Crellin v Kent
[2000] VSCA 165
•10 August 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 4587 of 1999
| JOHN CRELLIN |
| Appellant |
| v |
| IAN KENT |
| Respondent |
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JUDGES: | ORMISTON, CALLAWAY and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 August 2000 | |
DATE OF JUDGMENT: | 10 August 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 165 | |
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DAMAGES – Personal injury – Pain and suffering – Loss of enjoyment of life – Whether jury award manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr J.H.L. Forrest Q.C. and | Nevett Ford |
| For the Respondent | Mr D.A. Kendall Q.C. and Mr J.S. Monahan | Simon Parsons & Co. |
ORMISTON, J.A.:
I shall ask Chernov, J.A. to deliver the first judgment.
CHERNOV, J.A.:
In 1996 the respondent brought this proceeding against the appellant, who is a surgeon, for damages in respect of the personal injuries which he claimed resulted from the appellant’s negligent performance of a vasectomy procedure on him. The claim was confined to general damages for pain and suffering and loss of enjoyment of life. The appellant denied the claim and, in the result, the issues of negligence and quantum were left to the jury after a trial lasting some seven days. On 19 February 1999 the jury returned a verdict for the respondent, finding that the appellant’s negligence was the cause of the injuries. They awarded him damages in the sum of $250,000. His Honour directed that judgment be entered for the respondent in that sum and made other consequential orders.
By notice of appeal dated 4 March 1999 the appellant appealed against the whole of the verdict of the jury and the judgment entered thereon on a number of grounds, but in the end, all of them were abandoned other than the ground which claimed, in essence, that the amount of damages awarded by the jury was manifestly excessive and bore no reasonable proportion to the respondent’s “injury and loss” as disclosed by the evidence.
The relevant evidence before the jury, the substance of which is now not in serious dispute, can be briefly stated. The respondent, a resident of Wonthaggi, was in his mid-40s at the time of the trial and was aged 36 when he had the operation. He is a builder by occupation, conducting his own business through a company. Before the operation, the respondent was in good health and was generally active. He played squash, was involved in hunting and fishing and generally enjoyed outdoor activities. He has been married since 1976. He and his wife have three children. Before the operation, the respondent enjoyed a close relationship with his wife which included a sound sexual relationship.
In early February 1991 he saw his doctor, Dr Whitehouse, in relation to a nasal problem and it was arranged that a nasal surgery procedure would be undertaken on Friday 8 February 1991. Although the respondent was then unaware of it, Dr Whitehouse was to act as the anaesthetist during the operation. On 4 February 1991 the respondent again saw Dr Whitehouse for a pre-operation assessment. It was during that consultation that he asked Dr Whitehouse about the possibility of having a vasectomy procedure performed on him at about the same time as the nasal operation. He was told, in effect, that the two procedures could not be performed sequentially, but that he would probably be able to have the vasectomy performed during the period of his hospitalisation, although Dr Whitehouse could not tell him whether it would be on the same day as his nasal surgery or on the following Monday. It seems that the respondent had to remain in hospital over the weekend in any event following the nasal surgery.
On the morning of Friday 8 February 1991 when the respondent was having pre-operative treatment and when he was somewhat sedated, Dr Whitehouse put his head around the corner of the door and told him that “the other job’s organised”. The respondent said that he understood that he was being told that the vasectomy was going to be performed on him that day. Unbeknown to the respondent, the surgeon who was to perform the vasectomy was the appellant, whom the respondent had not previously met in connection with this procedure. According to the respondent, at no stage prior to the operation did he have a conversation with the appellant as to the nature of the operation, its possible consequences or the risks involved, although the appellant claimed that they had a conversation, albeit a short one.
After the operations, the respondent’s first recollection was that he felt pain both in his nose and his scrotum. The pain persisted throughout the weekend and there was swelling in the scrotum. The respondent was discharged on the Monday feeling pain and discomfort in the scrotum and was a little bewildered as to what had been done to him.
In the week that followed the respondent had problems with bleeding from his nose and his scrotum remained swollen and black in colour. He was examined by the appellant in relation to the swelling and was told that it was reasonably common for the scrotum to be bruised and for some pain to be experienced, but that this would subside by itself and return to normal.
The respondent said that over the next few months he saw the appellant on a “reasonably regular basis”, complaining of the pain in the scrotum area. He was repeatedly told that it would sort itself out. During those months the respondent did not have the capacity to engage in sexual intercourse due to his injuries. Eventually, the appellant suggested that he should conduct a more detailed exploration of the surgical site and, as a consequence, the respondent was re-admitted to the hospital on Friday 26 April 1991. During the exploration the respondent was given a local anaesthetic and the appellant performed an operation on the left side of the scrotum. The respondent said that he felt pain during the operation and called for and was given two further injections.
He was discharged on the following day, but was in considerable pain, in great discomfort and was worried. The swelling in his scrotum was growing and he was only able to shuffle around the house. By the following Sunday night he was in such pain that he drove himself to the hospital and was re-admitted effectively for another week. His penis and his scrotum were black. The respondent said that he was seen by the appellant on the following day and that, examining him, the appellant said, “I fucked up”. The appellant has at all times denied saying that or anything like that to the respondent. Be that as it may, the respondent said that he then asked to be put in an ambulance and sent to Melbourne, presumably to see other specialists, but this was not done. He stayed at the local hospital and was given Panadeine Forte and Valium to relieve his pain and discomfort.
A week later, the respondent left the hospital but, given the size of the scrotum, he had to wear a scrotal support which was in the form of a self-adhesive bandage which supported the scrotum. The bandage had to be torn off whenever it had to be changed.
During the course of the following week the respondent experienced internal haemorrhaging from the operation. This was eventually attended to. He continued to take Panadeine Forte for his pain and Valium for his psychological state. The swelling gradually subsided over a period during the next two-and-a-half to three months, but the pain remained constant and became worse when he attempted to resume sexual intercourse. Because the pain overrode the pleasure, his sexual activity diminished. The respondent told the jury that, although over the years thereafter his sexual activity increased because he was able to make adjustments to ease the pain when he felt it being aggravated, the frequency and satisfaction from the activity was significantly below the pre-operation level. His evidence was that before the operation he had sexual intercourse about twice a week, whereas, for example, in the first six weeks of 1999, it occurred only on two or three occasions. He also said that although he had some early difficulty in obtaining an erection depending on the severity of the pain, that ceased to trouble him some months after the operation.
In broad terms, during the first four to six months after the operation the respondent continually experienced pain and discomfort in the scrotum area, and, as a result, was unable to undertake any meaningful sexual activity or perform the more strenuous work in his building business.
Because of the continuing problems, the respondent was sent to be examined by a number of doctors in Melbourne. Various treatments were suggested to him which might resolve the problem. For example, one surgeon suggested that if the left testicle was removed it might get rid of the pain. Another suggested that a nerve block be placed in the respondent’s back for six months. The respondent declined to undertake these and other proposed treatments because no assurance of success or material improvement could be given. It was conceded on behalf of the appellant that it is not open for him now to argue that the respondent’s decision to reject the proposed treatments was unreasonable.
The respondent told the jury that, by the time of the trial, although the pain persisted, he was able to take steps to cope with it and that, in relative terms, he was not troubled by it to the same extent that he was in earlier years although he still had to take precautions such as wearing very supportive underwear; without it the pain would become worse. In general terms, he estimated that the intensity of the pain was now approximately two-thirds of what it had been in prior years. He described the pain as being generally continuing and as being similar to that which follows when flicked in the groin by the end of a cord or the end of a stringline. The respondent explained that the pain was aggravated by exertion on his part such as lifting heavy objects or engaging in sexual intercourse. He said that it was usually painful for him to engage in sexual intercourse notwithstanding that he could "adjust" himself when the pain intensified and thereby minimise its impact so that the pleasure of the sexual act exceeded the level of the pain. Nevertheless, because of the presence of the pain during intercourse, the frequency of his sexual activity had diminished significantly and the quality of the sexual relationship had dropped. Because of his problems, his wife was reluctant to instigate sex between them, not knowing when and how the pain would affect him and thus their conduct. Further, as a result of the injury, he experienced a loss of balance because he was favouring one side all the time, which made it difficult for him to walk around on the roof carrying materials on his shoulder when he was worrying about his balance. Similarly, he found climbing ladders awkward, as he did in lifting heavy material, and that all that had put some constraint on his ability to perform his usual workload.
It is appropriate to begin the analysis of the claim that the award in this case is manifestly excessive by acknowledging that the jury was best equipped to make the assessment as to what is the appropriate sum that should be awarded to the respondent by way of damages for pain and suffering and loss of enjoyment of life that he suffered by reason of his injuries. Their verdict should not be disturbed on the ground now contended for unless, on the evidence most favourable to the respondent, it is established that “no reasonable body of people could have awarded it” – see Ormiston, J.A. (with whom Phillips and Hayne, JJ.A. agreed) in Electrolux Pty Ltd v. Siniakis[1] and the cases to which his Honour there refers. It was contended for the appellant that, in essence, the consequences of the injury to the respondent are not of such a magnitude or severity as could cause a jury acting reasonably to award damages of $250,000 by way of compensation.
[1][1998] 1 V.R.29 at 38.
Mr Forrest, who appeared with Mr Riordan for the appellant, did not seek to belittle the injuries suffered by the respondent or the severe pain and discomfort which he experienced for a long time after the operation. It was acknowledged for the appellant that the respondent will continue to experience the pain to which I have referred earlier, as well as the reduced frequency of sexual intercourse and the pleasure to be derived from it. But Mr Forrest emphasised that the injury did not deprive the respondent of his ability to engage in sexual activity or to work and gain satisfaction from it. Mr Forrest also submitted that the injury had not produced any discrete psychological effect on the respondent such as depression which often accompanies the more serious injuries. The appellant's counsel also highlighted that, on the evidence, the respondent's relationship with his wife and family and friends had not been detrimentally affected by his injury to any significant degree. In the course of his submissions Mr Forrest referred to the situation that was considered in Siniakis[2]. The plaintiff in that case was a 50-year-old man who, prior to the accident, was in good health and had a close relationship with his wife, with whom, according to his evidence, he had sexual intercourse on most mornings and nights. He was injured in the course of his employment and the consequences of the injuries included the plaintiff becoming sexually impotent, suffering difficulty in passing urine, as well as various serious psychological problems. He became depressed and the relationship with his wife and family deteriorated significantly. Ormiston, J.A., with whom the other members of the Court agreed, held that the jury’s award of damages for non-economic loss of $250,000 was manifestly excessive and reduced it to $150,000.
[2]at 41-42.
In reaching his conclusion that the award was manifestly excessive, his Honour had regard, inter alia, to the relevant range of damages for non-economic loss awarded in respect of the most serious injuries such as brain damage and quadriplegia. The award of $250,000 was close to the range appropriate to the most serious injuries and, since the plaintiff’s injuries were not of that severity, it was concluded that it was not sustainable.
Mr Forrest argued that, in the circumstances and given the amount of damages that this Court sanctioned in Siniakis in respect of a much more serious injury, the award of damages in this case was one which no jury acting reasonably could award having regard to the relatively limited injury suffered by the respondent.
It was submitted on behalf of the respondent that, although the damages were on the high side, they were not so excessive in all the circumstances that a jury could not have reasonably awarded them. Mr Kendall, who appeared with Mr Monahan for the respondent, argued that, where the injury results in a significant loss of enjoyment of life, substantial general damages are warranted. He also contended that a jury is especially well equipped to assess such damages.
In the context of emphasising that loss of sexual activity constitutes a significant loss of enjoyment of life, counsel highlighted the observations made by Kirby, P. in Knight v. Government Insurance Office of N.S.W.[3] (to which Ormiston, J.A. referred in Siniakis) under the heading “A fresh approach is needed to compensating sexual disability” where his Honour emphasised the impact of sexual dysfunction on the enjoyment of life of most people.
[3]Unreported, 17 March 1995, Court of Appeal (N.S.W.).
The respondent’s counsel further submitted that the damages awarded were not manifestly excessive having regard to Zanelli v. Price[4] and St Margaret’s Hospital for Women (Sydney) v. McKibbin[5], which were concerned with injuries arising out of negligent surgical procedures in relation to genital organs, where damages for non-economic loss of $200,000 and $275,000 respectively, were awarded. Neither of those cases, however, can assist in supporting the award in this case, for the reasons explained by Ormiston, J.A. in Siniakis. The injuries sustained in each case were materially more serious than those suffered by the respondent. The negligent operations in those cases resulted in the plaintiff’s penis becoming materially disfigured in one case and shortened in the other, with physical and psychological consequences for the plaintiffs which on any view were significantly more severe than anything that occurred in this case. It is true that it seems to have been accepted that, in considering if an award of damages for non-economic loss is manifestly excessive, it may be appropriate to have regard to awards of damages in a relevant category of cases for the purpose of determining if they establish a range of damages appropriate to a particular class of injury with which the award in question may be rationally compared. Thus, for example, in Carson v. John Fairfax & Sons Ltd.[6] the majority said, in effect[7], that, in determining whether an award of damages for defamation is manifestly excessive, it is legitimate to consider the kind of figures which have been held to be proper in cases of disabling physical injuries. See also Ormiston, J.A. in Siniakis[8]. In my view, however, the injury sustained by the plaintiffs in the two cases referred to by the respondent do not constitute a relevant class of injuries for comparison purposes and are otherwise not a useful indicator of what might be an appropriate award of damages in this case.
[4]Unreported, 3 July 1997, Vincent, J.
[5](1987) Aust.Torts R.80-130.
[6](1993) 178 C.L.R.44.
[7]at 63-64.
[8]at 38.
In considering the critical question in this case, it should be borne in mind that, as I have mentioned, the respondent has not lost his ability to engage in sexual activity which was the principal basis on which he claimed general damages. It is true that he will continue to suffer the pain in his groin and that his enjoyment and frequency of sexual acts has been and will remain significantly reduced. The respondent is entitled, as the appellant has agreed, to be properly compensated for those and other consequences of his injuries to which I have referred earlier. But his pain and suffering and loss of enjoyment of life are, in my view, not of the same magnitude as that experienced by persons who sustain the most serious injuries.
It is trite that each case must be evaluated on its own facts. It seems to me, however, that it is useful, for the purpose of determining whether the award of damages in this case is manifestly excessive, to adopt an analysis akin to that undertaken by Ormiston, J.A. in Siniakis and by the majority in Carson. Thus, in my opinion, it would be relevant to have regard to the range of non-economic damages awarded in the class of cases which involve the most serious personal injuries such as quadriplegia and brain damage. Counsel informed us that the range of non-economic damages awarded in such cases is in the order of $300,000 to $400,000, possibly $450,000. Thus, if the award of damages in this case were to stand, the plaintiff would be compensated at a level close to that which is appropriate for the most serious injury cases. In my view, however, given that the respondent's injuries do not fall into that category, the award of $250,000 is manifestly excessive. In the circumstances, it is my view that a jury acting reasonably could not have awarded the respondent $250,000 for non-economic loss on the evidence viewed most favourably for the respondent. The award is, in my view, outside the range which was reasonably available to the jury.
Both parties have requested this Court to re-assess the damages in the event that it considers the award to be excessive. Given that I have come to this view, and, having regard to the request, the fact that the relevant material is before the Court and bearing in mind s.14(1) of the Supreme Court Act 1986, it is my opinion that it would be appropriate for this Court to re-assess damages. Taking into account the evidence to which I have referred, in my opinion, an amount of $135,000 should be substituted for the jury’s finding of $250,000.
Thus, I would propose that the appeal be allowed and that the sum of $135,000 be substituted for the jury’s award of $250,000.
ORMISTON, J.A.:
As I have said on a number of occasions, this Court should hesitate long and hard before setting aside the verdict of a jury for damages for pain and suffering and for other non-economic loss. Regrettably, having regard to the facts proved in the present case as set out in the judgment given by Chernov, J.A., I am forced to the conclusion that the verdict reached in this case was clearly outside the range which a reasonable jury could have reached. With one exception, for the reasons stated by Chernov, J.A., I would allow the appeal and substitute a verdict in the sum which his Honour has proposed.
That exception is that the decision in Electrolux Pty Ltd v. Siniakis[9] referred to by Chernov, J.A. has many differences from the present case, and for myself I would not treat it as providing a close or necessarily useful analogy. I have preferred to consider only the facts established and the matters not established in the present case, such as the absence of any need to take pain killers or other medication for many years.
CALLAWAY, J.A.:
[9][1998] 1 V.R.29.
I agree with the learned presiding judge and, subject to the qualification that his Honour has expressed, in the reasons given by Chernov, J.A. and the orders his Honour proposes.
(Discussion ensued.)
ORMISTON, J.A.:
The Court makes orders in accordance with these minutes:
1. The appeal is allowed.
2.The Court orders that order No.1 of the order of the County Court of 19 February 1999 and order No.1 of the order of the County Court of 19 March 1999 be each set aside and there be substituted an order that there be judgment for the plaintiff in the sum of $154,000, including the sum of $19,500 by way of interest to the present day.
3.Direct that the sum of $104,500 paid into the County Court be paid out to the plaintiff or his representatives.
4.Order that the balance of the sum paid into court and any interest thereon be paid out to the defendant or his representatives.
5.Order as to the costs of the appeal that the respondent pay the appellant’s costs down to 15 July 1999 and that in respect of the costs of the appeal thereafter they be paid by the appellant to the respondent.
There will be a certificate for the respondent in respect of the costs so ordered.
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