satisfactory course to take, particularly as an initial step in an attempt to calculate what is a fair compensation for the loss of an earning capacity which has or could have produced that rate of weekly wage. That reported cases appear to condone such a course may be conceded : but I question whether any case in that sense by which this Court is bound, has been arrived at after contest of the specific point and upon full consideration. The recent decision of the Court of Appeal in England in Watson v. Powles (1968) 1 QB 596 ; (1967) 3 WLR 1364 , would indicate the trend in that country. Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location, or are superseded by new and different techniques, the onset and effect of automation and the mere daily vicissitudes of life are not adequately reflected by merely - and blindly - taking some percentage reduction of a sum which ignores them. The calculation of that sum has a disarming appearance of introducing some mathematic accuracy into the assessment of the compensation. But, in truth, it must eventually tend to inflate the ultimate sum awarded : and unjustifiably to do so. To begin with, it represents a calculation as to the value of the loss of wages upon an assumption which the attempt to make a discount therefrom denies. Therefore, the assessment based upon it begins with a figure which in at least a great many cases must be too high in relation to fair compensation for loss of earning capacity : and, secondly, not only does it not provide for any of the contingencies of which I have spoken but, in truth, it is so unrelated to them that it offers no firm basis on which a meaningful discount of the sum may be made. Also, and perhaps even more significantly, its use is based upon an assumption that the injured person will use the compensation to buy an annuity or at least invest the verdict at no higher rate of return than that rate which has been used for the capitalization to reach the sum of the present value of the future receipts or payments. That, it seems to me, is a fundamental error which must weaken immensely any utility the calculation of that sum might otherwise have. In the present case, can it be thought for one moment that a person in the situation of the respondent would purchase an annuity or annuities as a means of securing himself or confine himself to investment at the rate of capitalization. Such a person is free to do what he will with the damages he is paid. And in arriving at a verdict in such a case as this, consideration, in my opinion, ought specifically to be given to the question of the avenues open for investment or employment of the verdict and of how the plaintiff if successful is likely to employ his money so as to secure himself so far as the award will extend against the consequences of the disabilities for which he is being compensated. But whatever form of investment any particular plaintiff might favour, my own conclusion is to think that practically none, if any, would take the course of purchasing an annuity or of investing the verdict at the rate taken for the capitalization. In my opinion, the inappropriateness of using the present value of the future receipts or payments is not removed merely by increasing the rates of interest used in calculating that sum. (at p660)

22. Whilst in the light of entrenched usage it cannot now be said that the amount presently required to provide a weekly sum for a stated number of years cannot be of any assistance in the assessment of damages for personal injuries, if introduced into a case, unremitting care should be taken, in my opinion, by the presiding judge to warn the jury as to its many and critical limitations even as such an assistance. They ought to be told, as a judge trying a case himself would readily apprehend, that such a figure is the merest guide and insusceptible of forming the basis of a calculated amount. Emphasis should be placed upon what is to be the subject of compensation, namely, the loss of earning capacity and upon the many factors which may have influenced its effective use in the future as well, of course, as upon the likelihood, if it be evidenced, that the product of that earning capacity might increase in the future. It is preferable, in my opinion, that the jury be invited to consider directly what global sum in their judgment represents fair compensation for the injuries than that they be asked to work out separately the compensation for each of the elements of the compensation which they should have in mind. In particular, they should be discouraged from taking the present value of the future receipts and thereafter attempt to discount that sum for the so-called vicissitudes of life of which it takes no account. If allowed to take the latter course, there is likely to emerge a tendency to treat the pluses and minuses of life as cancelling one another out which is certainly not the usual experience of mankind. The assessment of the global sum of compensation is a matter of judgment, bearing in mind all the facts and circumstances. Whether this assessment be made by jury or by judge alone it is not, in my opinion, a matter of mathematical calculation. The use of the present value of future regular payments, in my view, is more likely to divert the mind from the elements which should go to affect the judgment of the proper sum that to assist the assessment of the fair compensation to be awarded. (at p660)

23. When, as was done by the Supreme Court in this case, one such sum is added to another, not merely is the danger of overlapping present, but the undesirable features associated with the use of such a sum are compounded. Perhaps the dangers of the course taken can best be appreciated by the result it produced in this case, when the amount of the verdict is placed against the circumstances of the respondent's injuries in order to consider whether it can be said to be unreasonably disproportionate. Invested on first mortgage of land without seeking the highest rate currently obtainable, the amount of the verdict would produce at least $11,000 gross annually without resort to any of the capital : that is something in excess of $210 per week. Before the accident the respondent was an illiterate miner, without prospect of significant advance economically or otherwise, and subject to the uncertainties of employment, of travel and of life generally. With the sum and its income he would be financially independent and secure with a surplus of income over expenditure on his nursing and other needs rated to the highest and most expensive level which the medical practitioners thought desirable - indeed, ideally desirable - considerably greater than the full amount of the wages he could have earned. Allowing always, with no niggardliness of view, but with warm sympathy, for what I have called the shattering disabilities to which the respondent is now condemned I am quite unable to regard that result as no more than fair compensation as the law knows that concept. In my opinion, it is unreasonably disproportionate and ought not to be allowed. It has been brought about largely, in my opinion, by the unwarranted use of the capital sums representing - not the loss of earning capacity - but the wages which would have been earned in ideal circumstances and of expenditures which would be ideal in a situation where money was no object and which, in my opinion, it could not be found that the respondent was likely to make. (at p661)

24. I should next say something as to the nursing and medical expenses. (at p661)

25. The matter is somewhat different in the case of disbursements which are decided to be reasonably necessary for the continued life and health of the respondent and which flow from the injury inflicted upon him. In connexion with these, it can properly be said that they must be regularly and continuously disbursed and that the respondent must have the ready cash to disburse them. Yet the sum to be awarded in compensation is not calculable by any mathematical process. At best, it is and must remain a matter of judgment. First, the range of the recurrent amount likely to be reasonably required must be considered. The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent. The jury must be warned, in my opinion, against blindly accepting the views of the medical practitioners. What is reasonably required is a matter for the jury - or for the judge if sitting alone. As in the case of life expectancy dealt with in Thurston v. Todd (1966) 84 WN (Pt 1) (NSW) 231 - with which I agree in this connexion - the jury are no doubt to hearken to the evidence - all of it including those opinions of the medical practitioners which they are qualified to give but, having done so, to come to their own conclusions on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be. The jury, in my opinion, should be told to consider what the respondent, on the assumption that he was spending his own money, and assuming that he had sufficient to do as he would and was well advised and reasonably careful for his own welfare, would be likely to expend in protection of himself and his condition. It is neither fair nor just to award a sum which might be expected by others in different circumstances but which it is realized the injured person will not spend for the purposes in question. It is likely that placed and housed as he was, he would engage a trained nurse full time and an experienced nurse full time ? Some reference was made in the case to the position of his wife and it was suggested that the damage should be estimated on the footing that she would not be able to continue to assist him. Nothing seems, however, to have been thought or said about the burden which would be placed upon his wife by having to attend upon and to the nurses. Of course, the contingency that his wife might abandon him, or fall too ill to take her part must be contemplated and allowed for. But this does not mean that the compensation should be determined upon the footing that she will at no time play her part. In this connexion, such intermittent expenditures as travel to hospital or calls by a medical practitioner ought not, in my opinion, to be reduced to a recurrent weekly sum and capitalized but rather a sum judged fair should be included in the global amount to cover these contingencies. But it would, in my opinion, even in relation to these reasonably necessary disbursements, be an error to begin the assessment by including an amount to produce the recurrent sum. (at p662)

26. Lastly, in this case there is the question of the loss of amenities. No doubt the situation of the respondent is grim but it is far from hopeless. It is, in my opinion, an error to think that of necessity happiness is denied him or that he will not come to terms with his plight and find satisfaction in living. By reason of his very disabilities he will be spared many of the risks and circumstances associated with normal living. Again, I mention these aspects not to minimize or reduce the gravity of the injuries and disabilities which have been inflicted upon the respondent but rather in a matter of the financial relations of the two parties, to mention elements which must not be forgotten in an area where fairness and moderation are the norms and not mere sympathy or revulsion. The Supreme Court, having gone through the process which I have described reached a residue of $23,500 as applicable to the loss of amenities : their Honours thought this could not be regarded as excessive. But, having regard to what they regarded as covered by the sums they had calculated before arriving at this residue, in my opinion, even such a sum was beyond what could be regarded as reasonable in making a fair compensation for this loss - viewed as it were in isolation. The Supreme Court's figuring had provided the respondent with his weekly wages for his working life and a weekly sum extracted from the evidence as upon almost the worst prospect as necessary for nursing and medical attendance. To add a further $23,500 to my mind would not merely be unwarranted but, with due respect, unreasonable. Thus, even if I thought the other sums in relation to loss of earning capacity and to necessary expenditure to be within the range of what could be regarded as fair and reasonable for them, if assessed in isolation, which I do not, I would not think this verdict sustainable. (at p663)

27. I have spent a little time in endeavouring to express my views in this case. The case for its own sake has warranted the careful and extensive consideration which I have given it. But, as well, it seems to me that by unsatisfactory use of actuarial calculations and by losing sight of the need for a balanced view of the situation of those who suffer road and industrial injuries, unreality is introduced into the resultant verdicts. In the present case these factors have led to a verdict which is unreasonably disproportionate to the injuries sustained, grievous and extensive though undoubtedly they are. (at p663)

28. I regret that such a course is necessary but I feel obliged upon the views I have found, after much consideration, to favour an order allowing the appeal, setting aside the Supreme Court's order, allowing the appeal to that Court with costs and ordering a new trial limited to the question of damages. (at p663)

McTIERNAN J. I agree that the appeal be allowed. (at p663)

2. The very large sum of general damages awarded by the jury would seem to indicate that they found that the plaintiff's expectation of life had not been substantially curtailed by the injuries. It is clear that if it was not open to the jury on the evidence to do this, there was an excessive quantification of damages awarded to cover enduring discomfort, loss of enjoyment of life and nursing and medical expenses. Dr. Truscott whose patient the plaintiff had been since he returned home from the Prince Alfred Hospital, to which he was admitted for surgical treatment after the accident, was asked by counsel for the plaintiff these two questions :

Do you feel that you are in any way qualified to offer an opinion
about his life expectancy ?"
I think you have recently seen another quadriplegic or
paraplegic
and you have two at the one time ?" (at p664)

3. The witness answered the first question as follows : "No, I could not comment on that." He answered the second question in this way : "Only people in a large unit who dealt with these problems in bulk could come to a conclusion on the expectancy of life. I have not seen sufficient to hazard even a guess." Earlier in his evidence Dr. Truscott said that a man in the plaintiff's condition (quadriplegia) has to have "the condition of his urinary tract carefully guarded" and that the condition of his lungs and chest are "two weaknesses, or potential weaknesses". The witness was asked : "And has this man had, to your knowledge, any difficult or dangerous urinary tract infection since he has been under your observation ?" He answered : "Yes." In answer to other questions the witness said that "cases of this type require assessment of their urinary tract about every few months . . . to see if infection is present". Dr. Truscott also said : "If he (the plaintiff) should have intercurrent infections, say, of the chest, well they may lead to other admissions to hospital." The object of adducing such evidence was to establish the plaintiff's need of skilled nursing at home continuously. But the doctor's evidence could induce a reasonable belief that the plaintiff's life was precarious. (at p664)

4. The only other medical witness was Dr. Selecki, a neuro-surgeon, who operated on the plaintiff at the Prince Alfred Hospital. The defendants did not go into evidence. Dr. Selecki, after stating his views on the sort of nursing and other help the plaintiff needed at home said : "I think that no less important is the medical care and I think that he should have very regular checks at the general practitioner's surgery in his area on one hand, very regular checks in the rehabilitation centre at Prince Henry, or wherever he would choose, from time to time, because his metabolism and a lot of other matters must be medically checked carefully, I would say at least once per half a year." This witness was then asked this question : "How often do you think that he (the plaintiff) should be seen and checked at general practitioner level?" The answer to this question was as follows : "I think quite often, at least once per fortnight. The question of pressure sores, he may be very susceptible to the question of infection, urinary tract, urinary tract infection in the first place and so on. All this should be attended to very carefully and checked from time to time." Following this answer, Dr. Selecki was asked this question: "If he has proper care, nursing and medical care, what do you say as to his expectation of life?" The way in which the witness answered this question was as follows : "I think that if the question of neglect is excluded, in other words, he gets decent nursing and medical care, that his life expectancy is quite normal. In other words, he is comparable from any point of view with any other individual of his age." It is clear that the last sentence of this answer is subject to the supposition expressed in the first sentence. (at p665)

5. In cross-examination Dr. Selecki was asked : "But isn't it because of a grave risk of infection that you consider that he (the plaintiff) should be under constant supervision and constantly checked?" The answer to the question was : "This is a matter of nursing and care, but if this is satisfactorily done with the up-todate methods we have at hand in the 1960's, I think his life expectancy and the life expectancy of these people today is a normal one." Then the witness was asked : "But when you have a case of those grave risks even with the best of care things go wrong don't they ?" His answer was : "Again, the risk is comparable to many other risks we run in our lives, quite comparable, and if good care is taken it has no bearing on life expectancy and this can be corroborated by reference to literature and by reference to rehabilitation centres, where these people have been controlled for twenty, or thirty or longer years." Another question addressed to Dr. Selecki and his answer to it (in cross-examination) were respectively as follows : "He (the plaintiff) is subject to a special grave risk, because of this special condition?" "If there is neglect in management." The jury were not competent to disregard the conditions governing the opinion of Dr. Selecki as to the plaintiff's expectancy of life. In any case, the evidence did not afford any basis on which they could find that the conditions would probably be fulfilled throughout the lifetime of the plaintiff. In my opinion there was no explicit estimate of the plaintiff's expectation of life based on a particular evaluation of his condition and circumstances : cf. Szumczyk v. Associated Tunnelling Co., Ltd., and National Coal Board Unreported. (1956 C.A. No. 126.) , quoted in Kemp & Kemp, The Quantum of Damages, 2nd ed., vol. 1, p. 366, at p. 368. It was not enough to act upon statistics applicable to quadriplegics as a class "regardless of individuality" (Wigmore on Evidence, 3rd ed. (1940), vol. IX, p. 464). "An estimate of prospective loss must be based, in the first instance, on a foundation of solid facts : otherwise it is not an estimate, but a guess" (Munkman, Damages for Personal Injuries and Death, 3rd ed. (1966), p. 37). This proposition clearly applies to an estimate of prospective expenses for nursing and like services. I think that it is a probable inference from the amount of the verdict and the evidence that the award of general damages contains an excessive and mistaken computation of such expenses. (at p666)

6. In my judgment it is not possible to say that any reasonable proportion exists between the assessment and the evidence (Mechanical and General Inventions Co. Ltd. and Lehwess v. Austin and Austin Motor Co. Ltd. (1935) AC 346, at p 362 ). (at p666)

KITTO J. I agree in the reasons of my brother Taylor for the opinion that the award of damages in this case was beyond the limits of a reasonable assessment and should not be allowed to stand. (at p666)

2. Without, I believe, failing to realize fully the gravity of the respondent's injuries and the seriousness of their consequences for him through the rest of his life, I find myself unable to account for so large a verdict upon any more likely hypothesis than that a pre-occupation with actuarial figures led the jury to a lop-sided view of the case, with the result that they failed in their overriding duty to be fair to both parties. (at p666)

3. I would allow the appeal. (at p666)

TAYLOR J. This appeal is brought from an order of the Court of Appeal which dismissed a motion for a new trial of an action for damages for personal injuries. The action had been tried before a jury who returned a verdict for the respondent (the plaintiff in the action) for $166,840 and the ground upon which a new trial was sought was that the verdict was unreasonably and manifestly excessive. (at p666)

2. This is an exceptional class of case and the problem with which we are confronted is not without difficulty. This would be so even if our task was simply to review a jury's verdict. But there is the additional difficulty that the members of the Court of Appeal, though they thought the amount of the verdict was high, were not able to conclude that it was unreasonably high or out of all proportion to the respondent's loss. (at p667)

3. Of course, the question which we have to resolve cannot be answered by saying that the amount of the verdict is high, or, that it is higher than we, ourselves, would have awarded ; it is necessary that, without knowledge of the manner in which the jury arrived at their verdict, we should come to a positive conclusion that the award was so excessive that it must be said to be beyond the bounds of any reasonable assessment. (at p667)

4. I do not recount the details of the injuries which the respondent suffered, apparently without affecting his expectation of life. This has already been done in the reasons of the Court of Appeal. It is, I think, sufficient to say that the respondent's injuries have changed him from a healthy young man of twenty-eight to a relatively helpless quadriplegic requiring constant skilled attention and assistance in performing practically every daily and hourly activity. He is unable by himself to dress or feed himself satisfactorily, or to wash or bathe himself or to perform even the most elementary personal functions and it goes without saying that his earning capacity was totally destroyed. His loss of wages, medical and nursing attention, and hospital expenses to the date of trial were $8,500 and his future loss of wages as a miner was estimated to be about $60 per week. As a miner he would have been due for retirement at the age of sixty and the present value of a loss of $60 per week calculated actuarially for a period of thirty years was said to be $45,000. There was some evidence that nursing and medical attention during a similar period could be of the order of $120 a week and the present value of such an amount for the same period was calculated at $90,000. These weekly figures, however, represented the optimum of the respondent's future loss but, although the evidence was in some respects sketchy, it was not seriously challenged and no objection was taken to the summing up of the learned trial judge by which, quite rightly, he warned the jury that "no precise arithmetical approach" was possible in assessing the respondent's damages. He added that the actuarial tables had been put before them and that they had been emphasized through being put before them.

"The tables", he said, "are to give you some idea of
the present value of a sum spread over many years, and it is
important that you should only take the present value into
account. On the other hand", he said, "they are arithmetical
calculations which make no allowance for the vicissitudes of
life ; they take no account of the many things that can happen
to a person in the course of his progress through life, from his
late twenties until the time that he ceases to be gainfully
employed or until the time of his death. But they are some
sort of a guide. Slavish adherence to them is not
recommended
; however, they should not be ignored because of
their arithmetical value."

5. How then does the matter stand ? The respondent was clearly entitled to recover his damages up to the date of trial and, of course, there is no quarrel with the inclusion of this amount in the verdict. However, it is impossible to say how the members of the jury then proceeded to make their assessment. But if they thought that $25,000 was not an unreasonable amount to compensate the plaintiff for his pain and suffering and loss of the normal enjoyment of life there would still remain an amount of $133,340 as damages for the destruction of his earning capacity and to make provision for the nursing and medical attention which it is said he would require in the future. (at p668)

6. It was pointed out to us that the actuarial calculations were appropriate to cover these items for a period of only thirty years and that it may well be that he will live considerably longer than such a period. This circumstance, it is said, is more than sufficient to counterbalance the necessity of discounting the resultant figures because, in the ordinary course of events, he might have died at an earlier age than sixty years. But, using the interest rate which was applied in the actuarial calculations, an amount of $133,340 would be sufficient to return an annual income of, approximately, $8,000 and the respondent would be left with the capital intact at the time of his death whether, in the ordinary course of events, he should die before attaining sixty or survive for a considerably longer period. But, as I have already said, the amount of $60 per week for loss of his earning capacity and the amount of $120 per week for future nursing and medical attention represented the optimum amount that could have been taken into consideration in respect of these items. The first amount assumes that the respondent would, if he had not been injured, have earned $60 every week for a period of thirty years. I do not think that any such assumption can fairly be made. As far as future nursing and medical attention is concerned, the somewhat general evidence placed an outside limit on the future expenditure necessary for this purpose. It is, however, suggested that it is likely that the cost of such attention will rise in future years. But what is, it seems to me, more important is that the suggested method of calculating the respondent's loss under this heading assumes that, for the rest of his life, it will be both possible and beneficial for him to be cared for in his own home. The possibility of it becoming necessary or desirable for him to enter some appropriate form of institution with a resultant diminution of his weekly outgoings seems to have escaped attention. To me it seems that this possibility should have been taken into account and if the two weekly figures are discounted by as little as ten per cent the estimate of his future loss would be reduced from $180 per week to $162 per week or to a little over $8,000 per annum. The amount which I have already mentioned, $133,340, invested at six per cent would return an annual income of approximately $8,000 per annum and would leave the respondent with the capital sum intact on his death. One may, of course, merely speculate as to how the members of the jury arrived at their assessment. But it does seem to me that the actuarial evidence must have assumed undue significance in their minds and that, in making their assessment, they must have lost sight of the practical result which their assessment would produce. In all the circumstances I am of the opinion that the verdict was manifestly excessive and that there should be a new trial. (at p669)

OWEN J. I agree with the other members of the Court who are of opinion that the amount awarded was unreasonably high. I cannot usefully add anything to the reasons of my brother Taylor which I have had the advantage of reading. I would therefore allow the appeal. (at p669)

ORDER