Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 (25 February 1977)

HIGH COURT OF AUSTRALIA

GAMSER v. NOMINAL DEFENDANT [1977] HCA 7; (1977) 136 CLR 145

Practice (N.S.W.) - Damages

High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Murphy(4) and Aickin(5) JJ.

CATCHWORDS

Practice (N.S.W.) - Supreme Court - Court of Appeal Division - Powers - Damages for personal injuries - Subsequent discovery that injuries more serious than appeared at trial - Power to set aside judgment by reason of changed circumstances - Supreme Court Act 1970 (N.S.W.), ss. 75A (7), (8), (9) - Rules of the Supreme Court (N.S.W.), Pt 40, r. 9 (4), Pt 42, rr. 11, 12 (1).

Damages - Personal injuries - Damages found by trial judge reduced by court of appeal - Principles governing interference by appellate court with award of trial judge - Whether damages unreasonable.

HEARING

Sydney, 1976, November 3-4.
Melbourne, 1977, February 25. 25:2:1977
APPEAL from the Supreme Court of New South Wales.

DECISION

1977, February 25.
The following written judgments were delivered: -
BARWICK C.J. I have had the advantage of reading the reasons for judgment these reasons and the conclusion that the Supreme Court, Court of Appeal Division, had no power to set aside and reopen the judgment already given and entered and that there was no basis on which the Court could properly interfere with the amount of the judgment of the learned trial judge. (at p146)

2. In my opinion appeal no. 148 of 1976 should be dismissed and appeal no. 98 of 1975 should be allowed with costs the orders of the Supreme Court, Court of Appeal Division, set aside and in lieu thereof that it be ordered that the appeal to that Court be dismissed with costs. (at p146)

GIBBS J. I have had the advantage of reading the reasons for judgment prepared by my brother Aickin. (at p146)

2. I agree that appeal no. 148 of 1976 must be dismissed for the reasons which my brother Aickin has given. I regard it as unfortunate that the inherent power of an appellate court does not extend to varying its own orders when the interests of justice require it. It is of course a most important principle, based on sound grounds of policy, that there should be finality in litigation. However, exceptional cases may arise in which it clearly appears from further evidence that has become available that a judgment which has been given rested on assumptions that were false and that it would be manifestly unjust if the judgment were allowed to stand. In my opinion it is desirable that the Court of Appeal should have a discretion - however guardedly it might have to be exercised - to reopen its judgments in cases such as that in which the needs of justice require it. I agree, however, that the decision in Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529 shows that the Court of Appeal lacks that inherent power. (at p147)

3. I agree that appeal no. 98 of 1975 should be allowed and, subject to what is said below, am in general agreement with the reasons given by my brother Aickin for taking that course. There are two aspects of the matter, however, upon which I must express my own views. (at p147)

4. The learned trial judge assessed the damages in a global sum and did not attempt to attribute separate amounts to its various components. In Arthur Robinson (Grafton) Pty. Ltd. v. Carter [1968] HCA 9; (1968) 122 CLR 649, at p 655 , Barwick C.J. (speaking of the duties of an appellate court when asked to set aside a jury's award as excessive) warned of the danger of quantifying various items in isolation and then aggregating them to compare their total with the verdict. However, he did not deny "the utility of segregating some of the items which would necessarily have to have been considered in arriving at the ultimate figure". He also expressed the view that it was preferable that a 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" (1968) 122 CLR, at p 660 . In the present case we are concerned not with the role of a jury but with that of a judge sitting alone. With respect, I am unable to see how a judge can properly perform his duty in making an assessment of damages, in a case in which the personal injuries are serious and the award will therefore be large, without examining separately each of the main heads of damage and allotting, albeit tentatively and in a preliminary way, a separate sum to each head. Of course the judge must guard against the danger that he will give compensation for the same damage twice, under separate heads. But the assessment by a judge must be a process of methodical consideration, not one of ungoverned intuition. It will often - indeed usually, be convenient for the judge to reveal the details of his reasoning, if not the amounts forming the main components of the global sum, so that if he has fallen into error, that may be revealed and corrected on appeal. I have read what my brother Stephen has said on this subject in his judgment in the present case, and would respectfully express my agreement with his remarks. However, the fact that the learned trial judge did not itemize his award was no ground for interfering with it and it was not on that ground that the Court of Appeal allowed the appeal. (at p148)

5. The authorities have consistently recognized that when an appellate court is called upon to review an award of damages its approach must be different depending upon whether the award is made by a judge or by a jury. I said something on this subject in Precision Plastics Pty. Ltd. v. Demir (1975) 132 CLR 362, at p 364 . For present purposes it is unnecessary to multiply the citation of authority and it will be sufficient to refer to the observations made by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) AC 601, at pp 616-617 , which were cited with apparent approval by Dixon C.J. and Kitto J. in their joint judgment in Miller v. Jennings (1954) [1954] HCA 65; 92 CLR 190, at pp 195-196 :

"There is an obvious difference between cases tried with a
jury and cases tried by a judge alone. Where the verdict is
that of a jury, it will only be set aside if the appellate court is
satisfied that the verdict on damages is such that it is out of
all proportion to the circumstances of the case: Mechanical &
General Inventions Co. Ltd. v. Austin (1935) AC 346 . Where, however,
the award is that of the judge alone, the appeal is by way of
rehearing on damages as on all other issues, but as there is
generally so much room for individual choice so that the
assessment of damages is more like an exercise of discretion
than an ordinary act of decision, the appellate court is
particularly slow to reverse the trial judge on a question of
the amount of damages. It is difficult to lay down any precise
rule which will cover all cases, but a good general guide is
given by Greer L.J. in Flint v. Lovell (1935) 1 KB 354,
at p 360 . 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. It is not enough that there is a balance of opinion or
preference. The scale must go down heavily against the
figure attacked if the appellate court is to interfere, whether
on the ground of excess or insufficiency."

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 for the Court of Appeal to have interfered with that award. (at p149)

STEPHEN J. I have had the advantage of reading the reasons for judgment of my brother Aickin. In the case of appeal no. 148 of 1976 I agree that that appeal should be dismissed for the reasons stated by him, adopting as he does the views expressed by Glass J.A. in the New South Wales Court of Appeal. (at p149)

2. In the case of appeal no. 98 of 1975 I would again agree with Aickin J. in allowing that appeal and would, for myself, add only this: that so long as awards of damages for personal injuries 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. (at p149)

3. 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. (at p149)

4. 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 detriments 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. (at p150)

5. Having said this I nevertheless conclude that the learned trial judge's award of $150,000 should have been allowed to stand, for the reasons stated by Aickin J. I believe that there existed no ground upon which the Court of Appeal could properly have interfered with that award. It is for the foregoing reasons that I would dismiss the appeal in proceedings no. 148 of 1976 and allow the appeal in proceedings no. 98 of 1975, in the latter case setting aside the order of the Court of Appeal and restoring the order of the trial judge. (at p150)

MURPHY J. There are two appeals in this matter from a decision by the Court of Appeal of the Supreme Court of New South Wales to allow an appeal by the respondent (defendant) and reduce damages awarded to the appellant (plaintiff) by McClemens J. in a personal injury claim. (at p150)

2. The first appeal is from the Court of Appeal's rejection of the appellant's application based on various provisions of the Supreme Court Act 1970 (and Rules of Court under it) to reopen the appeal on the ground of fresh evidence showing a deterioration in his health and earning capacity since the appeal was decided. The provisions of the Supreme Court Act and rules which the appellant relied on do not sustain his claim. (at p150)

3. The rules are made by the judges of the Supreme Court and the Full Court's construction of them, although it is not conclusive (because the rules are subject to disallowance by either House of the Parliament), should be given great weight. Very clear language would be necessary before legislation (primary or delegated) would be construed to enable the Court of Appeal to reopen an appeal after judgment. (at p150)

4. In our system, when judgment on appeal is given, the appeal ends (Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529 ). The judgment stands, although slips in it may be corrected by the court. Questions of formality (such as whether entry of judgment is necessary) do not arise here and the procedure of separate action impeaching a judgment for fraud is not relevant. The first appeal should be dismissed. (at p151)

5. The appellant argued that apart from the Supreme Court Act and rules there was an inherent jurisdiction to reopen the appeal. Even if there were an inherent jurisdiction to reopen by reason of some extraordinary circumstances, there is no circumstance here which could possibly warrant the exercise of such a power. (at p151)

6. The second appeal was from the judgment of the Court of Appeal reducing the damages. McClemens J.'s assessment of $160,000 was reasonable and appropriate and the Court of Appeal underestimated the element of impairment of earning capacity in holding that the award was excessive. (at p151)

7. I would allow the second appeal and restore the judgment of McClemens J. (at p151)

AICKIN J. These two matters were heard together and each arises in an action in which the present appellant was the plaintiff seeking damages arising from an accident in which he had been struck by an uninsured motor vehicle being driven in a negligent manner. The accident occurred on 29th October 1972 and the proceedings were instituted in the Supreme Court of New South Wales in June 1973. The plaintiff suffered very extensive physical injuries which involved the amputation of both legs above the knee. The matter came on for trial before McClemens J. in October 1974 and on 22nd October judgment was given for the plaintiff. No question of liability remains. The trial judge gives a careful review of the nature of the plaintiff's injuries, his position and occupation and his condition, both physical and psychological, as at the date of the trial. It is not necessary at this point to repeat the terms in which the injuries are described. He had referred in qualitative but not quantitative terms to all the matters which enter into the assessment of damages in such a case and awarded the sum of $150,000 as general damages plus $10,000 as agreed special damages. Judgment was accordingly entered for $160,000. The defendant by a notice dated 5th November 1974 appealed to the Court of Appeal upon the ground that the damages were excessive. The matter came on before the Court of Appeal on 27th June 1975 and judgment was delivered on 30th June 1975. The principal judgment was delivered by Moffitt P. with whom Reynolds J.A. and Glass J.A. agreed, adding only short comments. The view which they took was that the damages were excessive and they substituted a verdict for $125,000. (at p151)

2. The appellant appealed from that decision by notice of appeal dated 18th July 1975, and the appeal was placed in the list of cases for hearing in the sittings of this Court at Sydney to commence on 16th March 1976. However, on 7th July 1975, i.e. after judgment was delivered in the Court of Appeal but before notice of appeal to this Court, the appellant suffered a "grand mal" seizure as a consequence either of the head injuries suffered by him in the accident or of the drugs administered to him for the alleviation of pain suffered in consequence of his severe injuries, or as a result of a combination of those two factors. In the course of the seizure the appellant suffered further fractures and injuries which required extensive additional surgical treatment. They produced the result that it is unlikely the appellant will ever walk again on artificial limbs even to the limited extent previously possible. Moreover, the state of epilepsy discovered in the course of this incident will render his future employment uncertain and his future life will be adversely affected. (at p152)

3. This appeal first came on for hearing in this Court on 7th April 1976 and the appellant then sought leave to amend his notice of appeal to add a further ground of appeal to the following effect:

"That since the hearing of the appeal before the Court of
Appeal further events have occurred which amount to fresh
evidence and which falsify the basis upon which the Court of
Appeal allowed the appeal by the defendant and substituted
a verdict of $125,000"

and further sought to adduce the fresh evidence referred to. This Court granted an adjournment of the matter in order to enable the appellant to approach the Court of Appeal of New South Wales to seek relief from that Court arising out of the events which occurred after its decision of 30th June 1975. (at p152)

4. By a summons dated 22nd June 1976 an application was made to that Court seeking an order that it should set aside its judgment and either grant a new trial or reassess damages on the ground that events had subsequently happened which falsified the basis of the judgment both of the Court of Appeal and of McClemens J. Evidence was placed before the Court of Appeal on affidavit by the appellant and by his solicitor exhibiting copies of medical reports. It appears from those reports that he had complained to his doctors of increased pain in about March 1975 and that X-rays were taken at the request of his surgeon which revealed that he was in fact suffering from a traumatic spondylolistheses. The surgeon's opinion was that this had occurred in the road traffic accident but had not been recognized at the time when he was treated at the end of 1972 at Orange Base Hospital and at the Royal Prince Alfred Hospital. The surgeon had told the appellant in March 1975 that it would probably require a further operation to "stablize this unstable condition when he walked about on his legs more than he was doing". The surgeon then said that "things were brought to a head when he had further injuries when he sustained an epileptic seizure at the North Side Clinic". Other medical reports referred to the physical, psychological and emotional problems arising out of that incident. (at p153)

5. The Court of Appeal heard the application on 5th August 1976. Moffitt P. and Hutley J.A. agreed with the judgment of Glass J.A. who reviewed the arguments which were advanced and the authorities cited. These arguments were again advanced in this Court. The arguments fell into two categories, the first based on various provisions of the Supreme Court Act 1970 and the Rules of the Supreme Court, and the second based on the inherent jurisdiction of the Supreme Court. All these arguments were rejected and the application refused. From that decision an appeal was lodged in this Court by a notice of appeal dated 26th August 1976. (at p153)

6. As to the first category, I am in agreement with the views expressed by Glass J.A. and need add very little. The first provision relied on was s. 75A (7), (8) and (9) of the Supreme Court Act 1970. Those provisions confer extensive powers on the Supreme Court with respect to the receipt of new evidence and the like but I agree that it is clear on the face of the section that they can be exercised only during the currency of an appeal and not after it has been determined and finally disposed of by entry of judgment. Reliance was also placed on the Rules of the Supreme Court, Pt 40, r. 9 (4) which gives power to vary orders. However, I agree that there is no escape from the conclusion that this matter plainly falls within the first exception to that provision, namely "except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief." The third argument was based upon Pt 42, rr. 11 and 12 (1) of the Rules of the Supreme Court which provide that "a person bound by a judgment may move for a stay of execution or some other order on the ground of matters occurring after the date on which the judgment takes effect and the Court may on terms make such order as the nature of the case requires". Whether or not the appellant is a person bound by a judgment within the meaning of that rule, the context makes it clear that the kinds of order contemplated do not include one setting aside a judgment regularly entered. I agree with his Honour's reasons for that conclusion. (at p153)

7. As to the question of whether there was in the Court inherent jurisdiction to make the order sought, Glass J.A. took the view that the decision of this Court in Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529 was fatal to the argument. In that case this Court held that when an appeal has been finally disposed of in a court of appeal by an order duly entered it has no inherent power to reopen the case on an application made after the order has been entered. That general proposition is no doubt subject to the rule that a judgment apparently regularly obtained may be impeached upon the ground of fraud, and there would seem to be no reason why that rule should not also apply to judgments upon appeal, although it is difficult to visualize how a judgment of an appellate court could be obtained by fraud, other than in circumstances in which the original judgment which the appellate court had upheld had itself been obtained by fraud. The majority judgments in Bailey v. Marinoff appear to me to make it clear that there is no inherent power to set aside judgments by reason of changed circumstances on application made after the case has been finally disposed of. It is sufficient to quote what Menzies J. said (1971) 125 CLR, at pp 531-532 :

"This appeal is not concerned with the power of a court to
alter orders in pending litigation. It is concerned with the
power of a court to make an order in litigation which, without
any error or lack of jurisdiction, has been regularly concluded
and is no longer before the court. To recognize the problem is,
I think, to solve it. However wide the inherent jurisdiction of
a court may be to vary orders which have been made, it
cannot, in my opinion, extend (to) the making of orders in
litigation that has been brought regularly to and end." (at p154)

8. In this Court it was argued that the cases there relied upon did not cover the situation of fresh evidence and that fraud was in truth an example or category of fresh evidence, but the cases do not recognize such a principle and indeed are inconsistent with it. (at p154)

9. I am therefore in agreement with the reasons of Glass J.A. on the argument concerning the inherent jurisdiction of the Court. In the result therefore I am of opinion that appeal no. 148 of 1976 should be dismissed. (at p154)

10. I now turn to the original appeal (no. 98 of 1975). The judgment of McClemens J. proceeded after a binding of negligence on the part of the driver of the unlicensed vehicle, which was not challenged in the appeal, to detail the extremely serious injuries suffered by the appellant. He described those injuries and the appellant's condition at the date of the trial. He adverted in his judgment to matters dealt with in the medical evidence affecting the loss of amenities of life, including the problems associated with the prospect of the appellant having a normal marriage and the problems connected with sexual relations. He reviewed the evidence relating to all aspects of his personal position, including the long period that he has spent in hospitals and the series of operations that he has experienced, including the expectation that there will be further problems arising from the amputations. It is important to note that the medical evidence was that it was extremely difficult to fit, and for the appellant to use, artificial limbs, and that the prospects of his being able successfully to use them other than for short periods of time and for walking short distances were unfavourable. The judgment dealt with the appellant's economic future. He had a permanent position with the Transport Department and it is likely that he will be able to keep it. McClemens J. does however point out that if anything should happen in relation to that employment his future employment prospects would be very limited indeed. He adverted to the additional expense involved in the way of living which is forced upon the appellant by his physical condition, including the necessary alterations to his living quarters to enable him to manage ordinary daily activities and the possibility of his requiring assistance, and finally he adverted to the psychological problem of mutilation. (at p155)

11. After this careful review of all the relevant factors, he awarded a sum of $150,000 general damages plus the agreed figure of $10,000 special damages. He did not indicate that he had arrived at that figure by a process of attributing particular sums to individual ingredients and in this respect he followed the indication which this Court had given in Arthur Robinson (Grafton) Pty. Ltd. v. Carter [1968] HCA 9; (1968) 122 CLR 649 that it is preferable not to attempt to assess a figure under each possible individual heading and then to add up the total. He noted that that was a case relating to a jury trial but regarded it as a general guide. There can certainly be no error in refraining from attributing separate amounts to various headings or topics regarded as matters to be adverted to in assessing general damages, and indeed it was suggested that error lay, not in his method of approach, but only in the quantum of the award. (at p155)

12. In the Court of Appeal the only suggestion made as to a point on which the trial judge may have erred in arriving at his assessment of damage is in the passage which reads: "It may be his Honour failed to apprehend some of the evidence concerning the present effect of the injury upon the respondent's sexual capacity, which his Honour stressed as very significant in respect of the respondent's prospects of having a normal married life." Earlier in his judgment Moffitt P. had said: "He had some sexual problems earlier, but on his own concession to the doctor who saw him just before the trial, this had improved or disappeared by the date of the trial." That no doubt is a possible view of the evidence but it is by no means the only view. In my opinion the trial judge was entitled on the evidence to regard that as a continuing problem, though there was a prospect or hope that it might disappear. What evidence there is on the matter does not point unequivocally in the direction suggested by Moffitt P. Dr. Seaton who had attended the appellant over a period of time had given a written report dated 15th February 1974 when he had last seen the appellant. He said in his oral evidence in answer to questions put by the judge, "I think it probable his impotence will get better. I feel getting used to his disabilities and having insight into his future, he is well equipped emotionally and physically for a reasonable marriage but obviously there will be difficulties," which he then described as "considerable difficulties". Another medical witness was Dr. Wilson, who was the Rehabilitation Medical Officer in the Department of Social Security and had seen the appellant in the period from January 1973 onwards. He said that the appellant had complained of the fact of impotence which he had had investigated. Asked whether it was likely to pass off with the passage of time he answered "When you say 'pass off', yes, I think it would pass off as I understand it, but it may well recur in the future provided certain circumstances of stress are similar" and a little later he said of the sexual problem "I don't think it is certain by any means what the outcome of this will be". Asked by the trial judge about the possibility of marriage he said "It might be a very good thing or it could be a disaster, as you so rightly point out" and added "I don't know of any way to prognosticate that". In a medical report by Dr. Gill dated 17th October 1974 which was put in evidence, it was stated "... his sex drive which was initially poor, has now returned". Dr. Gill however was not called as a witness. Dr. Wilson was not cross-examined, and in his cross-examination Dr. Seaton had expressed the cautious view that it was probable that the impotence would get better but that there would be considerable difficulties in relation to marriage. Dr. Gill's statement was not put to him. (at p156)

13. In my opinion it is not correct to speculate that the trial judge might have misapprehended this evidence. In my opinion the trial judge's view that there were great problems in relation to marriage was one which was entirely open on the evidence and moreover he expressly refers to the evidence of Dr. Seaton that he thought the impotence would get better. In my opinion there is no basis for thinking that he misunderstood this matter. (at p157)

14. Moffitt P. said:

"The case is one where it is proper to make some material
provision for future economic loss being prospective loss of
earnings and increased expenses of the type referred to. It is
not a case where any positive identifiable loss can be
demonstrated or where any calculation can be made. In
consequence, an appellate court in reviewing an award must
accord a wide discretion to the trial judge. This, however,
does not mean that the award is not examinable. If an award
as a whole is to be examined, it is necessary to consider what
might be attributable to the economic ingredient in the award
and be within reasonable limits. I do not think that a sum in
excess of about $25,000 could reasonably be justified in
respect of this part of the award.
On this approach, we should therefore interfere, unless it is
reasonable to attribute in the order of $125,000 to the
personal aspects of the respondent's injuries." (at p157)

15. He then went on to say, considering the latter aspects, that the award as a whole is excessive to a degree such that the Court of Appeal should interfere and said "having in mind what should be added to this somewhat generous approach to economic loss I propose that the total verdict to be substituted be $125,000". (at p157)

16. It is undoubtedly true that both "prospective loss of earnings" and increased living costs due to the appellant's injuries are imponderables in the sense that calculation of an amount in respect of them is not practicable. However, the risk that some such loss will occur and that some such expenditure will be incurred may properly be regarded as very high. If one looks at loss of "earning capacity", as one should, instead of "loss of earnings" the present case is better understood. Here the loss of earning capacity is affected by the fact that the range of jobs which the appellant could obtain and perform is drastically reduced, even in the field of office work and all else is excluded. The risk of future medical expenses and loss of working time arising out of further medical treatment is high. The risk of additional expenses in relation to personal and household assistance is likewise high, because it is manifest that a man with these injuries and disabilities could not look after himself entirely, and as time goes by is likely to be able to do less for himself than he can now. (at p157)

17. It is thus understandable that no basis for the choice of the figure of $25,000 was stated. What these considerations demonstrate is that this is not a case where it is useful to attempt to attribute a precise figure to a particular factor relevant to the award of general damages. It may in some cases be permissible to do so, but I do not consider that it can properly be said, as the Court of Appeal said, to be "necessary" to the process of examining whether a total sum awarded without attributing particular amounts to particular factors is wholly disproportionate to the circumstances. Unless calculations of some kind are possible and appropriate, little is achieved by attempting to give an unreal precision to economic loss, when that and all other individual factors are in truth incapable of calculation. What is to be determined in such a case as this is a total figure as compensation for all loss and damage, and in this respect I think that the approach of the trial judge was correct. (at p158)

18. As was said by Barwick C.J. in Arthur Robinson (Grafton) Pty. Ltd. v. Carter (1968) 122 CLR, at p 655 :

"It is the verdict as a single sum which must be juxtaposed
to the condition of the plaintiff which has resulted from the
(in) jury and its propriety considered ... 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."

This is in essence what the Court of Appeal has done in this case, even though the figure for economic loss is not a calculated one. (at p158)

19. The critical question however is not whether the sum which the Court of Appeal arrived at is one which could be supported in the circumstances but whether any basis is shown for interfering with the award made by the trial judge. The occasion for the Court of Appeal to arrive at its own view as to the proper amount of damages arises only if the case is one in which it is proper to interfere because the verdict is "out of all reason" or "unreasonably disproportionate to the circumstances of the injury". If it is thought proper for that purpose to consider one individual factor, and to quantify that, it is necessary that some explanation should be given as to how such quantification has been arrived at before one can confidently proceed to the next step of saying that the balance over and above the figure, e.g. for economic loss, is one which could not be regarded as proper for the remaining components. In the present case this Court has the difficulty which arises from the fact that the sum of $25,000 is stated as a maximum for economic loss without explanation as to how it is arrived at or what exactly has been classified as economic loss. (at p159)

20. For myself I can see no rational basis upon which one could choose a figure of $25,000 as the maximum which "could reasonably be justified" in respect of economic loss. The causes, the extent and the duration of economic loss to a man in the condition of this appellant are even more imponderable than such factors often are in physical injury cases. They are all in the future and to seek to quantify them separately as a total sum to cover all such losses at this stage in this case seems to me to be a difficult, if not an impossible, task. What is certain is that there is a substantial loss of earning capacity in the sense that prospects of promotion in his present job are reduced, and the range of alternative jobs which he could perform and which he might obtain is greatly diminished but no means of calculation is available. (at p159)

21. The problems arising when a challenge is made to a trial judge's assessment of damages have been examined in this Court in two recent cases, Precision Plastics Pty. Ltd. v. Demir [1975] HCA 27; (1975) 132 CLR 362 and Wilson v. Peisley (1975) 50 ALJR 207 . The judgments in those cases demonstrate the difficulties involved in the application of settled principles in this branch of the law to particular facts. I do not think that the present case depends on any matter where any difference of principle has arisen. It is sufficient to say that I regard the following observations of Barwick C.J. in the latter case as apposite in the present case (1975) 50 ALJR, at p 209 :

"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." (at p159)

22. 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 psychological 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". No doubt every case is in some sense "special", but there is no question that here the injuries and disabilities are unusually severe. I do not myself think that the figure is wholly disproportionate to these circumstances and I do not think that any basis has been shown for that conclusion. (at p160)

23. I am therefore of opinion that this appeal should be allowed, the order of the Court of Appeal set aside, and the order of the trial judge restored. (at p160)

ORDER

Appeal no. 148 of 1976 dismissed with costs.

Appeal no. 98 of 1975 allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.