Motor Accidents Insurance Board v Richards
[1991] TASSC 98
•5 November 1991
(1959-1995) 14 Tas R 221
92/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Motor Accidents Insurance Board v Richards [1991] TASSC 98; [1991] 14 Tas R 221; A92/1991
PARTIES: MOTOR ACCIDENTS INSURANCE BOARD
v
RICHARDS, Carol
FILE NO/S: FCA 83/1990
JUDGMENT
APPEALED FROM: Richards & Richards v The Motor Accidents Insurance Board B51/1990
DELIVERED ON: 5 November 1991
DELIVERED AT: Hobart
JUDGMENT OF: Underwood, Crawford and Zeeman JJ
CATCHWORDS:
Appeal—General Principles—Excessive or inadequate damages—Circumstances for appellate intervention—Personal injuries.
Judgment Number: A92/1991
Number of paragraphs: 60
Serial No 92/1991
List "A"
File No FCA 83/1990
MOTOR ACCIDENTS INSURANCE BOARD
v CAROL RICHARDS
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
CRAWFORD J
ZEEMAN J
5 November 1991
Order of the Court
Appeal dismissed.
Serial No 92/1991
List "A"
File No FCA 83/1990
MOTOR ACCIDENTS INSURANCE BOARD
v CAROL RICHARDS
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
5 November 1991
The respondent was injured in a motor vehicle accident on 21 August 1983. The appellant admitted liability to pay damages. The learned trial judge assessed damages in the sum of $214,864.70 under the following heads:
Past economic loss $ 13,674.41
Future economic loss $ 75,000.00
Hospital, medical and pharmaceutical expenses
(a) Past $ 3,270.29
(b) Future $ 15,100.00
Home alterations $ 1,000.00
Past and future needs for household assistance
(a) Past $ 17,820.00
(b) Future $ 34,000.00
Pain, suffering and loss of amenities $ 55,000.00
$214,864.70
By notice of appeal, the appellant gave notice that this Court would be moved:
"for orders so that so much of the judgment of [the trial judge] whereby his Honour awarded the respondent $55,000 for general damages and $34,000 for future needs for household assistance be set aside on the following grounds:
1That the sum of $55,000 awarded for general damages was manifestly excessive taking into account all those findings of fact made by his Honour in the judgment.
2That the award of $34,000 for future needs for household assistance was excessive in all the circumstances."
The notice of appeal seeks an order that "in lieu thereof [this Court] assess such sums for general damages and future household assistance as the court considers appropriate".
The terms of the notice of appeal and the appellant's argument in support of them call for a consideration of the principles applicable on a determination of an appeal against an assessment of damages for personal injuries. The Supreme Court Civil Procedure Act, s40 gives the Full Court jurisdiction to hear and determine "appeals from all judgments, orders and other determinations". In the present matter the only relevant order (there was another plaintiff, not a party to this appeal) is that judgment be entered for the respondent against the appellant for $214,864.70 and the only relevant judgment is that the respondent recover from the appellant that sum and costs to be taxed. Thus, the notice of appeal is misconceived in that it does not appeal against any order, judgment or determination. In this context judgments, orders and determinations "refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment", per Barwick CJ, Driclad Pty Limited & Others v Commissioner of Taxation (1968) 42 ALJR 355 at p356. The motion purports to appeal against part of the learned trial judge's reasons for making the order that judgment be entered for the single sum referred to. The respondent's written submissions advert to this misconception, contending that the appeal can only succeed if it is established that the total sum awarded is manifestly excessive. See Gamser v The Nominal Defendant (1977) 136 CLR 145 and Holley & Ors v Debs (1976) 13 ALR 99 in which case Aicken J said, "demonstrable error in the determination of the individual items may, though not necessarily, assist the conclusion that the award in total was excessive."
No application was made to amend the notice of appeal but argument proceeded on the basis that it was an appeal against the whole of the judgment sum, error being demonstrable by the sums attributed in the reasons for judgment for pain, suffering and loss of amenities of life and future needs for household assistance. Accordingly, I shall deal with the appeal on this basis but, it seems to me, that before this Court has jurisdiction to allow the appeal, an order amending the notice of appeal must be made.
This is not a case in which it was submitted that the learned trial judge made an error of principle or misapprehended the facts. The appellant's submission rested squarely upon the proposition that error in the exercise of the judicial discretion must have occurred because the amounts allowed under two heads of general damages were manifestly excessive. On behalf of the respondent it was submitted that these amounts were not manifestly excessive but in any event, the total judgment sum could not be described as manifestly excessive.
The approach of an appellate court in such circumstances was discussed in Gamser v The Nominal Defendant (1977) 136 CLR 145 at pp158–163 Gibbs J (as he then was) cited with approval, Ibid pp148, 149 the following, now well accepted statement of principle expressed by Dixon CJ and Kitto J in Miller v Jennings (1954) 92 CLR 190 at pp195–6:
"There is an obvious difference between cases tried with a jury and cases tried by a judge alone. Where the verdict is that of a jury, it will only be set aside if the appellate court is satisfied that the verdict on damages is such that it is out of all proportion to the circumstances of the case: Mechanical and General Inventions Co Ltd v Austin[1935] 1 KB 354. Where, however, the award is that of a judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer LJ in Flint v Lovell [1935] AC 346. 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's 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."
In Gamser, the learned trial judge assessed the damages in a global sum, not attributing any amount to each head of damage. Aicken J discussed the appropriate approach of an appellate court in such circumstances. In this respect three of the other four members of the court agreed with his reasons. His Honour said that the occasion for a court of appeal to arrive at its own view of the proper amount of damages did not arise until it was satisfied that the total sum was unreasonably disproportionate to the circumstances of the injury. He said that it was not proper for that purpose to quantify one item and thereafter conclude that the allowance for the remaining items of loss of damage was disproportionate unless there was some satisfactory explanation for quantifying that item. He said that the "proper approach in this case is to look at the total sum awarded as general damages." [My emphasis].
On the same day as judgment was handed down in Gamser the High Court delivered judgment in Sharman v Evans (1977) 138 CLR 563. In this case, the trial judge did not exactly quantify the allowance for each item of detriment suffered by the plaintiff but, with respect to some, he indicated a range of figures he considered appropriate. Gibbs and Stephen JJ (as they then were) considered the items of detriment suffered and the maximum amount of damage which could be allowed under each and by this process arrived at a balanced figure for pain, suffering and loss of amenities of life. This sum they considered disproportionate to the detriment suffered and concluded therefore, that the whole award was manifestly excessive and should be set aside. Jacobs J agreed that this approach was an appropriate one but reached a different result. Gibbs and Stephen JJ said that the ultimate question was whether the total award was manifestly excessive and with respect to their methodology to achieve this result said:
"We have carried out the detailed examination of the factors constituting an appropriate award of damages in order equip ourselves to determine whether the judge erred in his conclusion on the total amount of damages appropriate to be awarded. We bear in mind that this is the ultimate question to be decided and that the trial judge has wide discretion. We have therefore adopted in the process the maximum figures which on the evidence in this case could be accepted under each head of damages. It does not follow that these amounts are those which we would have adopted in the first instance. When the approach which we have thought appropriate in the circumstances of this case is adopted in order to test the award and when consequently maximum figures under each head are taken there is of course no room for a further allowance whereby the verdict could be sustained as one within permissible limits. It would be otherwise if less than maximum figures were taken under each head, that is to say, if a court on appeal were to form its own estimate of the appropriate, rather than the maximum, amount of damages under each head."
Both Gamser and Sharman are authority for the proposition that, whether or not the amount allowed for each head of damage suffered is expressed or capable of ascertainment, in the absence of a wrong principle of law or misapprehension of fact, the discretion will have miscarried only if the final award is manifestly excessive or inadequate.
In Beneke v Franklin, [1975] 1 NSWLR 571, at p575, Moffit P suggested a ground for interference may arise "if some ingredient in the ultimate award is wholly disproportionate to the detriment to which it is attributed." However such an approach would seem to be directly contrary to the later decision in the High Court of Holley & Ors v Debs (1976) 13 ALR 99, Aicken J (whose reasons were adopted by the other members of the Court) made it clear that in the absence of specific error the only question is whether the total judgment sum is so disproportionate to the loss suffered that it cannot stand. This proposition appears to have been since followed in New South Wales. See Moran v McMahon[1985] 3 NSWLR 700.
In Masson v Crook (1979) 22 SASR at p473, King CJ said with respect to a submission to the same effect as that put by the present appellant, "it is useful to examine these contentions separately, but the final question for this Court is whether the total amount of $210,000.00 is a wholly erroneous assessment as being either too high or too low."
This has long been the approach of this Court to appeals against assessments of damages where there has been no error of law or misapprehension of fact. See McKinlay v Reading[1977] Tas SR 7 at p16; Marshall v Crossen FC 41/85; Dodge v Matcham[1988] Tas R 162 (NC); Walford v Milner FC 7087.
This has also been the approach in other Australian jurisdictions as is demonstrated by Shepherdson J in his learned judgment in Calder v Boyne Smelters Ltd [1991] 1 Qd R 325, at p338. He expressed it in the following terms:
"An appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered.
In West Australia the Full Court follows the High Court but appears not to have adopted the 'wholly erroneous estimate' test but rather the 'out of all reason' or 'wholly disproportionate to the circumstances' test found in Gamser."
It would appear that since the practice of allocating express sums to separate heads of damage became uniform, appellate intervention in the United Kingdom now rests on different principle. In Povey v W E & E Jackson [1970] 1 WLR 969 at p973, Edmund Davies LJ, applied the same test as the Australian High Court:
"... whereas I think that the general damages were on the low side and, if they stood alone, would call for interference by this court, so also the special damages were on the high side to a degree which, had they stood alone, would have called for interference by this court. But ending this short judgment where I began, I think that parties who are appellants solely on the quantum of damages are ill advised by concentrating only on various items which make up the global sum. I think the final sum arrived at in this case was fair and proper. Certainly it has not to my satisfaction been demonstrated to be so wrong as to call for interference, and I, accordingly, decline to do so. In the result, I would dismiss both the appeal and the cross–appeal."
In George v Pinnock [1973] 1 WLR 118 at p126, one of the members of the Court of Appeal (Sachs LJ) made it clear that, since Jefford v Gee [1970] 2 QB 130, Povey v Jackson [1970] 1 WLR 969 is no longer to be regarded as authority for the general proposition that, in the absence of a notice of cross–appeal, the only question is whether the final sum is demonstrably wrong. In the United Kingdom, the present basis for appellate intervention where no error of principle or fact has been made appears in the following passage in the advice of the Privy Council in Lai Wee Lian v Singapore Bus Service Ltd [1984] 1 AC 729 at p75:
"Before considering the facts of the appeal in more detail, their Lordships will refer to a question of general importance which arises. Mr Rashid, on behalf of the respondent, submitted that the Court of Appeal had rightly held that what matters is the global figure and that, if the global figure was reasonable and fair, an appellate court should not increase or diminish a component item of damages on the basis that that item was either too low or excessive. He sought to support that contention by reference to the advice of this board, delivered by Lord Diplock, in Paul v Rendell[1984] 1 AC 729 at p735. It is of course true that at the end of the day the total sum awarded is what matters to both parties. But that does not mean that the component items do not have to be separately considered. They are the necessary parts which make up the whole, and the only proper way of deciding whether the global award is too low or too high is by assessing the separate items and arriving at a fair total: see Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 and Jamil bin Harun v Yang Kamsiah [1984] 2 WLR 668. Of course the assessing judge has a considerable range of choice because many of the variable elements in the damages cannot be precisely quantified. This applies notably to the plaintiff's loss of future earning capacity, the assessment of which
'involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured': see Paul v Rendell.'(1981) 55 ALJR 371, at p37
But if the award for loss of future earnings, or for any of the other items, is so far out of line with what the appellate court considers appropriate as to indicate that the assessing judge has erred in principle, and if the substitution of an appropriate award for that item would make a substantial alteration in the total award, then the appellate court has the duty to make the substitution and to alter the total accordingly."
However, this Court is, of course, bound to follow the High Court where there is a conflict between it and the Privy Council (Viro v The Queen (1978) 141 CLR 88). Accordingly, assuming the notice of motion invokes the Court's jurisdiction, this appeal can only succeed if the total sum awarded is so high as to be a wholly erroneous estimate of the damage suffered. In determining this single issue it is legitimate to examine individually the sums expressed in the reasons for judgment to be assigned to the separate heads of damage, but I agree with the following observation of Shepherdson J in Calder v Boyne Smelters Limited[1991] 1 Qd R 325, at p346:
"In many cases on appeal against assessment of damages for personal injury arguments are advanced against amounts assigned by a trial judge in respect of selected heads of damage. The present case is one such. There is I think a danger that in focusing on a particular item attacked as too high or too low as the case may be an appellate court can lose sight of the other heads of damage to which the amounts have been allocated and the possibility that those amounts or any of them may be either on the high side or on the low side and in a particular case offset the amount in the particular head attacked as either too high or too low. All this is to really emphasise the point constantly made in the cases that it is the total sum awarded which must in the final analysis be looked at by the appellate court. As Mason J (as he then was) said in Wilson v Peisley: (1975) 50 ALJR 207 at 214
'The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered'."
I turn to the appellant's submission that a sum of $55,000 for pain, suffering and loss of amenities is wholly disproportionate to the injury and loss sustained.
Since at least the mid nineteenth century the common law has recognised a right to recover damages for non pecuniary loss for pain, suffering and lost amenities of life. See Fair v London and North Western Railway Co (1869) 21 LT 326; Phillips v The South Western Railway Co (1879) 4 QBD 406. In 1892, the Full Court of Victoria expressed the rationale for the recovery of damages for non pecuniary loss in McDade v Hoskins & Anor (1892) 18 VLR 417 at p421 as follows:
"There are two elements of damage in the case of a person who sues another for negligence involving personal injury. First, the plaintiff is entitled to consolation, as it is called, for the physical pain and suffering which he undergoes. Physical pain and suffering is something for which no adequate compensation can be given, and therefore the law lays down no rule with respect to this element of damage except this, that the jury is to give what seems to them to be such a sum as shall be, not compensation, which cannot be given, but a reasonable consolation for the physical suffering which the plaintiff undergoes."
The concept that damages for non pecuniary loss provided consolation was expressed by Windeyer J in Teubner v Humble (1963) 108 CLR 491 at p507 as follows:
"Pain and suffering fall into another category. What is usually contemplated by the description is actual physical pain. Of all forms of damage this is perhaps the one that is least susceptible of monetary assessment. But insofar as the possession of money can in a particular case give pleasure or provide comfort, money can properly be said to compensate for pain and suffering."
In the later case of Skelton v Collins (1966) 115 CLR 94 his Honour adhered to the views he expressed in Teubner v Humble (1963) 108 CLR 491. Stating that damages (presumably other than exemplary damages) are compensatory and not punitive, Windeyer J acknowledged that compensation for non pecuniary loss is incapable of calculation in monetary terms. "It must surely be based on solace for a condition created not upon payment for something taken away". If the object of compensation for pain, suffering and loss of amenities of life is to provide solace or consolation how is it to be quantified? According to Lord Diplock in Wrightv British Railways Board [1983] 2 AC 773 at p777, "such loss is not susceptible of measurement in money". [Original emphasis]. According to Windeyer J in Thatcher v Charles (1961) 104 CLR 57 at pp71, 72, "measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables." In Morey v Woodfield (No 2) [1964] 1 WLR 16 at p23, Davies LJ said:
"Unless there is a standard by which to measure damages, it is difficult to see how an appellate court can decide whether a particular award is high or low or too high or too low. In the case of an appeal from a judge alone, which is a rehearing, it is, no doubt, right that an appellate court should consider the problem in the light of awards which judges have made or which have been approved or disapproved on appeal in similar cases."
In the United Kingdom there has been considerable acceptance of the notion that damages for pain and suffering and loss of amenities of life is "basically a conventional figure derived from experience and from awards in comparable cases" per Denning LJ in Ward v James[1966] 1 QB 273 at p303. The position was made clear by Lord Scarmen in Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 at p189 when he said:
"We are in the area of 'conventional' awards for non–pecuniary loss, where comparability matters. Justice requires that such awards continue to be consistent with the general level accepted by the judges."
See also Jag Singh v Toong Fong Omnibus Co [1964] 1 WLR 1382; Selvanayagam v University of West Indies [1983] 1 WLR 585; Wise v Kaye [1962] 1 QB 638.
If it is accepted that money cannot compensate for physical pain and suffering and lost amenities other than by way of solace, with respect to those who think differently, it seems to me inescapable that the appropriate range within which an award should be made can only be determined by a reference, in a broad sense, to awards made in other cases. However, it has been said that the High Court in Planet Fisheries Pty Ltd v La Rosa &Anor (1969) 119 CLR 118 has clearly rejected this proposition. In that case, the submission of the appellant's counsel was described in the judgment of the court as follows:
"It was submitted that in deciding whether or not the award of general damages was excessive, we should seek out a norm or standard in the decisions of this Court for the assessment of general damages, by comparison with which it was claimed that it would be seen that the award of $40,000 for general damages was disproportionate. In support of this submission we were referred to what our brother Windeyer said in Chulcough v Holley (1968) 41 ALJR 336 at p338, and to the following cases as establishing such a norm or standard of the amount to be awarded for general damages in the case of injuries and disabilities of the kind experienced by the plaintiff: Bresatz v Przibilla(1962) 108 CLR 541; Teubner v Humble (1963) 108 CLR 491; Watts v Rake (1960) 108 CLR 158; Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 308; Purkess v Crittenden (1965) 114 CLR 164; O'Leary v Woods (1966) 40 ALJR 325; Parente v Bell (1967) 116 CLR 528."
The joint judgment of the court dealt with this submission in the following terms, (1969) 119 CLR 118 at pp124, 125:
"We would emphatically reject this submission. It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. [My emphasis]. We cannot think that the passage cited from Chulcough v Holley (1968) 41 ALJR 338 should be understood as expressing a contrary view. The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a Country or District Court. The judgment of a court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. 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 (1968) 119 CLR 118 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."
Of this decision, Kirby P in Moran v McMahon [1985] 3 NSWLR 700 at p704 said:
"Because of the emphatic way in which these observations were stated by the High Court, the decision has established a practice which has been loyally followed in appeal courts throughout Australia, including this Court. Efforts to produce references to recent decisions of apparent similarity are discouraged. Instead, argument challenging the decisions of a trial judge in awarding general damages rarely rise above the level of categorical assertions. With variations in the use of adjectival descriptions, verdicts are criticised as too high or too low. No norm is suggested against which these assertions can be tested, save for the supposed collegiate experience of the appeal court."
The learned president then set out careful and reasoned arguments both in favour and against the validity of the principle expressed by the High Court in the Planet Fisheries case. Acknowledging that no two cases are the same and that detailed analysis of comparable awards would be profitless, Kirby P concluded [1985] 3 NSWLR 700 at p711:
"Preferable by far would be the development of material by which argument on ranges of awards of general damages could be considered. This would have the additional benefit of promoting consistency in the usual way of our legal system, facilitating the correction of excessively generous and excessively parsimonious awards without the risk of suffocation in a quagmire of factual data which a full blooded system of comparison of verdicts would involve."
In the same case, Priestly JA expressed the hope (not shared by McHugh JA) that the High Court might consider it timely to reconsider its decision in Planet Fisheries. However, the whole court adopted the view that until such reconsideration occurred the decision was binding upon it. The effect of Planet Fisheries v La Rosa was considered by this Court in Chenery v Cole (No 2) [1985] Tas R (NC) 175. The question for determination was whether an appeal had succeeded on a question of law within the meaning of the Appeal Costs Fund Act 1986, s8. The Full Court had set aside an award for damages for non pecuniary losses as being manifestly excessive and substituted a lesser sum. Nettlefold J (with whose reasons the other members of the Court agreed) referred to the Supreme Court Civil Procedure Act, Part V and said Unreported 81985 at p3:
"Notwithstanding what was said in Planet Fisheries Pty Ltd v La Rosa & Anor I have no doubt that, in Tasmania, the judge exercising original jurisdiction, and the judges constituting the Full Court, must have regard to that standard which emerges from a consideration of the work over the year of the High Court, this Court and the individual members of it, due consideration being given also to the work of courts serving comparable communities. No one suggests that the members of the Full Court are a liberty to substitute their own opinions for that of the judge. What is suggested is that, in the case of the non economic aspects of an award, a proper understanding of the prevailing standard will suggest a range of figures within which the figure to be awarded should fall. The provisions quoted from the Civil Procedure Act are wide enough to empower the court to enforce such a standard. Figures for those aspects of an award are entirely conventional in any event. We can learn from Gibbon's thought to the effect that in matters conventional examples are more powerful than principles."
I do not understand his Honour in the passage cited above to be disputing the principle expressed in the Planet Fisheries case that "the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused". Nor do I understand his Honour to be suggesting that the award must be proportionate to anything other than the "situation of the claimant party and not to the situation of other parties in other actions".
To have regard to the standard referred to by Nettlefold J does not require the court to do that which the High Court held impermissible, namely to ascertain a standard from a "group of judgments". [My emphasis]. Such a task would, of necessity, require detailed examination of a number of selected awards claimed to be comparable; a profitless undertaking for each factual situation is distinguishable from all the others. However, I do not understand it to be contrary to Planet Fisheries for this Court to have regard to the general standard as expressed by Nettlefold J, for it is only from this source that the court will "be aware of and give weight to current general ideas of fairness and moderation". (Planet Fisheries). To my mind, such general ideas can only arise from judicial knowledge and experience of awards of damages for non pecuniary losses made in the past. As these damages must be a conventional sum, incapable of mathematical calculation there can be no other general yardstick by which to measure fairness and moderation. Recourse to this general yardstick is clearly distinguishable from "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." [My emphasis]. Bray CJ said in Hirsch v Bennett [1969] SASR 493 at p494 with respect to the assessment of damages for non economic loss, that a judge is not prevented from making use of his experience "which can be in part at least vicarious and derived from what the judge has read and heard of in cases in his own jurisdiction as well as from his knowledge of cases in which he has been personally concerned either at the Bar or on the Bench". See also Van Velzen v Wagener [1974] 10 SASR 549 at p553. The distinction between reference to awards in particular cases and reference to comparable awards in general terms was adverted to by Cox J in Packer v Cameron (1989) 54 SASR 246 at p251 when he pointed out that "no one has suggested that damages can sensibly be assessed by some kind of innate impulse!" The facts of this case are fully but succinctly set out in the judgment of Zeeman J and there is no need for me to repeat them.
The injuries sustained by the respondent were undoubtedly serious and extensive. The learned trial judge correctly described them and their sequelae as follows: "The plaintiff has sustained multiple injuries which interfere continuously or intermittently with major aspects of her industrial, social and family life". These injuries were suffered when the respondent was only 32 years old and consequently, the permanent detriment to the quality of her life will have to be borne for many years. See Mazengarb v Riseley FC 1590.
However, the practice of this Court has always been to take a conservative approach to the assessment of damages for pain, suffering and loss of amenities of life. See Chenery v Cole [1985] Tas R (NC) 175. Evidence of the existence of this practice appears from a general study of awards for pain, suffering and loss of amenities of life over the past decade. After making proper allowance for inflation during that period, it is apparent that a sum in the order of $50,000.00 should be reserved for the most severe cases; ones in which the detriment suffered substantially exceeded that suffered by the respondent. Notwithstanding the extent of the respondent's disabilities and their pervasion into virtually all aspects of her life, I have reached the conclusion that a figure of $55,000.00 is so far above the prevailing standard derived from the work of this Court and its members in comparable cases, that if it stood alone, it would reflect error in the exercise of the judicial discretion.
However, for the reasons expressed earlier, the issue is not whether that figure is out of proportion to the detriment suffered but whether such disproportion appears in the total judgment sum. Ground 2 of the notice of appeal alleges that the award of $34,000.00 for future needs for household assistance is excessive in the circumstances. During argument, learned counsel for the appellant conceded that he could not challenge the finding made by the learned trial judge that services would be needed for four hours per week. Consequently, as the multiplier of $10.50 per hour was an agreed figure, argument in support of ground 2 was not pursued.
Finally, I turn to the ultimate question of whether, having regard to what I have said with respect to the sum of $55,000.00 attributed to pain, suffering and loss of amenities of life, it can be said that the sum of $214,864.70 is disproportionate to the injury and loss sustained. I think not. With respect to other heads of general damage, the learned trial judge applied not insignificant discounts. The sum of $93,105.00 for future economic loss was discounted by 20%. Although this figure was described by the learned trial judge as "an appropriate adjustment for both adverse and favourable contingencies", in the respondent's circumstances as found by the learned trial judge, such percentage discount reflects substantial weighting for adverse contingencies. A significantly lesser reduction would have been well within the proper exercise of the judicial discretion. The same can be said with respect to the allowance of $34,000.00 for future needs for services. His Honour arrived at this figure after discounting "substantially for contingencies". A significantly higher allowance under this head could not be described as manifestly excessive. Had the discretion been exercised to allow higher sums under these two heads of detriment, but a significantly lesser figure for pain, suffering and lost amenities, the end result would have been in the order of the judgment sum allowed.
Accordingly, I am not persuaded that the judgment sum is so inordinately high that it calls for appellate intervention. I would dismiss the appeal.
File No FCA 83/1990
MOTOR ACCIDENTS INSURANCE BOARD
v CAROL RICHARDS
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
5 November 1991
The notice of appeal seeks:
"... orders that so much of the judgment of the Honourable Mr Justice Wright pronounced on the 24th day of August, 1990 whereby His Honour awarded the Respondent $55,000.00 for general damages and $34,000.00 for future needs for household assistance be set aside on the following grounds:
1That the sum of $55,000.00 awarded for general damages was manifestly excessive taking into account all of those findings of fact made by His Honour in his judgment.
2That the award of $34,000.00 for future needs for household assistance was excessive in all the circumstances.
AND that in lieu thereof this Honourable Court assess such sums for general damages and for future household assistance as the Court considers appropriate in the circumstances."
It is apparent from the wording of the notice that the draftsman was under a misconception concerning the nature of the judgment and the powers of this court in relation to it. It was dated and entered on 24 August 1990 and stated "that the plaintiff Carol Richards recover from the defendant $214,864.70 together with costs to be taxed". More appropriately the notice should have sought to set aside the judgment. However, the respondent did not seek to attack the validity of the notice of appeal.
The facts found by the learned trial judge are not disputed. The injuries suffered by the respondent and their sequelae were stated at length in the reasons for judgment of the learned trial judge and to a large extent have been restated by Zeeman J My own assessment of the appropriate amount to be included in the damages for pain, suffering, loss of amenities, and disfigurement would not be as much as was allowed by the learned trial judge, but about $10,000 to $15,000 lower. The question has troubled me very much, but the conclusion I have come to is that the amount awarded is not sufficiently excessive to warrant intervention by this court.
Counsel for the appellant referred to Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 124 where the High Court rejected a submission that in deciding whether or not an award of general damages was excessive, it should seek out a norm or standard in the decisions of the High Court for the assessment of general damages. Counsel also referred to the statements of members of the New South Wales Court of Appeal in Moran v McMahon (1985) 3 NSWLR 700 where concern was expressed about difficulty in applying what was said by the High Court. However, counsel for the appellant in this case did not seek to maintain a proposition contrary to that of the High Court which "emphatically" rejected the submission. This court should maintain that rejection. It has done so before. See for example Bridges v Quarrell 35/1976; Walford v Milner 70/1987. What the High Court said at p124 was:
"We would emphatically reject this submission. It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. We cannot think that the passage cited from Chulcough v Holley (1954) 92 CLR 190 should be understood as expressing a contrary view. The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. What was sought to be done in this case by the appellant's counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous. The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. 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."
In Faulkner v Keffalinos (1971) 45 ALJR 80 at 82 Windeyer J echoed what he had said in Chulcough v Holley (1967–68) 41 ALJR 336 at 338 and expressed his "difficulty in applying the terms proportionate and disproportionate to incommensurables, and in measuring either the excess or deficiency of an amount where there is no available measuring rod except reasonableness, a rod that is always useful but one of which the markings are inexact." Windeyer J admitted to not having an intuitive idea of the amount that would be reasonable to award in a particular case and added:
"A general knowledge and experience of amounts awarded in other cases may furnish some guide to the prevailing standards in the community. But clearly it is not useful, indeed it is not permissible, to measure damages by comparing and contrasting in detail the harm and disabilities for which compensation is sought in one case with the harms and disabilities for which particular sums were awarded as damages in other cases. That does not mean that the maintenance of some sort of consistency in awards is not important. It is. Justice in the abstract demands it."
Of course, when an appeal from an assessment of general damages comes before this court, it is not bound in any event to apply what might be referred to as the general level of assessments made in a court below. This court is free to come to its own assessment and to decide whether the award from which the appeal has been brought was or was not manifestly excessive or inadequate.
The allowance of $34,000 for future needs for household assistance cannot, in my view, be assailed. Counsel for the appellant did not seek to disagree with the finding of the learned trial judge that 4 hours each week at an agreed current cost of $10.50 per hour was appropriate at the time of the trial. Taking into account that the respondent had an expectation of life at the time of the judgment of between 39 and 40 years and allowing for contingencies including a likely decrease in domestic demands when the second of the respondent's children leaves home, $34,000 cannot be said to be manifestly high or indeed other than reasonable.
I would dismiss the appeal.
File No FCA 83/1990
MOTOR ACCIDENTS INSURANCE BOARD
v CAROL RICHARDS
REASONS FOR JUDGMENT FULL COURT
ZEEMAN J
5 November 1991
The respondent and others brought an action against the appellant for damages for personal injuries suffered by her as the result of the negligent driving of one Kenneth Wessing on 21 August 1983, whereby a motor vehicle driven by the respondent came into collision with a motor vehicle driven by Wessing. Wessing was also injured and died as a result of his injuries. The action was brought against the appellant in reliance upon the provisions of s16 of the Motor Accidents (Liabilities and Compensation) Act 1973.
The appellant admitted liability and it fell to the learned trial judge to assess the respondent's damages. He assessed those damages at $214,864.70 and ordered that judgment be entered for the respondent in that amount. The learned trial judge summarized his calculations leading to his assessment as follows:
Past economic loss $ 13,674.41
Future economic loss $ 75,000.00
Hospital, medical and pharmaceutical expenses
(a) Past $ 3,270.29
(b) Future $ 15,100.00
Home alterations $ 1,000.00
Past and future needs for household assistance
(a) Past $ 17,820.00
(b) Future $ 34,000.00
Pain, suffering and loss of amenities $ 55,000.00
$214,864.70
By its notice of appeal the appellant seeks to appeal against "so much of the judgment of The Honourable Mr Justice Wright pronounced on the 24th day of August, 1990 whereby His Honour awarded the Respondent $55,000.00 for general damages and $34,000.00 for future needs for household assistance".
That formulation of what is sought to be appealed indicates a misapprehension as to the nature of an assessment of damages in a case such as the present. An award of $55,000.00 for general damages and an award of $34,000.00 for future needs for household assistance formed no part of the judgment pronounced by the learned trial judge. It ought to be observed that it is incorrect to say that in any sense the learned trial judge attributed $55,000.00 to general damages. It would be more accurate to say that his Honour attributed $55,000.00 to general damages of a non–economic nature. With the exception of the sum of $3,270.29 for past hospital, medical and pharmaceutical expenses, the whole of the amount awarded by the learned trial judge is correctly categorised as having been allowed in respect of general damages. Attributing the sums of $55,000.00 and $34,000.00 to different categories of general damages was no more than part of the reasoning process leading to a conclusion that a particular lump sum was an appropriate award. The desirability of a trial judge at least tentatively attributing appropriate ranges to various categories of a plaintiff's damages has been judicially recognized, although the process whereby items of damages are quantified in isolation and then aggregated has been criticized. Regard may be had to the observations of Stephen J in Gamser v Nominal Defendant (1977) 13 ALR 387 at p391 and of Mason and Aickin JJ in Dessent v Commonwealth of Australia (1977) 13 ALR 437 at p446.
As it stands, the notice of appeal is defective in that it seeks to appeal against what are said to be portions of a judgment when in fact those matters do not form any part of the judgment. However, in anticipation of an application to amend the notice of appeal and the grant of such an application, it is appropriate to consider the grounds of appeal. If any of those grounds are found to have merit, the court ought to entertain an application to amend the notice of appeal. In that event it would be for the court to determine whether such application to amend ought to be allowed. If no application is made, or if made, is refused, then the appeal ought to be dismissed as being incompetent.
The grounds of appeal are in the following terms:
"1That the sum of $55,000.00 awarded for general damages was manifestly excessive taking into account all of those findings of fact made by His Honour in his judgment.
2That the award of $34,000.00 for future needs for household assistance was excessive in all the circumstances."
The findings of fact made by the learned trial judge were not challenged, and this appeal falls to be determined upon the basis of those findings.
The respondent was born on 25 August 1951. At the time of trial she was married with two young children. Her accident caused injuries. Those injuries were enumerated by the learned trial judge as consisting of a fractured right ankle, fractured right clavicle, fractured left ribs (8, 9 and 10), fractured right rib (1), fractured right medial malleolus, fractured right talus, facial lacerations, traumatic deafness in the right ear, strain injuries to the neck and jaw, and injuries to liver and spleen causing haemotamas of both organs. The learned trial judge's characterization of a fractured right ankle, fractured right clavicle and a fractured right medial malleolus as being distinct injuries may not be strictly accurate. Mr Turner's description of the relevant injury as being a fracture of the right ankle including the medial malleolus and talus is perhaps more accurate. At the time she sustained her injuries, the respondent was employed in a permanent full time position in the Valuation Division of the Lands Department, having had a stable employment history interrupted only by a period of about two years during which her first child was born, and by accouchement leave of about fourteen weeks on the occasion of the birth of her second child. At the time that she suffered her injuries, her intention was to remain in her employment indefinitely and it can be inferred that that employment would have continued to be available to her. In general terms, the respondent was in considerable pain and discomfort in several of her injury sites for some time. Her prolonged enforced immobility resulted in her developing bedsores which were uncomfortable and required treatment. A number of her injuries required that investigative procedures be carried out. The respondent suffered from temporary loss of taste and smell. She has been limited in her ability to pursue leisure time pursuits, in particular gardening, of which she was fond. She now has a tendency to stutter. An attempt at resuming full time employment resulted in her becoming overtired, irritable and generally highly stressed. Her relationship with other members of her family has suffered. Her sexual relationship with her husband has deteriorated. In general terms, she sustained a major disruption to her life as a result of the accident. She has multiple disabilities which, when taken together, severely affect her capacity to enjoy the amenities of life. They were correctly categorized by the learned trial judge as being such that they interfered "continuously or intermittently with major aspects of her industrial, social and family life".
It is appropriate to specifically examine the nature and effect of her various physical injuries:
(a)Fractures to the right ankle. Following the respondent's admission to the Royal Hobart Hospital, there was open reduction of the fractured right ankle. She was discharged on 4 October 1983, on crutches, but was not then fully weight bearing on her injured right foot. The right leg was encased in plaster from the foot up to the knee. The foot was sore. The plaster was first removed late in 1983 when it was found that the foot was misshapen to some extent. The respondent attended the Douglas Parker Centre for the purpose of receiving ultrasound treatment and physiotherapy to the foot. Prior to the plaster being removed, the respondent had been provided with a non weight bearing calliper to improve the blood flow to the section of the bone which had been removed from the respondent's right hip and grafted into her ankle. The respondent found the use of the calliper most distasteful, but she continued using it for some six months. In late 1984 the respondent sought further orthopaedic advice consequent upon an apparent spontaneous fusion that had occurred in the right ankle. She was provided with a partial weight bearing calliper. At that time her foot continued to be swollen and crooked. She tended to walk on the outside of the foot. The respondent underwent further surgery to the foot in 1985 when a triple arthrodesis of the right ankle was carried out. Ever since then, she has worn flat shoes, in consequence of which the respondent has not worn a dress. This is a matter which causes some distress to the respondent, she being a person who is careful of her personal appearance and who had enjoyed wearing feminine clothing prior to the accident. The arthrodesis operation was performed on 29 January 1985. The respondent was discharged after some two weeks. During the course of the procedure, a pin was inserted at the base of the right foot. When the respondent was discharged, her right leg was encased in plaster to the knee. Her foot was quite painful. She became ambulatory on crutches until she became accustomed to walking on her stabilised foot. Her increased mobility enabled her to perform housework to a greater degree. Notwithstanding the arthrodesis operation, the respondent's foot continued to turn inwards. She determined to have further surgery, which was performed on 20 August 1985 by way of a tendon release operation. She remained in hospital for a week. As a result of the operation, the foot initially sat flat. Nevertheless, gradually it started turning inwards again. The learned trial judge observed that at the time of trial the respondent had a slightly rolling or waddling gait, less exaggerated than, but not unlike, that of a competitive track and field walker. The respondent is left with multiple surgical scars on her right foot and ankle, and a scar on the left hip over the donor site of the bone graft. The right leg is somewhat shorter than the left. The right calf muscles are somewhat wasted as compared with the left. The right knee jerk has diminished. She has no right ankle jerk. Her walking is difficult.
(b)Fractured right clavicle. The respondent received physiotherapy for her injured collarbone, but otherwise had an uneventful recovery from that injury.
(c)Fractured ribs. The respondent appears to have made an uneventful recovery.
(d)Facial lacerations. Upon admission to hospital, the lacerations to the forehead were sutured. There are three separate lacerations to the forehead, two of which are about 10 centimetres in length and the third about 5 centimetres in length. They run more or less parallel to one another and constitute permanent scars extending to the right side of the left eyebrow causing a slight frowning appearance. In addition, the respondent suffered a facial laceration involving damage to the supra–orbital nerve producing a permanent numbness or loss of sensation on the top of the head and on the left side of the forehead. That injury is partially responsible for headaches continuing to be suffered by the respondent and for an abnormal tendency to perspire on the left side of the head. The respondent's headaches commenced at a time which was not specified with particularity, but her first severe attack was in January 1985, resulting in vomiting, swollen tongue and dizziness. She has continued to suffer severe headaches at intervals of six weeks or so. The headaches start at the back of the neck, her tongue swells and she feels sick. Dizziness also manifests itself in other circumstances. The respondent suffers from a degree of numbness in both cheeks, more frequently noticeable on the left side. She experiences excessive perspiration on the left side of the head predominating on the face and forehead due to a form of sympathic dystrophy and occurring at times when she becomes agitated or when she engages in heavy physical work. Her left eye waters and her left eyelid droops. The respondent consulted a neurologist in connection with her headaches. He prescribed a number of forms of medication which initially caused the respondent to become ill. Eventually there was a change of medication and no further side effects were suffered.
(e)Traumatic deafness in the right ear. The trauma sustained in the accident resulted in the plaintiff suffering a substantial hearing loss in the right ear associated with which is tinnitus of two different kinds. The first kind has a static quality, and the other kind is high pitched and shrill. The former is constant. She has been diagnosed as suffering from mixed deafness consisting of both conductive and sensory loss. On 28 November 1983 an ear, nose and throat surgeon performed a surgical reconstruction of the right ossicular chain, using a homograft cartlege taken from the respondent's left hip. Initially it was found that there was some improvement in the respondent's level of hearing, but in August 1985 it was ascertained that the homograft had failed and that further surgery was necessary. That surgery was carried out on 4 October 1985, but it did not produce any substantial improvement in the respondent's level of hearing. Consequently, the respondent has been fitted with a hearing aid containing an inbuilt noise inhibitor with a view to lessening the tinnitus problem. Subsequently, increasing success has been achieved in lessening the tinnitus problem by the use of various hearing aids which have become progressively more sophisticated. The respondent has been left with a permanent hearing loss exceeding 68% in the right ear, but, with the use of a hearing aid, she has complete speech discrimination and the tinnitus problem has been substantially reduced.
(f)Strain injuries to the neck and jaw. Some time after her accident, the respondent became aware of a tendency of the left side of her jaw to ache and crack. The learned trial judge noted that there was a clearly audible noise produced when the respondent moved her jaw up and down. At night, the respondent wears an oral prosthesis to counteract this problem. She was provided with a soft collar for her neck and a special pillow. Whilst her neck movements are full she suffers from discomfort in neck movements. Her neck injury is at least partly responsible for her spells of dizziness and responsible for radiation of paraesthesia into the arms.
(g)Injuries to the liver and spleen. These internal injuries were attended to upon the respondent's first admission to hospital and do not appear to have left her with any residual disability.
All in all, it is entirely accurate to describe the totality of the respondent's injuries as having a very severe effect indeed upon her quality of life. The injuries are such that the respondent is constantly affected by her injuries and will continue to be so affected for the rest of her life. The physical manifestations of her injuries are such that her disabilities are ever present in her mind. A very substantial award of general damages for non–economic loss was clearly called for. So much appears to be conceded by the appellant. The appellant accepts as correct the dictum of Mason J (as he then was) in Wilson v Peisley (1976) 50 ALJR 207 at p214, in the following terms:
"Whether an award of damages made by a trial judge is so erroneous that it should be interfered with by an appellate court is undoubtedly a question of law. The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered."
The appellant submits that the sum of $55,000.00 for the respondent's general damages for non–economic loss is so inordinately high as to be a wholly erroneous estimate of the damage suffered. The appellant does not seek to suggest that the learned trial judge acted on a wrong principle of law or that he misapprehended the facts.
Whilst the appellant, in its written outline of submissions, indicated that it would submit that the amount awarded was "inordinately high when compared with other awards of damages that had been awarded in the [court] in recent years to persons who have suffered similar and perhaps even greater injuries in the (sic) motor vehicle accidents and that the sheer magnitude of the award demonstrate this to be so", counsel for the appellant expressly disclaimed any submission which might be seen to invite the court to proceed upon a basis inconsistent with that held to be appropriate by the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at pp124–125. Applying what the High Court said in that case, it is clear that it is not open to this court to interfere with the award unless it is correct to say that that award is grossly disproportionate to the injuries suffered by the respondent and the consequences of those injuries. I appreciate that that test ultimately must be applied to the final award of damages, but in the circumstances of the present case, that conclusion cannot realistically be arrived at in relation to the final award unless that conclusion can be reached in relation to the two ingredients of the final award which are sought to be challenged.
An assessment of damages of the type under consideration can not be carried out in a vacuum. In particular, the consequences of injuries must be looked at in the broad sense. That broad sense must include the period of time during which it might be anticipated the respondent will continue to suffer from the consequences of her injuries. Her status as the mother of young children must be had regard to. The demands upon a mother of young children may result in particular injuries having a particularly severe effect.
At first blush the sum of $55,000.00 may appear to be a very large sum indeed. The appellant submits no more than that it is patently too much. It submits that the excessiveness is apparent from the amount itself. It is plain that the respondent's on–going severe disabilities are likely to be with her for the rest of her life. At the time of trial she had a life expectancy of about 41 years. The trial took place some 7 years after the accident in which the respondent suffered her injuries. An appreciation of the fact that the respondent might be expected to suffer from her severe injuries for some 48 years assists in elucidating the real meaning of an award of $55,000.00 to the respondent. Where injuries are likely to have a life–long effect, the age of a plaintiff is of great significance. It assists in forming an estimate as to the period of time during which a plaintiff is likely to suffer the consequences of injuries sustained. The respondent's situation might be contrasted with the respondent in Chenery v Cole Unreported No 34/1984, who was aged 73 years at the time she sustained her injuries and therefore at that time had a life expectancy of some 12 years.
I am not persuaded that an award of $55,000.00 for non–economic loss is manifestly excessive.
I turn to the second ground of appeal which relates to the award of $34,000.00 by way of damages for future household assistance upon the basis of the principles expressed in Griffiths v Kerkemeyer (1976–1977) 139 CLR 161.
In considering this ground of appeal, two matters are of particular relevance:
1It was agreed at the trial that an hourly rate of $10.50 was the appropriate rate to be used in calculating damages under this head.
2The appellant conceded that services under this head were reasonably required indefinitely for four hours per week.
Those matters effectively conclude this ground of appeal against the appellant. Counsel for the appellant virtually conceded that to be so. An application of the appropriate tables, using the agreed rate in respect of the conceded number of hours, produces an amount very close to the sum of $34,000.00 allowed by the learned trial judge. That being so, it cannot be said that the amount allowed by him was manifestly excessive. This ground cannot succeed.
I would dismiss the appeal.
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