Further to the recent decision of Dunning v BHP Billiton Limited [2014] NSWDDT 3 (appeal:BHP Billiton Ltd v Dunning [2015] NSWCA 55) and the earlier jury verdict in Amaca Pty Ltd v King [2011] VSCA 447 ; obita dicta in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, the decision in Amaca Pty Ltd v Tullipan [2014] NSWCA 269 lends weight to increasing general damages awards in those jurisdictions.

It is now common for an award of general damages of $350,000.00 to reflect the standard ‘tariff’ for such claims.

The appeal point was whether it was an error of law as to the evidence of whether it was asbestosis or idiopathic pulmonary fibrosis or lung cancer. Interestingly, Basten JA made reference to the comparative ISV scales in support of not interfering with the award on appeal.

By way of comparison there still remains a sizable gap between QLD’s ISV’s (max $350,000.00) and NSW’s ISV’s ($551,500.00).

Basten JA with whom Gleeson and Lemming JA concurred:

39 The challenge to the award of general damages in the sum of $350,000 eschewed any reference to the reasoning of the trial judge. That was, no doubt, because the judge ignored nothing that he was required to take into account and did not rely upon factors which he was prohibited by law from taking into account. So much may be accepted: however, the fact that he gave careful attention to the suffering of the plaintiff, the periods over which that suffering had continued and its effect on his life, together with reference to the periods of hospitalisation demonstrate that the assessment was made by reference to relevant considerations and was neither arbitrary nor capricious. To say that the award falls outside “a sound discretionary range” requires some indication as to the limits of that range and how far outside this figure is said to fall.

40 Counsel for the plaintiff noted that neither the trial judge nor this Court should “seek out a norm or standard” in the decision of either appellate or trial courts for the purpose of determining, by way of comparison, whether the award in question was “disproportionate”: Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 at 124 (Barwick CJ, Kitto and Menzies JJ). That warning is to be accepted. The correct approach in assessing what is fair and reasonable compensation for the injuries received and the disabilities caused was described in Planet Fisheries in the following terms at 125:

“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. But this general awareness is quite a different thing from what we were invited by Planet’s counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.”

41 The rejection of a “norm or standard” was unexceptional: as was the statement that the judge will make an assessment which is not arbitrary or capricious, but based upon “general awareness”, as a product of general experience. Such reasoning is consistent with the approach required of an appellate court in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 616-617, where Lord Wright stated:

“An appellate court is always reluctant to interfere with a finding of the trial judge on any question of fact, but it is particularly reluctant to interfere with a finding on damages which differs from an ordinary finding of fact in that it is generally much more a matter of speculation and estimate. No doubt, this statement is truer in respect of some cases than of others. The damages in some cases may be objective and depend on definite facts and established rules of law …. At the other end of the scale would come damages for pain and suffering or wrongs such as slander. These latter cases are almost entirely [a] matter of impression and of common sense, and are only subject to review in very special cases. … In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere whether on the ground of excess or insufficiency.”

42 This passage was cited with approval and applied by Dixon CJ and Kitto J in Miller v Jennings [1954] HCA 65; 92 CLR 190 at 195-196.

43 These statements were made in the context of appeals not restricted to questions of law. It is arguable that the test to be applied on an appeal limited to errors of law is yet more constrained, although the practical result may not be different in most cases. In a case limited to review for error of law, especially where reasons are given which demonstrate no error of law, the amount of the award must be so disproportionate to the harm done that the assumption that the judge had operated correctly in accordance with the limits of his or her function under the law, must be false: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 (Dixon J). Given the imprecision necessarily attendant upon an assessment of general damages, an appellant challenging an award for error of law will, in most cases, bear a heavy burden.

44 There are of course principles of certainty and transparency which militate in favour of appellate intervention where what might be normally accepted as a proper range for an award of general damages appears to have been contravened. However, such considerations have more traction in relation to an appeal by way of rehearing than one limited to the correction of decisions in point of law. One way of demonstrating that the appellant did not satisfy this burden is by reference to the schedule of non-economic loss promulgated under the Civil Liability Act 2002 (NSW). The maximum amount of damages now payable for a most extreme case, pursuant to s 16 of that Act, is $551,500. The trial judge did not approach the assessment before him by reference to that figure (which was not legally applicable) and was correct in that regard. Nevertheless, the fact that the award in this case was less than two-thirds of the statutory figure under the Civil Liability Act supports the view that, given the plaintiff’s circumstances, the appellant has failed to demonstrate that the award was outside a sound discretionary range.

45 For these reasons, the challenge to the quantum of the award for general damages was rejected.

David Cormack – Brisbane Barrister & Mediator


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