Vulin v Cox [2005] ACTCA 22

It is apparent from the transcript that at one point the trial judge had, very properly in our view, sought some guidance on ranges of general damages. Counsel were reticent about submitting what would be an appropriate range. Where a Judge (or additional Judge) of this Court seeks assistance of that kind, it seems to us that it falls within counsel’s duty to the Court to make submissions as to what would constitute a non-appellable range of damages. After entering the consent order, we indicated that we would publish our reasons to provide guidance to the profession on this question.

It seems that there may have been an apprehension that this is inappropriate. It is certainly the case that the High Court in Planet Fisheries Proprietary Limited v La Rosa (1968) 119 CLR 118 made it clear that it would be an error to refer to a tariff in respect of general damages, particularly in the context of advising a jury of comparable verdicts.

The High Court, to some extent, qualified that position in the more recent reference in Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 where Mason CJ, Deane, Dawson and Gaudron JJ said (at 59) that, in defamation cases – ... we see no significant danger in permitting trial judges to provide to the jury an indication of the ordinary level of the general damages component of personal injury awards for comparative purposes, nor in counsel being permitted to make a similar reference. Their Honours went on again to stress that in personal injury cases there was of course no tariff that could be derived by comparison with other cases, and that every case had to be decided on its own particular facts.

Similar views have been subsequently expressed, and perhaps with greater clarity, by a Full Court of this Court on an appeal from the Master in 1996 in the matter of Hebditch v Slaven Motors Pty Ltd (unreported, Supreme Court of the Australian Capital Territory, 12 July 1996, Gallop, Higgins and Ryan JJ) where their Honours 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 recognize also that no two cases are wholly alike and that apparent similarities are often superficial. Because the elements which constitute the basis for 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 recognized 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.

None of this should suggest, of course, the existence of a tariff. Each personal injury claim must be decided on its own facts. Further, the purchasing power of money is apt to change and increased understanding may lead to a different kind of approach to quantification of such intangibles as different kinds of pain and suffering. Nevertheless, in determining the quantum of damages, trial judges and masters may be assisted by reference to non-appellable ranges of damages derived from decisions of this Court.

Where such assistance is requested by the Court, it should generally be provided. There may be particular cases, for example of a plaintiff with a degree of brain damage, where a party’s counsel might explain why he or she must decline the Court’s invitation. However, counsel should not accept any instruction from an insurer-defendant not to assist the Court or as to what might be an appropriate response. It is counsel’s duty honestly and responsibly to assist the Court in a matter where such assistance is sought.

We intend no criticism of counsel in this case. Counsel, we were informed, had specific reasons which, without the benefit of the above clarification, they considered warranted their declining the trial judge’s invitation. We simply wish to have no repetition of the unfortunate circumstances which occurred here despite his Honour’s best endeavours to act in accordance with contemporary general standards of assessment of damages. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.