Conclusions: non-economic loss
68 It is in this context that I return to the primary judge's conclusion.
69 In my view, Professor Quadrio's report, while recognising that the respondent was suffering from PTSD and an Adjustment Disorder and personality change, also contemplated that those conditions may not be permanent and, indeed, that he may have either recover, or his condition may be ameliorated, in the event he undertook psychological treatment. Although his Honour said he accepted Professor Quadrio's opinion, his reasons did not, with respect, reflect it. In contrast to the moderately hopeful picture Professor Quadrio foresaw, his Honour found the repondent suffered from major depression (at [145], [167]), that the prospects of him being successfully treated were poor or "bleak" ([166], [170]), that his depression would worsen (at [167], [186(g)]) and that was unlikely and improbable that his post-traumatic stress disorder, adjustment disorder, depression and proneness to depression would recede or diminish. (at [167], [186(f)]), and that he would remain prone to significant depression throughout his life (at [167]) and that he had undergone permanent personality change ([162] and [167]), in short that his conditions were entrenched (at [174]) and chronic (at [189]).
70 There was no evidence, in my view, from which the primary judge could draw the conclusion, that the prospects of success of psychological treatment were poor. Professor Quadrio did not express that opinion, instead contemplating that such treatment may lead to recovery or, at least, amelioration of the respondent's psychological disorders.
71 Further, the primary judge's finding (at [167]) that the respondent would live "a psychologically impaired life in which he will experience chronic depression much the same as he experiences now, if not worse" not only took no account of Professor Quadrio's views as to the prospects of treatment but, further, was not based on any evidence that the respondent's depression would worsen.
72 In the same paragraph ([167]), the primary judge also concluded that the respondent's "current symptoms support a diagnosis of major depression as had been acknowledged by Dr Whan in his oral evidence". I have already analysed Dr Whan's evidence in this respect. In my view, with respect, it was not open to the primary judge to make this finding.
73 Further, the primary judge's conclusion, apparently, that the respondent's current condition supported a diagnosis of major depression of which there was little prospect of diminution appeared to have been the basis of his Honour's finding (at [168]) that the respondent would remain "prone to significant depression throughout his life [which would] adversely affect him in his everyday life, including in his ability to work".
74 In Wynn Tresidder Management v Barkho [2009] NSWCA 149 (at [110] - [111]), I said (with Tobias and Young JJA's agreement):
"The approach taken when an appellate court is asked to review a primary judge's conclusion as to the severity of a plaintiff's non-economic loss by reference to a "most extreme case" was discussed in Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 (at [49]) as follows:
'49 The exercise in which the primary judge was involved in determining non-economic loss is neither scientific nor normative. While it is not wholly at large, it involves an exercise of discretion with which the Court will rarely intervene: Southgate v Waterford (1990) 21 NSWLR 427 at 440. Having regard to the nature of the exercise, a finding that a particular case is or is not 'a most extreme case' has been said to be not 'readily … susceptible of appellate review' as 'its resolution … involve[s] questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment': Dell v Dalton (1991) 23 NSWLR 528 at 533 per Handley JA (with whom Kirby P and Priestley JA agreed); Rabay v Bristow [2005] NSWCA 199 at [62] - [67]. Unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was manifestly erroneous: Ellis v Rantzos (t/as Rantzos Hairdressing) [2005] NSWCA 266 at [43] per Basten JA (with whom Handley and Santow JJA agreed).'
A like approach has been taken by the West Australian Court of Appeal: see Hammond Worthington v Da Silva [2006] WASCA 180; Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30; Insurance Commission of Western Australia v Weatherall [2007] WASCA 264."
75 In my view the errors I have identified in the primary judge's reasons were of such substance that the conclusion reached by his Honour concerning the s 16 most extreme case issue and future economic loss were manifestly erroneous. It is open to this Court to accede to the appellants' application to re-assess those awards.
76 Mr Morrison submitted that if the Court came to this view, it should not reassess damages but, rather, the matter should be remitted to the District Court for rehearing so that a trial judge could view the respondent's scars. In my view a rehearing is unnecessary. The approach Mr Morrison suggests would not be consistent with the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW). The Court can reassess the respondent's damages for non-economic loss on a basis which accepts Dr Meares' evidence about the respondent's scars as well as the clear description of them in the primary judgment, taken with the photographic exhibits in the Blue Book. That approach would facilitate the just, quick and cheap resolution of the real issues in the appeal, rather than lead to the parties incurring additional costs for a hearing the only additional advantage of which, according to Mr Morrison's submissions, would be to enable a trial judge to see the respondent's scars firsthand.
77 For the purpose of reassessing the respondent's non-economic loss, I accept the findings the primary judge made (at [162] - [165]). I reject, however, the primary judge's conclusions (at [166] - [168]). It is also appropriate to take into account Professor Quadrio's view that, with appropriate treatment, the respondent's PTSD symptoms could be ameliorated and that his depression and possible personality change could also be the subject of psychological treatment. It is apparent that the respondent's psychological issues can be ameliorated with an appropriate treatment programme. In addition it is appropriate to take into account that the respondent will suffer no physical disability. While he will continue to have scarring of the nature of that the primary judge and Dr Meares described, as the photographs in the Blue Book reveal, and those scars will remain a reminder of the original incident, he will not suffer any physical disability in the future. Further, while he can cover up the scars easily by wearing long sleeves, it is significant in my view that he already goes to the beach and to swimming pools with his friends. It is unlikely, in my view, in the light of that evidence that the scars will significantly, if at all, impede his social interaction as he matures.
78 Taking those matters into account I would assess the respondent's damages for non-economic loss at 20 percent of a most extreme case.