Kennedy v Mangos [2001] ACTSC 92

Supreme Court of the ACT|2000-11-09|Before: O'Meally P, Mr J

CITATION : Kennedy v Amaca Pty Ltd [2003] NSWDDT 21 PARTIES : Marjorie Kennedy Amaca Pty Ltd MATTER NUMBER(S) : 172 of 2003 JUDGMENT OF: O'Meally P at 1 :- Dust diseases mesothelioma liability admitted assessment of damages CATCHWORDS: tort committed in Queensland evidence that damages awarded in Queensland less than in New South Wales for comparable loss assessment of damages a matter of common law one common law for Australia damages assessed without reference to Queensland cases LEGISLATION CITED: Kable v Director of Public Prosecutions (1996) 189 CLR 51; Lipohar v The Queen (1999) 200 CLR 485; O'Brien v Dunsdon (1965) 39 ALJR 78; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Moran v McMahon (1985) 3 NSWLR 700; Kennedy v Mangos [2001] ACTSC 92; CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223; CASES CITED: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Stevens v Head (1993) 176 CLR 433; Coyne v Citizen Finance Ltd (1990) 172 CLR 211; James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729; De Sales v Ingrilli [2002] HCA 52 (2002) 77 ALJR 99; Clarence Colliery v Bunkovic (1985) Aust. Tort Reports 80-761 69,563; Murfett v Wallaby Grip and Anor (2000) 20 NSWCCR; Perry v James Hardie & Coy Pty Ltd and Ors (unreported 9 November 2000); Griffths v Kerkemeyer (1977) 139 CLR 161 DATES OF HEARING: 8,9,16 & 17 October 2003 EX TEMPORE JUDGMENT DATE : 10/17/2003

FOR PLAINTIFF: Mr J L Sharpe LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr G M Watson, SC with Mr K F Holyoak and Ms T L Wong

This is an action for damages by Marjorie Kennedy against Amaca Pty Ltd, formerly known as James Hardie & Coy Pty Ltd (JHC). The plaintiff alleges, and it is now conceded, that she was exposed to asbestos dust and fibre while assisting her husband to construct a garage at their home in Kenmore Road, Kenmore, a suburb of Brisbane. From time to time she held asbestos cement sheeting while it was cut and rasped by her husband, and in this process asbestos dust and fibre were released into the atmosphere and were inhaled and ingested by the plaintiff. As a consequence she has developed peritoneal mesothelioma. The asbestos cement sheeting used in construction of the garage was manufactured by JHC. The defendant has admitted its liability to pay damages. My task is to assess those damages. The plaintiff
The plaintiff was born on 12 February 1926, and is therefore currently aged 77 years. Her husband, whom she married on 4 October 1947, died on 21 March 1996. She has continued to live in the family home. She has two adult children. From 1972 to 1988 she worked as a receptionist at a radiology centre and thereafter in part-time employment as a receptionist for a general practitioner. She ceased employment altogether in 1995 when her husband became ill and attended to his care until he died.
During the course of 2000 the plaintiff developed type 2 diabetes, and it was suggested by her medical adviser that she embark upon a program of exercise. She acted upon the suggestion and began attending a gymnasium twice weekly. After about six months, and while at the gymnasium, she experienced pain and discomfort in her abdomen which were attributed to vigorous exercise. She consulted her general practitioner about the discomfort and in March 2002 was referred for abdominal ultrasound examination. This revealed a torn rectus muscle, which was treated by physiotherapy. No abnormalities, other than the muscle tear and a left rectus sheath haematoma, were visible. Physiotherapy produced some symptomatic improvement. The diagnosis of mesothelioma
In April 2002 the plaintiff was experiencing bladder pain and nocturia and was referred to Dr Barton Clarke, a gynaecologist and urologist. On 1 July 2002 she underwent a further ultrasound examination. In December 2002, because of continuing abdominal pain, she was referred by Dr Gunsberg, her general practitioner, to Dr Sparling. Dr Sparling detected a palpable gap in the rectus muscle and observed that ultrasound examination showed a diffuse haematoma in the muscle extending the length of its posterior sheath. These findings were much the same as those of March 2002. Dr Sparling thought that aspiration was unlikely to be successful; neither would it help her symptoms. He suggested a review in three months time. In December, also, because of rectal bleeding, seemingly occasioned by haemorrhoids, she was referred to Dr Lumley, a colorectal surgeon. When he examined her on 9 December 2002, he noted her abdomen to be soft. He detected the presence of a tender mass, which he presumed to be a rectus haematoma. He treated the haemorrhoids.
The plaintiff continued to see Dr Lumley who, in January 2003, arranged a CT scan. This scan revealed the presence of an abdominal wall mass, which Dr Lumley then thought to be a malignant sarcoma. On 20 February 2003 Dr Lumley operated and took a frozen section biopsy of a tumour present on her abdominal wall. Pathological examination subsequently revealed this to be a peritoneal mesothelioma. The tumour was excised. She continued to see Dr Lumley. When did symptoms of mesothelioma first present?
It has been submitted on behalf of the plaintiff that the first abdominal symptoms were caused by the mesothelioma subsequently detected. The plaintiff herself spoke of pain and discomfort, varying in intensity, from December 2001 until the present. Dr Heiner, who was qualified by the plaintiff to give an opinion on the costs of future medical treatment, assumed, when he saw the plaintiff on 25 June 2003, that the tumour had been present for 13 months, but he did not disclose the basis upon which this assumption was made. I have not been provided with the opinion of any medical practitioner who was treating the plaintiff, nor any whom she saw in consultation, that the tear in her rectus muscle or the haematoma could or did mask the mesothelioma, and there is no evidence upon which it is open to find that she has been symptomatic by reason of mesothelioma since December 2001. Nevertheless, the tumour would not have appeared spontaneously, and I am prepared to conclude that she was suffering symptoms because of mesothelioma before the abdominal mass was detected by Dr Lumley when he palpated the plaintiff's abdomen in December 2002. The plaintiff's pain and suffering
Following surgery in February 2003 the plaintiff remained an in-patient at the Wesley Hospital until 3 March 2003. She has been readmitted to hospital on three subsequent occasions, again to the Wesley. She was an in-patient between 7 and 17 March 2003 and between 8 and 14 April 2003, and again on 29 July 2003. The purpose of the April admission was to resuture the surgical wound which, not only did not heal after the operation, but also broke down and enlarged. Following further surgery to resuture the wound and to remove a drainage tube the plaintiff has progressed reasonably well. Nevertheless, she has been in pain and discomfort, which are increasing in intensity. Dr Lumley recorded in March 2003 that she was having no pain, and in subsequent reports to Dr Gunsberg he described her as "feeling better in herself," as "doing particularly well," as "coming along fairly well" and as "reasonably well". One must consider the natural tendency of doctors to appear optimistic and to encourage their patients. It is the case that the plaintiff has been experiencing symptoms until the present time.
Dr Beadle, a medical oncologist has also treated the plaintiff. At a time when the wound was still unhealed, he observed that the plaintiff ought not to undergo chemotherapy, the possibility being that chemotherapy could be life threatening because of sepsis associated with the wound. Chemotherapy is not a common form of treatment for mesothelioma, though some doctors seem to favour it.
In February 2003 Dr Lumley reported that on one of the images of a CT scan her tumour appeared to be infiltrating from the rectus muscle through the abdominal wall, and there was an element within the cavity that might have been abutting onto the diaphragm and pericardium. She has experienced, and is likely again to experience, the build up of fluid within her peritoneal cavity which has been, and again will need to be, aspirated. She will need also to continue to consult her general practitioner and a physician. She has experienced a 10 kilograms weight loss which has not been reversed. She experienced a considerable degree of shock and anger when the diagnosis of mesothelioma was conveyed to her; she was informed that she had six to eight weeks only to live, a prognosis which was quite erroneous. She experiences nausea and is unable to do much of what previously she did. Her energy level is low and she frequently feels tired. No doubt the period of her convalescence following the first bout of surgery was marked by significant pain and discomfort, but the immediate post-operative period is something about which the plaintiff has little memory.
During the course of her surgery she developed atrial fibrillation which seems to have been treated successfully. Nevertheless, she remains on medication for hypertension and she takes a variety of medication, and up to eight tablets of Di-gesic daily for pain relief. It seems there could be a connection between the fibrillation and the surgery; it was described by Dr Forgan-Smith, to whom she was referred by Dr Lumley, as intra-operative. In the overall condition of the plaintiff, however, her cardiac disorder does not play a large part.
The plaintiff is a stoic woman who, in my view, understates rather than overstates the consequences of her mesothelioma. Her ability to walk distances that caused no trouble before is diminished. She is unable to engage in movements which exert force or pressure upon her abdomen and she is able to lift only light weights. She was fortunate enough to have friends and neighbours to assist her with the preparation of meals and in shopping in the period between February and July 2003. She also had some assistance from a neighbour in clerical tasks associated with the payment of bills and in giving attention to financial matters. She has engaged a student to assist in the household cleaning, who attends her home for 2 hours each week. A gardener attends to the gardening tasks which she used to undertake about her home. The probability is that she will spend the last month of her life in a hospice. In the penultimate month of life she will require full-time active care at home, and in the antepenultimate month full-time passive care.
Mesothelioma, whether pleural or peritoneal, is an incurable and fatal disease. Peritoneal mesotheliomas are rare tumours. They do not produce the same exquisite pain which results from pleural mesothelioma. Nevertheless, the disease inevitably will result in the complete debilitation of the plaintiff and require high doses of opiate medication for pain management, with extremely unpleasant side-effects. As the disease progresses and the tumour grows, the plaintiff's pain will become greater.
Dr Heine, of whom mention has earlier been made, considered every possible complication that could occur. These included the development of a pleural mesothelioma, the migration of the peritoneal tumour to the pleural cavity and pericardium, pulmonary embolism and deep vein thrombus, anaemia requiring blood transfusion, falls requiring cranial CT scanning and pelvic x-rays, depression requiring psychiatric treatment, the need for endoscopy and colonoscopy, and consultations with a cardiologist, gastroenterologist and psychiatrist as well as with a general practitioner and respiratory physician.
I am not persuaded that all of these complications will probably occur, nor that all those needs will arise. There is, however, a remote risk that some only may occur or arise. Bearing in mind she is likely to die in about six months time, some allowance, based on a less than ten per cent chance of the risk coming home, should be made. It is probable, however, that the plaintiff will require aspirations of ascites from her peritoneal cavity. Aspiration is an unpleasant procedure.
All these matters must be taken into account in assessing a sum appropriate to compensate the plaintiff for the pain and suffering she has endured to date and for the increasing pain and suffering she is yet to experience. How is the level of general damages to be assessed?
Mr Watson of Senior Counsel, who appears for the defendant, has argued that because the tort was committed in Queensland I should assess damages within a range that would be awarded by a judge sitting in a court of that State.
In Kable v Director of Public Prosecutions (1996) 189 CLR 51 McHugh J said at 112: Unlike the United States of America where there is a common law for each State, Australia has a unified common law which applies in each State but is not itself the creature of any State.
The derivation and unity of the Australian common law were referred to in Lipohar v The Queen (1999) 200 CLR 485. Gaudron, Gummow and Hayne JJ said at 505 [44]: The common law has its source in the reasons for decisions of the courts which are reasons arrived at according to well-recognised and long established judicial methods. It is a body of law created and defined by the courts. Whatever may once have been the case in England the doctrine of precedent is now central to any understanding of the common law in Australia. To assert that there is more than one common law in Australia or that there is a common law of individual states is to ignore the central place which precedent has in both understanding the common law and explaining its basis.
Mr Watson concedes that the assessment of damages is a matter governed by the common law. He accepts that there is but one common law for Australia. Nevertheless, he says, the assessment of damages in this case requires the application of the substantive law of Queensland, and therefore damages should be assessed as they would be assessed by a judge sitting in a Queensland court. He has not been able to locate any authority in which this precise question has been considered, though he has referred me to a number of decisions in which judges in Queensland have observed that damages awarded in New South Wales are greater than damages awarded in Queensland. He says because Queensland is a separate law area, I should adopt the same approach as would a Queensland judge.
There is no dispute in the common law of Australia about the recoverability of general damages for pain and suffering, and for the loss of amenity in personal injury cases, nor about the rules which govern their assessment. It is accepted that each case must be considered in light of its own facts and an assessment made of the amount which fairly can be regarded as reasonable for the injuries and disability sustained: O'Brien v Dunsdon (1965) 39 ALJR 78. Damages must be fair and reasonable compensation for the injuries received and the disabilities caused. They are to be proportionate to the situation of each particular plaintiff, and not to the situations of other plaintiffs in other actions, even if some similarity between their situations may be supposed to be seen: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125. Damages are compensation to particular plaintiffs, bearing in mind what they were, what they now are, and how they are likely to meet their disabilities: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 656. Damages should be assessed having regard, as far as possible, to the general standards prevailing in the community: O'Brien (supra) at 78.
With some considerable degree of hesitation I permitted Mr Watson to call The Hon Desmond Derrington QC, a former judge of the Supreme Court of Queensland, and now returned to practise at the Bar. Mr Derrington has observed, in a report prepared for this case, that in Queensland it had been recognised that awards for general damages were notably less than those in New South Wales for a comparable loss. No Queensland case of mesothelioma, whether pleural or peritoneal, was cited to me.
Mr Watson has submitted that the exercise upon which he invites me to embark does not offend against the decision of the High Court of Australia in Planet Fisheries (supra), nor the manner in which that decision has been interpreted and applied by courts in New South Wales. See, e.g.: Moran v McMahon (1985) 3 NSWLR 700 at 707, 724, and 726. He also submitted that Planet Fisheries does not impose an embargo upon reference to "comparative verdicts", but its "rule" is that comparative verdicts cannot be used to derive a norm or standard for particular injuries. He cited a number of cases in which judges in other jurisdictions considered it appropriate to refer to damages awarded in other cases. See, e.g.: Kennedy v Mangos [2001] ACTSC 92 at [13]. In this and the other cases cited the decisions were those of judges of courts of general jurisdiction. This Court is not such a court.
In Planet Fisheries the High Court of Australia was invited to seek out a norm or standard in its own decisions when deciding whether or not an award of general damages was excessive. The Court, comprised of Barwick CJ, Kitto and Menzies JJ, rejected that submission. At 124 they said: 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. … Whether it is so or not is a matter of judgement in the sound exercise of the 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 in awarded in a number of other specific cases. … What was sought to be done in this case … namely, to derive a norm or standard from a group of judgements of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course was sought to be pursued in relation to awards of a Supreme Court or a County or District Court. The judgement of a court of awarding damages is not to be over borne by what other minds adjudged right and proper in 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.
After referring to Planet Fisheries, Priestly JA in CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223 said at 251-2: On any approach to the assessment of damages for personal injury, whether or not it is legitimate to look for and apply patterns established by the cases in regard to particular types of injury attention must always be paid to the individual circumstances of each plaintiff's case. Injuries of a more or less identical kind although often they will affect the plaintiff is in much the same way may also affect different individuals quite differently both in a physical sense and in the impact on family, social, artistic, sporting or other aspects of their lives. Thus, every case must be looked at, on the footing that it is, as it in fact is, different from every other case. The difference in the results of similar injuries will be smaller or larger dependent on the Court's assessment of the effect of the injury on the particular plaintiff.
Mr Watson says that I am not invited to look to other cases with a view to determining a norm which would then be applied in this case, but I am invited to look at those cases to which I have been referred in order to conclude that damages in Queensland are always lower than damages awarded in New South Wales.
In John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 544 [100] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said: ... all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti .
Mr Watson argues that that observation requires me to take the approach for which he contends. In John Pfeiffer the High Court was considering an appeal in which a plaintiff, injured in New South Wales, brought proceedings in the Australian Capital Territory. The New South Wales Workers Compensation Act, 1987 limited his entitlement to damages in that State. What their Honours said at [100] related to the provisions of a statute, a statute which did not govern or regulate the mode or conduct of the proceedings, but one which limited the amount of damages that could be awarded for non-economic loss. The High Court held such a statute was to be regarded as substantive, not procedural. It is important also to note that at 543 [98] their Honours observed: Questions of what heads of damage are allowable have been held to be substantive; but questions of quantification of damages have been held to be procedural. But all questions about damages can affect how much a plaintiff recovers and, thus, statutes such as the NSW [Workers] Compensation Act, which is in issue in this case, alter the rights of plaintiffs and, also, the obligations of defendants.
Earlier, in Stevens v Head (1993) 176 CLR 433, the High Court considered the entitlement to damages for personal injury sustained in a motor vehicle accident in New South Wales in respect of which proceedings were brought in the District Court of Queensland. Brennan, Dawson, Toohey and McHugh JJ considered the difference between statutes which cut off resort to the courts for the enforcement of claims and a statute which extinguishes civil liability and destroys a cause of action. The former was classified as a procedural law and the latter as substantive. In those circumstances the lex loci delicti (New South Wales) applied. At 457 they said: A similar distinction has been drawn between a law which denies a remedy in respect of a particular head of damage in negligence (a substantive law) and a law which affects the quantification of damages in respect of the particular head of damage (a procedural law). … In McKain , the Chief Justice accepted that "the question of what heads of damage are recoverable is now treated as a substantive issue" and that the matter concerning quantification of damage, "on traditional analysis, has been treated as a procedural consideration". But his Honour's preferred view was that the measure of damages for personal injury is a question of substantive law, as he had held in Breavington v Godleman . We are respectfully unable to accept that view.
Also in Stevens at 459, their Honours said of a provision which affects the measure of damages, but does not touch the heads of liability in respect of which damages might be awarded was "simply a law relating to the quantification of damages and that as we have seen, is a matter governed solely by the lex fori".
I interpret those observations in John Pfeiffer and Stevens to mean that, in the absence of statutory prohibition or limitation, the quantification of damages is to be regarded as procedural and to be made according to the law of the forum.
Mr Watson, however, also relies upon the observations of McHugh J in Coyne v Citizen Finance Ltd (1990) 172 CLR 211 at 239. There his Honour said: The awards of damages in defamation cases with which I am most familiar are those given in New South Wales. By the standards of that State, the jury's award in the present case, although high, could not be regarded as unreasonable. However, the reasonableness of the jury's verdict is to be determined by the standards which prevail in Western Australia and not by the standards which prevail in New South Wales or, for that matter, any other State of Australia. But, even assuming that there is a significant difference between what a reasonable jury in Western Australia would award as damages for a defamation and what a reasonable jury in other parts of Australia would award for the same defamation, I do not think that it is possible to say that the damages awarded by the jury in this case were ... unreasonable .. .
In James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729 at 732 Handley JA said: Some day the High Court will explain why awards of general damages for personal injuries should not be compared, as required by Planet Fisheries Pty Ltd v La Rosa , but defamation awards can be compared with awards for general damages in personal injury cases (Carson v John Fairfax & Sons Ltd) and sentences of co-accused (Low v The Queen) .
Mr Watson also relies on two further decisions. In De Sales v Ingrilli [2002] HCA 52 (2002) 77 ALJR 99 the High Court of Australia considered the discount rate for contingencies ordinary applied in Western Australia. The Court observed that the Western Australia 5 per cent discount figure was considerably less than the 15 per cent ordinarily applied in New South Wales, but it did not seek to establish a uniform discount rate for the whole of Australia. In Clarence Colliery v Bunkovic (1985) Aust. Tort Reports 80-761 69,563 Kirby P (as he then was) observed at 69,566: Local considerations In the present case there is a third consideration. The jury here was chosen from citizens living in the Lithgow district. It would have a far better idea than any judge resident in Sydney of the likely future in that district of a young man with permanent residual disability in his leg. The precise reason for calling together a jury to offer its assessment is to permit, in a general way, the reflection of local values.
It is submitted for the defendant that Coyne, De Sales and Bunkovic demonstrate that the High Court of Australia and the Court of Appeal of New South Wales have recognised and given effect to the principle that damages vary, and should be permitted to vary, between various parts of the Commonwealth of Australia. The enigma referred to by Handley JA in Newton remains.
Mr Watson's submission that the assessment of damages requires the application of the substantive law of Queensland seems to me to be contrary to the determination of the High Court that there is one common law for Australia (Kable at 112) and that the assessment of damages is procedural (John Pfeiffer at 543 [98]; Stevens at 457 and 459).
Moreover, this question has twice been raised and considered in the Tribunal. In Murfett v Wallaby Grip and Anor (2000) 20 NSWCCR 638 Curtis J rejected the tender of the written opinion of one of Her Majesty's counsel for the State of South Australia, which was intended to provide evidence that the quantum of damages generally awarded at common law for pain and suffering to people who brought their claims before the courts of South Australia was less than awarded in New South Wales. His Honour declined to allow the evidence to be given. An identical approach was adopted by Johns J in Perry v James Hardie & Coy Pty Ltd and Ors (unreported 9 November 2000).
Not only for reasons of maintaining comity with my colleagues, but because, as it seems to me, the approach I am invited to take is inconsistent with what has been cited from John Pfeiffer, I intend to assess damages as I would do ordinarily. I should also add that the material to which I have been taken by Senior Counsel for the defendant does not enable me to express an opinion about what amount of damages would be awarded in a case such as this in Queensland. True it is that Mr Derrington QC did opine that the range of damages which might be awarded in this case, if heard in a Queensland court, would be $40,000 to $45,000, but no relevant case or range of cases has been cited to me, and that expression of opinion, if acted upon, would, I believe, involve my declining to exercise my function properly. Through its counsel the defendant has submitted an appropriate award would be $60,000. The report of Mr Derrington and his evidence were permitted to enable another court, if the defendant is so advised, to have my opinion reviewed and to obtain an authoritative ruling.
The plaintiff seeks an award of $175,000. As noted, the defendant concedes an appropriate award is $60,000. In my view the sum appropriate for general damages is $100,000. Agreement on special damages
The balance of the items has been the subject of discussion between counsel and myself and a consensus generally has been reached by compromise on both sides. For this I am grateful.
It has been agreed that the plaintiff is entitled to the sum of $4,700 for modification of her home and for special equipment needed as a consequence of the disease. Past medical expenses are agreed in the sum of $30,027. Future medical expenses are agreed at $47,500. Past Griffiths v Kerkemeyer expenses are agreed in the sum of $10,040 and future Griffiths v Kerkemeyer expenses are agreed in the sum of $35,000. Loss of expectation of life
The plaintiff is also entitled to an amount for loss of expectation of life. According to the Australian Life Tables a 77 year-old Australian female has a life expectancy of 11.4 years. The presumed date of the plaintiff's death is agreed to be 1 April 2004. Such unrelated conditions as the plaintiff suffers would not materially have affected her life expectancy. I assess the amount appropriate for loss of expectation of life to be $10,000. Interest on general damages
Interest on general damages I think should begin to run from August 2002. I select August because it is six months before the diagnosis of mesothelioma was confirmed by pathological examination and, as observed earlier, the tumour would have been present and growing and causing discomfort before its presence was discovered and its nature revealed. It is the case that the plaintiff's condition will continue to deteriorate and her pain will increase. Worse is to come. Half of the general damages should be allocated to the past. Verdict and judgment
Thus the plaintiff is entitled to damages made up as follows: General damages $100,000 Interest on past general damages $1,200 Loss of expectation of life $10,000 Modification of home $4,700 Past medical expenses $30,027 Future medical expenses $47,500 Past Griffiths v Kerkemeyer expenses $10,040 Interest on past expenses $500 Future Griffiths v Kerkemeyer expenses $35,000 Making a total of $238,967
There will be a verdict for the plaintiff and judgment in the sum of $238,967.
The defendant will pay the plaintiff's costs as agreed or assessed.

Mr J L Sharpe instructed by Turner Freeman appeared for the plaintiff.

Mr G M Watson, SC with Mr K F Holyoak and Ms T L Wong instructed by McInnes Wilson Lawyers appeared for the defendant.

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7. The submission was based on the Magistrate's finding that the appellant entered the intersection on a green light, that the respondent made a right hand turn against a red turn arrow, travelling across two lanes of traffic before the collision with the appellant's car. There was evidence given by one of the witnesses of another vehicle travelling in the same direction as the appellant which took evasive action to avoid colliding with the respondent's vehicle.

8. The appellant's evidence was quite clear in that she did not see the respondent's vehicle until the collision was imminent. She also did not give any evidence of seeing any other vehicle travelling in the same direction as she was. The Magistrate's finding was in these terms,

"I am of the view that the defendant was very largely responsible for the accident, but the plaintiff was nevertheless negligent in not seeing the defendant until he was in front of her and the impact was imminent. This is based significantly on the evidence that the defendant's slow travelling vehicle had to cross two other traffic lanes before reaching the plaintiff's lane and yet the plaintiff was unaware of the defendant's vehicle until the two vehicles collided."

On the facts found by the Magistrate, this inference was open to her and she could properly make the finding of apportionment of liability that she did.

9. For his part Mr Stretton, for the respondent, put an argument by way of cross-appeal that the apportionment of 10% awarded by the Magistrate against the appellant was too low and that principle required a proper apportionment akin to that of a driver who approaches an intersection with right of way. He cited the well known case of Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424. However, that case, as Mr Stretton conceded, dealt with the duties of drivers approaching an uncontrolled intersection. In this case not only was the intersection controlled by lights, but on the Magistrate's findings the respondent turned against a red traffic light. I am unable to see any error in the approach taken by the Magistrate to the question of apportionment nor can I see any matter that was overlooked. I do not consider that the apportionment which the Magistrate arrived at after a careful consideration of all the matters before her can be successfully challenged (cf Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 15 and 16).

10. On the question of quantum, neither the appellant nor the respondent alleged any factual error on the part of the Magistrate. The appellant's argument was pitched in terms that error was manifest insofar as the award is so grossly disproportionate to the injury and its consequences having regard to the evidence before the Magistrate. In that regard, Mr Parker referred to and relied upon the principles derived from the High Court decision in Planet Fisheries Pty Ltd v La Rosa & Anor [1968] HCA 62; (1968) 119 CLR 118. He also made the point that the Court in that case rejected a submission that in deciding whether or not the award of general damages was excessive could be resolved by reference to some norm or standard supposedly arrived from amounts awarded in a number of other specific cases.

11. I have regard to what the Court said in that case at 124, 125:

"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 judgment 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."

12. It is also recognised that there is an awareness as the product of general experience in appeal courts which enable the court to say that the result arrived at in such an assessment is so unreasonable or plainly unjust. Kirby P (as he then was) in Fuller v Galvin (unreported, Supreme Court of NSW Court of Appeal, 7 April 1995) observed that this was so and made the further observation that the existence of that broad norm in the experience of appellate courts was recognised in Planet Fisheries Pty Ltd (supra at 125).

13. Having regard to what the Full Court of this Court said in Hebditch v Sheppeard (unreported, 12 July 1996, Gallop, Higgins and Ryan JJ), and having regard to the fact that in this jurisdiction decisions on quantum are made by a judicial officer and not a jury, there is every good reason for me making myself aware of, at least, the previous decisions of this court on quantum. In Hebditch v Sheppeard the Court said (at 15):

"It goes without saying that in assessing damages the Court must draw upon its own experience, rely upon its own analysis of the evidence in the particular case and reach an opinion about the correct assessment of compensation for the injury sustained, the pain and suffering, loss of amenities and all the other matters that are required to be taken into account in assessing general damages.

The Court must recognise also that no two cases are wholly alike and that apparent similarities are often superficial. Because the elements which constitute the basis of an assessment of damages for personal injuries vary so infinitely, there can be no fixed or unalterable standard for assessing the amounts for those particular elements. Nevertheless, it is not out of place for the Court in its endeavour to assess damages within a recognised range to search for any trend of awards in reasonably comparable cases and use a current path as a guide to making its assessment.

By looking at comparable cases the Court does not leave itself little room for flexibility. The proper award cannot be arrived at by adopting fixed limits. But it is proper for a Judge to take notice of recent assessments made by other Judges of this Court in cases which bear a reasonably close resemblance to the case under consideration."

In the result, I have familiarised myself with awards of this Court that have included cognate injuries to those in the present case so as to place myself in the position assumed in Planet Fisheries Pty Ltd (supra).

14. In the present case, as I have said, Mr Parker accepted that he needed to show that the award of damages was grossly disproportionate to the injury and its consequences established by the evidence. He did not refer to any awards in reasonably comparable cases in either this or the Magistrate's jurisdiction. His written submissions, in effect, took up as reasons for what he said was the disproportionate award, the findings that the Magistrate made. Those findings accepted the appellant's evidence as to her injuries and disabilities in its entirety.

15. The medico-legal report from the appellant's consultant surgeon some six months after the accident reported that she suffered acute musculo-ligamentous sprain, cervical and cervico-dorsal tissues. The appellant also sustained contusive injuries to her chest wall and breast from the effect of the seat belt. The injuries had slowly resolved at the time of the report and he described her as "symptomatic at a low level". The consultant surgeon expected total resolution of the injuries and the Magistrate found that would occur over the next 12 to 24 months after the accident. The appellant had only been off work for the 10 days after the accident had occurred.

16. The Magistrate awarded her $10,000.00 by way of general damages with $6,000.00 attributed as past loss. In the circumstances relied upon by the Magistrate, it is difficult to conclude that such an award is "grossly disproportionate" to the injury, even though I might think it in the lower range for injuries of this nature which carry an on-going period of pain and inconvenience. The significant features in this case are the brief period of time off work and the short period that she was restricted in undertaking her major recreational pursuit of walking, together with the minimal discomfort and symptoms that the appellant's physiotherapist expected to occur in the future. In my view, the amount assessed could not be regarded as so inadequate as to be beyond the limits of what a sound discretionary judgment could adopt (Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190).

17. As well as cross-appealing on the question of liability, the respondent claimed that the Magistrate had erred in awarding an amount of $1,999.00 "to the plaintiff to enable her to be recredited by her employer with ten days sick leave".

18. Before me, the parties agreed that the appropriate principle to be applied was that considered by the High Court in Graham Baker [1961] HCA 48; (1961) 106 CLR 340 at 351 namely, that the diminution of sick leave credits may, in an appropriate case, result in some damage to the plaintiff to the extent of the loss of benefit of those credits.

19. The Magistrate seems to have taken the view that these credits can be repurchased from the appellant's employer and hence she allowed a sum to enable this to be done. Such an approach does not give effect to the principle upon which damages are awarded to put a plaintiff in the same position as the plaintiff would have been in if the plaintiff had not sustained the wrong (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 29). Rather it directly gives a benefit to a plaintiff, arguably, more than the loss sustained. It is certainly not an approach that can be justified on any principle. The proper approach is to value the chance that during the future course of the appellant's employment with her present employer, she might need more sick leave than her accrued entitlement and the extent to which the accident has left that chance unprovided for (see Lammas v Macarounas (unreported, Blackburn CJ, ACT Supreme Court, 17 July 1980). This is clearly not the basis upon which she has awarded the sum that she did.

20. I note that the award for the repurchase of sick leave was made in the context of a global claim for general damages although the Magistrate's view would seem to regard it as a species of special damages. I cannot help but think that the ascertainment of the amount which the Magistrate arrived at may have influenced, or has not properly been considered in, the quantification of the general damages. As I have said, I would regard the award of general damages as in the lower range, if I were to send the matter back because of the error concerning the sick leave, there could be the issue of whether I should send back the general damages as a whole for re-assessment. Moreover, there is some authority for the view that I should be satisfied that the assessment as a whole is so wrong as to call for appellate interference (cf Povey v W E & E Jackson [1970] 1 WLR 969). At least I should be satisfied that the award as a whole is demonstrably wrong, and I am not so satisfied.

21. It has always been conceded that some award is justified for the loss of the benefit of the sick leave credits. Having regard to the sum involved and the possible consequence that the general damages as a whole should be set aside and re-assessed, I consider that I should not interfere with the award made.

22. For the above reasons, I dismiss the appeal and the cross-appeal. In view of that result, I would make no order as to costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

(2000) 20 NSWCCR 638

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Cases Cited (19)