KOKL v KABLAR

Court of Appeal (NSW)|1989-03-16|Before: Samuels JA, Meagher JA

KOKL v KABLAR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MEAGHER and PRIESTLEY JJA 16 March 1989, 16 March 1989

Samuels JA I think it can be fairly said that Mr Williams for the appellant has struggled with great courage and ingenuity to make a case where not even the vestige of one has been supplied to him by the events which have happened. His written submissions in particular are persuasive, but in my judgment disclose no grounds upon which we should intervene.

The grounds of appeal are these: first of all, it is submitted that the learned Associate Judge erred in failing to make a provisional estimate of the amount of each component of what is commonly regarded as one head of damage, that is to say, compensation for pain and suffering, loss of the amenities of life, loss of the enjoyment of life and any particular aspects of those detriments. In the present case it was contended by the plaintiff, the respondent, and accepted by the judge, that her depressive reaction to comparatively minor physical injuries had brought about a collapse of what had previously been a successful and stable marriage. It was suggested that some particular estimate of that loss should have been segregated from the total for the head which I have just described.

However, Mr Williams very candidly said that it might well have been that, below, counsel for the defendant had suggested that the judge should not make a separate assessment and he felt, therefore, unable to press that ground. But even so I have never in my experience encountered a suggestion that separate estimates should be made for each of the components, that is to say, for pain and suffering separately from loss of amenities and separately from loss of enjoyment, and that element itself segregated from the second of the three.

No authority was put to us to support the submission. A case which has been referred to in the submissions, The Government Insurance Office of New South Wales v Thuy Nguyen, Court of Appeal, 20 May 1988 (unreported), does not support the proposition and there is no other authority for it. That ground must therefore fail.

Secondly, it was said that the award of $20,000 for future pain and suffering and loss of amenities and the like was excessive and involved a duplication. If I may say so, the judge dealt possibly at too great a length with this aspect of the claim and I can see the reason for concluding that he might have been doubling the damages awarded for the same head. However, I think when the passage is read more closely it appears that he is merely indulging in a descriptive judicial flourish and that it has no more significance than that.

There is no other reason that I can perceive for concluding that the sum suggested is too great. That ground must fail.

Thirdly, it is contended that since the judge referred to the need to discount damages for pain and suffering and the like for future vicissitudes, he ought to have indicated the extent to which he had done so. There is, I think, one formidable answer to that. It is that he was under no duty whatever to do so and if he did then that discount could only be in the appellant's favour since presumably without it the damages would have been larger. It is not, therefore, a matter of which the appellant can take advantage.

I think we must be grateful to Mr Williams for having restricted the grounds of appeal to those which I have mentioned, and I think it is unnecessary to say anything further save that the appeal must be dismissed with costs.

Meagher JA I agree and would only add this. In my view the damages, far from being excessive, are perhaps inadequate.

SAMUELS JA: The order of the Court is that the appeal is dismissed with costs.

Counsel for the Appellant: MB Williams Solicitors for the Appellant: GE Lazar Counsel for the Respondent: JP Guihot

Solicitors for the Respondent: RF Giles, Payne and Co

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