THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH v HOGAN

Court of Appeal (NSW)|2001-09-18|Before: Mason P, Heydon JA, Hodgson JA, Wood CJ

CITATION : THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH v HOGAN [2001] NSWCA 381 FILE NUMBER(S) : CA 40117/00 HEARING DATE(S) : 18 September 2001 JUDGMENT DATE : 31 October 2001

PARTIES : THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF SYDNEY & ANOR v PAUL MARTIN HOGAN JUDGMENT OF : Mason P at 1; Heydon JA at 57; Hodgson JA at 59

COUNSEL : Appellant: D F Jackson QC/ I Harrison SC Respondent: W Kearns SC/ H N Kelly SOLICITORS : Appellant: Makinson & d'Apice Respondent: T D Kelly & Co CATCHWORDS : Damages - negligence - strapping case - teacher's negligence in strapping student - jury award - excessive award of general damages - whether Court of Appeal should reassess single head of damage - Supreme Court Act, s107 (substituted verdict) -whether new trial should be restricted to any particular head of damage. (D) CASES CITED: Shehata v Montague L Meyer Pty Ltd (1976) 51 ALJR 77. Agbaba v Witter (1977) 51 ALJR 503. Fowkes v Parker [1999] NSWCA 442. GIO of NSW v Evans (1990) 21 NSWLR 564. John Fairfax & Sons Ltd v Armaghanian, NSWCA, 27 August 1996. Gibson v Smith, SCWA, Full Court 19 June 1997. Rosstown Holding Pty Ltd v Mallinson [2000] 2 VR 299. Pateman v Higgin (1957) 97 CLR 52. Monti-Haitsma Enterprises Pty Ltd v Lord (1988) ATR 80-200. Heil v Rankin [2001] QB 272. Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. Hunter Area Health Service v Marchlewski [2000] NSWCA 294. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290. DECISION : See par 53

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40117/01 SC 20164/98 MASON P HEYDON JA HODGSON JA

Wednesday 31 October 2001 THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF SYDNEY & ANOR v Paul Martin HOGAN 1 In 1984 the respondent/plaintiff was a 13 year old student at St John's College, Lakemba. On 16 March 1984 the plaintiff went to the second appellant's (the teacher) office. He was strapped three times with great force on his right hand and wrist. Later that day, he was, according to the plaintiff, given a further five blows to the same hand. This was following a playground incident when, according to the plaintiff, three boys other than himself began to chant "Kick Fricot out". The plaintiff showed his bruised hand to a friend and made a racially offensive remark about the teacher.

There followed numerous visits to medical practitioners and treating specialists throughout the plaintiff's school and university years. He experienced swelling, sweating, discolouration, pins and needles, pain, headaches and concentration problems. He suffered loss of sleep and experienced difficulties with writing, and completing his university degrees.

In 1998 the plaintiff sued the school and the teacher in the Supreme Court claiming damages for (a) assault and battery and (b) negligence. The claims in negligence extended to the manner in which the defendants failed to respond appropriately to the grievance of the plaintiff following what he and his parents considered unjustified and excessive corporal punishment.

In February 2001 the matter was tried before Wood CJ at CL and a jury of four. The jury found that there was no proper cause for the first strapping. With regard to the second strapping, the jury found that there was proper cause to strap the plaintiff, but that the strapping was not delivered in a moderate and reasonable manner. The jury awarded damages at a total amount of $2,529,093.70. This included a general damages award of $700,000.

In the Court of Appeal the appellants submitted that the general damages award of $700,000 was beyond what could be regarded as appropriate to the circumstances of the case. The respondent did not dispute this. The appellants sought orders setting aside the judgments and orders and a new trial limited to damages, assessing all damages. The plaintiff invited the Court to substitute a verdict adjusting only the general damages component, alternatively to order a new trial restricted to general damages.

Held, by Mason P, Heydon & Hodgson JJA concurring : 1. The Court of Appeal should not reassess general damages. It is not possible to be satisfied that the Court is "fully able" to assess general damages on perusal of the transcript. Virtually every aspect of damages turned upon the plaintiff's credibility. Therefore there must be a new trial.

Shehata v Montague L Meyer Pty Ltd (1976) 51 ALJR 77; Agbaba v Witter (1977) 51 ALJR 503; Fowkes v Parker [1999] NSWCA 442 (cited). GIO of NSW v Evans (1990) 21 NSWLR 564 (followed).

The new trial should not be restricted to any particular head of damages. The possibility of wider error cannot be excluded, and there is a risk that the verdict of the tribunal of fact at the second trial could appear anomalous beside the other damages awards at the first trial, if allowed to stand.

John Fairfax & Sons Ltd v Armaghanian, NSWCA, 27 August 1996; Gibson v Smith , SCWA, Full Court 19 June 1997; Rosstown Holding Pty Ltd v Mallinson [2000] 2 VR 299 (referred). Pateman v Higgin (1957) 97 CLR 521 (discussed). Monti-Haitsma Enterprises Pty Ltd v Lord (1988) ATR ¶80-200 (cited).

Per Mason P: 3. Discussion of guidance given to jury as to damages.

Heil v Rankin [2001] QB 272; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Hunter Area Health Service v Marchlewski [2000] NSWCA 294 (referred). Per Heydon JA: 4. This case is not an appropriate vehicle in which to embark on a reconsideration of the law in the area of guidance to juries as to general damages.

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290 (discussed).

Set aside the judgments ordered on 15 February 2001.
Order a new trial as to damages.
Respondent to pay appellants' costs of the appeal and to have a certificate under the Suitors' Fund Act 1951, if qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40117/01 SC 20164/98 MASON P HEYDON JA HODGSON JA

Wednesday 31 October 2001 THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF SYDNEY & ANOR v Paul Martin HOGAN

JUDGMENT 2 MASON P: In 1984 the respondent/plaintiff was a 13 year old Year 9 pupil at St John's College, Lakemba. The first appellant (hereafter the school) is the corporate trustee that conducted the school. The second appellant (the teacher) was the master of discipline at the school. 3 On 16 March 1984 the plaintiff was twice beaten with a strap by the teacher. In 1998 he sued the school and the teacher in the Supreme Court claiming damages for (a) assault and battery and (b) negligence. The claims in negligence extended to the manner in which the defendants failed to respond appropriately to the grievance of the plaintiff following what he and his parents considered unjustified and excessive corporal punishment. 4 The matter was tried before Wood CJ at CL and a jury of four in February 2001. 5 The jury answered questions put to them in the following terms: Q1. Did the Second Defendant (Mr Fricot) have proper cause to strap the plaintiff on the morning of 16 March 1984? FOREPERSON: No. ….. Q3. Did the Second Defendant have proper cause to strap the Plaintiff on the afternoon of 16 March 1984? FOREPERSON: Yes. Q4. Was the strapping then delivered moderate and reasonable in all the circumstances? FOREPERSON: No. Q5. Was the First Defendant in breach of the duty of care it owed to the Plaintiff to take reasonable care for his safety while at school? FOREPERSON: Yes. Q6. Was the Second Defendant in breach of duty of care he owed to the Plaintiff to take reasonable care for his safety while at the school? FOREPERSON: Yes. Q7. In what total amount do you assess the damages of the plaintiff? FOREPERSON: Total amount of $2,529,093.70. Q8. Of the total sum referred to in question 7, what amount have you awarded in relation to each of the following heads of damage, if they or any of them are included in your calculation:

(a) General damages? FOREPERSON: $700,000. (b) Aggravated damages? FOREPERSON: Nothing. (c) Exemplary damages? FOREPERSON: $10,000. (d) Past economic loss due to impairment of earning capacity to date of trial? FOREPERSON: $212,728. (e) Future economic loss due to impairment of earning loss? FOREPERSON: $1,583.891.70. (f) Past out of pocket expenses? FOREPERSON: $754. (g) Future medical treatment? FOREPERSON: $21,720. Q9. If you have awarded any sum for exemplary damages, then in respect of which defendant or defendants, and in what amount respectively, have you awarded such damages? (a) First Defendant? FOREPERSON: $8,000 (b) Second Defendant? FOREPERSON: $2,000

6 Interest and superannuation figures were then calculated. Formal verdicts and judgment were entered on 15 February 2001 in the following terms: JUDGMENT: 1. That the first defendant pay to the plaintiff the sum of $2,960,732.70. 2. That the second defendant pay to the plaintiff the sum of $2,954,732.70. THE COURT ORDERS THAT: 3. The defendants pay the plaintiff's costs on a party-party basis. 7 This appeal challenges the verdicts as regards quantum and that challenge focuses principally on the component of $700,000 general damages.

Plaintiff's factual case 8 In light of their answers the jury must be taken to have accepted the following broad outline of the case. 9 On 15 March 1984 the plaintiff had been at Lakemba Station waiting to take a train to a sporting fixture organised by the school. The teacher told him and others to "see me tomorrow". According to the plaintiff, it was not until he had been beaten the following day that the teacher told him "don't wear those grubby things again", referring to his sports uniform. 10 On 16 March 1984 the plaintiff went to the teacher's office. He was strapped three times with great force on his right hand and wrist. The jury found that there was no proper cause for this strapping (Q1). 11 The plaintiff suffered severe pain, swelling and bruising. He felt tight in the stomach and sick. He was upset and angry, especially since he considered himself punished without justification. 12 The second strapping occurred in the afternoon following an incident in the playground when, according to the plaintiff, three boys other than himself began to chant "Kick Fricot out". The plaintiff showed his bruised hand to a friend and made a racially offensive remark about the teacher. This appears to have been the circumstance which led to the second beating which, according to the plaintiff, consisted of a further five blows to his visibly injured right hand. 13 The jury found that there was proper cause to strap the plaintiff on the afternoon (Q3) but that the strapping was not delivered in a moderate and reasonable manner (Q4). 14 On the evening of 16 March 1984 the plaintiff was taken to his family's general practitioner Dr Wu. She recorded "bruising +++, swelling +++, tender ++". 15 There were numerous visits to the general practitioner for treatment of the injured hand between March 1984 and October 1987. The plaintiff was referred to several treating specialists. He experienced swelling, sweating, discolouration and pins and needles. Treatment included ultrasound, ice, crepe, laser, needles and Dolobid. 16 In the remainder of his school life the plaintiff experienced swelling in the hand if he had to write for periods greater than 20 minutes. His attempts to write left-handed or to type were unsuccessful. Using the right hand caused pain, swelling and headaches. His sleep and concentration were badly affected. He was unable to play sport and he discontinued his electronics hobby. There were feelings of shame and guilt and a sense of victimisation. A psychiatrist who gave evidence (Dr Diamond) expressed the view that he had suffered a significant disruption to his adolescent development. During his school years he had nights in bed crying with pain. He took prescribed pain killers. 17 The physical problems persisted during the plaintiff's HSC years (11 and 12 ) at a different school. He wore a splint on his right hand and forearm to help him sleep due to his pain. The difficulties with writing continued. Attempts to overcome the problems by using an amanuensis and other means failed. Acting under medical advice he did not sit the HSC exams and only received his HSC after representations were made on his behalf. 18 The plaintiff gained entry to university via ACCESS, a scheme for students with disabilities. He undertook a Bachelor of Engineering course. His symptoms continued while at university. There were problems with swelling, sweatiness, pins and needles, and discolouration of the hand. He continued to suffer pain, headaches and concentration problems. He was reticent in speaking of his condition, due in part to feelings of guilt. 19 The plaintiff was granted extra time to do exams because of his disabilities. He was taking aspirin and panadeine for his pain and he also received cortisone injections. He experienced difficulties working in industrial placements during his degree. He began to drink heavily. 20 He completed his bachelor's degree and then proceeded to a PhD in Engineering. The doctorate was completed, but it took considerably longer than would otherwise have been the case due to the problems stemming from the injury. When the plaintiff started to write his thesis in 1995 this aggravated his hands and led him to abandon the degree for about two years. He spent much of his time in bed. Dr Diamond expressed the view that he was suffering from a major depressive illness with melancholia. After making unsuccessful attempts to return to study he succeeded in doing so and completed his PhD in October 2000. 21 In January 2000 he commenced work at CSIRO in a fulltime probationary position. Because of difficulties with his hand, his hours were reduced from 7.21 a day to 6 a day and latterly to 4 a day. A twelve month probationary period had been extended and this was the situation at the time of the trial in February 2001. The plaintiff said that he is still affected by pain in his job and has to work around it. 22 The plaintiff described his present problems as being:

· an underlying pain that is fairly constant, described as 4-5 out of 10. He also suffers a more severe debilitating stabbing pain at least twice per week that he described as 8-9 out of 10.

· pain in the right hand and up the arm, pins and needles, pain in the neck, coldness and discolouration in the hand, sweatiness and headaches (about 2-3 times per week).

· ordinary use of the hand causes or exacerbates pain and associated problems. 23 There was a live dispute at trial as to the plaintiff's continuing symptoms. There was no discernable evidence of continuing injury in the hand. The defendants' case, presented mainly through their medical witnesses, was that the plaintiff was "bunging it on". 24 The jury obviously preferred the evidence of the plaintiff and his expert witnesses. The very substantial awards for general damages and future economic loss are consistent with the evidence for the plaintiff and dependent upon acceptance of it virtually to the hilt. 25 Dr Middleton, a rehabilitation specialist, diagnosed a severe chronic soft tissue pain disorder triggered by an original soft tissue injury and with a combination of physical, emotional, psychological and behavioural features. She said that the plaintiff would continue to be at high risk of deterioration physically and that there was a risk of major deterioration psychologically every two to three years. She was gloomy about the prospects of relief. She considered the plaintiff unfit for any manually based trade or occupation and significantly limited in his capacity to perform the full range of duties in his chosen career as a civil engineer. 26 Dr Champion, a specialist in pain research, said that the plaintiff's signs have been worse recently than in earlier times and he opined that the physical disorder would continue indefinitely without prospect of relief. He diagnosed chronic peripheral neuropathic disorder in the right upper limb with right median neuropathy. 27 Dr Diamond said that the plaintiff's physical and psychological disabilities had impaired his progress at virtually every stage of his life since the strappings. He thought that the chances of fully resolving the plaintiff's problems were not good. Indeed he thought that there was a risk of a relapse into severe depression. 28 Each specialist acknowledged that his or her diagnosis and prognosis were significantly dependent on the accuracy of the medical history given by the plaintiff.

Overview of issues 29 No complaint is made in relation to the directions to the jury. 30 The appellants submitted that the award of $700,000 for general damages was appealably excessive in the sense that it was beyond what could reasonably be regarded as appropriate to the circumstances of the case (cf Progress and Properties Ltd v Craft (1976) 135 CLR 651 at 672, Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61-2). The respondent did not dispute this. 31 In response to an invitation to submit what figure was appropriate, the range was $100,000 (defendants) to $250,000 (plaintiff). I mention this to indicate that there is a strong body of material to show that a substantial award for non-economic loss is inevitable but that there is a very wide range of continuing dispute. That dispute in turn is largely dependent upon acceptance of the plaintiff both generally as to his evidence of continuing difficulties and specifically as to the degree of such difficulties. 32 It is not contended that the evidence at trial was incapable of supporting the awards for economic loss. Nevertheless, the appellants argued that the jury's error as regards general damages makes it likely that error affected the economic component of their award. 33 The summing up indicates that there were live issues as to the genuineness and extent of the plaintiff's continuing injuries, the causative impact upon his psyche of the strappings, the reason for embarking upon the postgraduate degree, the plaintiff's willingness to maximise his earning capacity, and the choice between a "mathematical exercise" and a lump sum cushion for future economic loss. All of these issues depended upon the jury's assessment of the plaintiff's credibility. Likewise with the medical evidence, because it significantly depended upon the plaintiff's accuracy and honesty given the absence of medically discernible stimuli for the continuing pain. 34 Since the appeal arises out of a trial with a jury it is not an appeal by way of rehearing as provided by s75A of the Supreme Court Act. 35 The appellants seek orders setting aside the judgments and orders and a new trial limited to damages. They are entitled to the first order in light of the plaintiff's concession (properly made) that the award of damages is excessive having regard to the component of $700,000 for general damages. 36 The plaintiff invites this Court to substitute a verdict which adjusts the general damages component, and it alone, so that it represents such sum as in the opinion of the Court ought to be assessed. The defendants press to have all damages reassessed in a new trial.

Should general damages be reassessed by this court? 37 The common law gave no appellate power to reassess except by consent (Selman v Minogue (1937) 37 SR(NSW) 280). Since 1965 this Court has had such power, subject to conditions now found in s107 of the Supreme Court Act. Of present relevance, the Court must be satisfied that: 1. without seeing or hearing the witnesses it is fully able to assess the amount of damages on perusal of the evidence contained in the documents before it (s107(b)); and 2. it appears to the Court to be desirable to exercise the power to reassess for the purposes of avoiding a multiplicity of trials (s107(c)(ii)). 38 The plaintiff fails at the first step, at least. 39 It is not possible to be satisfied that this Court is "fully able" to assess general damages on perusal of the transcript. Unlike an appeal by way of rehearing where there are the trial judge's findings of fact, we have only the transcript of a hotly contested trial. Virtually every aspect of damages turned upon the plaintiff's credibility. 40 The plaintiff argued otherwise, contending that we should read the transcript through the prism of the jury's presumed assessment that he and his witnesses were to be accepted to the hilt. This, however misunderstands the appellate function under s107. The principles are discussed in cases such as Shehata v Montague L Meyer Pty Ltd (1976) 51 ALJR 77, Agbaba v Witter (1977) 51 ALJR 503, Government Insurance Office of New South Wales v Evans (1990) 21 NSWLR 564 (Evans) and Fowkes v Parker [1999] NSWCA 442. In Evans, Samuels JA and Handley JA summarised Shehata and other authorities, stating (at 577): If the credibility of parties or witnesses is a material element in the process of re-assessment then the requirements of s107 will not be fulfilled and the re-assessment will not be made. 41 In determining whether a verdict is excessive, the Court of Appeal assumes that the jury has taken the view of the evidence most favourable to the plaintiff. But if and when the Court comes to consider reassessment, it is not restricted to such a view of the evidence. The Court is then required to make the award which in its view is justified on the whole of the evidence, "remembering that fair compensation between the parties is what must be arrived at" (per Dixon J in Lee Transport Co Ltd v Watson (1940) 64 CLR 1 at 14) (see Murphy v Mark [1977] VR 316 at 321, Shehata at 79-80, Evans at 571-2). As Gibbs J put it in Shehata (at 80): A jury, unlike a judge sitting alone, cannot record its impression of the witnesses for the benefit of an appellate court. In the present case all that could be known was that the jury had somehow gone wrong. It could not be deduced which of the testimony it had accepted and which it had rejected. 42 There must therefore be a new trial.

A new trial limited to general damages? 43 The appellants submitted that all issues of damages should be considered afresh. The plaintiff submitted that only general damages should be tried afresh. 44 The Court has power to order a new trial on any question without interfering with the decision on any other question (Pt 51 r23(3)). I would reject the appellants' submission to the contrary, based as it was upon the idea that there can ultimately be only a single verdict against each defendant. There have been occasions when a single head of damages has been ordered to be retried (see John Fairfax & Sons Ltd v Armaghanian NSWCA, 27 August 1996 (new trial limited to quantum of damages for past and future economic loss), Gibson v Smith SCWA, Full Court 19 June 1997 (new trial limited to damages for future care), Rosstown Holding Pty Ltd v Mallinson [2000] 2 VR 299 (new trial limited to assessment of economic loss)). 45 What principles govern the exercise of the discretion to order a new trial on a limited question? The leading case is Pateman v Higgin (1957) 97 CLR 521. There, the High Court was considering whether the Full Court of the Supreme Court of New South Wales erred in ordering a new trial limited to damages after setting aside a jury's verdict on the ground that there had been an inadequate award of general damages. The High Court first satisfied itself that such inadequacy was not the product of a broader error, in particular a compromise verdict. Having thus satisfied itself, the Court held that the Full Court had not erred in determining that the new trial should be limited to the issue of damages. 46 Kitto J (at 527) stated the governing principle to be one derived from Hutchinson v Piper (1812) 4 Taunt 555 at 556-7, 128 ER 447 at 448: If on the evidence the court above thinks that justice has not been done, but they shall do more injustice by setting the matter at large again, they may restrict the parties to certain points on the second trial.

Citing Cussen J in Holford v Melbourne Tramway and Omnibus Co Ltd (1909) VLR 497 at 529, Kitto J continued: … to grant a new trial on the whole case is the general rule and to grant it on one issue only is the exception…. [It] remains, I think, a sound general proposition from which to start in the consideration of each particular case according to its own circumstances that if there is to be a new trial it ought to be of the case as a whole unless the Court thinks that "they shall do more injustice by setting the matter at large again". 47 Later (at 529) Kitto J said that if the smallness of the award of damages created …in the mind of the appellate court a real doubt as to whether the jury's conclusion on liability has been properly arrived at, the Court cannot think that, while injustice as to damages would be done by allowing the verdict as a whole to stand, more injustice would be done by setting the whole case at large than by ordering only a new assessment of the damages.

See also per Taylor J at 532-3. 48 These passages indicate that a new trial should not be limited if there is a real chance of the jury having erred in the wider case (see also Rowe v Edwards (1934) 51 CLR 351 at 356 per Dixon J, Uren v Australian Consolidated Press Ltd (1965) 66 SR(NSW) 271 at 304-5 per Walsh J, whose decision was upheld by the High Court: see Australian Consolidated Press v Uren (1966) 117 CLR 185 at 193, 200-1, 215, 220). This is the way that this Court has approached the exercise of the discretion to order a limited new trial (see eg Wardle v Wills Hartman Pty Ltd NSWCA, 24 August 1984, Quinn v Rocla Concrete Pipes Ltd (1986) 6 NSWLR 586 at 602, Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 at 381). The principles are capable of application to a situation like the present where the choice is between a new trial as to damages generally and as to a single head of damages. 49 Applying these principles I have concluded that the new trial should not be restricted to any particular head of damages. 50 My reasons are twofold. First, there is a real chance that the very high award with respect to economic loss may also have been affected by the reasoning which led to the excessively high award for general damages. I am not saying that this is more probable than not, because my feeling is that the jury fell into error in relation to general damages because, consistent with existing authority, they were given no assistance as to an appropriate range within which to address that issue. Nevertheless, I cannot exclude the possibility of wider error. It is clear that credibility-based findings necessarily underpin the high awards for economic loss. 51 Secondly, if the tribunal of fact at the second trial took a different view of the plaintiff's credibility (I am speaking hypothetically) there is a distinct risk that its verdict as to general damages could appear anomalous when placed side by side with the awards for economic loss and (possibly) exemplary damages at the first trial, if those awards were allowed to stand (see Monti-Haitsma Enterprises Pty Ltd v Lord (1988) ATR ¶80-200 at p67,980). I am of the opinion that the ends of justice will best be served by granting a new trial as to damages generally. 52 It is unnecessary to consider the possibility that the awards for exemplary damages are also tainted. The appellants do not complain about those awards, but they accept that the new trial as to damages generally will mean that that issue will have to be revisited. 53 The appellants accept that the order for costs made at the trial should stand. The costs of the new trial will be at the discretion of the court. 54 I propose the following orders:

Set aside the judgments ordered on 15 February 2001.

Respondent to pay appellants' costs of the appeal and to have a certificate under the Suitors' Fund Act 1951, if qualified.

Postscript 55 If the new trial is by jury, existing authority will require that the jury can be given little specific guidance as to general damages (Carson at 59-60) and certainly cannot be told a range (except by consent). I recognise and submit to such authority, but nevertheless have very great difficulty in understanding why this should be so. 56 Notwithstanding denial in still authoritative High Court decisions of the 1960's, judicial determination of and appellate review of general damages awards are more than a little shaped by convention (see Luntz, Amount of Damages for Personal Injury and Death 3rd ed pp161-8). In broad terms, appellate courts apply a tariff based upon accumulated general experience (for a recent discussion of the position in England, see Law Commission (UK) Damages for Personal Injury: Non-Pecuniary Loss, Consultation Paper No 140 1995 at s2.21ff). The English Court of Appeal has recently revised guidelines on the topic (Heil v Rankin [2001] QB 272). Failure to inform a jury of the limits beyond which their verdict is clearly liable to be set aside is inviting trouble that, in my opinion, outweighs the imperceptible educative value of a series of jury verdicts upon judicial thinking. 57 In this regard, civil juries are even worse off than the growing number of trial and appellate judges who lack extensive recent common law experience at the Bar. The most such judges can hope for is the acquisition of general knowledge downloaded imperceptibly from a series of particular exposures each of which must not be looked at individually without breach of prevailing orthodoxy laid down over a generation ago when things were very different (Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. Cf Hunter Area Health Service v Marchlewski [2000] NSWCA 294 at [73]-[76]). At least judges can call upon counsel to offer submissions as to a range of figures for general damages. 58 HEYDON JA: I agree with the orders proposed by Mason P in [53] and with the reasons for them stated in [1]-[52] of his judgment. However, even if the present condition of authority permitted a reconsideration by this Court of the law along the lines of the suggestions in [54]-[56], this case is not an appropriate vehicle in which to embark on such a reconsideration. 59 The relevant point was not taken at trial. Nor was it taken in the written submissions of the parties to this Court. In those submissions, the respondent appeared to assume the correctness of Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 124-5, and the appellants did not attack its correctness. In oral argument the appellants submitted that that case had "slumped a bit", but did not advance any argument on the point which was sufficiently detailed or considered to justify departure from the existing law. The appellants referred to Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 59-60. The High Court majority were there dealing with whether it was permissible for juries in defamation cases to be given "an indication of the ordinary level of the general damages component of personal injury awards for comparative purposes". What the majority there said, tentatively expressed as it was, consisted of obiter dicta on that subject. The majority did not in terms say anything about the distinct subject of whether juries in personal injury cases should be told about the range of general damages in those cases, and any inference from or implication in what they said is even more remote from the actual issue for decision in that case. The appellants' submissions to this Court did not refer to, or seek to deal with, the points made by McHugh J in opposition to the majority's suggestions. So far as those points have force, and prima facie they have considerable force, they have some application to the suggestion that juries in personal injury cases should be informed of a range of figures for general damages. Nor did the appellants' submissions seek to answer the questions set out in John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290 at [87]. Finally, a course which may be appropriate for standard instances of negligently caused personal injury (e.g. by the use of cars, or the operation of machinery or systems of work in work places, or the physical condition of work places, or the physical condition of other premises) is not necessarily appropriate for intentionally caused harm, as here. Indeed the circumstances of the present case are highly unusual, centring as they did on the combination of one beating without proper cause followed by another beating which, though there was a proper cause for it, was not moderate or reasonable. 60 HODGSON JA: I agree with Mason P. ******************

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