O'Brien v McKean

118 CLR 540
1968 - 0910B - HCA

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(Judgment by: McTiernan J)

Between: O'Brien
And: McKean

Court:

Judges: Barwick CJ

McTiernan JTaylor J
Menzies J
Windeyer J

Subject References:
Damages
Personal injuries
Loss of earning capacity
Future expenditure
Inflation

Hearing date: Brisbane 27 May 1968
Judgment date: 10 September 1968

Adelaide

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Judgment by:
McTiernan J

I am of the opinion that the figure for general damages reached by the learned trial judge's award is too high. It is reasonable to think that the award is so very large, principally because in estimating compensation for prospective financial loss his Honour took into account, as he said he did, that the purchasing power of the currency would be likely to depreciate in the relevant period of years and on that basis increased considerably the compensation under that head of damage. He had before him actuarial calculations produced by an actuary called by the plaintiff which were done on the basis that the rate of depreciation would be three per cent. Depreciation of the currency is not of course a head of damage nor is an assumption that the currency will increase in purchasing power a head of set off in favour of the defendant to be taken into account in assessing compensation for prospective financial loss. I take the view that a forecast of the trend of the purchasing power of the currency up or down does not provide proper ground on which to make a judicial assessment of compensation for personal injury. The introduction of such an issue would, I think, encumber the assessment of damages, which is already a difficult task, with speculative and uncertain matter.

The interference of the Full Court, as a court of appeal, with the award of general damages was justified by this error of principle into which the trial judge fell. On the whole I think that the figure substituted by the Full Court should stand as the amount of general damages which is warranted by the evidence. I have had the benefit of reading the reasons for judgment of the Chief Justice and I agree in general with his observations regarding the relation of change in the value of money to the assessment of compensation in a case like the present one.