Barwick C.J .. Gibbs, Stephen, Jacobs and JJ.: Revie NG

138 C.L.R.] OF AUSTRALIA.
563
[HIGH COURT OF AUSTRAUA.j
SHARMAN APPELLANT;
DEFENDANT,
AND
EVANS RESPONDENT.
PLAINTIFF,
ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.
Damages-Personal injuries-Long term quadriplegic-Future medical care-Lost H. C. OF A.

earning capacity-Loss of enjoyment of life-Shortened life expectancy-Basis 1976-1977.
of assessment-Review of verdict by appellate court. ~
1976,
A woman aged twenty was severely injured in a motor accident and became SYDNEY,
quadriplegic. She was expected to live another twenty to thirty years. Before April 12, 13.
the accident she was able to earn some $70 net a week as a secretary. In an
action against the driver of a vehicle whose negligence caused the accident she 1977,
was awarded $300,500 damages which were stated by the trial judge to include MELBOURNE,
agreed special damages of $25,500, an amount of $6,000 for shortened life Feb. 25.
expectancy, and from $150,000 to $175,000 to provide for future costs of nursing
Barwick C.J ..
and medical care. Gibbs,
Stephen,
Held, by Barwick C.J., Gibbs and Stephen JJ., Jacobs and Murphy JJ. Jacobs and
dissenting, that the award was excessive and should be reduced to $270,500. Murphy JJ.
Skelton v. Collins (1966), 115 C.LR. 94, considered.

Principles to be applied by appeal courts in revie~ng damages awarded by
trial judges, and methods of assessment, considered.
Decision of the Supreme Court of New South Wales (Court of Appeal) reversed.
APPEAL from the Supreme Court of New South Wales.
In December 1977 June Evans, who was then twenty years old,
was injured in a motor car accident as a result of the negligence
of Dennis Sharman. She suffered severe injuries, and became
quadriplegic and epileptic, lost the power of speech, and suffered
severe respiratory impairment, but remained aware of her
plight. She was expected to live a further twenty to thirty
years. Before the accident she was able to earn some $70 per
week as a secretary. In an action in the Supreme Court of New
South Wales, Sheppard J. awarded her damages of $300,547.50,
which were stated to include agreed special damages of
$25,457.50, $6,000 for shortened life expectancy, and from
664 HIGH COURT [1976-1977.
H. C. OF A. $150,000 to $176,000 for future costs of nursing and medical

1976-1977. care. An appeal by the defendant to the Court of Appeal Divis-
l....,--'
SHARMAN ion, on the ground that the damages were excessive, was
v. dismissed (Reynolds and Glass JJ.A., Mahoney J.A. dissen-
EVANS.
ting). The defendant then appealed to the High Court. Further
facts are found in the judgments.
B. S. J. O'Keefe Q.C. and B. T. Sully, for the appellant, referred

to Arthur Robinson (Grafton) Pty. Ltd. v. Carter (1); Chulcough
v. Holley (2); and Skelton v. Collins (3).
T. Falkingham Q.C. and P. I. Rose, for the respondent.
Cur. adv. vult.
1977. Feb. 25 The following written judgments were delivered:-

BARWICK C.J. The respondent when twenty years of age
suffered calamitous injuries whilst a passenger in a motor car
which was involved in a road accident. She became a
quadriplegic: and as well she has lost her power of
speech. Though she has some limited use of her arms, so that
amongst other things she can operate a typewriter, she has no
hope of ever being able to drive a motor vehicle, no matter what
adaptation be made. She has become an epileptic though, by the
use of drugs, her epilepsy is under control.
As the learned trial judge found:
"The plaintiff needs constant nursing attention. Three
particular matters make this essential. Firstly, she has
difficulty in breathing and this difficulty may be aggravated
by an accumulation of mucus in her breathing passages
which must be aspirated as soon as possible. Secondly,
there is a continuing risk of the development of an infection
in the urinary tract. Her urine, which drains into a bag,
must be watched continuously for signs of infection. Third-
ly, there is a strong likelihood that one or more pressure sores
will develop if she is net regularly turned. Additionally to
the matters I have mentioned there is a risk that she will
have an epileptic fit or some other, and unexpected, problem
which will require more or less immediate attention. It must
be remembered that she lacks the ability readily to make
herself understood, particularly to strangers, and this
circumstance necessitates a greater degree of watchfulness
on the part of those in whose charge she is than would be the
case if she had her voice."
The many operative procedures to which she has been
subjected are fully detailed in the careful exposition by the trial
0) (1968) 122 C.L.R 649. (3) (966) 115 C.L.R. 94.
(2) (1968) 41 A.L.J.R 336.
138 C.L.R.] OF AUSTRALIA. 565
judge who awarded her the sum of $300,547.50. The appeal by H. C. OF A.

the present appellant to the Court of Appeal Division of the 19i6·19ii.
'-r-'
Supreme Court of New South Wales against this award was, by SHARMAN
majority, dismissed. The ground of appeal was that the u.
EVANS.
damages were excessive. In this Court, the appellant maintains
Barwick C.J.
his submission that the award of damages is excessive: in that
connexion, the appellant points to particular matters on which he
says the trial judge erred in point of law. To these I shall refer
later.
I have found the resolution of the appeal a matter of
considerable difficulty. In the first place, the fundamental
principle is that the exercise of discretion by the trial judge in the
estimation of damages ought not to be interfered with by an
appellate court unless the trial judge has erred in point of law or
in his approach to the assessment or unless the assessment itself,
by its disproportion to the injuries received, demonstrates error
on the part of the trial judge. Notwithstanding some views
which have been expressed, the function of a court of appeal, in
my opinion, is not to offer what in connexion with another
discipline would be called "a second opinion". Such a court is
strictly confined to the remedy of error in the trial or in the
assessment of the trial judge. It cannot be too strongly said that
a mere difference of opinion as to what ought to have been the
proper award of damages does net indicate error on the part of
the trial judge. This distinction between mere difference of
opinion and error has been variously expressed, perhaps not
always with satisfaction to the mind. But there is a radical
distinction between the two situations whether the error be styled
demonstrable or otherwise described. Suffice it for present
purposes that mere difference of opinion on a matter of fact or
assessment does not warrant a conclusion that the trial judge's
view was mistaken or erroneous calling for remedy by a court of
appeal.
I think it is relevant to the decision of this appeal to remember
that our system by which differences between citizens and, for
that matter, between the state and the citizen are resolved is one
of trial. It is not a system of resolution by appeal. Further, the
trial itself is an adversary process where each side of the record is
free to choose the ground and manner upon and in which it will
fight the case and contest its issues. By that choice each is
bound, unless for special reasons a court of appeal allows a
deviation to be made from that course. Adherence to these basic
principles places great responsibility on the trial judge in
deciding the case: and also upon advocates who decide for their
566 HIGH COURT [1976-1977.
H. C. OF A. clients exactly how and upon what grounds the issues will be
197&-1977. fought. I have said elsewhere, and I venture to repeat, that
'-.-'
SHARMAN resolution of difference by trial rather than by appeal is of great
v. public benefit. It tends to earlier finality and greater certainty
EVANS.
than would be the case if cases were chiefly decided on appeal.
Barwick C.J.
Holding these views, it is apparent that my own deep
inclination is not to interfere with the assessment made in this
case by the trial judge. I have elsewhere stated what I believe to
be the proper approach to the assessment of damages and have
been reminded recently of what I said in Arthur Robinson
(Grafton) Pty. Ltd. v. Carter (4) and other cases. I adhere to the
stated principles which I have thought to be proper.
However, after considering the reasons which the trial judge
has clearly expressed for making his award of damages, I have
been driven to the conclusion that his Honour fell into error in
four respects in making that award.
The first ground of error, in my opinion, was that his Honour
allowed the cost of providing premises at the respondent's
mother's house and. of nursing attention during those periods in
which the respondent might choose to sojourn in that house as
part of the award. It seems to me that it was not reasonable to
make the appellant pay for these costs. They were not
reasonably necessary in any real sense for the treatment and care
of the respondent. True it may be that the transfer of the
respondent to her mother's house from time to time would give
the respondent personal satisfaction and may have some
psychological effect on her outlook oflife. I can well understand
the desirability from the respondent's personal point of view of
being able from time to time to change from her hospital to her
mother's house. But the expense of that course would be, to my
mind, quite disproportionate to any causal connexion which
might possibly be found between that transfer and the
appellant's negligence. Further, I think there were practical
reasons which would make this transfer undesirable in
itself. The task of finding nurses of the right disposition and
capacity to co-operate with other nurses in caring for the
respondent at her mother's house on what must, at best, be a
casual basis has not been sufficiently regarded. Of necessity the
transfer to her mother's house would be exceptional rather than
the rule for her care and maintenance. Periods of her stay at
that house would necessarily be relatively few. To my mind, the
practical difficulties of organizing these transfers and of
(4) (1968) 122 C.L.R. 649.

providing a very considerable nursing capacity would prove nigh H. C. OF A.

insuperable. For all that the medical advisers might think that 1976-1 ~.
Q
n
there was some psychological benefit in allowing the respondent SHARMAN
to have the satisfaction of being in her mother's house for some V.
EVANS.
periods, I think the disturbance and the upset both of the initial
Barwick C.J.
transfer of the respondent and particularly of her re-transfer
could far outweigh any other advantage which has been
supposed. The reasonableness of the proposed course and its
practicality or impracticality do not appear to me to have been
given sufficient prominence. They could not be resolved by the
medical witnesses but rather are matters for close consideration
and decision by the court.
However, the appellant's counsel throughout has been prepared
to agree that it was reasonable to provide for periods of residence
of the respondent at her mother's house including provision for
the actual construction of premises in which she might thus
sojourn. In consequence, I would not be prepared to interfere
with the amount of the award of damages on the ground that the
award ought not to have reflected any provision for the
respondent to be transferred from time to time to her mother's
residence. I do this not because I think that was a reasonable or
proper course to take but simply because the appellant chose to
concede the point. He should not be allowed now to resile from
the attitude which he has taken throughout.
The second ground of error, in my opinion, is that his Honour
allowed what must have been a substantial amount in the
composition of his award for economic loss. In this respect I
agree with the analysis made by Mahoney J.A. in his reasons for
judgment in the Court of Appeal. I have no need to restate them
but can shortly state my own expression of what I conceive to be
the error. The respondent had a prospect of earning a net sum of
not less than $70 per week. Out of this she had to provide herself
with food, clothing and perhaps residence. I should have
thought that there was little scope for saving or making any
accumulation of capital out of such an earning capacity. Such
need as she has in these respects is now substantially embraced
in the considerable award made for her institutional care, along
with the periods of transfer to her mother's house. It seems to
me right to say that to allow any substantial ingredient in the
total award to represent economic loss in the circumstances is to
double up and fail to perceive the overlap which would exist
between any allowance for economic loss and the allowance for
institutional and other care and attention.
668 HIGH COURT [1976-1977.
H. C. OF A. Thirdly, his Honour evidently included a substantial sum in his

1976-1977. award for the shortening of the life expectancy of the
'-y--I
SHARMAI' respondent. I am of opinion that this loss calls only for
V.
EVANS.
compensation by the inclusion of a nominal sum. Nothing in
the case, bearing in mind other items to be the subject of
Barwick c.J.
compensation, calls for that nominal sum to exceed the sum of
$1,260.
Fourthly, I feel his Honour failed to look closely at what his
proposed award was capable of producing when reasonably
invested and in not comparing that yield with what the
necessities of the respondent's condition required. Leaving aside
that part of the general award which it may be thought relates to
compensation for loss of amenities in life, I think that the yield of
the resultant sum is very considerably in excess of what the
respondent's requirements are. Even if one were to take the
respondent's maintenance and care to require a sum of $175 per
week, that sum would be provided without entrenching on the
capital by an award of less than the sum of $200,000. To award
such a sum 'would more than provide for institutional care and
occasional therapy and professional advice, and for residence in
the mother's house for some periods of time, leaving the capital,
albeit possibly affected by changes in the value of money,
untouched. It seems to me that such a result in the assessment
of damages is unreasonable. It neglects the considerable scope
of investment and possible accretion which a large verdict
provides.
I am of the opinion that the amount awarded by the trial judge
is excessive and that it ought to be reduced. If I felt free to give
effect to my views as to the first ground of error to which I have
referred, I would be inclined to make a much more substantial
reduction than I now propose. However, it seems to me that the
least sum by which the award should be reduced, having regard
only to grounds other than the fIrst to which I referred, is the
amount of $25,000. This sum would minimize but perhaps not
eliminate the effect of including too great an allowance for
economic loss and for loss of life expectancy. The reduced sum
still represents, in my opinion, a not ungenerous award which,
being wisely invested, will fully provide the reasonable needs of
the respondent in her injured condition. I have not thought it
necessary in this case to enter into any detailed discussion of all
the elements of the compensation by award of damages for the
respondent's injuries. The danger of undue elaboration is
evident and needs no emphasis. The endeavour must be to make
a fair and reasonable compensation as between the parties. I
have felt in this case that it is sufficient, having found error in H. C. OF A.

the assessment, to determine a sum, somewhat in the broad, by 1976-1977.
'--r-'
which the judge's award should be reduced in order to bring it SHARMA!';
within the range of a fair and reasonable compensation. Accor- U.

EVANS.
dingly, I would reduce the award by the amount of $25,000.
Barwick C.J.
I would not make any order for the costs of this appeal. I
think that the appellant has brought on himself the major
difficulties. He has failed to persuade me that there should be a
reduction in respect of the amount allowed for the transfer of the
respondent to her mother's house from time to time. Each side
has had some success and some failure and I would propose that
there be no order for costs. I would vary the order of the Court of
Appeal as to costs so as to allow the appellant to that Court only
one half of his costs of that appeal.
GIBBS AND STEPHEN JJ. The defendant, Dennis Sharman,

appeals against the dismissal, by a majority of the New South
Wales Court of Appeal, of his appeal from a verdict for
$300,547.50 in favour of the plaintiff, June Marilyn Evans.
Miss Evans, then aged twenty, was injured in a motor car
accident in December 1971. She suffered very serious injuries
including brain stem damage; she was unconscious for almost a
month and is now a quadriplegic. This condition, disastrous
enough in itself, is in her case aggravated by trauma-caused
epilepsy, by unusually severe impairment to her respiratory
function as a consequence of the brain injury and by an almost
total loss of the ability to speak because of the injury to the
larynx. She is fully aware of her plight.
By the time of the trial, in November 1973, Miss Evans had
undergone a great number of operations and had endured much
pain; her condition had become stabilized and her disabilities
could then be summarized, in the reasons for judgment of the
learned trial judge (Sheppard J.) in the following terms:
"1. She suffers from quadriplegia with the problems to
which I have already referred. She has more movement in
her right arm than her left but the movement is nevertheless
restricted and she cannot make anything like full use of her
right hand. She is able to eat, paint and operate a
typewriter as well as point to the card to which I have
referred but she cannot do up buttons, brush her teeth, or her
hair or use a pen. She can be sat in a wheel chair but if she
is not propped up she will collapse to one side. She is able to
operate, with the use of her right hand, the mechanism of an
electric chair but, according to Dr. Griffiths, she is not a good
driver. She has no hope, as do some quadriplegics, of ever
driving a motor vehicle however it may be adapted.
570 HIGH COURT [1976-1977.
H. C. OF A. 2. She has the inability to speak which I have mentioned.

1976-1977. 3. She is an epileptic but her epilepsy is controlled, for the
'-.,-.I time being, by drugs.
SHARMAN
v. 4. She has lost some intellectual capacity but is still
EVANS. intelligent, capable of reading and painting, and is well
Gibbs J.
a ware of her predicament.
Stephen J. 5. She has continuing pain in her right shoulder which is
relieved by the taking of analgesics."
Before the accident the prospects for Miss Evans' future were
bright; she was a healthy, out-going and intelligent girl who
was trained for and was experienced in secretarial work; by
taking two jobs in her home State of Western Australia she had
saved enough money to undertake a two-year full-time course as a
resident student at the Commonwealth Bible College in
Brisbane. At the time of the accident, she had just completed
her first year there, coming dux of her year. She had an
understanding with a young man, a fellow student, that they
would marry in due course. After the accident their engagement
was announced and but for her ultimate decision that she could
not pennit him to take as his wife a quadriplegic she would by the
time of the trial have been married to him; he has a good
position and a secure future in the Department of Civil
Aviation. Had she resumed her secretarial work after finishing
her two-year college course she could have earned at least $70 per
week net.
In these circumstances the learned trial judge, in a most
carefully reasoned judgment, assessed general damages at
$275,000, the agreed special damages of some $25,500 making a
total of just over $300,000.
Three consequences of her injuries account in large measure for
the size of the award of general damages; her need for intensive
nursing and medical attention in the future, her total loss of
earning capacity and the gross impairment of the future
enjoyment and amenities of her life. She has, in addition,
experienced particularly severe pain and suffering and her life
expectancy has been substantially reduced.
The learned trial judge did not essay any exact quantification
of damages for every item of detriment suffered by the
plaintiff. He arrived at a range of from $150,000 to $175,000 for
the future cost of her nursing and medical care and at a sum of
$6,000 for the shortened life expectancy of the plaintiff. He
explained with clarity and in detail his approach to the
assessment of damages for each other item but concluded that
they did not lend themselves to any precise individual quan-
tification. In arriving at the total of $275,000 for general
damages his Honour expressed his keen awareness of the need to H. C. OF A.

guard against overlap in undertaking that process of separate 1976-1977.
'-y-'
consideration of components of the award which he had felt SHARMAN
obliged to engage upon. V.
EVANS.
The range of damages assessed in respect of future nursing and
Gibbs J.
medical attention involved an assumption that the plaintiff Stephen J.
would not spend all of the rest of her life in hospital but would
instead be able to spend periods being cared for at home. Before
the Court of Appeal the appellant contended that those periods
spent at home would involve the plaintiff in additional health
risks and that the learned trial judge had therefore erred in
taking so long a period as twenty or more years as the plaintiffs
life expectancy. This the majority rejected, concluding that
there was ample evidence upon which the learned trial judge
could find that, notwithstanding periods at home, the plaintiff
might nevertheless live so long; nor did Mahoney J.A. in his
dissenting judgment take issue with the verdict on this specific
point. The other main attack made before the Court of Appeal
concerned the amount of damages awarded for loss of earning
capacity and for pain and suffering and loss of the amenities of
life. In the view of the majority of the Court no fault was to be
found with these items. Mahoney J.A., on the other hand, not
only regarded the assessment of compensation for lost earning
capacity as excessive and as involving incorrect principles but
also discerned more fundamental errors affecting the verdict as a
whole.
On the appeal to this Court the grounds raised before the Court
of Appeal were again relied upon. In addition the method of
assessment which the learned trial judge had adopted was also
attacked; so too, for the first time, was the assumption that the
plaintiff should be compensated on the footing that she would
spend part at least of her future life being cared for out of
hospital.
A variety of difficulties, both of principle and of fact, surround
the assessment of damages in this case. They stem from at least
three distinct sources: the great increase in the cost of future
nursing care should the plaintiff be cared for at home rather than
in hospital; a variety of problems involved in assessing
compensation for the plaintiff's loss of future earning capacity
and, finally, the doubts as to the plaintiff's present life expectan-
cy_
That the learned trial judge should have engaged in a close
scrutiny of each head of detriment was, we think, inevit-
able; that in doing so he should seek to evaluate that detri-
ment in money tenns was a necessary consequence of the
572 HIGH COURT [1976-1977.
H. C. OF A. fact that it is only by recourse to those terms that the plaintiff

1976-1977. can be compensated for the wrong done to her. Criticism was
'--y-'
SHARMAN directed both to this separate examination of the conventional
V.
EVANS.
heads of damage and also to the ascertainment of a sum
appropriate as a starting point for compensation under a
Gibbs J.
Stephen J. particular head of damages, followed by a process of discounting
or deduction from it. We regard this criticism as mis-
conceived; so long as courts are careful to avoid the risk,
inherent in such a procedure, of compensating twice over for the
one detriment there seems no better way of applying processes of
reasoning and the realistic and methodical evaluation of
probabilities to the task of assessing compensation. In cases of
any complexity any other approach is open to serious objection,
especially in times of rapid inflation. In such times what
Salmon L.J. described in Fletcher v. Autocar & Transporters Ltd.
(5) as the "uncertain role" of instinct, and what this Court has
described as a "general awareness", a knowledge of "current
general ideas of fairness and moderation" (Planet Fisheries Pty.
Ltd. v. La Rosa (6», while still of use in determining, as a matter
of first impression, the general level of appropriateness of an
award, tends to become blurred by the constant shift of money
values. Moreover where the assessment of damages is under-
taken by a judge sitting without a jury it is, we think, most
desirable that the process of assessment should be described in
the reasons for judgment. As was pointed out by Sachs L.J. in
George v. Pinnock (7) it is only by the setting out in a judgment of
the main components of an award of damages, or at least of the
approach taken to each component, that the parties may obtain a
proper insight into the process of assessment and an adequate
opportunity of seeking the correction of error on appeal. In the
particular circumstances of this case Sheppard J. found himself
unable to assign anything like precise money sums to the
different heads of damages; he did however very clearly explain
his approach to each head of damages, a course which has
lightened the task of appellate courts.
In view of the attack made upon various aspects of his
Honour's assessment of damages it is appropriate to examine the
various heads of damage which presented themselves for assess-
ment so as to appreciate and deal with the various criti-
cisms raised by the appellant. First are those costs which the
plaintiff will be obliged to incur in consequence of her injuries,
principally although not exclusively, the cost of nursing and
(5) [1968] 2 Q.B. 322, at p. 362. (7) [1973]1 W.L.R. 118, at p. 126; [1973]
(6) (1968) 119 C.L.R. 118, at p. 125. 1 Ali E.R. 926, at p. 934.
medical care. It is clear that she will require such care for H. C. OF A.
the rest of her life. It can be provided either in a hospital in 1976-1977.
L.,--'
Perth devoted to the care of persons incapacitated as she is or, at SHARMAS
very much greater cost, in her own home. The plaintiff would V.
EVANS.
much prefer the latter but the question is whether the defendant
Gibbs J
should be required to make ccmpensation upon this much more Stephen J.
expensive basis. The learned trial judge's award of damages
contemplated that the plaintiff, while spending the greater part
of her life in hospital, would spend some part of it being cared for
at home.
Where the plaintiff is to be cared for in the future will not only
directly affect the extent of nursing and medical expenses which
are to be compensated for; it will also bear upon the extent of
her loss of the amenities and enjoyment of life, a lifetime
substantially spent in hospital will greatly aggravate that
loss. In our view the medical evidence in this case does not
justify the conclusion that the defendant should be required to
compensate for future nursing and medical expenses on any basis
other than that the plaintiff's future will be one substantially
spent in hospital.
The appropriate criterion must be that such expenses as the
plaintiff may reasonably incur should be recoverable from the
defendant; as Barwick C.J. put it in Arthur Robinson (Grafton)
Pty. Ltd. v. Carter (8) "The question here is not what are the ideal
requirements but what are the reasonable requirements of the
respondent", and see Chulcough v. Holley, per Windeyer J.
(9). The touchstone of reasonableness in the case of the cost of
providing nursing and medical care for the plaintiff in the future
is, no doubt, cost matched against health benefits to the
plaintiff. If cost is very great and benefits to health slight or
speculative the cost-involving treatment will clearly be un-
reasonable, the more so if there is available an alternative and
relatively inexpensive mode of treatment, affording equal or only
slightly lesser benefits. When the factors are more evenly
balanced no intuitive answer presents itself and the real
difficulty of attempting to weigh against each other two
incomparables, fin'ancial cost against relative health benefits to
the plaintiff, becomes manifest. The present case is however one
which does to our minds allow of a definite answer; it is a case
of alternatives in which the difference in relative costs is great
whereas the benefit to the plaintiff of the more expensive
alternative is entirely one of amenity, in no way involving
(8) (1968) 122 C.L.R. 649, at p. 661. (9) (1968) 41 AL.J.R. 336, at p. 338.
574 HIGH COURT [1976-1977.
H. C. OF A. physical or mental well-being. This may be demonstrated from

1976-1977. the evidence.
'--y--'
SHARMAN Assuming, for convenience of comparison, a life expectancy of
v.
EVANS.
twenty years, the future expenses of the plaintiff if confined to
hospital would be of the order of a present value, computed on six
Gibbs J.
Stephen J. per cent tables, of $108,500, inclusive of nursing, medical and
physiotherapy services and cost of special beds etc. The
provision to her of like services at her mother's home over that
period would amount to a present value of about $390,000, to
which would have to be added a weekly cost for medicaments etc.
of about $23 per week and a capital cost of some $11,750 for
suitable alterations to her mother's home; moreover this is
exclusive of the cost of food and of the cost of providing another
home should her mother die during the period and the present
home cease to be available to the plaintiff. The benefit to the
plaintiff of being cared for at home rather than in hospital is not
any benefit to her health but rather to her future enjoyment of life
which would be enhanced by a home atmosphere; her life would
not thereby be prolonged nor would her physical condition be at
all improved; indeed she would be somewhat more at risk
physically at home than in hospital. There is no evidence
suggesting any likely psychiatric benefits, probable though these
might appear to the layman.
In these circumstances the future cost of reasonable nursing
and medical attention must, we think, be assessed on the basis of
a lifetime substantially spent in hospital. We have, to date, for
convenience of comparison, quoted costs based upon a post-
accident life expectancy of twenty years. Assuming a lifetime of
hospital care, devoid ofthe extra risks involved in nursing care at
home, the medical evidence suggests that this is too conservative
an estimate. His Honour, without specifically nominating any
precise period as that selected by him as appropriate, clearly
contemplated that if the plaintiff spent part of her life at home
something in excess of twenty years was nevertheless an
appropriate assumption as to life expectancy. For the purpose of
our present examination of the award, and since we would regard
the plaintiff's future as one involving permanent hospitalization
in conditions of maximum nursing and medical care, we adopt
thirty years as the appropriate period. For that period the
present value, on six per cent tables, of the cost of hospital care,
medical and physiotherapy treatment and the provision of a
special bed and the like will amount to about $128,000.
There is another item of future expense which must enter into
the assessment process. Because we conclude that the defendant
should not be required to compensate the plaintiff on any basis H. C. OF A.

other than that of a lifetime in hospital it follows that the 1976-1977.
L,.-J
plaintiff's loss of the enjoyment and amenities of life will be the SHARMAN
v.
greater. She must be regarded as wholly deprived of the EVANS.
everyday pleasures of living in the environment of her own
Gibbs J.
home. Instead she will be exposed to a lifetime of institutional Stephen J.
life. Not only must this be reflected in the damages to be
awarded under the conventional head of pain, suffering and the
loss of enjoyment and amenities of life. In the present case it is
also appropriate to reflect rather more positively one particular
aspect of this situation of permanent hospitalization. The effect
of the latter upon the plaintiff can clearly be somewhat mitigated
if she is able to vary the monotony of the hospital ward by
occasional day visits to her home and by other outings, possibly
even by occasional weekends away from hospital. The medical
evidence discloses that these would be possible provided that
constant nursing attention was provided. Applying again the
criterion of reasonableness but now weighing the expense of such
attention against the clear benefits in amenity and enjoyment of
life that such breaks in a lifetime in hospital would provide we
are in no doubt that the plaintiff is entitled to compensation for
the cost of such outings. That their cost will be high is apparent
from the data as to nursing costs already referred to, to which
must be added transportation either by ambulance or by
chauffeur-driven car. If enjoyed as frequently as, say, once
every few weeks over thirty years that cost would not be
overstated by the adoption of a present value figure of about
$20,000. We accordingly adopt that sum as a second item of
future cost to be compensated for by the defendant.
In dealing in this way with these two items of future
expenditure we have departed in principle from the method of
assessment adopted by the learned trial judge but have
endeavoured to reflect, as do his reasons for judgment, the need
for damages to be more liberal than they would be were the
plaintiff to be restricted to recovery only of the present value of
the cost of thirty years of hospitalization. Our approach
conduces, we believe, to clarity of analysis while emphasizing the
extent to which damages for loss of amenity must interact with
other heads of damages, including that concerned with the
defraying of future expenditure reasonably incurred by the
plaintiff and attributable to her injuries.
We turn next to the question of compensation for lost earning
capacity and in particular to an examination of the deductions
which should be made in assessing that compensation. In doing
576 HIGH COURT [1976-1977.
H. C. OF A. so we leave aside, for the present, the question of compensation

1976·1977. for loss of earning capacity during the years by which the
l....y-'
SHARMAN plaintiff's life expectancy has been shortened., the "lost years".
V.
Both principle and authority (Skelton v. Collins (10» establish
EVANS.
that where, as here, there is included in the award of damages for
Gibbs J.
Stephen J. future nursing and medical care the plaintiff's entire cost of
future board and lodging, there will be overcompensation if
damages for loss of earning capacity are awarded in full without
regard for the fact that the plaintiff is already to receive as
compensation the cost of her future board and lodging, a cost
which but for her injuries she would otherwise have to meet out of
future earnings. If the true concept be that it is lost earning
capacity to the extent to which it is likely to be exercised in the
future, rather than loss of future earnings, that is to be
compensated it may seem inelegant to speak of deducting from
damages for that lost capacity an amount for some saving in
outgoings. It would better accord with principle if the savings in
board and lodging could be isolated from, and excluded from the
damages to be awarded in respect of, hospital expenses.
However so long as the true nature of the adjustment is under-
stood no harm is done by making an appropriate deduction
from the damages for lost earning capacity. What is to be
avoided is double compensation and, as is apparent from what
was said by their Lordships in Shearman v. Folland (11), it is not
a question of estimating the plaintiff's likely future costs for
board and lodging and treating them as an outgoing which the
consequences of the defendant's tortious act have now spared her
from making; that is a notion which is as distasteful as it is
misconceived. Rather is it a matter of her already having been
compensated for future board and lodging as a component of
hospital expenses, so that to disregard this and award the full
sum for lost earning capacity, part of which would be used to
provide the very item of board and lodging already compensated
for, would be to award compensation twice over. Accordingly
some no doubt fairly arbitrary proportion of the present value of
future hospital expenses regarded as attributable to board and
lodging must be taken and deducted from the present value of lost
earning capacity; it will be quite irrelevant how expensively or
how frugally the plaintiff might in fact have lived had she not
been injured.
Although it is only the cost of board and lodging which, unless
subject to deduction in this way, will lead to actual double
compensation there are other items which require consideration
(10l (1966) 115 C.L.R. 94, at p. 106. (11) [1950] 2 K.B. 43.
as possible deductions when assessing damages for loss of H. C. OF A.

earning capacity. This is because, quite apart from double 1976-1977.
Ly---'
compensation, that is, the payment twice over in respect of one SHARMAN
and the same item of loss, it is also necessary to avoid u.

EVANS.
compensating for gross rather than for net losses. This becomes
Gibbs J.
of particular importance not only when assessing compensation Stephen J.
for ordinary loss of earning capacity but also when that process
of assessment must be undertaken in the context of a plaintiff's
"lost years", his life expectancy having been reduced as a result
of the injuries he has received.
Again we ignore for the moment the question of "lost
years". Where, as here, a plaintiff suffers a total loss of earning
capacity he will not normally continue to incur all of the
outgoings necessary for the realization of that capacity which
would have been incurred had his capacity been un-
affected; items such as the cost of clothing suitable to his
particular employment and of transportation to and from work
provide examples, no doubt there are others. Compensation for
loss of earning capacity is paid only because it is or may be
productive of financial loss (Graham v. Baker (12)) and to
compensate for total loss of earning capacity without making
allowance for the cessation of these outgoings is to compensate
for a gross loss when it is only the net loss that is in fact suffered.
On the other hand there are other types of saved expenditure
upon which a defendant cannot rely in diminution of
damages. It is now well established that no reduction is to be
made, when awarding damages for loss of earning capacity, for
the cost of maintaining oneself and one's dependants unless an
element of double compensation would otherwise intrude, as in
the case of hospitalization as a non-fee paying patient or where
the cost of future hospital expenses is also awarded and
necessarily includes, as in the present case, the patient's board
and lodging-Fletcher v. Autocar & Transporters Ltd. (13);
Daish v. Wauton (14); Taylor v. Bristol Omnibus Co. Ltd., per
Lord Denning (15). The dissenting judgment of Windeyer J.
in Chulcough v. Holley (16) refers to an award for diminished
earning capacity being reduced in respect of the "ordinary costs
of maintenance of a plaintiff as a person", citing what had earlier
been said by Taylor J. in Skelton v. Collins (17); however we
would understand Taylor J. to have been there concerned with
(12) (1961) 106 C.L.R. 340, at p. 347. (15) [1975J 1 W.L.R. 1054, at p.1060;
(13) [1968] 2 Q.B. 322. [1975] 2 Ali E.R. 1107, at p. 1113.
(14) [1972] 2 Q.B. 262. (16) (1968) 41 AL.J.R, at p.338.
(17) (1966) 115 C.L.R., at p. 121.
578 HIGH COURT [1976-1977.
H. C. OF A. compensation for lost earning capacity during "lost years", in

1976-1977. respect of which rather different considerations apply.
'-.-'
SHARMAN The present plaintiff is now denied many of the opportunities
v. for pleasure-giving expenditure, as distinct from what may be
EVANS.
regarded as expenditure on maintenance, which our society
Gibbs J.
Stephen J. affords. Are the savings in expenditure, thus involuntarily
thrust upon her by reason of the state to which her injuries have
reduced her, to have the effect of reducing the damages awarded
for her loss of earning capacity? We think not. They may be
left out of reckoning, they neither produce double compensation
nor compensate for gross rather than net loss. Indeed to treat
them as items going to reduce damages is unjustifiably to assume
that because pre-accident avenues of expenditure are now
foreclosed to a plaintiff the necessary consequence is a correspon-
ding non-expenditure.
We leave aside the case of the plaintiff who by the nature of his
injuries is made wholly incapable of experiencing pleasure. This
was the position in Fletcher v. Autocar & Transporters Ltd. (18)
but the majority judgments in that case go much further, they
contemplate reduction of damages for lost earning capacity
because a plaintiff is "saved" expenditure on those pleasurable
pursuits which he formerly enjoyed but which the consequences
of his injuries now deny him. A somewhat similar concept
underlies Smith v. Central Asbestos Co. Ltd. (19) and both cases
reflect a concern lest there should be duplication of damages as
between loss of earning capacity and loss of the amenities of
life. We find much of what was said by the majority in
Fletcher's Case difficult to reconcile with what was said by the
majority of their Lordships in West & Son Ltd. v. Shephard (20),
especially by Lord Morris (21) and by Lord Pearce (22); in the
dissenting judgment of Lord Devlin the making of fair compensa-
tion is said to involve that the defendant has made good "all the
expenses to which the plaintiff has been put and he has replaced
all the income which she has lost" (23).
Of course, when damages for the loss of amenities come to be
considered regard must be had to such pleasures as the plaintiff
is capable of enjoying and which are made possible by the total
damages which she receives; but it is in this way, rather than
by any reduction in the assessment for lost earning capacity, that
we consider that the general task of assessment should proceed.
The present plaintiff still possesses powers of enjoyment
through the use of her senses; her sight, her hearing and her
(18) [1968] 2 Q.B. 322. (21) [1964] AC., at pp. 349-350.
(19) [1972]1 Q.B. 244. (22) [1964] AC., at p. 364.
(20) [1964] AC. 326. (23) [1964] AG, at p. 357.
taste are unaffected and in place of sport, entertainment, H. C. OF A.

cosmetics and clothes she may find pleasure in recorded music, in 1976-1977.
'--y-'
a movie projector and the hire of films, in days spent on drives in SHARMAN
a chauffeured car, perhaps in special foods. She can thus U.
EVANS.
experience pleasure and ward off melancholia by such distrac-
Gibbs J.
tions as may be to her taste and within her means. Many of her Stephen J.
fonner modes of enjoyment are closed to her but some new ones
remain to be explored and from which she will be capable of
deriving pleasure. It follows that, still disregarding "lost years",
it will be appropriate in any assessment of the plaintiffs
damages for lost earning capacity to reduce those damages only
in respect of the cost of board and lodging actually provided for
in the award of damages for future hospital expenses and in
respect of those "saved" outgoings associated with the exercise of
earning capacity, that is, fares and the like.
As to "lost years", the plaintiff is to be compensated in respect
of lost earning capacity during those years by which her life
expectancy has been shortened, at least to the extent that they
are years when she would otherwise have been earning income
(Skelton v. Collins, per Taylor J. (24». But, unlike the thirty
years of her actual post-accident life expectancy, no outgoings
whatever will be involved in respect of that period since it is
assumed that the plaintiff will then be dead. What adjustments
are, then, to be made on that account in assessing damages for
loss of earning capacity in respect of those lost years? This is
not a question giving rise to considerations of double compen-
sation; the only element involving any possibility of double
compensation, the component of board and lodging contained in
the award of future hospital expenses, will have ceased to operate
by the time that the "lost years" are reached. It is rather a
question of confining an award of damages to no more than
compensation, ensuring that the plaintiff is merely compensated
for loss and is not positively enriched, at the defendant's expense,
by the damages awarded.
It is well established in Australia that there should be taken
into account in reduction of damages for the lost earning capacity
of "lost years" at least the amount that the plaintiff would have
expended on his own maintenance during those lost years
(Skelton v. Collins, per Taylor J. (25), applied in Jackson v.
Jackson, per Sugerman P. (26) and per Jacobs J.A (27), by
Williams J. in Gannon v. Gray (28) and by Sheppard J. in
Jackson v. Stothard (29». It is noteworthy that such a solution to
(24) (1966) 115 C.LR, at p. 12l. (27) [1970] 2 N.S.W.R, at p. 464.
(25) (1966) 115 C.LR, at pp. 121, 122. (28) [1973] Qd R 41l.
(26) [1970] 2 N.S.W.R 454, at p.46O. (29) [1973] 1 N.S.W.L.R 292.
580 HIGH COURT [1976-1977.
H. C. OF A the problem of compensation for economic loss in respect of "lost

1976-1977. years" finds support from recent text writers in England, who
'-y-'
SHARMAN deplore the consequences of the decision in Oliver v. Ashman (30)
u. with its exclusion of any compensation for the economic loss of
EVANS.
"lost years" ; they urge instead the adoption of what they would
Gibbs J.
Stephen J. regard as the result attained in Australia as a consequence of
Skelton v. Collins (31): Kemp, Quantum of Damages, 4th ed.,
(1975), vol. 1, pp. 408-413, Ogus, Law of Damages (1973), pp. 185-
188, and see Street, Principles of the Law of Damages (1962),
p. 52. It is this result which also represents the method of
reforming the present state of the law in England preferred by
the Law Commission in its 1973 Report on Personal Injury
Litigation-Assessment of Damages (Law. Com. No. 56,
par. 87). In par. 58 of the Report the desired reform is described
as "the adoption of the formula accepted in the Australian case of
Skelton v. Collins i.e. compensation for loss of earnings in the so-
called 'lost years' should be based upon the amount of such
earnings less what the plaintiff would have spent on his own
maintenance".
But is this in fact what was decided in Skelton v. Collins?
In that case Taylor J. described the proper measure of com-
pensation for a plaintiff's loss of earning capacity in the lost
years as "a balance of what his future income and expenditure on
maintenance would have been" (32), having earlier said that there
should be taken into account "the fact that if the plaintiff had
survived for the full period it would have been necessary for him
to maintain himself out of his earnings and, no doubt, his
expenditure on his own maintenance would have increased as his
earnings increased" (33). Somewhat earlier again, however, his
Honour had adverted to the possibility, also discussed in Oliver v.
Ashman (34), of portion of the damages awarded for lost earning
capacity in lost years being capable of being recovered twice over,
once by a personal representative on behalf of the estate of the
injured party and a second in an action brought under Lord
Campbell's Act. He observed that in the first of such actions the
relevant damages would be assessed having regard to whatever
gain the deceased might have had "from his future probable
earnings after taking into account the expenditure which he
would have incurred, if he had survived, in maintaining himself
and his dependants, if any" (35). This passage has been
understood in Gannon v. Gray (36) and in Jackson v. Stothard
(30) [1962] 2 Q.B. 210. (34) [1962] 2 Q.B. 210.

(31) (1966) 115 C.L.R. 94. (35) (1966) 115 C.L.R., at p. 114.
(32) (1966) 115 C.LR., at p. 122. (36) [1973] Qd R. 411.
(33) (1966) 115 C.L.R., at p. 121.
(37), and no doubt in numerous unreported cases, as reqUIrIng H. C. OF A

that net merely a plaintiff's own expenses of maintenance but 1976-1977.
'-y--'
also whatever he might have spent on the maintenance of his SHARMA:-l
lJ.
dependants should, even in the ordinary case of a claim for lost EVANS.
earning capacity of lost years made by a plaintiff during his
Gibbs J.
lifetime, go in reduction of damages. In consequence it is only Stephen J.
the loss of surplus income, whether in the form of cash s8.vings or
of acquired assets, which might have been derived during lost
years that is to be compensated for-and see Luntz, Assessment of
Damages (1974), pp. 146-150.
This result of course departs from the understanding of the
effect of Skelton v. Collins (38) expressed in the English texts and
in the Law Commission's Report; perhaps more importantly it
appears to ill accord with any rational principle of compen-
sation. This Sheppard J. recognized when, understanding
Skelton v. Collins to require this result and recognizing the
binding effect of the decision, he said in Jackson v. Stothard
(39) :
"It seems to me, however, to be an odd thing that damages
up to the date of death are given without any deduction,
whereas damages thereafter are given after the deduction,
not only of moneys which would have been spent by the
deceased in the maintenance of himself, but of moneys which
would have been spent by him in the maintenance of
dependants. I can understand, damages being compen-
satory, that they ought to be reduced by the amount
necessary to maintain the deceased during the lost years
because, ex hypothesi, he is no longer in need of the amount
in question, and if he had lived the money would have been
expended on him. But the reason why earnings which
would in the normal course have been spent on the
maintenance of dependants must be excluded is not clear to
me."
We share the difficulty felt by Sheppard J. and have concluded
that, properly regarded, Skelton v. Collins (38) does not require
that anything, other than the cost of a plaintiff's own
maintenance, should go in reduction of damages for lost earning
capacity for "lost years". Taylor J. spoke in terms not inconsis-
tent with that view (40). It is important to bear in mind that the
circumstances of Skelton v. Collins were not such as to focus
attention upon the point here in question; the important issues
central to that decision were not at all concerned with it. Indeed
of so little significance was it that in his review of earlier English
cases Taylor J. was able to regard Phillips v. London and South
(37) [1973] 1 N.S.W.LR 292. (39) [1973] 1 N.S.W.L.R, at p. 298.

(38) (1966) 115 C.L.R. 94. (40) (1966) 115 c.L.R., at pp. 121, 122.
582 HIGH COURT [1976-1977.
H. C. OF A. Western Railway Co. (41); Roach v. Yates (42); Pope v. D.

1976-1977. Murphy & Son (43), and Oliver v. Ashman (44) (at first instance)
'-y--J
SHARMAN as decisions which had adopted the same approach as that which
v. his own reasoning pointed to; and so they did in the essential
EVANS.
aspects which were of immediate concern to his Honour, yet in
Gibbs J.
Stephen J. each no deduction at all appears to have been made from the
calculated economic loss due to shortening of life expectancy to
take account of any costs of maintenance, whether of the plaintiff
or of his dependants. Indeed until Oliver v. Ashman (45) went
on appeal and this whole discussion became, in consequence,
irrelevant for the purposes of English law this remained the
preferred English view-see Kemp, op. cit., 1st ed. (1954), p. 92.
There is an alternative explanation of what was said by Taylor
J. in Skelton v. Collins (46), that it is to be understood as confined
to the particular circumstance with which his Honour was
dealing at that point in his judgment, namely an action brought
not by an injured plaintiff suffering loss of life expectancy but by
a personal representative for the benefit of the estate of one who
had suffered injury and loss of life expectancy and later died
before proceedings were instituted. If so, it is enough to say that
this is not such a case and that what may be a special rule
applicable to such cases is inapplicable here. We leave to
another day the whole question of such actions and of the
possible risk to a defendant of double liability should an action
for the benefit of the estate be followed by an action under Lord
Campbell's Act, a matter which his Honour had occasion to
discuss in Skelton v. Collins.
In these circumstances it would, we think, be wrong to treat
Skelton v. Collins as any authority for the proposition that only
surplus income, in effect savings, are to be taken into account in
assessing economic loss in the "lost years". It is well enough to
take into account in reduction of damages the likely expenditure
on the plaintiff's own maintenance and this for the reason stated
by Sheppard J. in Jackson v. Stothard (47). As Jolowicz
observed in a note in the Cambridge Law Journal (1960), at
p. 163, "a dead man has no personal expenses", hence there
should be a deduction of "the plaintiffs personal living
expenses"-and see J. G. Fleming's article in California Law
Review, vol. 50 (1962), p. 598, esp. at p. 605. However no further
deduction is, we think, called for in order to ensure that no more
than proper compensation is made to the plaintiff. The making
(41) (1879) 5 Q.B.D. 78. (45) (1962] 2 Q.B. 210.

(42) [1938] 1 K.B. 256. (46) (1966) 115 C.L.R, at p. 114.
(43) (1961] 1 Q.B. 222. (47) [1973] 1 N.S.W.L.R 292.
(44) (1961] 1 Q.B. 337.
of this one deduction will accord recognition to the curious feature H. C. OF A.

of this head of damages; that the plaintiff receives compen- 1976·1977.
'-y-J
sation for lost earning capacity in respect of a period which he SHARMAN
will not live to see and during which he will have no expenses V.
EVANS.
to be defrayed out of the fruits of the exercise of that
Gibbs J.
capacity. Because in the ordinary case a plaintiff must main- Stephen J.
tain himself in the future out of his damages, the cost of doing so
is not to go in reduction of an award for lost earning capacity
during his remaining years of life; the converse of that
proposition may well be, in the special case of lost earning
capacity in "lost years", that because those years can involve
him in no cost of maintenance the cost thus avoided must go in
reduction of damages. Like reasoning does not apply to the cost
of maintaining others. It is for a quite different reason that, in
the ordinary case, that cost does not go in reduction of damages,
that reason being that the courts do not concern themselves with
the manner in which the plaintiff expends his income or
damages.
The outcome of this all too lengthy discussion of Skelton v.
Collins (48) is, then, that if the learned trial judge, consistently
with his judgment in Jackson v. Stothard (49), regarded himself
as bound, in assessing the damages to which the plaintiff is
entitled in respect of the lost years, to make a deduction in respect
of money that she might have spent on her dependants, he would
in our opinion have taken somewhat too restricted a
view. However this can have had little, if any, effect on the
award. The fact that the first of those years lies thirty years in
the future itself results in a drastic reduction in the present value
of any economic loss which may thus be suffered, and it was so
uncertain whether she would then have had any dependants that
it is unlikely that this consideration significantly affected the
learned judge in the making of his assessment.
There remains one future aspect of the assessment of damages
for loss of earning capacity. Loss must depend upon the
likelihood that there would have been a future exercise of that
earning capacity, but what of a female plaintiff likely to marry
and who may cease to exercise her earning capacity on, or at
some time after, marriage? Despite recent changes in patterns
of employment of married women this remains a not unusual
situation, the woman in effect exchanging the exercise of her
earning capacity for such financial security as her marriage may
provide. The measure of the one of course bears no necessary
relationship to the other and the whole situation must be full of
(48) (1966) 115 C.LR. 94. (49) [1973] 1 N.S.W.L.R., at pp. 298-299.
584 HIGH COURT [1976·1977.
H. C. OF A. critical uncertainties such as whether the plaintiff marries, the

1976·1977. extent if any of her employment after marriage, the success of
L...,.--J
SHARMAN that marriage and the extent to which it in fact provides her with
V. economic security. Perhaps the only relatively certain factor will
EVANS.
be her pre-injury possession of earning capacity and this in itself
Gibbs J.
Stephen J.
may be sufficient reason, absent any clear evidence pointing in a
contrary direction, for the adoption of the expedient course of
simply disregarding the prospect of marriage as a relevant factor
in the assessment of such a plaintiff's future economic loss; this
course at least recognizes the plaintiff's retention of capacity,
which would have been available to her for exercise, in case of
need, despite her marriage.
The last two heads of damages which call for particular
mention are those conventionally described as pain, suffering
and loss of the enjoyment and amenities of life and damages for
shortening of life expectancy. As to the latter it bears no
relationship to lost earning capacity during "lost years" but is
rather the loss of a measure of prospective happiness (Skelton v.
Collins, per Taylor J. (50)); it is not compensation for "the
mental distress due to the realization of the loss" (per Kitto J.
(51)). That forms instead a part of the general damages for pain
and suffering (52): compare Windeyer J. (53). In the present case
a figure "of the order of" $6,000 was allowed for this item in
reliance upon the views expressed by Windeyer J. in Skelton v.
Collins (54). If it be correct that compensation under this head is
not to take into account the anguish of mind which any
appreciation of the loss may cause, that being compensated for
under another head, then Windeyer J.'s suggested maximum
figure of $6,000, which reflected thi<> very factor, may be thought
to have been excessive at the time and to depart from the general
standard of the "conventional sum" which the courts have quite
arbitrarily fixed upon ever since Benham v. Gambling(55). The
amount awarded may properly take into account a fall in the
value of mo~ey (Yorkshire Electricity Board v. Naylor (56)) but is
to be no more than a quite conventional sum, very moderate in
amount. In our view, despite the fall in the value of money,
$6,000 departs from previous notions of what is appropriate under
this curious and unsatisfactory head of damages. We would
have thought that the sum of $2,000 is about the amOU!1t now
appropriate as the conventional award under this head.
It remains only to say something about damages for loss of the
enjoyment and amenities of life. It is in this field that there
(50) (1966) 115 C.L.R., at p. 12l. (54) (1966) 115 C.L.R., at p. 132.
(51) (1966) 115 C.L.R., at p. 98. (55) [1941] A.C. 157.
(52) (1966) 115 C.L.R., at p. 100. (56) [1968] A.C. 529.
(53) (1966) 115 C.L.R., at pp. 131·132.
exists the need to recall what has often been said about fairness, H. C. OF A.
moderation and the undesirability of striving to provide an 1976-19n.
'-y--'
injured plaintiff with "perfect" compensation. The warning SHARMAN
V.
against attempting perfectly to compensate means, we think, in EVANS.
the case of pecuniary loss, no more than the need to make
Gibbs J.
allowance for contingencies, for the vicissitudes of life, compen- Stephen J.
sating for probable rather than for merely speculative
detriments. But when a non-pecuniary detriment is in question
the injunction against "perfect" compensation means rather
more. It cannot refer to the exclusion of all question of
punishment of the wrongdoer; the word "compensation" stan-
ding on its own would be sufficient to do this; rather is it
designed to remind that the maiming of a plaintiff and its
consequences cannot wholly be made good by an award of
damages and that the recognition of this fact is to be no occasion
for any instinctive response that no amount is too large to atone
for the plaintiff's suffering. Such a response will be unfair to the
defendant and may be of little advantage to the plaintiff; many
consequences of injury are not capable of remedy by the receipt of
damages, particularly those of the most personal character-the
loss of the opportunity of a fulfilling marriage, of parenthood, of
sexual satisfaction, of the realization of ambitions. It is very
much at these detriments that the warning against any attempt
at "perfect" compensation must be aimed. The authorities also
require, as does good sense, that to the extent that damages
awarded under other heads produce freedom from economic
uncertainty and the availability of funds for pleasurable
activities, the less will be the loss to be compensated under this
head. This will be of particular relevance when a considerable
sum is assessed for lost earning capacity.
Having made these general observations concerning the award
of damages in a case such as the present it remains only to look
more specifically at the damages in fact awarded. The total
award is said to be the largest yet made for personal injuries in
Australia, although it is modest indeed compared with that in the
very recent case of a young Canadian quadriplegic, Thornton v.
Board of School Trustees (57). The award includes two com-
ponents with a stated money value or range: the cost of nursing
and medical attention, a "figure of the order of $150,000 to
$175,000", and the amount for loss of expectation of life,
$6,000. Each we regard on the approach we would adopt as
excessive for reasons already stated; the former we would
assess as of the order of $128,000, made up, in round figures, of
(57) (1975) 57 D.L.R. (3d) 438.

586 HIGH COURT [1976-1977.
H. C. OF A. $103,000 for hospital expenses, $15,500 for medical and

1976-1977. physiotherapy services and $10,000 for special beds and the like,
'-r-'
SHARMA]'; the latter at not more than $2,000. To these two must be added
v.
EVANS.
the sum of $20,000 which we have assessed in respect of the cost
of constant nursing attention and transportation during periodic
Gibbs J.
Stephen J. visits to the world outside the hospital ward.
The learned trial judge specified no precise amounts for lost
earning capacity or for pain, suffering and loss of the amenities
of life. The former will, in the case of the thirty years of life
expectancy, necessarily be considerable, representing as it does a
loss of earning capacity the exercise of which would have
produced net earnings of $70 per week over those years. There
must, however, be brought to account the minor expenses, such as
fares and special clothing, which would have been incurred in
earning that income, also some allowance for sickness, early
death, a measure of unemployment and the like. In all we would
deduct $2 per week, a figure which is necessarily arbitrary, in
respect of these matters. In addition some allowance, again an
arbitrary one, must also be made because of the inclusion in the
hospital costs of the element of board and lodging. To take
about twelve per cent of these hospital costs, say $16 per week,
may not be inappropriate; that this percentage represents much
less than actual costs of board and lodging is to be accounted for
by the surprisingly low total charges, of only $20 per day, made
for the all-inclusive hospital services, due perhaps to some
element of government subsidy. The present value, on six per
cent tables, of, say $52 per week, being $70-($16 + $2), is about
$38,500 and an award somewhere in the range of $34,000 to
$43,000 could not be regarded as erroneous. For the twenty-four
lost years quite different considerations apply both because of the
need to take into account maintenance "saved" and because for
part at least of that period the plaintiff, if regarded as having a
working life, would have ceased to work or, if regarded as
enjoying the security provided by her likely husband, would be
the wife or widow of a retired breadwinner. To award more than
a quite small sum for the present value of this long deferred and
greatly to be discounted loss of earning capacity would be
wrong; to take these "lost years" in to account it is enough to
increase the above range to one of from $37,000 to $45,000.
Reviewing all these sums they come to a minimum total of
$187,000 and to a maximum total of $195,000.
There remains the question of damages for pain and suffering
and the loss of the enjoyment and amenities of life. As to the
last item in this category we need say very little, what has
already been said of the plaintiff's present state (not least her
constant hospitalization) and a comparison between it and her H. C. OF A.

former prospects of a happy and rewarding life is enough to 1976-1977.
'---r-l
establish entitlement to substantial damages under this SHARMAN
head. Although she is a quadriplegic, the very numerous v.
EVANS.
operations and other treatments which have been necessary, and
Gibbs J.
in particular those involving her larynx, an area in which she Stephen J.
retains full feeling, have caused her long periods of great pain
and discomfort. She has suffered and will continue to suffer
pain for the rest of her life in her left shoulder, another of her few
remaining sensory areas. In addition there is her mental
suffering, including the anguish which knowledge that her life
expectancy has been substantially reduced must entail. Proper
allowance must of course be made for such of the remaining
pleasures of life as money can now afford her. There is no doubt
that, as we have already pointed out, her lot can be made much
more enjoyable by the expenditure of money and will be
materially improved by her financial ability to enjoy periodic
outings from hospital. There nevertheless remains a great area
for the award of damages under this head.
The learned trial judge awarded a total of $275,000 for general
damages, or $80,000 more than what we would regard as the
maximum for heads of damage other than pain, suffering and
loss of the amenities of life. Of course our analysis of the total
award of damages is not intended as an accurate estimate of the
amount attributed by the learned trial judge to this particular
head of damages, if indeed his Honour formed any view at all of
an appropriate sum under this distinct head. We are not,
therefore, to be taken as attributing to his Honour the view that a
sum of $80,000 represented appropriate compensation for
damages under this head, a head of damages which is peculiarly
difficult to assess and the assessment of which must always be
especially responsive to factors of which a trial judge will be more
aware than can be any appellate court. Before we express our
conclusion on the question whethe~ the amount of general
damages awarded was excessive, there are two matters to which
brief reference should be made. The first concerns what is
commonly described as the vicissitudes of life. Once a probable
life expectancy is determined these enter not at all into the
assessment of future hospital expenses or the conventional
amount for shortening of life expecta.'1.cy but are significant in
the case of loss of earning capacity. However their significance
is less in the case of an adult such as the present plaintiff, trained
for and experienced in work of a character which is largely
immune from industrial disturbances and which is not as
exposed to the effects of economic depression as are many other
588 HIGH COURT [1976-1977.
H. C. OF A. occupations. Similar considerations applied to the plaintiff's

1976-1977. intended spouse. Other hazards of life, including illness and
0.......,-'
SHARMAN disablement, remain but all have, we think, been adequately
v. accounted for. Whatever effect should be given to vicissitudes of
EVANS.
life in the case of the non-pecuniary head of damages, and there
Gibbs J.
Stephen J.
is nothing to suggest that the plaintiff's prospects for a happy
married life were in this case other than good, they cannot affect
what we have said concerning the amount which might have
been assessed under this head of damages.
The second question is the degree of usefulness of a final
testing of the appropriateness of the total amount of the award of
general damages by seeing what annual income that amount,
whether or not after deduction of damages for non-pecuniary loss,
would produce year by year if invested at interest. In the present
case it will be very large indeed, especially if thought of as
invested in, say, first mortgages at current rates of in-
terest; even if regarded somewhat more conservatively it will
amount to more than $20,000 per annum before tax. Of this, on
the view we take of the future of the plaintiff, a lifetime spent in
hospital, less than half will be absorbed in nursing and hospital
expenses, including food and shelter. In addition the capital
sum would, on this basis, remain to her estate at her death. The
latter fact we regard as of relatively little account in the present
case because, when any period as long as thirty years in the
future is in question, the difference in amount is small as between
a fund to which only the income is resorted and one producing a
like annual amount by recourse both to income and to capital, the
total fund being thus used up by the end of that period.
Such a means of testing an award is, in present circumstances
and when applied to a case like the present, likely to prove
misleading, and this for three reasons. It presupposes invest-
ment at what, some years ago, would have seemed very high
rates of interest. Those high rates are in part a reflection of
anticipated future inflation; yet the essence of the process of
assessment the result of which is to be tested by this means is
that the effect of future inflation is to be ignored. So the high
yield from the award should, to be consistent, be regarded as
received year by year over a long period in which rapidly
progressing inflation has its effect upon costs; so regarded the
apparently very large future disposable income of the plaintiff
may be seen in proper perspective. Further, if amounts awarded
for pain, suffering and loss of amenities of life be included in the
interest-bearing capital sum, greatly inflating it, the process of
looking at the resultant income involves to a degree the
subjection to purely economic terms of a head of detriment which H. C. OF A.

cannot be expressed in those terms. Nor is it a complete answer 1976.1977.
'---r'
to that proposition to recall that those are the only terms in SHARMAN
V.
which any award of damages can speak. Finally since loss of EVANS.
earning capacity has been estimated on the basis of probable net
Gibbs J.
loss it is most relevant that the plaintiff's quite substantial Stephen J.
annual income will attract tax at high rates, even if large
deductions are allowed for hospital and medical expenses. This
tax effect need not be elaborated upon for its considerable impact
to be appreciated.
We have carried out the detailed examination of the factors
constituting an appropriate award of damages in order to 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 had a 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.
The result of this approach which leaves a sum of $80,000 in
respect of pain, suffering and los& of the amenities of life
demonstrates that the total amount of the verdict is too
high. Pain and suffering and loss of the amenities of life is a
head of damages which is peculiarly difficult to assess but when
full compensation has been determined in respect of all other
heads of damages, it appears to us that an additional sum of
$80,000 exceeds what could properly be awarded under this last
head.
We conclude, therefore, that the amount awarded cannot
stand. It is necessary therefore for us to determine what was a
proper amount. We make this determination wholly on the basis
of the findings of fact made by the trial judge. It must, however,
be made clear that, while the process which we have followed of
analysing the separate maximum amounts possible under the
590 HIGH COURT [1976-1977_
H. C.OF A. various heads of damage will be of assistance in are-assessment,

1976-1977. they cannot of themselves lead to a conclusion on the amount
'--y--'
SHARMAN proper to be substituted. In all the circumstances we are of the
V.
EVANS.
opinion that a proper amount is $270,547.50.
We would accordingly allow this appeal and substitute for the
present award an amount of $270,547.50.
JACOBS J. Although I conclude that this appeal should be

dismissed I fully concur in the analysis which has been made by
Gibbs J. and Stephen J. of the approach which a court should
take to the assessment of damages in such a case as the present
one. I entirely agree with the balance which is struck in their
approach between the process of computation and the recognition
that mere computation does not of itself, useful and indeed
essential though it is, provide a final answer to the proper
amount of damages which should be awarded. I agree also with
the principles which are enunciated in respect of loss of earning
capacity both during the period of life expectancy and the so-
called "lost years".
I differ only on two items in the assessment but the difference
leads to a different result on the appeal. First, I would not alter
the figure "of the order of' $6,000 for the shortening of life
expectancy. It is a small difference. I agree that the sum is
necessarily a conventional one, when the element of suffering
from the consciousness of the shortening of life expectancy is
excluded. Nevertheless, I think that a figure of $6,000 is an
appropriate one at the present time. It is a head of damage
which the law recognizes. In the case of injury which does not
cause immediate or close to immediate death, it is an aspect of the
damages which a plaintiff is entitled to recover for the injury
itself, considered apart from the suffering and loss of amenities
which are its consequence.
My second point of difference is more substantial. I would not
alter the trial judge's estimate of "a figure of the order of $150,000
to $175,000" for hospital and nursing care and services, including
costs incurred in spending periods at home. The trial judge upon
making this finding added, "I think it likely that a greater sum is
needed, but having done my best to allow for the risks and
contingencies which are involved in an appreciation of the total
problem, that is the range which I consider appropriate". I have
come to the conclusion that nothing less than the top of this
range was appropriate. The amOlL"'1t payabie by the respondent
for hospital care was, at the time of the trial, $20 per day. It did
not require evidence in order to establish tl1at a hospitalization
cost of $20 per day could only be maintained in the future if the H. C. oFA.
costs were subsidized or further subsidized. A judge, like a jury, 1976-1977.
'--r-'
can bring to his task his knowledge of the community and, SHAR!,1AN
although it would be wrong for judge or jury to attempt a precise V.

EVANS.
estimate of hospital costs without evidence to support the
Jacobs J.
estimate, the fact is that no member of the Australian community
could at the end of 1973 or at the time of the appeal by way of
rehearing in mid-1975 be unaware that hospitalization costs
without subsidy substantially exceeded $20 per day and were
rising rapidly. It could not be assumed that government subsidy
would be, or would continue indefinitely to be, paid in relief of a
defendant found liable in negligence for the injuries which
required hospitalization. Therefore, the trial judge, on finding
that a greater sum for hospital and medical expenses was likely
to be needed than one in the range which he expressed, was at
least entitled, I should say bound, to take the figure at the top of
this projected range.
When this allowance is made, the figure which remains on the
computation for the injury itself and for the pain and suffering
and loss of the amenities of life becomes one which cannot in my
opinion be regarded as disproportionate. I would therefore
dismiss the appeal.
MURPHY J. On 6th December 1971 the respondent, June

Evans, was severely injured when she was thrown out of a car
which ran off a straight road in Western New South Wales and
hit a tree. Sheppard J. awarded Miss Evans $300,547.50 and the
Court of Appeal (Reynolds and Glass JJ.A., Mahoney J.A.
dissenting) rejected an appeal against the alleged excessiveness
of the award.
Miss Evans was born on 18th November 1951. The trial judge
found (on undisputed evidence) that before the motor accident she
was a bright, intelligent young woman who enjoyed life
thoroughly. She was a talented singer and was often a soloist
at religious gatherings. She attended primary and secondary
schools in Perth, won a scholarship to a business college and
after completing this course, worked as a secretary with a
television station in Perth for two years. She then worked as a
breadcarter's assistant for twelve months to earn enough money
to take a full time course at the Commonwealth Bible College in
Brisbane. In 1971 she studied at the College, became dux of her
year, and intended to spend 1972 at the College. She was
unofficially engaged to a young man, a public servant with good
prospects. Whether she would have continued to work after
592 HIGH COURT [1976-1977.
H. C. OF A. marriage was not settled, but she would have had little difficulty
1976-1977. in obtaining employment. By the time of the trial she would
'-y-'
SHARMAN have been earning at least $70 per week net.
v. Miss Evans was taken by ambulance from the accident to
EVANS.
Narrabri District Hospital, deeply unconscious, barely breathing,
Murphy J.
without pulse and near death. Her legs were completely
paralysed and she had fractures of two cervical vertebrae, a
number of ribs, the right shoulder blade, the left upper arm and
left forearm. One of the ligaments supporting her liver had been
tom from it causing internal bleeding which threatened her
life. She needed continuous artifical respiration and a tube in
her trachea. The next day, she was taken by air ambulance
and, still deeply unconscious, admitted to Royal North Shore
Hospital, Sydney. During her admission, she had a grand mal
epileptic fit. Her right lung and part of her left had
collapsed. She remained unconscious for weeks with a tube in
her trachea, intravenous injection of fluids and no response to
stimuli. She developed a very large bed sore, eight by four
inches (perhaps initiated by the injury), a posterior ulcerated
area completely raw almost down to the bone for which at first
no treatment was possible.
Towards the end of December, she regained conscious-
ness. She had persistent fever and could only manage ten
minutes every hour without artifical respiration; the bed sore
did not heal. She still had a nasal tube to remove mucous from
her breathing passages and lungs, the tube in her trachea to
breathe, and intravenous feeding. On 5th January 1972 she
was flown to her home city and admitted to the Spinal Unit at
Royal Perth Rehabilitation Hospital where she still is. She is
expected to live at least twenty years and may live thirty or
forty. Only a detailed consideration of her condition can show
the seriousness of it.
Quadriplegia. This is a permanent condition from a broken
spine causing the complete loss of nerves controlling movement
and sensation and paralysis below the lower part of the neck,
except for some feeling and movement in her shoulders and right
arm. She has movement at the right elbow and can bring her
hand up to her mouth with a splint. She has a little movement
backward and forwards of the right wristi and flicker in one or
two of the imgers. On the left side there is even less; she has
some elbow function, btit practically none in the wrist or
hand. She cannot brush her teeth or her hair, or do up
buttons. Her trunk and legs are completely paralysed.
Left Shoulder. Although the fracture of the left upper arm and
shoulder blade were united, she has suffered persistent pain and
stiffness. To relieve this, part of the shoulder blade was removed H. C. OF A.

in June 1973. The treatment was only partially successful and 1976-1977.
~
she requires pain relieving drugs many times during an average SHARMAN
day. V.
EVANS.
Bowels and Bladder. She has no control. Her bowels are
Murphy J.
emptied by use of suppositories introduced into the rectum. She
must have a catheter permanently inserted which drains con-
tinuously into a urine bag and which causes an unavoidable
continuous low grade infection of the bladder. Her paralysis is
of such a high degree that the intermittent catheterization or
bladder draining carried out on less disabled persons is not
possible.
Kidneys. To avoid the constant problem of ascending infec-
tion and inflamation of the kidneys with secondary and
irreversible destruction of tissue, she must have more fluid intake
than ordinary persons and a constant regime of intravenous
pyelograms. The catheter is also necessary to prevent distention
of the bladder damaging the kidneys.
Pressure sores. She must be nursed on a regular programme to
prevent pressure sores in the areas of the sacrum, the
protuberances over the upper thigh bone and the heels. These
sores are very hard to shift and may require major surgery. She
must be turned regularly day and night and the areas rubbed or
massaged with spirits and powder. She suffers from inflamma-
tion and skin peeling in her groin and the cleft of her buttocks
which must be treated with mercurichrome. Dr. Griffiths, the
eminent and very experienced specialist who treated her,
regarded this as a major problem and said her large bedsore was
nearly the worst he had ever encountered. It was ultimately
cured by a most substantial graft from the flesh of the buttocks.
Spasms. She has an uncoordinated involuntary contraction of
the muscles of the abdomen and lower limbs. The part of the
spinal cord which controls them is disconnected from her
brain. The leg muscles go into twitching contractions which
either extend from the knee upwards, bringing the legs very
tightly together, or force the ankles into a downward
position. The abdominal and spinal muscles may also spasm.
She is treated with anti-convulsants and valium tablets four
times daily to prevent the spasms from becoming too severe.
Brain Damage and Epilepsy. She sustained injury to the
brain or brain stem which has resulted in a series of epileptic fits
which are quite separate- from the spasms. In May 1972, she had
a full grand mal which lasted for a few minutes followed by a
further four attacks in the next· thirty minutes.
594 HIGH COURT [1976-1977.
H. C. OF A. Eating and Drinking. She initially had to be fed by using a

1976·1977. tube through the nose, and later had difficulty in swallowing
'-v-'
SHARMAN and making food go down the correct passage apparently
v. because the brain damage had caused a deviation in her tongue.
EVANS.
Deterioration of Intellectual Capacity. Her intellectual cap,,-
Murphy J.
city has deteriorated and, although it may recover, it had not
at the time of the trial. Except for her initial weeks of un-
consciousness, she has been able to co-operate and has answered
questions to the best of her ability. She is perfectly aware of
where she is and what she is doing, and understands what has
happened to her. However, her concentration is not good, her
memory fails and she tends to forget req uests she has made a few
minutes before.
Depression. Understandably she is depressed. Dr. Griffiths
has often seen tears, which she can not mop away, trickling down
her face.
Horner Syndrome. On one side of her face, sweating has
ceased, the eyelid droops and the pupil of the eye is dilated. This
may be due to brain damage, damage to the sympathetic nervous
system in the neck, or psychosomatic depression. It is not clear
whether this is a continuing condition.
Temperature Regulating Mechanism. She must live in air
conditioning as she has lost control of her heat and sweating
mechanisms. If air temperature rises, either her body
temperature rises or she will come out in a bath of sweat all over,
depending upon the reaction of her bladder or bowels (which is
beyond her control).
Breathing. She has had a complete collapse of one lung and
since then partial lung collapses. She had a tube in her
trachea for a year. She cannot cough and to avoid further
collapses, requires frequent daily physiotherapy and suction
through her mouth to control bronchial secretions.
Speech. Her damaged right vocal chord was removed. Car-
tilage on the right side of the larynx was fractured, and an
inflamed growth of cartilage (on and around the vocal chord) was
removed in an open operation through the neck. A skin graft
was taken from the right arm to line the raw part of the vocal
chords where the growth had been and pressure to enable the
graft to take was achieved by putting it into a pack in the larynx
and keeping it there for fourteen days by two large needles
through the throat. This was a most unusual, uncomfortable
and painful procedure. She was fed by nasal tube by-passing the
throat.
Although her left vocal chord moves well and can practically
meet continuously with the scar tissue on the right, vocalization
has been very difficult. As her breathing and articulation are H. C. OF A.

not co-ordinated, air escapes through the mouth and nose before a 1976-1977.
'-y--J
sound is produced, leaving only enough for one syllable (rarely SHARMAN
two) per breath. Her inability to coordinate breathing is related V.
EVANS.
to her inability to get rid of mucous which affects her ex-
Murphy J.
halation. As she tries to speak, her tongue swivels to the left
and protrudes. The best result, which she manages infrequently,
is a strained slurred sound which she cannot maintain for
long. She tires quickly after a few words. Despite her co-
operation, the speech therapist decided against further speech
therapy because of her physical defects, tiredness and accom-
panying periodic bouts of depression.
She is, however, able to communicate by pointing to a card
containing the letters of the alphabet and by using an electric
typewriter with the aid of a splint.
Assessment. The trial judge adopted a convenient and proper
approach to such an assessment by examining the conventional
elements of damage individually, taking care to avoid any
overlap of allocations.
A. Non-economic Loss.
1. Physical injury, pain and suffering, loss of enjoyment of
life. Sheppard J. chose not to fix a separate amount in respect of
this element but analysis of this award shows that it was less
than $100,000. Miss Evans had the experience of the accident
and operations and will not be free of the daily ordeal of suffering
and discomfort until she dies. Her ability to breathe, eat, speak,
move, control her excretions, have social and sexual intercourse,
bear or look after children is either greatly impaired or
destroyed. She also went through the ordeal of deciding to
release the young man from his promise to marry her, although
after the accident, he visited her constantly both in Sydney and
Perth and proposed to her.
Allocation of less than $100,000 for the shocking injuries, pain
and suffering and loss of enjoyment that Miss Evans has
suffered and will suffer would not reflect community stan-
dards. Higher. sums would be reasonable. I agree with Evatt
C.J.'s statements that "the estimate in respect of pain and
suffering is seldom adequate" (Cucinotta v. Nominal Defendant
(58» and that "the tendency is for this head of compensation to
be understated" (Polley v. O'Donnell (59».
2. Shortened Life Expectancy. I see no reason for dealing
with this separately from the element of physical injury, pain and
suffering and loss of enjoyment of life (apart from its effect on
(58) [1961] S.R. (N.S.W.) 23, at p. 30. (59) [1961] S.R. (N.S.W.) 18, at p.21.
596 HIGH COURT [1976-1977.
H. C. OF A. earning capacity which is properly dealt with under economic

1976-1977. loss). Pain and suffering includes that arising from knowledge
'-y--i
SHARMAN that life is shortened. Loss of enjoyment oflife includes not only
v. the impaired (or loss) enjoyment during the shortened years, but
EVANS.
also that of the lost years. Physical injury covers breakdown,
MurphyJ.
not only of some functions but the premature cessation of
all functions (i.e. death).
B. Economic Loss.
Special Damages. These were agreed at $25,547.50.
1.
2. Hospital and Medical Care. These are not covered by the
National Health Scheme or insurance under it. At the time of
the trial, the charges for Miss Evans' hospital and nursing care
were $20 per day and the trial judge treated them as if they would
be frozen at this rate during Miss Evans' life. He then
discounted the future payments (at six per cent) to arrive at a
figure of $86,000 (if she lived twenty years) or $103,000 (if she
lived thirty years). He also treated the cost of the additional
medical services and physiotherapy for which she will be liable in
the same way and arrived at an amount of about $15,000. He
thus allocated $100,000-$118,000 for institutional medical and
hospital care. He considered this was the appropriate range
having done his best to allow for risks and contingencies,
although thought it was likely that a greater sum would be
needed.
The assumption that the daily cost of hospital care for Miss
Evans would remain at $20 throughout her life is unrealistic. It
was obvious at the time of the trial that the cost of hospital and
nursing care (as a labour-intensive service) would increase
substantially and probably at a higher rate than the general level
of costs. The trial judge referred to this:
"How long fees at the Royal Perth Hospital will remain at
their present level or salaries payable to nurses in Western
Australia will remain at the figures given in evidence I do
not know but I should not think it would be for very
long. However, I am not permitted to take that matter into
account, and I have not, but the fact that I am prevented
from doing so in a case such as this leaves me with a sense of
uneasiness."
It is common knowledge that minimum charges (even in a
government subsidized hospital such as the one in which Miss
Evans is) have already risen from $20 a day to $40 a day ($60 a
day for a private room). The costs of the extra medical services
and physiotherapy have also risen greatly.
The question whether Miss Evans should spend some time at
home arose at the trial. The appellant agreed and the trial
judge's assessment was made on that basis. The appellant H. C. OF A.

should not be allowed to renege on the agreement and this Court 1976-1977.
l...,--'
should not consider it unreasonable for the appellant to pay for SHARMAN
v.
part-time care at home. The trial judge estimated that the costs EVANS.
of treatment (including special nursing equipment and some
Murphy J.
alteration to her mother's home) would total $150,000-
$175,000. The hospital charges (which are subsidized) of course
represent only a fraction of the real cost, so the social cost of
keeping her in hospital may well exceed the costs of keeping her
at home. Leaving aside any extra costs of her spending some
time at home, the allocation for medical and hospital costs is
quite inadequate and it is obvious (and was at the trial) that the
amount allocated is much too small to pay the charges if she lives
the expected period.
3. Loss of Earning Capacity. Before the accident, Miss
Evans' mental and physical capacity was unimpaired. The trial
judge accepted that the plaintiff, if uninjured, would have been
able to earn $70 net per week as a secretary at the time of the
trial, and then felt bound to calculate her loss of earning
capacity on the assumption that her earnings would have
continued at $70 per week throughout her working life. This
assumption is contrary to ordinary experience. Apart from the
effects of inflation, the tendency has been for wages (measured at
constant values) to increase, mainly because of general increases
in productivity. The statement issued by the Australian Bureau
of Statistics show that average weekly earnings per male unit
(this being a composite of male and female earnings) were
$119.90 gross at the time of the trial (May 1973), and by 1976 they
had increased to $180.30 gross in the June quarter.
Any estimate of loss of earning capacity based on probable
earnings should take into account:
(a) Increase in earnings because of normal age progression
and promotion.
(b) General increases in earnings due to national increases in
productivity. These average about three per cent per year and
are distributed through the work force by our system of wage
fixing. The wage earner can expect (apart from inflation) an
annual increase of about three per cent (Report of the Working
Party on the Measurement of Labour Productivity, Department of
Employment and Industrial Relations, November 1975).
(c) Inflation (see Lord Reid's observation In Taylor v.
O'Connor (60); Cavanagh v. Ulster Weaving Co. Ltd. (61);
and my reasons in Jacobs v. Varley (62)).
(60) [1971] A.C. 115, at p. 130. (62) (1976) 50 A.L.J.R 519, at p. 527.
(61) [1960] A.C. 145.
698 HIGH COURT [1976-1977.
H. C. OF A. J. H. Prevett's view in "Actuarial Assessment of Damages:
1976-1977.
'-,---J
The Thalidomide Case-I" (Modern Law Review, vol. 35 (1972),
SHARMAN p. 141) is that "a direct allowance for future increases in
V.
EVANS.
earnings attributable to general economic forces, including both
increased productivity and wages inflation, should be made
Murphy J.
on a conservative basis" (p. 153). He suggested (for England)
a compound rate of increase of four per cent to six per cent per
annum. Even this conservative approach would roughly offset
the usual discount rates.
(d) The necessity when calculating present values to allow for
taxation on the notional interest component of any sum
equivalent to lost earnings. If the loss is to be assessed on the
pre-accident net earnings position (as adjusted to trial), then the
compensation should be assessed on post-trial net return to the
plaintiff. Because of the respondent's income from other
components of the award, the rate of taxation will be much
higher than that on her probable earnings if uninjured. The
calculation must of course take into account using up the capital
over the period. Although the trial judge mentioned taxation on
earnings on the investment of the award (and referred to
reduction by concessional deductions), he seems to have discard-
ed it except for treating it as a reason to adopt a six per cent
discount rate rather than a higher one.
Effect of former prospects of marriage on Loss of Earning
Capacity. The expression "loss of earning capacity" does not
precisely describe this element of loss in its modern
application. What is measured is the impairment or destruction
of the capacity to engage in work that is economically valuable,
whether it would be paid for in money or not. It is a loss of
working capacity sometimes referred to as loss of economic
capacity. There is a discernible factor of economic loss in loss of
ability to do non-earning work of economic value. The allocation
for loss of earning capacity should not be reduced because of Miss
Evans' former prospects of marriage. A woman who loses her
capacity to make the usual contributions of a wife and mother in
a household suffers great economic deprivation. Actions for loss
of services correctly treat this as economic injury, but as a loss to
the husband on the archaic view of the husband as master or
owner of his wife. The economic loss is one to the wife or
mother. It is her capacity to work, either in the household or
outside, which is affected. In any event, the nction underlying
earlier cases that women retired automatically from the work
force on marriage is no longer correct. The most important
social change recently is that women now form a large part, H. C. OF A.

almost half, of the workforce. 1976-1977.
L.,.-'
Lost Years. In the context of this case, the question of loss SHARMAN
of earning capacity because of premature death is a minor v.
EVANS.
aspect. The approach in Oliver v. Ashman (63) is not the law in
Murphy J.
New South Wales (see Skelton v. Collins (64)). If a reasonable
application of the principle of restitution is to deduct from
assessment of lost earning capacity what would have been
maintenance of the respondent during the lost years, it should be
the bare amount necessary to enable her to use the earning
capacity. Her spending for enjoyment or maintenance of others
is irrelevant. Obviously, one has to be alive to use earning or
other economic capacity, but the expenses of being alive are
properly regarded as private expenses, not to be set off as a
deductible expense against income.
Board and lodging in hospital should not be set off against loss
of economic capacity. If set off at all, it should be against
hospital expenses.
Conclusion. The award by the trial judge reflects a substan-
tial under-assessment of the major economic elements of Miss
Evans' damages (loss of earning capacity, and medical and
hospital expenses) as well as non-economic elements (physical
injury, pain and suffering and loss of enjoyment of life). If she
continues to be liable for the 'rapidly increasing costs of her
hospital and medical care, it is highly probable that she will
suffer severe hardship. The allocation for hospital and medical
expenses will be exhausted long before the expected end of her life
and she will have to resort to damages allocated to other elements
of her loss to pay her hospital and medical bills. The reduced
award to be ordered by this Court will, even more than the
original award, destine Miss Evans to be a charity case,
primarily because of persistence with judicial approaches which
have not been adapted to the circumstances of present and
prospective inflation.
Sheppard J. referred to the increasing social costs of deaths
and injuries in road accidents. The judicial practice of depress-
ing damag~s, especially in catastrophic personal injury cases (see
Arthur Robinson (Grafton) Pty. Ltd. v. Carter (65); Chulcough
v. Holley (66)) conceals the social costs of negligent driving,
unsafe vehicles and unsafe roads and transfers much of the
burden to injured persons. The award is far from excessive.
The appeal should be dismissed.
(63) [1962] Q.B. 210. (65) (1968) 122 C.L.R. 649.

(64) (1966) 115 c.L.R. 94. (66) (1968) 41 AL.J.R. 336.
600 HIGH COURT [1976-1977_
H. C. OF A. Appeal allowed.
1976-1977. Order of the Supreme Court of New South Wales
l-,-'
SHARMAN (Court of Appeal Division) set aside and in lieu
V.
EVAXS.
thereof order that the appeal to that Court be
allowed, and order that the amount of the
judgment for the respondent be varied by the
substitution of the sum of $270,547.50 for the
sum of $300,547.50.
Respondent to pay one half of the appellant's costs
of the appeal to this Court and of the appeal to
the Supreme Court of New South Wales (Court
of Appeal Division).
Solicitors for the appellant, Pike, Pike & Fenwick.

Solicitors for the respondent, Reston & Riordan.
R.A.S.

Barwick C.J .. Gibbs, Stephen, Jacobs and JJ.: Revie NG

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138 C.L.R.] OF AUSTRALIA.

[HIGH COURT OF AUSTRAUA.j

ON APPEAL FROM THE SUPREME COURT OF

Damages-Personal injuries-Long term quadriplegic-Future medical care-Lost H. C. OF A.

Skelton v. Collins (1966), 115 C.LR. 94, considered.

H. C. OF A. $150,000 to $176,000 for future costs of nursing and medical

B. S. J. O'Keefe Q.C. and B. T. Sully, for the appellant, referred

T. Falkingham Q.C. and P. I. Rose, for the respondent.

Cur. adv. vult.

1977. Feb. 25 The following written judgments were delivered:-

judge who awarded her the sum of $300,547.50. The appeal by H. C. OF A.

(4) (1968) 122 C.L.R. 649.

providing a very considerable nursing capacity would prove nigh H. C. OF A.

H. C. OF A. Thirdly, his Honour evidently included a substantial sum in his

have felt in this case that it is sufficient, having found error in H. C. OF A.

within the range of a fair and reasonable compensation. Accor- U.

GIBBS AND STEPHEN JJ. The defendant, Dennis Sharman,

H. C. OF A. 2. She has the inability to speak which I have mentioned.

damages his Honour expressed his keen awareness of the need to H. C. OF A.

H. C. OF A. fact that it is only by recourse to those terms that the plaintiff

H. C. OF A. physical or mental well-being. This may be demonstrated from

should not be required to compensate the plaintiff on any basis H. C. OF A.

H. C. OF A. so we leave aside, for the present, the question of compensation

as possible deductions when assessing damages for loss of H. C. OF A.

and the same item of loss, it is also necessary to avoid u.

H. C. OF A. compensation for lost earning capacity during "lost years", in

taste are unaffected and in place of sport, entertainment, H. C. OF A.

H. C. OF A the problem of compensation for economic loss in respect of "lost

(30) [1962] 2 Q.B. 210. (34) [1962] 2 Q.B. 210.

(37), and no doubt in numerous unreported cases, as reqUIrIng H. C. OF A

(37) [1973] 1 N.S.W.LR 292. (39) [1973] 1 N.S.W.L.R, at p. 298.

H. C. OF A. Western Railway Co. (41); Roach v. Yates (42); Pope v. D.

(41) (1879) 5 Q.B.D. 78. (45) (1962] 2 Q.B. 210.

of this one deduction will accord recognition to the curious feature H. C. OF A.

H. C. OF A. critical uncertainties such as whether the plaintiff marries, the

(57) (1975) 57 D.L.R. (3d) 438.

H. C. OF A. $103,000 for hospital expenses, $15,500 for medical and

constant hospitalization) and a comparison between it and her H. C. OF A.

H. C. OF A. occupations. Similar considerations applied to the plaintiff's

subjection to purely economic terms of a head of detriment which H. C. OF A.

H. C.OF A. various heads of damage will be of assistance in are-assessment,

JACOBS J. Although I conclude that this appeal should be

although it would be wrong for judge or jury to attempt a precise V.

MURPHY J. On 6th December 1971 the respondent, June

stiffness. To relieve this, part of the shoulder blade was removed H. C. OF A.

H. C. OF A. Eating and Drinking. She initially had to be fed by using a

has been very difficult. As her breathing and articulation are H. C. OF A.

H. C. OF A. earning capacity which is properly dealt with under economic

judge's assessment was made on that basis. The appellant H. C. OF A.

social change recently is that women now form a large part, H. C. OF A.

(63) [1962] Q.B. 210. (65) (1968) 122 C.L.R. 649.

Solicitors for the appellant, Pike, Pike & Fenwick.

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