Motor Accidents Insurance Board v Hannon
[1990] TASSC 22
•1 June 1990
Serial No 16/1990
List “A”
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Motor Accidents Insurance Board v Hannon [1990] TASSC 22; A16/1990
PARTIES: MOTOR ACCIDENTS INSURANCE BOARD
v
HANNON
FILE NO/S: FCA 83/1989
DELIVERED ON: 1 June 1990
DELIVERED AT: Hobart
JUDGMENT OF: Cox, Underwood and Crawford JJ
Judgment Number: A16/1990
Number of paragraphs: 39
Serial No 16/1990
List "A"
File No FCA 83/1989
MOTOR ACCIDENTS INSURANCE BOARD v HANNON
REASONS FOR JUDGMENT COX J
UNDERWOOD J
CRAWFORD J (DISSENTING)
1 June 1990
Order of the Court
Appeal dismissed
Serial No 16/1990
List "A"
File No FCA 83/1989
MOTOR ACCIDENTS INSURANCE BOARD v HANNON
REASONS FOR JUDGMENT COX J
1 June 1990
In this motor accident case, the appellant attacks the apportionment by the learned trial judge of the respondent's contributory negligence at a figure of 10%. For the reasons given by my brother Crawford, which I have had the advantage of reading, I am of the view that this ground of appeal has not been made out. In addition, the appellant claims that an allowance of $200,000.00 for future economic loss included in the respondent's damages was manifestly excessive.
The principal facts relevant to the latter aspect of the appeal are set out in the Reasons for Judgment of Crawford J and I shall endeavour to avoid unnecessary repetition. It should first be observed that the plaintiff's injuries were serious and caused a significant disruption to his professional advancement as a doctor. As the result of his injuries and treatment, it is common ground that the respondent has suffered a delay of three years in securing his specialist qualification. In consequence, he has or will have lost the difference between the net income he might reasonably have expected to receive upon attaining that qualification three years earlier than he will attain it and the net income he has received or will, prior to that time, receive. At the time of the trial in March, 1989 he was earning between $35,000.00 – $40,000.00 per annum gross, but could on his evidence expect to receive $50,000.00 to $80,000.00 per annum gross if he had obtained his Fellowship and secured a position as a specialist attached to a hospital. Furthermore, there was evidence from Mr Buzzard, a witness called by the defence, that the respondent, if appointed a Registrar in his specialty and paid overtime, might well earn $100,000.00 per annum gross. The learned trial judge included this aspect of the claim under the heading of future economic loss, although it was only partly prospective, but did not allot a specific sum to compensate the respondent for it. Allowing for the incidence of taxation, it is my opinion that a figure of $50,000.00 would be fully justified for this loss.
In addition to the other elements of loss formulated by counsel and covering loss of opportunity to be a surgeon, possible loss of income if further surgery has to be performed and possible loss of income because of increased incapacity, it is clear on the evidence that the respondent has already suffered a significant reduction in his capacity to engage in the kind of remunerative work which, but for the accident, he could have undertaken and would have been likely to engage in. The fact that he has overcome the handicaps he suffered to the extent that he has is ample testimony of his determination to succeed professionally and of his willingness to invest time and effort in doing so. Had it not been for the accident, the clear inference is that he would have applied himself energetically to the furtherance of his career and the acquisition of experience. In doing so, he could undoubtedly have expected payment for overtime work, but the evidence and the learned trial judge's findings make it clear that his capacity for such extra work is significantly reduced by his disabilities. He is in chronic pain. At the end of working day he has frequently had painful persistent muscle spasm requiring treatment by hot baths, local massage or the injection of strong analgesics, and there is a requirement for time–consuming therapeutic exercise in order to maintain his fitness and counter the effects of his injuries. While the respondent said in his evidence that he did overtime at the Prince Henry Spinal Unit once every four weeks when he was on call for one week at a time and for which he received what he described as a pittance, the learned trial judge in assessing past economic loss found that, but for his injuries, the respondent would have earned a fairly substantial sum by way of overtime, and that in assessing future economic loss "account must be also taken of the fact that the (respondent's) work in future will be restricted by his on–going chronic pain" (my emphasis). In respect of this pre–trial loss of overtime payments his Honour awarded $35,000.00.
In making the allowance for future economic loss his Honour, in my view, must be taken to have adverted to the likelihood that the respondent's restricted ability to work due to chronic pain would be productive of economic loss because it would impinge upon his ability either to work normal hours or to work overtime. In either event, the learned trial judge was seeking to compensate the respondent not only for a possible reduction in or loss of capacity due to a deterioration in his condition, but also for a presently–existing and already demonstrated reduction in his ability to earn the kind of salary he could have aspired to but for the accident.
The lack of detailed evidence as to the overtime earnings available to doctors in any of the fields which were open to the respondent made precision impossible for the learned trial judge, but in my respectful view a sum in the order of $150,000.00 for all the elements, actual or contingent, other than the loss due to the enforced delay of three years in obtaining specialist qualifications has not been shown to be a wholly erroneous estimate of the respondent's loss and this court should not therefore interfere with the award.
In my view, the appeal should be dismissed.
Serial No 16/1990
List "A"
File No FCA 83/1989
MOTOR ACCIDENTS INSURANCE BOARD v HANNON
REASONS FOR JUDGMENT UNDERWOOD J
1 June 1990
With respect to the grounds of appeal which attack a finding of fact made by the learned trial judge and his apportionment of responsibility, I agree generally with the reasons given by Crawford J.
Apportionment, which arises upon a finding that a plaintiff has failed to take reasonable care of himself and thereby contributed to his own injury, becomes an issue by virtue of the Tortfeasors and Contributory Negligence Act 1954, s4(1) which provides:
"Where a person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage is not defeated by reason of the fault of the person suffering damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage; but – ...."
Resolution of this statutory issue requires a trial judge to have regard to the blameworthiness of each party and the relative importance of the acts causing injury and damage, (Stapley v Gypsum Mines Ltd [1953] AC 663 at p682) or, to "compare their respective degrees of fault in order to apportion their responsibility for the damage caused in the accident", per Watt v Bretag (1982) 56 ALJR 760 at p761.
The learned trial judge resolved this issue in accordance with the above principles and accordingly, this Court will only interfere with the apportionment if it is shown to be plainly wrong. Dealing with the Tasmanian section, the following passage appears in the joint judgment of the High Court in Pennington v Norris (1956) 96 CLR 10 at pp15, 16:
"It is clear that the Act intends to give a very wide discretion to the judge or jury entrusted with the original task of making the apportionment. Much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable. It is to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged: see British Fame (Owners) v Macgregor (Owners) [1943] AC 197 and Ingram v United Automobile Service Ltd (1943) KB 612."
The above passage was cited with approval by Mason J in Purcell v Watson & Ors (1979) 26 ALR 235 at p245 and the principle it expresses reaffirmed in Watt v Bretag (supra) at p761. See also AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100; Ramoo son of Erulapan v Gan Soo Swee [1971] 3 All ER 320 at p327. For the reasons given by Crawford J it is clear that there exists no basis for disturbing the apportionment made by the learned trial judge.
With respect to the appeal against the award of $200,000 for diminution of earning capacity I agree with the reasons for judgment of Cox J and accordingly would dismiss this appeal.
Serial No 16/1990
List "A"
File No FCA 83/1989
MOTOR ACCIDENTS INSURANCE BOARD v HANNON
REASONS FOR JUDGMENT COX J
1 June 1990
On 17 March 1980 the respondent drove his Renault Sedan in a general northerly direction down Anglesea Street, Hobart, and at the intersection of that street with Adelaide Street came into collision with a Falcon taxi proceeding in a general easterly direction along Adelaide Street. The driver of the taxi died prior to trial and the appellant took his place as defendant in the action. The intersection was uncontrolled by traffic lights and signs and the usual give way to the right rule applied. The learned trial judge found that the taxi driver was negligent and the appeal does not attack that finding. It was also found that the respondent was contributorily negligent for his injuries sustained in the accident, 90% of the blame being apportioned to the taxi driver. The appellant attacks this apportionment, arguing that the taxi driver's responsibility was less than 90%. It has also appealed against a component of $200,000 for future economic loss in the awarded damages.
Apportionment of liability.
In the grounds of appeal the only attack on the findings of fact was that his Honour erred in failing to make a finding that the respondent was travelling at a speed of approximately 40 kilometres per hour as he entered the intersection.
The only eye–witness to give evidence was the respondent. His Honour summarised this evidence as follows. On approaching the intersection in Anglesea Street, the respondent looked to the right, with a view to giving way to any oncoming traffic on his right–hand side in Adelaide Street. He had a good, unobstructed view in that direction and saw no vehicles coming. He said that his speed approaching the intersection was approximately 40 kilometres per hour. He also said that he had his right foot on the brake as he approached the intersection, but his Honour doubted whether he actually recalled doing this. Having satisfied himself that nothing was coming from the right, the respondent then looked to his left. On the corner to his left, his view was somewhat obscured by the verandah of a house which extended virtually to the footpath line of the street. At the point at which he could first see to his left, he observed the taxi approaching from that side at a fast speed, which he estimated at between 70 and 80 kilometres per hour. The taxi driver was looking straight ahead, or perhaps slightly to the left, and appeared to be talking. He was slumped in his seat with his right arm protruding out the window. It was plain that the taxi driver failed to see the Renault until virtually the moment of impact and he did not slow down or take evasive action to avoid the respondent's car.
The respondent applied his brakes and steered left in an attempt to go around the rear of the taxi, but he was unable to say whether or not his vehicle deviated from its original course before the collision occurred. He said that when he first observed the taxi approaching, his vehicle was approximately 8 metres from the point of collision and the taxi was approximately 15 to 20 metres from it. He estimated that his speed had reduced to approximately 20 kilometres per hour at the moment of impact. His vehicle was swung violently to the right and came to rest at right angles to its original direction of travel.
The learned judge saw no reason to doubt the essential veracity of the respondent's evidence concerning the occurrence of the collision and its immediate aftermath, nor his essential credibility in his assessment of the relative speeds of the two vehicles, although his Honour had some reservations concerning the actual speeds estimated by the respondent, which he expressed in the following terms:–
"This does not mean, of course, that I give unqualified acceptance to the plaintiff's version of events. He only had a fleeting instant in which to appreciate the speed of the other vehicle and I think he may well have over estimated its speed. Indeed, and here I agree with Professor Joubert, one would have expected the taxi to continue much further down Adelaide Street before coming to rest after the collision, particularly as the driver was apparently oblivious to the plaintiff's approach, if its speed was in the order of 80 kilometres an hour. However, I have the impression that the plaintiff did something less than justice to his own case in claiming that he was travelling at a speed of 40 kilometres per hour just prior to entering the intersection. He stated, and I have no reason to disbelieve him, that he was travelling at a speed at which he could have stopped and given way to vehicles approaching from the right, had it been necessary for him to do so; and if, as he claims, his speed reduced to 20 kilometres an hour by the time the impact occurred, it suggests that his capacity to react and effectively apply the brakes was much more rapid than I would have expected for the average driver in the distance available. Bearing in mind the relative positions of the vehicles following the accident, the state of the weather, the nature of the road, and all the other physical features adverted to in the evidence, I would be most surprised if the plaintiff's speed exceeded 30 kilometres an hour and the defendant's exceeded 60 kilometres an hour as they each entered the intersection".
The respondent's evidence of the speeds of the vehicles was based on estimations. A summary of some of the evidence he gave in this regard is as follows. He said that he estimated his speed at 40 kilometres per hour when he looked to his right and he was braking from there onwards (he looked to his right before reaching the intersection). He was braking at the time when he saw the taxi. He estimated his speed at 30–40 kilometres per hour, most probably 40 kilometres per hour, at the stage when his vehicle reached the gutter line of Adelaide Street. He agreed that he was travelling at approximately 40 kilometres per hour when he first saw the taxi, at which time the taxi was twice as far from the point of collision than him, probably 15 metres and 8 metres being the respective distances. He estimated the speed of the taxi at 80 kilometres per hour as "a fair estimation", saying that if his speed was 40 kilometres per hour and the taxi was twice the distance away, then the taxi must have been doing twice that speed. His own speed could have been 5 kilometres per hour faster or slower than his estimate but not 10 kilometres. His speed at impact he estimated at 20 kilometres per hour, possibly more, possibly less.
The front of the respondent's vehicle collided with the driver's side of the taxi, just behind the central door pillar. The taxi continued to cross the intersection and mounted the footpath on the north–eastern corner of the intersection, its rear colliding with a brick fence of the house on that corner. The evidence of Constable Old was that the rear was partially through the brick fence, not on the actual apex of the corner but slightly on the Adelaide Street side of it. The respondent's car spun 90 degrees to its right in the middle of Adelaide Street and, according to a sketch plan drawn by the constable, its back–half was still in the intersection but its front–half was east of the eastern boundary of Anglesea Street. The evidence therefore showed that the forward movement of the respondent's car was arrested on impact and that because of the collision it was pulled 90 degrees to its right, so that it was facing generally east and was dragged by the collision a few metres to the east. On the basis of evidence from the respondent as to the actual point of impact and using a survey plan tendered in evidence, I have calculated that the direction of travel of the taxi, assuming that at the moment of impact it was travelling in a general easterly direction, was deflected by an angle of between 20 and 30 degrees north of east.
I find that there are insufficient reasons to justify disagreement with the learned judge when he expressed surprise if the respondent's speed exceeded 30 kilometres an hour and the taxi's exceeded 60 kilometres an hour as they each entered the intersection. The evidence justified a finding that the speed of the taxi was close to double the speed of the respondent's car, but 70–80 kilometres per hour, which was the speed attributed to the taxi by the respondent, is a surprisingly fast speed for a taxi to be travelling in a suburban area. Further, the evidence suggests that the speed of the respondent's car at the moment of impact was quite slow because its forward motion was arrested by the collision and its front was pushed to the right.
For these reasons, and for those expressed by the learned trial judge, I agree that it is unlikely that the respondent's car was travelling as fast as 40 kilometres per hour at the moment it entered the intersection, although it may well have been travelling at that speed shortly before the intersection when the respondent was looking to his right and slowing. Notwithstanding that the learned judge had some doubt as to whether the respondent actually recalled his right foot being on the brake pedal as he approached the intersection, my study of his evidence satisfies me that he probably was braking, albeit not heavily, when he was looking to his right before reaching the intersection. Clearly, it is impossible to be precise concerning the speeds of the vehicles but I am not persuaded that the view of the learned judge was wrong.
Further, I am not persuaded that the learned judge was wrong in apportioning 90% of the blame for the accident against the taxi–driver. His Honour's reasons for this apportionment were expressed by him as follows:–
"It must always be remembered that the primary obligation of any driver at an uncontrolled intersection is to give way to his right and consistently with this duty, it is in that direction that his attention must be focused as he approaches the intersection. The more easily he can see to the right, the more rapidly he can look to the left. If his view to the right is obstructed, he must slow down, virtually to a stop if necessary, in order to discharge his fundamental duty if a vehicle appears unexpectedly from that quarter. The plaintiff in the present case had a relatively unobstructed view to the right, and as soon as he diverted his attention to the left he became aware of the defendant's vehicle being driven at an imprudently high speed towards the intersection. It was plain that the driver did not see him and was unlikely to stop and give way. Had he been travelling more slowly than he was, (and I think slow speeds at this type of suburban intersection cannot be said to unduly impede the free flow of traffic) I think the plaintiff may well have avoided the collision. By failing to take this precaution I think that he was negligent. However, compared with the defendant's negligence, I think the plaintiff's contribution was minimal. I assess it at 10%, a figure which in my opinion, takes account of the degree of the plaintiff's departure from the standard of care of the reasonably prudent driver in the circumstances, the degree to which his negligence contributed to the causing of the collision, and the relative culpability of the two drivers, (see Pennington v Norris (1956) 96 CLR 10, and Smith v McIntyre [1958] Tas Sr 36)."
I agree with these views. The respondent took care primarily by checking to his right so as to be able to avoid a collision with a vehicle coming from that direction, and he then looked to his left for vehicles coming from that direction. The taxi driver apparently paid no attention to either his right or his left. The respondent slowed as he approached the intersection as part of his endeavours to take care. The taxi driver did not slow at all but proceeded at a speed which was, in all the circumstances, excessive as he drove through the intersection. It would seem that he was driving with total disregard for the intersection and its potential dangers. His failure to look either to his right or left and to reduce his speed from what was a dangerously fast one in the circumstances, justified an apportionment of 90% of the blame against him.
If, contrary to my view, the learned judge should have found that the respondent was travelling at a speed of approximately 40 kilometres per hour when entering the intersection then, taking into account that his Honour accepted the respondent's credibility in his assessment of the relative speeds of the two vehicles (and this was clearly supported by the evidence), it should also have been found that the taxi's speed was as estimated by the respondent, that is 70–80 kilometres per hour. Such a speed would have been most excessive, indeed positively dangerous, and apportionment of 90% of fault against the taxi driver would still have been justified.
Future Economic Loss
The sole ground of the appeal against the award of damages was that $200,000 for future economic loss was excessive in all the circumstances. That amount was awarded for loss of earning capacity. No attack was made on any specific finding of fact.
The respondent was born on 8 February 1955. He obtained his degrees of Bachelor of Medicine and Bachelor of Surgery at the University of Tasmania in December 1979. In his first year at the University, in 1974, he obtained four credits in six subjects, but thereafter he achieved nothing better than passes. He commenced an internship at the Royal Hobart Hospital but within two or three months the accident occurred and he became substantially disabled by his spinal injury. He suffered a crush fracture of the first lumbar vertebra. He initially underwent conservative treatment but continued to suffer severe pain and discomfort. Eventually he was referred to Mr HV Crock, an eminent surgeon, who diagnosed a ruptured spinal disc. An anterior spinal fusion at L1/2 was performed in March 1981. He continued to suffer pain for which he had substantial treatment including admissions to hospital. In April 1982 he underwent a decompression laminectomy. Further treatment followed. It appears that he will have chronic pain for the rest of his life. By unusual will power and determination he has been able to substantially overcome a handicap which would have totally incapacitated a lesser man. While his condition appears to have stabilised, the future still holds some uncertainty in terms of future surgery, treatment and incapacity in his profession as a medical practitioner.
The respondent's evidence was that immediately before the accident in 1980 his "idea was to combine the skill I had with my hands with hopefully what I had up here, and my ultimate aim was to do plastic surgery". He described surgery as being his first choice. In cross–examination he said that to be a plastic surgeon had not been a burning ambition, but it was something that he looked towards. The evidence clearly established that as he would no longer be physically able to be a surgeon, he looked elsewhere for a specialty and decided to become a specialist in rehabilitation medicine.
It was agreed by counsel that the award for loss of future earning capacity should have encompassed the following elements:
1Loss of opportunity to be a surgeon.
2Loss of three years' seniority because of three years' delay in professional advancement.
3Possible loss of income if further surgery has to be performed.
4Possible loss of income because of increased incapacity.
If he had been physically able to undertake the profession of a surgeon, it is by no means certain that he would in fact have become one. The evidence of Mr Crock was limited to his Victorian experience of qualification to be an orthopaedic surgeon, but it was to the effect that there can be as many as 17 or 18 applicants for three surgical training positions. Applicants must pass a primary examination for Fellowship of the Royal Australasian College of Surgeons and some of the applicants, perhaps 10 or 12 out of 17 or 18, would be interviewed and only 3 or 4 might be selected for training. The successful applicants would have to successfully complete their training. Mr Crock was not familiar with the selection of candidates for plastic surgery.
Mr Buzzard's evidence was that selection for surgery generally was difficult and varied according to the specialty. He said that for the first examination the pass rate was about 60% and, of those who were successful then, about half to two thirds would obtain subsequent training jobs. This evidence indicated that about 30 to 40 percent sitting for the first examination managed to be accepted for advanced training for the purpose of becoming a surgeon. Thereafter he said the drop–out rate was very low.
Having decided to attempt to specialise in rehabilitation medicine, the respondent undertook an examination for entry into the appropriate training programme. It was in two parts, the first being half of the paper for which aspiring physicians would sit and the second being half of the examination for the surgeons' training course. He was successful at his second attempt and came to be admitted to the training programme. All being well he expected to sit for his final examinations in either 1989 or 1990 and, if he passed, to become a Fellow of the Australian College of Rehabilitation Medicine. On the evidence his prospects of success seemed likely.
The learned judge found that there did not appear to be the same breadth of opportunity for private practice in the field of rehabilitation medicine that there was in other medical areas. Evidence was given which suggested that private practice is generally more profitable than employment in a public hospital, although no facts or figures affording concrete support for this proposition were forthcoming. His Honour concluded that if competition became fierce for existing vacancies in the rehabilitative field in the area of public medicine, the respondent's prospects of earning a good income in private practice in that field did not appear to be as promising as might be expected in other fields of medical specialty. It should be added that there was no acceptable evidence upon which an assessment could be made of the incomes plastic surgeons earn in comparison with incomes of rehabilitation or other specialists, or indeed of doctors generally.
Because of his injuries and the extensive treatment undergone by him, the respondent will have been put back three years in obtaining his specialist qualification. At the time of the trial he was employed as a fourth year registrar at a hospital, earning between $35,000 and $40,000 gross per year. If he obtained his Fellowship in 1989 or 1990 and obtained a position as a specialist attached to a hospital, he could earn, according to his evidence, between $50,000 and $80,000 per year. Mr Buzzard's evidence was that the respondent might earn in a hospital up to $100,000 per year as a registrar if he was paid overtime, but he would probably not do so as a private consultant. For this three years' delay I would assess damages of about $40,000. The learned trial judge did not state a separate amount for it.
Concerning the future course of his undoubted spinal disability and the chances of being unable to work or having a reduced capacity for work, the learned trial judge found that daily practice was likely to place the respondent in situations where heavy lifting and bending would be called for, and he would therefore have a continuing exposure to pain and discomfort and might be temporarily disabled from time to time. His Honour said that regard had to be paid to the fact that the respondent's work would be restricted by ongoing chronic pain, and it could not be left out of account the possibility that there might be time taken off to undergo surgical procedures. Further, although it was highly unlikely, the respondent might be substantially or totally incapacitated by his injury at some future time.
The assessment of damages for loss of earning capacity of a medical practitioner who has the potential to earn sums well in excess of $50,000 per year and perhaps closer to $100,000, requires a consideration of sums of money far in excess of those which are normally under consideration in accident cases. The likely award for loss of future earning capacity may well be correspondingly much greater than in the usual case.
The respondent was entitled to be compensated for loss or diminution of earning capacity insofar as it is likely to cause financial loss in the future. In a case such as this, the compensation "can only be an estimate, often a very rough estimate, of the present value of the prospective loss": British Transport Commission v Gourley [1956] AC 185 at p212 per Lord Reid. "Ultimately the process must always be one of judgment rather than calculation": Todorovic v Waller (1981) 150 CLR 402 at p413 per Gibbs CJ and Wilson J
Putting aside for a moment the proven fact that the respondent has been put back three years in obtaining his specialist qualification, the other aspects to be considered when assessing damages for loss of earning capacity are not capable of precise findings of fact. It cannot positively be said, on the evidence, that the respondent would have become a surgeon and practiced as such, nor that his income would have been greater than the income he will earn as a rehabilitation specialist, assuming that he does become one which seems likely. There "is a substantial difference between compensating for the loss of a chance and compensating for the destruction or impairment of a proven capacity": Martin v Howard [1983] Tas R 188 at p201 per Nettlefold J In such circumstances the most a court can lawfully do is compensate the respondent to the extent of a reasonable and moderate evaluation in money of the mere chance or risk of less remunerative employment or unemployment: Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594 at p599 per Sholl J
Apart from the element of damages for the three years' delay in obtaining his specialist qualification, I would assess as the reasonable and moderate evaluation of the other elements of his loss of earning capacity in the future at between $90,000 and $100,000. In my judgment, a substantially larger sum than $100,000 would be over generous in the absence of more cogent evidence of a likely loss. Adding in my assessment for that other element, my total assessment would be $140,000. This is $60,000 less than the amount assessed by the learned judge.
The duties of an appellate court are clear. Although the appeal is by way of rehearing, there is generally so much room for individual choice that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, and an appellate court should be particularly slow to reverse the trial judge on a question of the amount of damages. Before it interferes it 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 before the appellate court will interfere: Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at p616 per Lord Wright; cited with approval in Miller v Jennings (1954) 92 CLR 190 at pp.195 and 196 per Dixon CJ and Kitto J and in Gamser v The Nominal Defendant (1977) 136 CLR 145 at p148 per Gibbs J The largeness or smallness of the amount awarded is not by itself a sufficient reason for upsetting the award, unless it is so extreme as to convince the appellate court that the assessment is erroneous to the point of actual unsoundness: Minchin v Public Curator of Queensland [1965] ALR 91 at p96 per Kitto J; Walford v Milner (unreported Serial No 70/1987); Churchill v Electrolytic Zinc Company of Australasia Ltd (unreported Serial No 42/1988); Wilson v Peisley (1976) 50 ALJR 207 at p214 per Mason J Applying these principles, but with some initial hesitation, and with considerable respect for the views of the trial judge, I have come to the conclusion that the assessment of $200,000 for future economic loss was sufficiently excessive as to be described as erroneous to the point of actual unsoundness. Accordingly I would allow the appeal, set aside the judgment for $267,783.26, assess damages at $362,167.43 instead of $422,167.43, and after deducting 10% for contributory negligence and $112,167.43 for workers' compensation payments, enter judgment for $213,783.25.
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