Geelong Leather Pty Ltd v Delaney [2014] VSCA 98

1 I have had the advantage of reading in draft the reasons for judgment of Beach JA. For the reasons which his Honour gives, I too would dismiss the appeal.

2 Mr Michael Delaney, the respondent, was employed by Geelong Leather Pty Ltd, the appellant, for a period during 2008 and 2009. On 12 June 2009, the respondent was stacking hides with a fellow employee, in the course of his employment with the appellant, when the respondent noticed a twinge and heard a popping sound in his lower back. A subsequent MRI scan showed a focal right posterolateral shallow disc protrusion which was impinging on the right L5 nerve.

3 Following the suffering of this injury, the respondent issued a proceeding against the appellant in which the respondent claimed that he suffered injury in the course of his employment with the appellant, and in particular in the course of his employment on 12 June 2009. The respondent claimed that he suffered injury as a result of the negligence of the appellant and/or as a result of breaches by the appellant of provisions of the Occupational Health and Safety Regulations 2007 (Vic). The respondent's claim was brought pursuant to s 134AB of the Accident Compensation Act 1985 (Vic) ('the Act') for 'pain and suffering damages' as that expression is defined in s 134AB(37) of the Act.[1]

4 On 28 August 2013, the respondent's proceeding came on for hearing in the County Court before a judge and jury of six. At the commencement of the trial, the appellant admitted liability, with the result that the sole issue at trial was the assessment of the respondent's pain and suffering damages. After a trial lasting five days, the jury assessed the respondent's damages in the sum of $385,000. Judgment

was then entered for the respondent in the sum of $373,725, being the jury's verdict reduced, pursuant to s 134AB(25)(b) of the Act, by the sum of $11,275.

5 The appellant now appeals from the judgment entered against it. The sole ground of appeal is expressed as follows:

The jury verdict of $385,000 is perverse, manifestly excessive and not open on the evidence.

6 At trial, the respondent and his former partner, Ms Sebastiana Falcone, gave evidence. The respondent called his general practitioner, Dr Robert Rawet, and his treating orthopaedic surgeon, Mr David de la Harpe. Reports from the orthopaedic surgeons, Mr Kevin King and Mr John O'Brien, were read into evidence on behalf of the respondent.

7 The appellant called the respondent's solicitor, Ms Patricia Toop. Ms Toop was called for the purpose of tendering a letter written by her to the solicitor for the appellant. The letter was dated 26 August 2013. The letter advised that 'At this stage our instructions are that our client is not willing to undergo further surgery as recommended by Mr David de la Harpe'. Additionally, the appellant called an orthopaedic surgeon, Mr Michael Dooley. The appellant also relied upon surveillance footage taken over a five day period from 9 February 2012 to 18 February 2012. There was approximately 25 minutes of this film. The film showed the respondent walking, standing and talking to a friend and performing various bending actions in or around his car.

8 The balance of the evidence tendered at trial comprised exhibits produced from the parties' court books.

9 The following summary of the background facts is largely taken from an agreed summary of proceedings, facts and issues filed by the appellant in this appeal.

10 The respondent's date of birth was 24 June 1966 and he was 47 years of age at the time of trial. He had never been married. However, at the time of trial he had a 13-year-old son from his previous relationship with Ms Falcone.

11 The respondent attended school until he was 16 years of age. After leaving school he had a number of labouring jobs. However, from 1986 to early 2006 he worked in a range of more skilled positions, including storage supervisor, personal trainer, area manager for a health insurance company and sales manager.

12 In early 2008 the respondent began doing manual labouring work with a new employer. After about six months with that company, he began to work for the appellant, initially as a leading hand in the salting shed, and later as an ordinary labourer. The respondent worked between eight and 10 hours a day. The respondent estimated that, at peak times, between 11,000 and 12,000 (sometimes as many as 13,000) hides were processed through the salting shed each day. The manual handling aspects of the respondent's work involved him carrying hides to different pallets, as well as folding and flipping hides. He described the work as 'extremely strenuous'. He estimated that the larger hides weighed around 80 or 90 kilograms, and the small hides weighed around 30 or 40 kilograms. Whilst other employees of the appellant were rotated from heavy lifting work to lighter work every hour or so the respondent was not: he was lifting all the time.

13 In around early June 2009 the respondent noticed twinges up and down his spine. He would get a stabbing pain, which he would try to stretch out. On 12 June 2009 the respondent had been working for about two hours and 20 minutes and was stacking hides with a colleague when he noticed a twinge and heard a popping sound in his lower back. The sensation went down both sides of his legs. The pain radiated up from his buttocks to his spine and down both calves. He had never before noticed a popping sensation in his spine.

14 The respondent reported the incident to the appellant's OH&S Officer. The respondent was in agony, and could hardly walk. He drove his car to the Werribee Mercy Hospital, where he remained for about five hours. He was given Tramadol and Panadeine Forte for pain. When he drove home from the hospital, he was still in pain. The respondent returned to work on light duties about three weeks later.

15 Following this work incident, the respondent attended on the Primary Healthcare Medical and Dental Centre at Hoppers Crossing, where he saw Dr Zeebri. Dr Zeebri sent him off for a CT Scan on 17 June 2009. That scan showed impingement at the L4/5 level. The respondent was then referred by Dr Hargraves (also of the Hoppers Crossing medical centre) to Mr de la Harpe.

16 The respondent first saw Mr de la Harpe on 4 August 2009. The respondent reported sore legs and pain radiating down the back of the spine and his right leg, and sometimes his left leg. Before seeing the respondent, Mr de la Harpe referred the respondent for an MRI Scan. This scan took place on 16 July 2009. The scan showed a focal right posterolateral shallow disc protrusion which was impinging on the right L5 nerve. Following the MRI, Mr de la Harpe recommended that the respondent undergo a microdiscectomy, which is a keyhole procedure in which the impinging disc material is removed in order to remove or reduce the sciatic pain. That procedure was performed on 12 October 2009.

17 The respondent gave evidence that following this procedure 'there was still constant pain in [his] right leg and the middle of [his] back but it wasn't as bad as it was before'. The respondent did not return to work following the surgery. Following the operation, the respondent was able to bend and squat to some degree and could undertake some activities of daily living. Following a consultation in December 2009, Mr de la Harpe was of the view that he was doing pretty well and gave him an essentially optimistic prognosis.

18 In the years following the microdiscectomy, the respondent underwent hydrotherapy, swimming, walking and modified gym activities. He did not have any physiotherapy. Although the pain was not as bad as before the surgery, he still had pain.

19 By 2012 the respondent's pain was getting worse. He was experiencing pain shooting up and down his spine and right leg, from his calf area to his buttocks and lower back. Dr Rawet referred the respondent for a further MRI, which was performed on 24 July 2012. The respondent saw Mr de la Harpe on 7 August 2012, following which he understood that he may need a further operation. His understanding was that Mr de la Harpe recommended a laminectomy, but did not give a time frame for the procedure.

20 In around June 2013 Dr Fryer (a doctor at the same medical centre as Dr Rawet) referred the respondent for CT guided steroid facet joint injections on his left and right sides at the L4/5 level. The respondent experienced no discomfort from the left side injection but was in 'absolute agony' as a result of the right side injection.

21 The respondent returned for review by Mr de la Harpe on 22 July 2013, at which time the respondent understood that Mr de la Harpe recommended that he undergo further surgery.

22 As to the evidence concerning the respondent's pain and suffering and the effects of the respondent's injury, the respondent gave evidence that he had good and bad days. On a good day he would still get referred pain down his back to his leg, but he could get around; it was manageable. On a bad day he could hardly walk - the back pain would shoot up his spine and he would have to lie on his left side. He estimated that the split of good and bad days was 50/50.

23 Some days, back pain affects the respondent's ability to sit or stand. Sometimes after standing for 15 or 20 minutes he would get pain at the base of his spine and down his legs. There was always some pain when he was in a seated position. Sometimes he could sit for an hour or two hours before experiencing increased pain.

24 Most of the time, leaning forward or bending down to pick something up would result in the respondent feeling a twinge, which would cause him to jump back in pain. He said that while this did not happen on every occasion, it did happen on the majority of occasions that he leaned forward or stretched or hyperextended.

25 Approximately 25 minutes of surveillance DVD covering a five day period from 9 February 2012 to 18 February 2012 was played to the jury at trial. The DVD showed the respondent walking, standing and talking to a friend, and performing various bending actions in or around his car.

26 After being shown the surveillance footage, the respondent conceded that he had been wrong to suggest to the jury, earlier in his evidence, that on the majority of occasions when he leaned forward or bent down to pick something up he would get a twinge in his back or down his right leg. He agreed that the footage of him bending over forwards into the back seat of his car did not show him recoiling or grimacing with pain. He said that 'the honest answer is that sometimes I have good days and sometimes I have bad days'.

27 The respondent gave evidence that his levels of pain had deteriorated over time. He said his pain was probably about six out of 10. At the time of trial the respondent was taking Panadol Osteo and Meloxicam for pain relief. He said that without such medication he could hardly walk and would get pain up his spine. The medication helped to keep that pain at bay a bit, he said he would still have the pain but it would not be as rapid. He thought he should have the further surgery recommended by Mr de la Harpe.

28 The respondent had been a keen runner. In days gone by he could run up to 28 kilometres a day. During his employment with the appellant, the respondent would either run or cycle three or four kilometres every second night. He could not run following his work injury.

29 The respondent had been a gym enthusiast for about 20 years. His gym work included chest, back, triceps and biceps work, as well as sit-ups and cycling. He estimated he could bench press as much as 250 pounds. The respondent acknowledged that he did not do as much gym work during his employment with the appellant due to all the heavy lifting he was required to do at work.

30 Notwithstanding the respondent's injury, he had at all times since his operation attended the gym regularly. His gym activities included cycling for around 20 minutes, bench presses, crunches, triceps extensions, bicep work and pulldowns. He also did shoulder presses and calf raises. He was able to lift significant weights. For example, he estimated he could bench press around 90 kilograms. He would do six to eight repetitions of 60 kilograms, followed by two to three repetitions at 70 kilograms, and then two to three repetitions at 90 kilograms, before working his way back down through the lower weights. He estimated that each work out would take him about an hour or an hour and a half, and he would do this two or three times a week. He also did core strengthening work. Mr de la Harpe was cross-examined about the respondent's gym work. Mr de la Harpe said that most of the gym work described by the cross-examiner to him 'would be in keeping with exercising parts of the body without putting strain through the lumbar spine'.

31 In the past, the respondent had been involved with his son's sporting activities, including Auskick, athletics and cricket. Following his accident he could not run, kick a football and could 'hardly mark'. If he has a kick of the football with his son he was very sore afterwards. He mainly restricted his activities to hand passing to his son. After about four or five minutes of any throwing activity, the respondent would get pain in his lower back. Whilst he could bowl a ball to his son for a while he said he would 'pay for it' afterwards.

32 The respondent lives by himself and although he is able to cook and clean he said that these activities were 'not easy'. For example, if he tried to vacuum or disinfect the floor he would feel shooting pain up his leg and spine. He could cook over a stove for about five or 10 minutes before experiencing back pain. If the pain came on he would have to stop what he was doing and lie on his left side until he felt a bit better. He has a garden at home, which he looks after. He is able to mow the lawn, though this could cause him problems the next day.

33 His sleep had also been affected - he could no longer sleep on his right side. The respondent found the impact of his injury on his sexual relations to be 'worse than anything'. If he engaged in sexual activities he would hardly be able to walk the next day, because of movements involved.

34 As to the respondent's vocational capacity, this was limited because of the impact of his injury on sitting, standing, jumping, running, twisting - all the sorts of movements that play a role in everyday life. However, other evidence suggested that the respondent could manage light jobs, such as office work and car rentals.

35 The respondent continued to drive and said that sometimes this was okay, but sometimes he would drive down the road and start experiencing pain down his right side. He would have to pull over and walk around the car and stretch and hope the pain went away. He described this as 'irritating'.

36 Ms Falcone gave evidence that prior to his injury he had been a 'very sports oriented guy, very active and very fun, outgoing'. She said that the respondent prioritised running and going to the gym. He was a very fit man. She said that when their son was about two years of age, he and the respondent started kicking the footy together; they were constantly doing things outside together.

37 Since the respondent's injury, Ms Falcone had noticed a change in his ability to engage in recreational activities with their son. While the respondent would still go to sports matches to watch their son, he was not able to engage in other activities such as training him. He might be able to pass the ball to his son, but he was not the same as he used to be.

38 Despite this, the respondent and his son had an excellent relationship. Up until a few months ago they had seen each other every weekend. On access weekends she and the respondent would alternate driving duties between Lalor (where she lives) and Werribee (where the respondent lives). That is, the respondent would either drive to Lalor to pick up their son, or drive back from Werribee to Lalor to drop him off. The journey from Lalor to Werribee took about 45 minutes.

39 It is not necessary to set out all of the medical evidence. The appellant accepts that, in determining the appellant's appeal, this Court is required to have regard to the evidence most favourable to the respondent.[2] In its outline of submissions, the appellant summarises the evidence concerning the respondent's injury and treatment that is most favourable to the respondent as follows:

(a) An MRI film dated 16 July 2009 showed a disc bulge at L4/5 and some early deterioration of the disc at the L5/S1 level.

(b) On 12 October 2009 Mr de la Harpe performed a microdiscectomy to relieve or reduce the respondent's sciatic pain. Following this procedure the respondent continued to experience pain 'but it wasn't as bad as it was before'. Following a consultation in December 2009, Mr de la Harpe was of the view that he was doing pretty well and gave him an essentially optimistic prognosis.

(c) Over time leading up to the date of the trial the respondent's pain increased due to the development of a moderately severe L4/5 lumbar canal stenosis secondary to a central and left L5 disc prolapse, and mild bilateral facet joint impingement of both L5 nerve roots within both lateral recesses. The MRI of 24 July 2012 also showed lumbar canal stenosis at L5/S1.

(d) The degeneration at L4/5, as reported in the 2012 MRI, was causally connected to the respondent's work injury, whereas the pathology at L5/S1 evident on the 2012 MRI was most likely an age-related change. Accordingly, the respondent's lumbar spine was vulnerable at that level, absent the work injury, and may have been productive of lower back symptoms in his lifetime.

(e) In around June 2013 the respondent underwent CT guided facet joint injections on his left and right sides at L4/5. He experienced no discomfort from the left side injection but was in 'absolute agony' for a time as a result of the right side injection.

(f) There was a real possibility that the respondent would require a laminectomy at L4/5, with or without a fusion at some point following the trial in order to relieve or reduce his symptoms. Surgery might also involve the L5/S1 level. If a fusion was indicated it would likely be a fusion at both levels, as fusing only L4/5 would put too much strain on the disc below. The respondent deposed that he would undergo any further surgery recommended by Mr de la Harpe.

40 In his final address at trial, the respondent's counsel submitted to the jury that the appropriate level of compensation for the respondent's injury was $400,000. The respondent submits to this Court that, in the event the appellant wished to take issue with this figure, it was incumbent upon the appellant to have done so at trial. The respondent submits that no complaint was made by counsel for the appellant at trial[3] that the figure of $400,000 was not open. Further, the respondent submits that in the circumstances it ought not be open to the appellant to now make this submission.

41 There would be much force in this submission if, as the respondent submits, no complaint was made by the appellant about the respondent's submission at trial concerning the appropriate quantum of the respondent's damages. It is highly undesirable that, where figures are to be put to a jury, an opposing party does not take appropriate issue with any figure that they submit would not be open to be arrived at by the trier of fact. Taking issue with figures at trial enables the matter to be debated before the trial judge who has seen and heard all of the relevant witnesses. The reasoning of a trial judge who has seen the witnesses is likely to be significant in the resolution of an issue as to whether a particular monetary figure was or was not open on the evidence.

42 That said, the appellant disputes the respondent's proposition that the appellant failed to take issue with the figure of $400,000 at trial. In the circumstances, it is necessary to examine what was said at trial on this issue.

43 The issue was raised on the last day of the trial. It was raised by counsel for the appellant as one of 'a couple of housekeeping matters'. Counsel for the appellant told the judge that he had been informed by counsel for the respondent that counsel for the respondent proposed to put a figure of $400,000 to the jury in his final address. Counsel for the appellant then said to the judge:

My client has instructed me to object to that figure being put. I have no further submissions to make, your Honour.

44 The judge then asked counsel for the appellant whether he was going to put a figure. Counsel for the appellant responded in the negative. The judge then asked counsel for the respondent what he wished to say. Counsel for the respondent said:

Well, I'm permitted to put a figure to the jury, on the basis of the evidence that we submit would support that verdict.

45 There was then a discussion between counsel for the respondent and the judge as to a summary of the evidence relied upon by counsel for the respondent. During this discussion, there was reference to the jury verdict in Pasqualotto v R & L Pasqualotto,[4] where the jury had awarded $400,000 for pain and suffering damages in a case involving a back injury with surgery.

46 Following this discussion, the judge asked counsel for the appellant whether he had any cases he wanted to refer the judge to. Counsel for the appellant's response was:

No, your Honour, but just that [the summary given by counsel for the respondent to the judge] might overstate the evidence a little.

47 Counsel for the appellant then appeared to submit that counsel for the respondent's summary might have overstated the likelihood of a fusion. Further he submitted that the issue in respect of a laminectomy was 'just a question of timing'. The following exchange then occurred:

HIS HONOUR: Well, they are a matter of submissions on the evidence.

APPELLANT'S COUNSEL: Precisely, yes.

HIS HONOUR: Why can't he put $400,000?

APPELLANT'S COUNSEL: I have no other further (sic) submissions to make, your Honour.

HIS HONOUR: Alright, yes. Well, I do not propose to do anything at the moment.

48 The appellant's counsel then addressed the jury. In the course of his address, the appellant's counsel said:

He [the respondent's counsel] has told me what he's going to ask for, for damages in this case. He is going to ask for $400,000 to be paid to the plaintiff on account of what you saw in the witness box; what you saw on the DVD; what you've heard from the doctors. That is his idea of a significant award of damages. We say that figure is not fair and reasonable and we say that, in your job as the triers of fact, a very important part of you doing your duty in this case, is to keep it real and we say that's an unrealistic figure, way too much, for what you saw, for what this man suffered and for his injuries and what might happen in the future. They are all really important things.

49 Counsel for the respondent then addressed the jury. At the conclusion of his address, counsel for the respondent said:

Now, the totality of all of those factors, the interference in his lifestyle, the fact that he's had one failed operation, the fact that there's plenty of pathology still there, the fact that the pathology is not only L4/5 warranting a laminectomy there, but also at L5/S1, creating a risk either of a laminectomy or of a double level fusion. All of those are matters which go to take this case into a high level range of assessment of damages for pain and suffering and loss of enjoyment of life, and it is in those circumstances that our submission to you is that the appropriate sum of compensation - not forgetting that it is past, future and for the rest of his life - the appropriate level of compensation was $400,000 to cover that loss to the plaintiff.

50 Following the respondent's counsel's address, counsel for the appellant took issue with four matters in the respondent's counsel's address. One of those matters included the reference to risk rather than likelihood of future surgery, but otherwise no complaint was made at this point in the trial about the figure of $400,000 being put to the jury. No other complaint was made about the concluding part of the respondent's address set out above.

51 The judge then charged the jury. His Honour referred to the appellant's figure at three points during the charge. These references were in anodyne terms. On the third occasion his Honour referred to the matter, his Honour said:

You are deciding the case and [counsel for the respondent] puts a figure to you of $400,000 for pain and suffering and loss of enjoyment of life. There is no formula for these things. You are not allowed to go and look up your computers and see what is happening in America or anywhere else. It is a figure that he puts.

[Counsel for the appellant] says to you that it is far too much and it is based on everything that has not been proved.

You are not going to get any help from me on the figure. I am not going to suggest a figure to you at all. It is something that you are going to have to discuss intellectually and work out what you think is fair and reasonable, being fair to both parties, not being overly generous on the one hand, but do not be, as [counsel for the appellant] correctly says, stingy either. It has got to be fair and reasonable compensation for what he has lost in his life and what he will lose in the future.

In particular, it is said that what was elicited from Mr de la Harpe in cross-examination is that the spine is 20 years down the track to what it should be. ... [Counsel for the appellant] says, look, it is a matter for - whether you think he is exaggerating but he [counsel for the appellant] says 'he [the respondent] could do a wide range of these jobs because he can do the gym work' but he does not suggest to him he can go back and do that heavy manual work anymore than the doctors say that is what he could do.

52 The appellant's approach at trial in respect of its complaint about the respondent putting a figure of $400,000 was not entirely helpful. The judge was left to guess the basis upon which the appellant took objection. The judge received little assistance from the appellant on this issue. Further, and in any event, on one view, the appellant gave the issue away when its counsel agreed with the judge, by responding 'Precisely, yes', when the judge said that such issues as were raised by counsel for the appellant were 'a matter of submissions on the evidence'.

53 Counsel for the appellant submitted to us that the respondent's counsel below 'had waited until the very last opportunity to inform counsel for [the appellant] of the figure he proposed to put'. In those circumstances, it was submitted, 'It should not be inferred that the failure of counsel for [the appellant] to develop an argument that the figure was excessive demonstrates that [the appellant] accepted that the figure of $400,000 was within the range of damages, particularly in light of [the appellant's] express objection to that figure'.

54 I accept that it should not be inferred that the appellant accepted the figure of $400,000 was within the range of damages available to be awarded to the respondent. However, the conduct of the appellant below in taking an objection to the figure of $400,000, without advancing any submission in support of its objection, is not to be encouraged. Putting submissions to a trial judge about why a figure is outside the range of damages open to the jury enables the parties and the judge (who have all seen the witnesses and the way in which they gave their evidence) to put on the record matters that an appellate court may be unable to discern from a mere reading of the transcript of the trial.

55 As to the suggested lateness of the respondent's counsel informing his opponent of the figure he proposed to put in final address, it is a matter of common occurrence that counsel for the party addressing second will, if he or she wishes to put figures, inform his or her opponent on the morning when addresses are scheduled to commence (after all, that is when the evidence has concluded, and one can take stock of what submissions might be available to be made in final address). It is no answer to the lack of assistance given by the appellant to the trial judge to say that counsel for the respondent 'waited until the very last opportunity' to inform his opponent of the figure he proposed to put. Those who appear for parties in this sort of litigation are expected to be able to put a proper submission about matters which they wish to contend are not open on the evidence, once the evidence is concluded. In this case, one is left with an impression that counsel for the appellant below found himself instructed to make a submission which he did not consider was open to be made in the independent exercise of his duty. In any event, the appellant gave no real assistance to the judge in an area where assistance could reasonably have expected to have been given. That said, I turn now to the appellant's complaints in this appeal.

56 In the appellant's outline of submissions, reference is made to six awards of pain and suffering damages by judges of the Trial Division in cases which are said to be 'comparable'. The cases were Acir v Frosster Pty Ltd,[5] Bozic v Bartter Enterprises Pty Ltd,[6] Clark v Tieman Industries Pty Ltd,[7] Crowe v Trevor Roller Shutter Services Pty Ltd (No 2),[8] Franklin v Kone Elevators Pty Ltd[9] and Butcher v Australian Tartaric Products Pty Ltd.[10] The cases span a period of some five years. The awards of pain and suffering damages in these cases range from $140,000 to $315,000.

57 The cases referred to by the appellant do not provide any great assistance. It might be said that these cases do not provide much more assistance than might be provided by an examination of the facts in the jury trials of Wodonga Regional Health Services v Hopgood[11] and Pasqualotto v R & L Pasqualotto[12] where, in different back injury cases, different juries awarded each of the plaintiffs in those cases the sum of $400,000 for pain and suffering damages.[13] Like all personal injury cases, each of the cases referred to is fact specific. None of the cases referred to is a precedent for any other case in terms of the amount that may be awarded for pain and suffering and loss of enjoyment of life.

58 In Planet Fisheries Pty Ltd v La Rosa,[14] the High Court considered a submission by the appellant that, in deciding whether or not an award of general damages was excessive, the Court should seek out a norm or standard from previous decisions, by comparison with which an award said to be disproportionate might be measured. The Court said:

We would emphatically reject this submission. It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgement in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. ... The principle to be followed in assessing damages is in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.[15]

59 When Planet Fisheries[16] was drawn to the attention of counsel for the appellant in argument, the appellant accepted that the awards of damages to which the appellant had referred in its submissions could not be used to derive a norm or standard. However, the appellant maintained that there was utility in looking generally at past cases as a guide by which an appellate court can assess the reasonableness of a jury's verdict. I accept that submission.[17]

60 In its submissions to this Court, the appellant then made complaint about two specific aspects of the respondent's final address: first, complaint was made about the respondent's counsel referring to the respondent's loss as including 'one failed operation'; and secondly, complaint was made about the statement 'there's plenty of pathology still there, the fact that the pathology is not only L4/5 warranting a laminectomy there, but also at L5/S1, creating a risk either of a laminectomy or of a double level fusion'. There is nothing in these complaints. Dealing with the 'one failed operation' comment, it is true that the treating orthopaedic surgeon gave evidence that the microdiscecetomy had successfully removed the disc material which had ruptured and was pressing on a nerve root. Further, the operation, at least initially, achieved its objective of reducing part of the respondent's pain. Nevertheless, the respondent still has significant pain arising from his injury. The operation was not a cure-all. In the circumstances of the case, there was nothing wrong with the respondent's counsel describing the operation as having failed in the sense that the respondent, at the time of trial, suffered from significant ongoing pain.

61 As to the reference to pathology at L5/S1, the appellant submits that the evidence was that this pathology was not work related but was naturally occurring vulnerability in the spine. For present purposes, that may be accepted. However, the pathology existed and the respondent was entitled to refer to it as being part of his overall condition which, together with the compensable injury, might lead to further surgery. Such a submission was supported by the evidence of Mr de la Harpe.

62 In any event, there is no ground of appeal directed to any inappropriate submission made by the respondent's counsel in his final address (and that may be because no complaint was made by counsel for the appellant at trial about the two statements about which complaint is now belatedly made). That said, the issue to be determined by this Court is whether, on the evidence most favourable to the respondent, the jury's assessment was perverse, manifestly excessive and not open on the evidence.

63 In argument before this Court, the appellant submitted that the respondent had not proved that surgery in the future was likely. The appellant made this submission because the trial was conducted on the basis that the likelihood of future surgery was an indication of the severity of the respondent's injury and also a

measure of what the respondent's pain and disability levels might be in the future. The appellant submitted that, on the evidence, further surgery was a mere possibility. I reject that submission. Mr de la Harpe gave evidence that there was a 'significant chance' that something (surgery) would need to be done in the future 'because the narrowing at L4-5 is going to continue'. Further, in answer to a question as to how likely it was that the respondent will need further surgery, Dr Rawet said 'Very likely at this stage'.

64 By modern standards, the respondent is a relatively young man. He has suffered a serious life-altering injury. The consequences of the respondent's injury are likely to be long term, if not indefinite. Indeed, Mr O'Brien (one of the orthopaedic surgeons whose report was read to the jury) expressed the opinion, as at May 2013, that the long history of the appellant's chronic back and leg pain suggested a poor prognosis. In the circumstances, and remembering that the amount awarded by the jury covers both the past and the future, I see no error in the jury's award of $385,000 for pain and suffering and loss of enjoyment of life in this case. While the jury's award might be described as towards the higher end of the appropriate range, in my view there is no basis for contending that it was manifestly excessive, perverse or not open on the evidence.

[1] The expression 'pain and suffering damages' is defined in s 134AB(37) of the Act to mean 'damages for pain and suffering, loss of amenities of life or loss of enjoyment of life'.

[2] See Butcher v Australian Tartaric Products Pty Ltd [2009] VSCA 303, [8] and the authorities referred to therein. See also, Smith v Gellibrand Support Services Inc [2013] VSCA 368, [81].

[3] Not counsel who appeared for the appellant on this appeal.

[4] [2013] VSCA 21.

[5] [2009] VSC 454.

[6] [2010] VSC 488.

[7] [2011] VSC 500.

[8] [2011] VSC 28.

[9] [2011] VSC 108.

[10] [2009] VSCA 303, although this case was a reassessment by the Court of Appeal after a jury verdict that was found to be manifestly inadequate.

[11] [2012] VSCA 326.

[12] [2013] VSCA 21.

[13] See further, Amaca Pty Ltd v King (2011) 35 VR 280 (and in particular the references to the jury verdicts of $600,000 in a defamation case and $730,000, for pain and suffering and loss of enjoyment of life, in a mesothelioma case: ibid 321 [180] and 322 [184]).

[14] [1968] HCA 62; (1968) 119 CLR 118 ('Planet Fisheries').

[17] See, generally, Royal Dental Hospital of Melbourne v Akbulut [2002] VSCA 88, [16]-[19] and Amaca Pty Ltd v King (2011) 35 VR 280, 321-322 [178]-[182].