Gamser v Nominal Defendant

Gamser v Nominal Defendant - [1977] HCA 7 - HCA 1977 case summary — Zoe

[8]

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 [2] , 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" [3] . 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.

[11]

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 [7] . 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 [8] . 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. 1. (1975) 132 C.L.R. 362, at p. 364. 2. [1942] A.C. 601, at pp. 616-617. 3. (1954) 92 C.L.R. 190, at pp. 195-196. 4. [1935] A.C. 346. 5. [1935] 1 K.B. 354, at p. 360. Stephen J.

[37]

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 a glance

Court

Decision date

Before

Source

Judgment (51 paragraphs)

Parties