FULLER v GALVIN

Kirby P The facts are set out in the reasons for judgment of Mahoney JA.

Newman J had an extremely difficult problem before him in this case. The plaintiff/respondent's pre-injury work history was rather unpromising. There was some evidence of a late change of lifestyle and a discovery of talent in theatre. But it was of comparatively short duration.

It was natural that the respondent should present his case as one to be assessed by reference to the promising source of stable income to which he could have hoped to look, but for injury. It was upon this footing that Newman J calculated the financial loss to the date of trial and the loss of economic capacity thereafter. The details are set out in his Honour's reasons They are summarised in the reasons of Mahoney JA. They provide the subject matter of this appeal.

Whilst I have full appreciation of the difficulties which Newman J faced (and the wide latitude which must be allowed to him to calculate damages on a foundation of imponderables), I have come to the view that the calculation made

is unrealistic. Whilst possibilities must be allowed for, it seems much more appropriate to me to rest the calculation of loss upon the foundation of the facts known as to the respondent's past income rather than upon speculation as to what might have been the case if he had not been injured and his theatre career had flourished.

The respondent's "paucity of earnings" in the past was revealed by his several tax returns for the three years before accident. For the year ended 1987, his taxable income was but $530. For the year ended 1988, it was $3,094. For the year ended 1989, it was $1,887. Against these proved realities and empirical facts, the optimistic calculations, based on a hypothesis of a theatre career, seem rather unconvincing and unrealistic. True, some provision would have to be made for the possibility. But in my respectful opinion, Newman J was far too optimistic in the view which he took of what the respondent would have been earning but for injury.

I agree with the appellant's submission that, as to past financial loss, an allowance of approximately $30,000 was much more in keeping with the established facts than the allowance of $61,000 which Newman J provided. I also agree that, as to future loss, there was an over-estimate of the real likelihood that the respondent would have continued as an actor/playwright. On the basis of his past, this was more of a dream than of likely reality. The allowance made should be half that which Newman J provided; ie it should be based upon an average nett weekly wage loss of $246. On this basis, with a further discount of 25 per cent for ie high level of contingencies in this case, the resultant lump sum for future economic loss would be $151,659.

There is no reason why this Court cannot reassess. There is every reason why it should. This Court is as well equipped as Newman J was, on the evidence, to peer into the respondent's but for injury earnings. Doing so, it can safely reassess the economic items which are in dispute. It should do so in this case.

APPLICABLE PRINCIPLES GOVERNING APPELLATE REVIEW OF DAMAGES

In my respectful view, it is a mistake to approach the task before this Court in the appeal as if it were simply a review of a discretionary decision invoking the principles in House v The King (1936) 55 CLR 499, 504 and other like cases. To a case of this kind, the following principles apply:

1. The review by this Court of damages fixed by a judge, sitting alone, is conducted differently from the review of a jury's verdict. This Court has the primary judge's reasons. Its function is more active, although that function is still to be exercised within limits established by law. Cf McLaughlin v Daily Telegraph Newspaper Co Ltd [No 2] (1904) 1 CLR 243, 277;

2. The limits include a proper respect to the advantages of the primary judge. Those advantages include not simply the conventional deference paid to the assessment of the credibility of the plaintiff and other witnesses by the judge who sees them. The advantages also include the opportunity, enjoyed by the judge, to view the trial in its entirety, as it unfolds and not through the selected pages of transcript and the filter of appellate advocacy. Lend Lease Development Pty Ltd v Zemlicka and Ors (1985) 3 NSWLR 207 (CA), 210;

3. The first question which the appellate court, reviewing an award of damages by a single judge, must ask is whether the award is wrong. The previous doctrine which restrained the appellate court from then acting on its own conclusions (see Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192, 198f) was overthrown by the principles established in Warren v Coombes and Anor

(1979) 142 CLR 531, 551. That decision signalled a less passive role for the Australian appellate courts in appeals of this kind. It recognised that an appeal is an assurance against the perpetuation of injustice which may result from the mechanical adoption of formulas. Such a new approach was really inherent in the establishment, by statute, of a right of appeal which did not exist at common law. It was particularly apt when the appeal was to be exercised, as in this Court, by way of rehearing. Subsequent reiteration of the principle of restraint in cases involving assessment of credit of parties and witnesses (eg Abalos v Australian Postal Commission (1990) 171 CLR 167) has never questioned the continued applicability of the principles stated in Warren v Coombes;

4. The suggestion that the review of damages verdicts in personal injuries cases invokes an approach akin to that involved in a review of the exercise of judicial discretion seems to have originated in Flint v Lovell [1935] 1 KB 354 (CA). However, generally, in Australian decisions, it has been acknowledged that the analogy is not perfect. The task is one "akin to" or simply "analogous to" review of discretionary decisions. See eg Lee Transport Co Ltd and Anor v Watson (1940) 64 CLR 1, 13. It is not exactly the same. Why should this be so? Because, with most judicial discretions, the criteria to be taken into account are more readily discernible. In putting a money value on pain and suffering, or even in computing loss of the value of economic capacity, a judge is inescapably plunged into the realm of informed speculation upon which the second opinion of others may be more useful than, eg, on a judicial decision to grant an adjournment or to extend time, etc; 5. The established principles for the review of discretionary decisions include, as a fall-back, the final imprecise criterion expressed in language such as:

"Tf notwithstanding that the precise nature of the error is not discoverable, the result is so unreasonable or plainly unjust that the court will infer that an error has been made."

See Wilks v Bradford Kendall Ltd (1962) 79 WN (NSW) 850 (FC), 853. This expression permits the appellate court, in a way which cannot be avoided, to bring to bear upon the primary quantification of a damages verdict its own consideration of whether that verdict (and the judgment which followed it) is unreasonable or plainly unjust. Upon such matters judicial, as other, minds will differ. But the function remains. It cannot be rebuffed by invocation of a judicial password "discretion - appellate courts keep out". The appellate court retains its own beneficial function of review resting, ultimately, upon the prevention of injustice;

This review is beneficial because, although provided in particular cases, it helps to set the standards which apply to all cases. It promotes settlement of cases by ultimately enforcing a broad judicial norm. The existence of that broad norm in the experience of appellate courts has been recognised. Planet Fisheries Ltd v La Rosa and Anor (1968) 119 CLR 118, 125. It helps to reduce idiosyncratic approaches and large disparities;

Finality is an important public policy in litigation, including in damages appeals. It sometimes appears to be in competition with the quest for justice. But finality is itself an attribute of justice. It provides a reason for appellate restraint in disturbing assessments of damages, even where the appellate judge would have entered judgment, on the same facts, in a greater or lesser sum. An appellate court will not overlook the costs, delays and other disadvantages of litigation. It will not "tinker with" a judgment. It will not "fine tune" particular components.

Nor will it interfere simply because it disagrees with elements of the award or with certain of the reasoning of the primary judge. Its function is to reconsider the orders of the court under appeal;

These rules of restraint arise out of the very purpose of appellate review. They are reinforced by the generality of the judicial phrases which are often used to justify interference or restraint in damages appeals. Such expressions as "wholly erroneous" or "out of all reason" or "beyond the range of a sound exercise of assessment" - are all ultimately unsatisfying. Formulae can be invented. But in the end, the exercise of judgment in each case cannot be disclaimed. The formulae simply send to the appellate judge messages of restraint;

In Moran v McMahon (1985) 3 NSWLR 700 (CA), 723, Priestley JA (with the concurrence of McHugh JA) drew attention to the distinction between pure quasi-discretionary evaluations of quantum of damages and reconsideration of the foundation inferences which may be essential to the calculation of damages, eg in cases of economic loss. In the former, an approach akin to review of the exercise of discretion is appropriate and mandated by authority. In the latter, it is not:

"Although the authorities I have discussed have in the main referred to the whole process of the assessment of damages for personal injuries as being in the discretionary area the aspect which has always given rise to the invocation of discretionary considerations has been the difficulty of translating into money terms the non-economic effect of the plaintiff's injury upon his life. It has been frequently pointed out that pain, suffering and the loss of amenities of life cannot in any understandable sense be equated with cash, at least, not in the same sense that the amount of money lost by a plaintiff in his out-of-pocket expenses and his loss of wages past and future can be. There does not seem to me to be anything discretionary or quasi-discretionary in the calculation of the amount of money lost by a plaintiff between the date of his injury and the date of the hearing of his claim for damages. Difficult questions of fact may be involved particularly when consideration is being given to the extent to which the plaintiffs injuries restricted his capacity to work but these questions are answered by the trial judge's evaluation of the facts. I do not know that it has ever been suggested that once he comes to a conclusion on the factual material before him he has any discretion to act on any other but that conclusion. Similarly, in regard to the plaintiff's loss of earning capacity from the date of judgment in his case into the future the trial judge is often faced with a difficult question of evaluation. Obviously different minds may evaluate differently the conclusion to be drawn from the factual material. Once again, this type of evaluation seems to me to be of a different kind from the evaluation made of the amount of money appropriate in the circumstances of the plaintiff's case to be included in his damages for the completely non-pecuniary element in his damages of pain, suffering and loss of the amenities of life."

Moran v McMahon has been repeatedly applied in this Court. I consider that it should be applied in the instant case.

When the above principles are brought to bear on the assessment under review here, it is my view that this Court has both the right and the duty to reconsider the foundations upon which Newman J's prediction of the respondent's economic damages rested. For the reasons which I have stated, I am of the opinion that his Honour was unduly optimistic about the respondent's but for injury earning

capacity. The inferences to be drawn from the respondent's past earnings required a much more cautious assessment of his future capacity. Hope and expectation were justified. But unbounded optimism was clearly not. Having come to that view, I consider that this Court is both authorised and required to disturb the resulting judgment. It does so to prevent an injustice to the appellant.

Non-economic loss $127,200.00 Treatment expenses $22,127.00 Future treatment and cognate expenses $57,153.00 Past economic loss $30,000.00 Future economic loss $151,659.00 Interest $4,676.45 TOTAL $392,815.45

2. Set aside the judgment entered by Newman J in favour of the plaintiff;

3. In lieu thereof, order that judgment be entered in the sum of $392,815.45;

5. Order the respondent to pay the appellant's costs of the appeal but to have, if qualified, a certificate under the Suitors' Fund Act 1951.

Mahoney JA On 6 January 1989 Mr Simon Galvin was injured in a motor vehicle accident. He suffered serious injuries, the results of which are both physical and emotional. It is accepted that, as the result of the accident, he is, as Newman J said, "incapable of carrying out any form of work and that this situation is permanent".

He sued the defendant in negligence. Liability was admitted. On 27 June 1994 Newman J gave judgment for the plaintiff for $488,833.66. The defendant has appealed to this Court against his Honour's judgment.

His Honour's judgment included three main components:

Past economic loss $61,000.00 Future economic loss $212,000.76 General damage $127,200.00

The defendant has, before this Court, submitted that the first two are excessive and that past and future economic loss should be re-assessed.

The submissions of Mr Petty, for the defendant-appellant, advanced two main reasons why these amounts were appealably excessive: because they were not justified by the plaintiff's work history; and because they were, if not inconsistent, at least not in accord with the trial judge's findings. In order to consider these submissions it is necessary to refer briefly to the relevant facts.

The plaintiff was, at the time of judgment, thirty-five years of age. His pre-accident work history was, the judge found, "extraordinary". Until a short time before the accident, he had engaged in regular employment only "occasionally". It is not necessary to recount what, during this period, he did: the details are set forth in the judge's judgment. But he had, through his family, an interest in the theatre and some five or six years before the accident, he had become involved in professional theatre. At that point his lifestyle appeared to

change. The judge concluded that he had "acting skills prior to the accident of an exceptional nature" and had exhibited also skills as a playwright and he put those to use.

However, it is the economic results of this which are in question. The judge found, and the finding is not contested, that "the plaintiff's acting engagements in the years 1983 to 1989 had realised him very little in terms of earnings. Indeed, he conceded that at one stage he had stated to a journalist on being interviewed, that he preferred playing music with a band, which realised him nothing in terms of earnings, to acting". During the two financial years prior to the accident, the gross fees for acting which he had received were of the order of $2145 and $1965 respectively. In the 1988-1989 year this amount had increased to $4301. The plaintiff's evidence was that when he was not acting "he would spend his time, on an unpaid basis, doing odd jobs for his then wife, in her hair-dressing salon". His Honour concluded that his work history was "erratic" and that, "despite his talent he would not have been able to earn a living on the stage". It was in the context of these findings that the judge was required to assess compensation for pre-trial and post-trial economic loss.

The judge was required to consider what, between 6 January 1989 (the accident) and 27 June 1994 (the trial), he would uninjured have earned. The evidence established that in 1989 the plaintiff had gone to the Northern Rivers area to join the North Coast Theatre Company. He had an arrangement under which he would have earned $375 gross per week from 20 March to 17 September 1989 and, no doubt, he hoped to have that arrangement continued. In fact, as the judge recorded, "that company has since folded". There was evidence that he might have derived income also from two sources. He had attempted to obtain work as an actor in television presentations. His agent had been enthusiastic in this regard and he had been associated with, or with a proposal relating to, one established programme. In addition, it was suggested for him that as a playwright he might have earned income. The judge was, I think, sceptical in this regard.

In this context, Mr Petty submitted, that it was wrong to find that over a period of five years and five months, he would have earned $61,000.

In considering this part of the plaintiff's case, the judge was required to determine, inter alia, two questions: what, uninjured, the plaintiff would have done; and what, in what he did, he would have earned.

Mr Petty submitted, and it has not, I think, been seriously contested, that the trial proceeded upon the basis that, uninjured the plaintiff would have devoted himself full time to (as I shall describe them compendiously) theatrical pursuits. I shall use that term to include acting, television performances and writing. It was not suggested that he would simply have changed to ordinary employment or have accepted other employment on a part-time basis.

On this basis, Mr Petty submitted, the award of $61,000 cannot be justified. It was, he submits, out of line with his previous earnings to suggest that his theatrical pursuits would have produced (I use a crude arithmetical measure) some $11,255 per annum. This was, as Mr Petty submitted, not justified by his previous earnings or his future prospects.

It is important, in considering these submissions, to understand the way in which his Honour arrived at $61,000. His Honour said:

"Tendered in evidence before the court were the average weekly earnings of all males in New South Wales. On a gross basis as at the time of the accident and through to the time when his engagement with the North Coast Theatre Company would have ceased on 17 September, the gross earnings for the average male exceeded those he would have earned as an actor with that company by amounts ranging between $150 to $175 per week. Assuming that the plaintiff was able to obtain regular employment as an actor - an assumption which is not, in my view, open on the evidence before me - on the North Coast figures, he would have been able to earn some 70 per cent of the average weekly earnings of all males in New South Wales.

Having regard to the erratacism (sic) of the plaintiff's work pattern I find, on a balance of probabilities, that an appropriate figure to award the plaintiff for past loss of earnings would be fifty per cent of the average net weekly earnings of all males in New South Wales. That figure comes to $61,000."

There had been tendered, ultimately without objection, details of the average weekly earnings to which the learned judge referred. It is not clear what probative force those figures had in the context: it is not clear what inferences could be drawn from them as to what, in the past or the future, the plaintiff would have earned. The parties were not able to inform the court whether, for example, the tender of these figures without objection was upon the basis that the court could and/or should draw inferences from average weekly earnings statistics of this kind as to what the plaintiff uninjured would have earned pursuing his theatrical career.

But it is, in my opinion, not necessary to decide what inferences can legally be drawn from statistics of this kind. The passage to which I have referred indicates the way in which the learned judge used the figures. If use was made of them, it was an indirect use only. The judge estimated what the plaintiff "would have earned as an actor with that company", ie, the North Coast Theatre Company, and found that it was below the average weekly earnings "by amounts ranging between $150 to $175 per week". He did not derive that from the statistics but from other evidence which was before him. That meant, as he said, that assuming he had been "able to obtain regular employment as an actor" he would have been able to earn some 70 per cent of such average weekly earnings. Upon the basis, which he adopted, that he would not have had "regular employment as an actor" but only something less, the judge reduced his estimate of what as an actor the plaintiff would have earned by reducing his full time regular employment income equivalent. He used the measure of reduction as one from 70 per cent to 50 per cent, not because the statistics warranted an inference as to what, part time, he would have earned, but as a convenient method of adjustment. The reduction was about 28.6 per cent.

The problem confronting the judge was obviously a difficult one. Had the plaintiff been successful, eg, in obtaining television work, his income may well have been significantly higher. The chance of his doing so could not be quantified. What would have happened in the North Coast Theatre Company had he not been injured is uncertain: his presence might have prevented it "folding". In such circumstances, bearing in mind the onus which a plaintiff bears, a judge may yet, in my opinion, make such estimates or speculations as the evidence permits. Having regard to the enthusiasm of those who spoke as to the plaintiff's future, I do not think that the reduction of the assumed income of an actor in regular employment which the judge adopted was wrong. In the end, what the judge found was that, with his undoubted talents as an actor, he would uninjured

yet have earned over the five year period only half of the average income figure to which he was referred by the parties.

The force of Mr Petty's submissions lies, I think, in the fact that no greater justification can be given for selecting the level of income which the judge applied than any other level. Reliance merely upon the income of earlier years was not justified. This was because, inter alia, of the offer made by the theatrical company and the prospects it held out; it could be inferred from this and from the development of his career that his prospects as an actor and accordingly his potential income had changed or were about to change. He had to start his inferences from the material provided by the theatrical company offer. In the circumstances, I think the conclusion reached by the trial judge was within the range of what was open to him on the evidence. I see no reason why another estimate would have intellectual cogency greater than that which the judge adopted. In my opinion it was an appropriate estimate to make.

In estimating future economic loss the judge concluded that the plaintiff's earning capacity "would represent seventy per cent as an optimum capacity of the average weekly earnings of all males". Again, the process of reasoning involved, I think, one similar to that to which I have referred but included the adoption of the 70 per cent rather than the SO per cent level. I infer that the judge saw the likelihood of an increase in earnings and measured the increase accordingly. Adopting an approach analogous to that to which I have referred, I do not think that there is appealable error in what the judge did.

In arriving at these conclusions, I am not unappreciative of the force of the submissions made by Mr Petty for the defendant: it is, in a sense, difficult to justify the inference of past or future earnings from evidence which is essentially as uncertain as the present evidence is. In the present case, two things at least may be said. First, as I have said, prior to the accident, because of the arrangements with the North Coast Theatre Company and in the light of what witnesses had said as to his theatrical career, the plaintiff had entered upon a phase of his career in which the earnings of the two previous years might be thought to provide little or no indication of what, for the future, his earnings would be likely to be. Upon this basis, the very small earnings of the two years to which I have referred provide little: if any indication of what his future earnings would be.

Second, the law has, in respect of the making of estimates and predictions of the present kind, taken an attitude as to what inferences may be drawn from evidence which, perhaps, it has not taken in relation to proof in other parts of the law. Government Insurance Office of New South Wales v Cox (1976) 50 ALJR 559, as an exercise in fact finding, is an example of the inferences which it is legitimate to draw. The deceased had contemplated deriving income from a small business which had hardly started and the prospects of which were not clearly established. The trial judge had inferred he would, for the future, have derived the equivalent of a weekly income from it, capitalised the lost income, and compensated his dependants accordingly, on the basis that the business would have prospered, over a number of years. Members of this Court tried to analyse the estimate which had been made by the trial judge of the future prospects of a man "young and at the very threshold of his life" and his capacity to enter upon a business which then had hardly begun. Doubts were expressed as to the inferences the trial judge drew. The High Court unanimously affirmed the right of a trial judge, in a context of such uncertainty, to make a prognosis involving the adoption of "a weekly sum" and the capitalisation of it. Barwick CJ: at 561;

said: "It is objected there was insufficient material in the case upon which his Honour could so find. I disagree. Of course in making a prognosis in cases of this kind judgment founded on the proved circumstances of the deceased, his character, his propensities and his performance to date must be exercised. Some considerable variation in personal opinion is to be expected in the making of such a prognosis, but mere disagreement in opinion will not establish error. No doubt a point may be reached where judgment, founded on such factors as I have mentioned, has gone astray and an unreal, unreasonable, disproportionate or fanciful prognosis has been accepted, but that, in my opinion, has not happened in this case."

Gibbs J accepted that the "doubt and uncertainty that exists in all cases of this kind" were "especially great" in that case; his conclusion was that the trial judge's estimate was to be accepted and that "the effect of that doubt and uncertainty" was that " it required stronger grounds to justify an inference with the assessment" than might otherwise be the case.

Ihave referred to these matters because of the force of the submissions which Mr Petty has advanced. Since Government Insurance Office of New South Wales v Cox, the nature of the reasoning process involved in the making of estimates of what a person will or may do, and the nature of the evidence and the inferences involved, have been the subject of reconsideration by the High Court. It has been referred to in Medlin v State Government Insurance Commission (1995) 127 ALR 180 and in the cases there referred to. Their Honours have emphasised the differences which exist in estimating past and future losses and have referred to

• perhaps redefined - the nature of the questions posed in such cases. In the present case, as I have indicated, the matter proceeded upon the basis that the plaintiff would, uninjured, have continued with his career in the theatre and to that extent the uncertainties as to his future are less than they would otherwise have been. Notwithstanding the submissions made by Mr Petty as to the nature of the reasoning process involved and the extent to which the evidence could justify the result arrived at, I do not think that grounds have been shown which, as Gibbs J said in the Cox case, would "justify an interference with the assessment made at first instance".

In my opinion the appeal should be dismissed with costs.

Powell JA Although the two elements in the award of damages made by Newman J which have been the subject of challenge are, in His Honour's Judgment, described, in the way which one has come to expect, as "past economic loss" and "future economic loss", it is to be remembered that, in cases such as this, an injured plaintiff recovers damages for loss of, or impairment to, his capacity to earn, rather than a direct recovery of past or future lost earnings. This being so, a plaintiff who seeks to recover damages under this head must establish, not merely an injury, and a consequent diminution of his earning capacity, but also that that diminution in capacity has been, or may well be, translated into financial loss.

When it comes to determine whether, in any particular case, it has been established that the plaintiffs diminution in capacity has been, or may well be, translated into financial loss, a court, so it seems to me, must determine. first, what, but for the relevant injury, and consequent diminution of capacity, may well have been the plaintiff's capacity to earn, and, thus, the income which, in the event supposed, it was likely that he would, in the past, have earned, or would, in the future, earn; and, second, what he has, in the past, earned, and, in the future, is likely to earn. While, in the case of a plaintiff with an established, and

lengthy, record of past employment, the determination of such questions may not be a particularly burdensome task, what must not be lost sight of is that the determination of each such question involves the court in making value judgments, that is, as to what was likely to have happened in the past, and as to what is likely to happen in the future.

That such value judgments are involved to my mind dictates the approach which one must adopt to a case such as this, for, in making of such judgments, there is room for a great variation of approach, and the fact that one may differ from the judgment under appeal does not demonstrate error - error will only be demonstrated if the judgment under appeal is shown to contain one or other of the features referred to in the well-known Judgment of Dixon, Evatt and McTiernan JJ in House v The King.! The primary challenge which, in the present case, has been made to the assessment made by Newman J is that no sufficient foundation for that assessment Is to be found in the evidence. I do not agree. Although it is true that if, at any time prior to 1983, one had been called upon to make some prognosis as to the plaintiff's future, his past record would, more likely than not, have led one to describe it as bleak, the events of later years would seem to indicate that the plaintiff had a particular talent in matters theatrical and that, while doing so may well have taken years, and involved a degree of good fortune, the plaintiffs capacity to earn - whether as an actor or a playwright - in the theatre, or in films and television, may well have increased significantly. If that were to have occurred, then, so the evidence of a former theatrical agent, Mr Holt, would suggest, the income which the plaintiff might then have earned would have been far in excess of the figures which Newman J adopted as the basis for his calculations.

In the result, and despite being of the view that the assessment made by Newman J was rather more generous than that which, if I had been the trial judge, I would have made, I have concluded that no appealable error on His Honour's part has been shown, it following, in my view, that the appeal should be dismissed with costs.

Appeal dismissed with costs. Counsel for the appellant: GR Petty

Solicitors for the appellant: Solicitor for Government Insurance Office of New South Wales

Counsel for the respondent: DA Wheelahan QC with GM Radburn