O'Brien v McKean
118 CLR 5401968 - 0910B - HCA
(Decision by: Taylor J, Menzies J)
Between: O'Brien
And: McKean
Judges:
Barwick CJ
McTiernan J
Taylor J
Menzies JWindeyer J
Subject References:
Damages
Personal injuries
Loss of earning capacity
Future expenditure
Inflation
Judgment date: 10 September 1968
Adelaide
Decision by:
Taylor J
Menzies J
We agree that this appeal should be dismissed because the Full Court was correct in regarding the award of damages made by the learned trial judge as excessive and because the sum awarded by the Full Court in lieu thereof falls within the limits of what is reasonable in all the circumstances.
It does appear that the learned trial judge, in assessing damages as he did, was influenced by his acceptance of the contention that, in the sum to be awarded, there should be included some allowance because of the likelihood of a general and progressive fall in the purchasing value of money. Of this some evidence was admitted. The Full Court disagreed with the learned trial judge about this and before us the appellant sought to impugn the decision of the Full Court as having thereby proceeded upon an error of law.
Smith J. said in Tzouvelis v Victorian Railways Commissioners: [F15]
"It is certainly true that for most purposes the law assumes that the dollar or the pound is a unit of constant value and disregards changes in its purchasing power."
With this we respectfully agree and we also agree with that learned judge that the general principle is applicable to the assessment of damages for personal injury. What is to be awarded is a sum which, at the time of the award, will, in addition to covering special damages, provide an injured person with a lump sum by way of general damages constituting fair and reasonable compensation for loss suffered including pain and suffering, expected additional expenses, loss of earning capacity and loss of the amenities of life. Fletcher v Autocar and Transporters Ltd. [F16] The sum so assessed can be used by or on behalf of the person to whom it is awarded in all sorts of ways, and to try to assess damages on the footing that the award, or some part of the award, may be used in such a way that its real value will be increased or diminished by a rise or fall in purchasing power of money would be to make a wholly unwarrantable assumption which would complicate, by a refined speculation, an already sufficiently difficult task. Of course, if damages were to be awarded by way of an annuity instead of as a lump sum different considerations would apply.