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Damages, non-economic loss

Varga v Galea [2011] NSWCA 76. McColl JA.

[72] Reece v Reece (1994) 19 MVR 103 states the uncontroversial proposition that
the plaintiff's age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (CA, unrep, 5.7.94); see also Christalli v Cassar [1994] NSWCA 48.

[73] Age, however, is only one of the numerous matters the Court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows:

'non-economic loss' means any one or more of the following:

(a) pain and suffering,

(b) loss of amenities of life,

(c) loss of expectation of life,

(d) disfigurement.

[74] The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the Civil Liability Act now requires, as assessed by reference to a "most extreme case".

In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent:

"Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals.

Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded.

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. It is an attempt to weigh imponderables."

As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage "reflected the previous law".

[75] When considering the respondents' challenge to the primary judge's determination of the severity of the appellant's non-economic loss by reference to the "most extreme case" standard, the Court is guided by the proposition that such a finding is not readily susceptible to appellate review, involving questions of fact and degree, and matters of opinion, impression, speculation, and estimation calling for the exercise of commonsense and judgment.

The Court is only entitled to intervene and disturb the ultimate conclusion of the trial judge in accordance with the ordinary principles governing appellate review of awards of damages for personal injuries: Dell v Dalton, at 533 - 534.

[76] In my view the primary judge's assessment of the appellant's non-economic loss as 40 per cent of a most extreme case was within an appropriate discretionary range for damages.

The respondents have not demonstrated that in determining that percentage her Honour acted on a wrong principle of law, misapprehended the facts or made "a wholly erroneous estimate of the damage suffered": Moran v McMahon (1985) 3 NSWLR 700 at 718, 723.

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