The recent decision of Geelong Leather Pty Ltd v Michael Delaney1 involved an appeal from a County Court judgment in relation to an award of general damages.
The respondent worker injured his lower back in the course of his employment with the appellant while stacking hides. An MRI showed a focal right posterolateral shallow disc protrusion impinging on the right L5 nerve. The worker issued proceedings against the employer alleging his injuries were the result of its negligence.
The employer admitted liability and the claim proceeded as an assessment of general damages before a County Court judge and jury of six. During the trial, the worker gave evidence that, amongst other things, he had not returned to work following the incident, he had “good days and bad days”, ongoing pain and that further surgery had been recommended. He also led evidence that his activities of daily living had been affected.
The worker’s counsel submitted to the jury that general damages should be assessed at $400,000.00. In response, the employer’s counsel indicated that he was instructed to object to that sum but did not make any further submissions as to general damages.
The jury ultimately assessed the worker’s damages at $385,000.00 and the employer appealed on the basis that the judgment was manifestly excessive and not open on the evidence.
The Court of Appeal dismissed the appeal on the basis that there was no error in the jury’s award. Although the Court considered the jury’s award “might be described as towards the higher end of the appropriate range” for general damages, on the evidence, there was no basis for contending that it was manifestly excessive.
The Court of Appeal also indicated that, at trial, a defendant’s counsel ought not simply object to a plaintiff’s proposal as to damages but rather should put submissions to a judge as to why a figure was outside the range of damages to be considered by a jury.
Whilst the Court of Appeal noted that awards of damages in similar cases may be used as a guide, it stressed that each case is fact-specific and none of the cases relied upon by the employer were a precedent for any other case in terms of the amount that may be awarded for general damages. This, it noted, was supported by the case of Planet Fisheries Pty Ltd v La Rosa,2 in which the High Court stated that:
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…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.
The key matter for consideration here was therefore whether the damages awarded were fair and reasonable compensation for the injuries received and the disabilities caused. This will naturally depend on the facts of each case.