Grimsey v Southern Regional Health Board

[1999] HCATrans 399

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H8 of 1998

B e t w e e n -

MEGAN ANNE GRIMSEY (an infant) by her Next Friend HENRY CHARLES GRIMSEY

Applicant

and

SOUTHERN REGIONAL HEALTH BOARD

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 1999, AT 10.49 AM

Copyright in the High Court of Australia

MR A.M. BLOW, QC:   May it please the Court, I appear, together with my learned friend, MR R.A.S. BAKER, for the applicant. (instructed by Baker Tierney & Wilson)

MR P.W. TREE:   May it please the Court, I appear with my learned friend, MR H.T. FOULDS, for the respondent. (instructed by the Director of Public Prosecutions (Tasmania))

GLEESON CJ:   Yes, Mr Blow.

MR BLOW:   Thank you, your Honour.  Your Honours, we say that there are two aspects of the reduction of the plaintiff’s general damages from all pain and suffering and loss of amenities from $300,000 to $175,000, that involve questions of public importance warranting the grant of special leave.  One aspect concerns a small point as to the proper approach to be taken as to the assessment of damages for the loss of the chance of the support of a husband or partner, and I propose to come back to that.

We submit also that a significant question arises as to the proper approach to be taken in relation to the information as to awards of damages made under this head in other cases and, specifically, in other Australian jurisdictions when the question of the proper assessment under such a head arises in an appellate court.  In essence, the major question that we say arises is whether it is appropriate that the approach taken or approved in Planet Fisheries v La Rosa, should continue to be the approach taken by appellate courts in this country in the assessment of damages, particularly in the light of the comments made by his Honour Mr Justice Kirby, when President of the New South Wales Court of Appeal in Moran v McMahon, and particularly, also, in the light of Carson v John Fairfax Pty Ltd, in which it was decided that the assessment of damages in a personal injury case could be taken into account by an appellate court in deciding whether an award in a defamation case was appropriate.

In the Full Court, the question of the assessment of damages under the head of pain and suffering and loss of amenities was dealt with briefly at pages 84 and 85 of the application book and, critically, at page 84 beginning at line 43, in a joint judgment, their Honours said:

We note that this award is something in the order of three times the highest amount previously awarded for general damages in this jurisdiction.

Well, their Honours made no mention of awards of general damages or of prevailing standards in other Australian jurisdictions and we say that they should be taken therefore to be proceeding on the basis that it is only the prevailing standards in Tasmania that they were taking into account.

GLEESON CJ:   Were they invited in argument to have regard to awards of general damages in other jurisdictions?

MR BLOW:   Yes, your Honour.  In fact, we took the liberty of referring their Honours to some 13 awards of damages in specific cases in other Australian jurisdictions.

GLEESON CJ:   And what was the highest award of general damages in another jurisdiction they were referred to?

MR BLOW:   $350,000, your Honour, in Rosecrance in the Northern Territory.

GLEESON CJ:   Thank you.

MR BLOW:   It is my submission that top of the range awards in other jurisdictions are to be found in the vicinity of $300,000 and extending up to $350,000 in Rosecrance.  Their Honours reached a conclusion at page 85 of the applications book, beginning at line 9, which reads simply thus:

In our opinion, the sum of $300,000 for pain, suffering and loss of amenities of life is, in the circumstances of this case and the awards made under other heads of damage, excessive and reflects an erroneous exercise of the judicial discretion.  In our opinion, an appropriate sum to assess under this head is $175,000.  The judgment sum should be reduced accordingly.

Their Honours provided no reasoning as to why this award should be 1.75 times Tasmania’s previous highest awards under this head, rather than 3 times the previous highest under this head, and simply made the categorical assertion, that I have read out, that $175,000 was an appropriate sum.

Now, your Honours, the arguments for departing from the Planet Fisheries approach have been stated, far better than I am able to state them, in Moran v McMahon, as long ago as 1985 by Justice Kirby, particularly at pages 709 to 711, and his Honour there – that is at pages 75 and following in the materials that we have provided to your Honours – listed seven arguments in favour of departing from Planet Fisheries approach and moving to an approach whereby an appellate court would have specific regard to individual awards of damages. At about the letter B at page 709, his Honour referred to “consistency” and at about the letter C said:

Whilst Planet Fisheries controls the approach of appeal courts in Australia, nothing better will emerge either in the standards of advocacy –

his Honour had referred to glib assertions that X dollars is too high an award or too low an award –

or the performance of the comparative role of the appellate tribunal.

His Honour’s second point was that:

knowledge of the “tariff” –

in days gone by could have well have been expected in a narrow group of individuals working in “personal injuries litigation”, but that times had changed and that, at about letter E:

it is no longer safe to assume that the rules of thumb and conventional figures will be known to all of the actors.

The third factor referred to by his Honour at about letter F was that:

judges –

should wish –

to perform their judicial functions in a principled fashion.

The fourth point, at about letter G, was that awards or decisions and reasoning:

should be exposed in open court for scrutiny, criticism, updating and correction.

And his Honour referred to Justice Samuel’s comment in Bellingham v Dykes, as to:

the obligation of a judge, who uses comparable decisions, to expose that fact to the representatives of the parties.

Well the decision of the Full Court, or the reasons of the Full Court in this case illustrate the lack of exposure to “scrutiny, criticism and correction” that is characteristic of judgments that apply the Planet Fisheries’ approach.

At page 710 at about letter B, his Honour referred to an observation that judges do in fact:

seek out guide posts –

At page 711 at about letter B, his Honour stated the sixth argument that appellate courts see an:

unrepresentative sample of verdicts.

Those that are alleged to be too high and too low, but now that that go unchallenged.  That, of course, is not a problem in Tasmania, where there is not a separate appeal division of the Supreme Court.

His Honour’s seventh argument, which is more an argument in rebuttal, is that the:

examination of allegedly comparable cases –

need not require –

an unprofitable use of court time –

because means can be adopted to –

controlling, directing and limiting the material to be placed before the court.

Now what his Honour said in that judgment predated by seven or eight years the decision of this honourable Court in Carson v John Fairfax & Sons Limited, but his Honour did comment on the significance of that case applying Planet Fisheries v La Rosa, later in 1993, in New South Wales Insurance Ministerial Corporation v Hay (1993) 18 MVR 375 and in that case, in a passage that appears at page 227 in the papers that we have provided to your Honours, beginning at line 24, his Honour ‑ ‑ ‑

GLEESON CJ:   May I interrupt you, Mr Blow, for a moment.

MR BLOW:   Yes, your Honour.

GLEESON CJ:   Looking at the critical passage in the judgment on pages 84 and 85, their Honours appear to have referred to Planet Fisheries only in support of propositions that are unarguably correct, have they not?  They cite Planet Fisheries as authority for the proposition that:

the Court is required to have regard to the proportionality of the sum awarded to the injury and its consequences.

And they also cited, as authority for the proposition, that the Court has to:

give weight to the current general ideas of fairness and moderation ‑ ‑ ‑

MR BLOW:   Yes, and those propositions are uncontroversial.  I submit though that in not having regard to material to which their Honours were referred as to comparable verdicts in other jurisdictions, their Honours have taken a course, which makes this case an appropriate vehicle for the Court, if it considers it warranted, to consider the criticisms that have been made in Planet Fisheries ‑ ‑ ‑

GLEESON CJ:   Well, that is the problem, is it not?  They cite Planet Fisheries for propositions that are uncontroversial and they do not deal in their reasoning, or go through a process of reasoning, that raises the issue that you want to ventilate.  Indeed, the remark they make about this award being three times the highest amount previously awarded in Tasmania, looks as though it might be contrary to Planet Fisheries.

MR BLOW:   It is certainly consistent with their Honours going further than a Planet Fisheries’ approach would call for.  Yes, I would have to acknowledge that point, your Honour.  I take your Honour’s point as to that and I really have nothing more to say to develop the argument or submission in relation to Planet Fisheries in the broad sense, but as to the application of Planet Fisheries, I submit that it is appropriate for the Full Court or an appellate court in one State or Territory, particularly a small State like Tasmania, to have regard not only to prevailing ideas as to fairness and moderation reflected in damages awards in its own jurisdiction, but also to those reflected in similar awards in other jurisdictions, and even if the Planet Fisheries’ approach is to stay and is appropriate, then, I submit, that their Honours erred in having regard only to the standards of awards current in Tasmania and not to the general standards that are prevailing outside Tasmania.  There is no reason, in my submission, why Tasmanian awards ought, as a general rule, to be lower than those around the country.

I submit that a distinction ought to be drawn from other judicial processes, such as sentencing, where there are local factors, local crime patterns and local sentencing practices and local probation and parole regimes, for example, that make it appropriate for sentencing to be dealt with at a State or Territory level, rather than at a national level, whereas ‑ ‑ ‑

CALLINAN J:   But, Mr Blow, that is what the Full Court did; they took into account the Tasmanian tariff for pain and suffering.  That is exactly what they did, is it not?

MR BLOW:   They did, your Honour, and I submit that there are a couple of things wrong with that, with respect:  one, that in a small State one gets a small sample and that in a State where there is only a handful of damages awards for pain and suffering each year, it is appropriate to look beyond the borders of the State to see what prevailing standards are.  Secondly, I submit that as well as there being a small sample, Australia is a fairly homogenous society and the extent to which a fixed sum of money will compensate for pain and suffering and loss of amenities is much the same ‑ ‑ ‑

CALLINAN J:   Mr Blow, it might cost you a lot less to buy a house in Tasmania than on the harbour in Sydney perhaps.

MR BLOW:   And a lot less 100 miles out of Sydney than in Sydney, your Honour.  The cost of living does not vary so much on a State-by-State basis. 

The other point that I wish to address, your Honours, concerns the approach that the Full Court took to the loss of the applicant’s chance of being supported by a husband or partner.  It is our submission that such a loss ought to be treated as a type of economic loss, but that their Honours treated it as a type of non-economic loss.  The learned trial judge took into account this particular loss, because the applicant is an infant who will never marry and never have such a relationship.  The learned trial judge took that factor into account in assessing general damages under this head, but the Full Court, in reducing the award, said at about line 45:

The sums assessed under all other heads of damage have fully compensated the respondent for each of the losses she has sustained ‑

so their Honours did not have regard to the economic consequences of the loss of the chance of support. 

There is a calculation at page 103 of the application book in paragraph 6, which reflects, in our submission, the sort of amount that ought appropriately be awarded, or could appropriately be awarded, if this was dealt with under a separate head, and it is our submission that this case raises a point of public importance as to the proper approach to be taken as

to the categorisation of such a loss and the assessment of damages in relation to such a loss, given that in Sharman v Evans, this loss was taken into account as a species of economic loss and in other cases, such as Hines v The Commonwealth, it has been taken into account as a separate head, and even in England in cases such as Moriarty v McCarthy, where this sort of loss has been treated as a loss of amenity, the component attributable to that loss has been quantified.

We submit that their Honours fell into error in treating this particular loss as a species of non-economic loss, when really it was the loss of something very valuable.  Those are my submissions, thank you, your Honours.

GLEESON CJ:   Yes, thank you, Mr Blow.  Mr Tree.

MR TREE:   Your Honours, this might, in some respects, be seen as an opportunity for this Court to revisit Planet Fisheries, but, in my respectful submission, it is an inappropriate vehicle for the Court to do so, primarily for the reasons which have been outlined by us in our outline of argument.  Your Honours will see that, particularly, at the appeal of this matter in the court below, the applicant referred the court to a number of interstate awards by way of six pages of written submission.  Now, in so far as the court below did not thereafter incorporate those awards into its reasons, it does not necessarily logically follow that the court did not have regard to them.

Really, what the applicant has done is to confuse regard with written acknowledgment, so that, in substance, what the applicant seems to really be saying is this, that unless and until a court has expressed written acknowledgment to awards in other States, or the range of awards in other States, then it could be said that the court has fallen into error.  Now this is not a situation where the public policy considerations, which applied in Fleming v The Queen, require there to be written acknowledgment.  I think both your Honour the Chief Justice and Justice Callinan were on the Bench in Fleming v The Queen and your Honours will remember that that dealt with the warning being given by a judge, in effect to himself, sitting in a criminal trial in which there was no jury, and the fact that it was necessary that there be explicit or implicit reference to the warning as to what used to be made of the complainant’s evidence.

Your Honours, this is not such a case and it is particularly apparent that personal injuries are not an appropriate instance of the requirement of the statement of advertence, when it is considered that this verdict could just as easily have been delivered by a jury.  So that, the fact that a jury could have come back with this award would not, in my respectful submission, therefore require that the jury has express regard in formulating its award to interstate jurisdictions in the range of awards which prevail within them.

GLEESON CJ:   Well, what appears to have weighed heavily with the Full Court was the consideration referred to on the bottom of page 84 and the top of page 85 of the application book.

MR TREE:   Yes, I accept that, your Honour.

CALLINAN J:   Could I just ask one question, Mr Tree?  I notice that the reduction in the overall award is a little less than 10 per cent – 8 or 9 per cent.  I thought there were some cases that suggested you should look at the overall award and make a determination whether it is manifestly excessive in totality before making any reduction?

MR TREE:   Yes, there certainly are.

CALLINAN J:   I think it is somewhat different from the English approach, which tends to look item by item, as may have occurred here.  It was not a matter raised by Mr Blow, but is there anything in that, in this case, that, in effect, the Full Court perhaps should not have interfered to make a reduction of less than 10 per cent in the award overall?

MR TREE:   My recollection – and I am somewhat advantaged in that both my friend and I were the counsel in the appeal below – is that that was one of the issues which was raised by my learned friend in response to what was then our appeal, but it does not seem to have found advertence in their Honours reasons in the court below.  Certainly, your Honour is correct in that the award of damages is, in itself, an exercise of discretion, so that the discretion needs to have miscarried, but their Honours in the court below seemed to have treated this on an item-by-item basis and do not seem to have particularly referred to that argument which your Honour has outlined.

GLEESON CJ:   It seems to be a modern tendency, particularly nowadays when we do not have juries in most of these cases, to go into the calculation and then the appellate review of a calculation of damages in a much more detailed basis than used to be the case.

MR TREE:   I would certainly agree with that observation, your Honour, yes, and, of course, that is an inevitable consequence of the lightly scrutiny of appeal courts, one suspects, and perhaps the traditional reason why appeals from jury verdicts have been quite difficult or, at least, seen as challenging.  So that perhaps the approach of the court below is, in truth, a modern approach, where there is no jury involved.

Your Honours, the point which we make really in respect of the Planet Fisheries’ argument is that this is not an appropriate case because, in some respects, the court does not seem to have acted in entire conformity with Planet Fisheries and your Honours will be aware, from the outlines of argument, that there are, at least in this State, a number of views in the Supreme Court, expressed on occasions in reviewing appeals in respect of damages awards, as to the extent to which Planet Fisheries ought be applied in Tasmania, but the difficulty with suggesting that that divergence of view, which, of course, finds its high watermark in Moran v McMahon, is that in substance what Moran v McMahon suggests is the appropriate course was, in fact, what was undertaken here.  So it is only if this Court is prepared to take the further step and say that written acknowledgment rather than mere reference and regard in the course of argument is required, that a special leave point would arise.

Your Honours, can I then turn to the second question dealing with loss of support of the husband and repeat the observations which were made in the outline of argument to the effect that at least two substantial components of any financial consequence of the loss of support of husbands have been taken into the account in the respect of support which might have been obtained and directed towards housing and support which might have been obtained and directed towards motor vehicle expenses, and both of those separate components of the award remain unscathed by the success of the appeal in the court below.  So that, at least two aspects of the potential financial support have been taken into account.

My learned friends have undertaken some calculations in their outline of submissions which work on reasonably generous assumptions and come to a figure of something in the order of $40,000 or $50,000, which is the amount which, on their calculations, represents the loss of financial support.  However, it is impossible to ascertain that likely figure with exactitude, even on their calculations, because the extent to which financial support directed towards housing and motor vehicles by a partner remains unascertained, even though it is ‑ ‑ ‑

CALLINAN J:   There may be other points too, Mr Tree.  Sharman v Evans was decided in 1976.  Perhaps there may be a different attitude to permanency of marriage and support today.  I do not know what the statistics are.  Also the plaintiff in Sharman v Evans was 20 years of age, I think, when she was injured, so her future would be much less a matter of speculation than in this case.

MR TREE:   Quite so, and the point we make, your Honour, is that, whether it be assessed as a loss, which needs to be separately identified as a species of economic loss or whether it be assessed under the general award

of pain, suffering and loss of amenities, or whether it be assessed under some other head, is, at the end of the day, neither here nor there, so long as there is a component which is fair and moderate, directed towards that head of loss.  So that, with respect, there is no point in seeking to clarify exactly at what stage of the particulars of loss and damage this head of loss ought appear, so long as the award contains an amount which is intended to reflect that, in so far as that is an appropriate amount to be awarded in the circumstances of the case, then the court cannot be said to have fallen into error.

But the true point which we are moving towards in respect of this second limb of the application is this, that, even if it be the case that the Full Court below did not take into account this head, it is not a good opportunity for this Court to articulate principle, which is of significant importance.  Really all the Court is being asked to do is to fix up an omission of the court below and, in my respectful submission, that is an inappropriate instance for this Court to grant special leave to determine those sorts of issues; it really becomes little more than a re-adding of the mass of the court below and, in my respectful submission, that is an inappropriate occasion to visit special leave.

Again, your Honours, it is interesting to note that this sort of component of the award could have again been the subject of a jury award and, indeed, in that regard, one suspects that it would have almost certainly have been included in the general award for pain, suffering and loss of amenities of life, and it is really only the fact that this trial proceeded without the benefit of a jury and the appeal necessarily without the benefit of a jury, that we end up in this intricate process of dissecting the components of the award which, in my respectful submission, is unhelpful, given that the overall award is the product of a discretion of the court.  If it please, those are our submissions.

GLEESON CJ:   Thank you.  Yes, Mr Blow.

MR BLOW:   Thank you, your Honour.  Your Honours, to take up your Honour Justice Callinan’s question about the ultimate award of damages being wholly erroneous, we did include in our application for special leave such a ground, and it appears as ground 2.3 at application book, page 95, but we have addressed no argument as to it, written or oral.  As to the loss of support, our learned friend quite rightly said that components were included in the assessment of damages in relation to housing and motor vehicles, but, we submit, that husbands and partners do support their wives and partners in other ways far more significantly and that even allowing for those factors, the error of approach that we say the

Full Court made, is a significant one and has been a costly one to the applicant.

So far as the point as to inadvertence, that my learned friend developed, I submit that their Honours, in treating the loss of support as a non-economic loss, were making an error of approach and that it is inconceivable that they had simply overlooked that point, given that submissions were made to them as to it and the learned trial judge dealt with it expressly in his judgment.  It is not to the point, I submit, that this was not a trial by jury and that such an award of damages could have been arrived at by a jury.  The reasons of the Full Court are exposed for criticism and correction in a way that those of a jury are not, and that is the end of the matter. 

So far as Sharman v Evans is concerned, to pick up the point that your Honour Justice Callinan made, in GIO v Mackie, the New South Wales Court of Appeal dealt with the hypothesis that a wife might be working and earning an income and still supported by her husband, so that in that situation there are factors to be taken into account that were not taken into account back in 1976 in Sharman v Evans.  Those are our submissions, in reply, thank you, your Honours.

GLEESON CJ:   Thank you.

Subject to one qualification, the decision of the Full Court of the Supreme Court of Tasmania in this case involved the application of settled principle to the rather complicated facts and circumstances of the particular case.

The qualification is that it is submitted on behalf of the applicant that the reasoning of the Full Court in relation to the award of general damages raises for reconsideration some of the principles stated by this Court in Planet Fisheries Pty Ltd v La Rosa (1969‑1970) 119 CLR 118. However, having regard to the way in which the Full Court dealt with the issues concerning general damages and, in particular, with the authority of Planet Fisheries, on closer examination the case does not give rise to the issue of principle which the applicant seeks an opportunity to argue.  The application should be dismissed. 

Could you resist an order for costs, Mr Blow?

MR BLOW:   I have no submissions as to that, thank you, your Honour.

GLEESON CJ:   Thank you.  The applicant must pay the respondent’s costs of the application.

AT 11.24 AM THE MATTER WAS CONCLUDED