Thatcher v Charles 104 CLR 57 at 63; Sharman v Evans 138 CLR 563 at 573, 590; Jag Singh v Toong Fong Omnibus Co Ltd [1964] 1 WLR 1382 at 1385.SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 325 of 1985 CL11784 of 1979
MAHONEY, PRIESTLEY & McHUGH JJA
14 May 1987
Appeal from Common Law division Verdict by jury Infant plaintiff negligently circumcised, with loss of the glans of his penis Physical difficulties and emotional problems resulting Judgment for $275,000 Appeal by defendant on ground that verdict excessive Role of appeal court in setting standards for assessment of damages referred to Appeal dismissed (by majority).
JUDGMENT MAHONEY JA: The plaintiff lost the glans on his penis. The jury awarded him $275,000. The question to be determined is whether that sum is beyond the bounds of fair compensation: Precision Plastics Pty Limited v Demir 132 CLR362 at 369.
In my view it is. My brethren take a contrary view. The question raises an issue of principle which is of importance. I shall therefore state, in principle, why I take the view I do.
The basic facts were not in dispute. It was for the jury to decide how they valued the actual loss and the possibilities to which the plaintiff was subject. To summarise is to omit but, stated in general terms, what the jury could take from the facts was the following.
The injury had caused, and was apt to cause, no physical pain.
The plaintiff had the pleasure of sexual activity but had lost whatever was the pleasure to be had from the sensitivity of the glans.
Except in one respect, the injury had caused, and was apt to cause, no actual loss of function. The plaintiff could achieve erection. He was physically able to have sexual intercourse. He could ejaculate and could father children. And he could urinate. The qualification was (I shall follow the judge's summing up) that he has a problem with the urine spraying
; if he had an operation he would have a better cosmetic appearance and possibly even a better functional result
.
The essential loss claimed was psychological. His personality development had been markedly distorted
: he had become socially isolated, sexually frustrated and felt quite unable to see any way out of his predicament
. Unless he received some assistance, he was highly likely
to develop a neurotic reaction of severe degree, probably a depressive type. With psychiatric or psychological counselling there was a good chance that he would make a good adjustment were he fortunate enough to meet a suitable girl
. As to his long term adjustment
, the psychiatrist thought it probable that he will continue to avoid social situations that might allow him to develop emotional relationships with the opposite sex and that in consequence he is potentially vulnerable to depressive and anxiety reactions as the time goes on and he becomes progressively more frustrated emotionally and sexually
.
This condition derived from two things: the fact that his penis was deformed
; and the fact that he was constantly preoccupied with worries about
whether he could have sexual relations with girls and father children.
This second derived essentially from the size of his penis.
In fact, there was little evidence either as to the size of his penis or as towhether there was a basis for such worries.
The only evidence as to the size of his penis was that, in its flaccid state
, it was 9 cms (3.6") long. There was no evidence of its length in its erect state. The only other evidence was that one doctor said that the plaintiff had lost one third of the length of the penis.
It is not in doubt that he can father children.
There was no evidence upon which the conclusion could be formed that his penis was in fact outside the normal or the range of the normal in size. No effort was made to prove it to be so or the extent to which it was so.
The psychological loss was relied on in two respects: it might cause economic loss;and it had caused a psychiatric state.
As the judge said, the plaintiff had made no quantifiable claim
for economic loss. The plaintiff had suffered none to trial. The claim was only for a possibility that the psychiatric condition, if it developed so, may interfere with
his work orientation or application
. The learned judge suggested to the jury that the part that could play was small
.
The psychiatric condition was real. But the effect of it depended upon a myth
or, as has frequently been described, the phallic fallacy
. It is, I think, permissible in discussing the fallacy, to refer to fact. WH Masters and VE Johnson Human Sexual Response
(1966, 1st ed), is a work of reference: see McQuaker v Goddard [1940] 1 KB 687 at 700; Cross on Evidence (3rd Aust ed) par 2.5. At 191 et seq, the position is stated as follows:
PENILE FALLACIES
Another widely accepted phallic fallacy
is the concept that the larger the penis the more effective the male as a partner in coital connection. The size of the male organ both in flaccid and erect state has been presumed by many cultures to reflect directly the sexual prowess of the individual male.
Dickinson (RL Dickinson Atlas of Human Sex Anatomy (2nd ed), Baltimore: Williams & Wilkins, 1949) was one of the first to record dimensions of the penis with some degree of objectivity. He supported Loeb's report (H Loeb, Harnrohrencapacitat und Tripperspritzen, Munchen. Med. Wschr. 46:1016, 1899) that the normal range of penile length varies from 8.5 to 10.5 cm. in the flaccid state, with the general average in the 9.5 cm. range. The range of normalcy suggested by these measurements also has been supported by measurements returned from examinations of individual members of the male study-subject population (VE Johnson and WH Masters. Unpublished data).
The delusion that penile size is related to sexual adequacy has been founded in turn upon yet another phallic misconception. It has been presumed that full erection of the larger penis provides a significantly greater penile size increase than does erection of the smaller penis. This premise has been refuted by a small group of men selected from the study-subject population for clinical evaluation. Forty men whose penises measured 7.5-9 cm. in length in the flaccid state were compared to a similar number of study subjects whose penises in the flaccid state measured 10-11.5 cm. Measurement was crudely clinical at best and can only be presumed suggestive and certainly not specific in character. The length of the smaller penises increased by an average of 7.5-8 cm. at full (plateau-phase) erection. This full erection essentially doubled the smaller organs in length over flaccid-size standards.
In contrast, in the men whose organs were significantly larger in a flaccid state (10-11.5 cm.), penile length increased by an average 7-7.5 cm. in the fully erect (plateau-phase) stage.
These measurements of full penile erection are so crudely clinical that they have been adjusted arbitrarily to the nearest 0.5 cm. to facilitate presentation. In each instance, measurement was taken from the anterior border of the symphysis at the base of the penis along the dorsal surface to the distal tip of the glans. All 80 penises were measured on three different occasions both in flaccid and erect states by the same individual. Only one investigator conducted this clinical measurement so that any idiosyncrasy of measurement technique would be common to all results. One of the measurements of penile erection was taken during automanipulation, and two measurements were initiated immediately upon withdrawal of the plateau-phase penis from active coition. Measurement of an erect penis was not attempted until the final engorgement of late plateau phase had been accomplished. Since full penile engorgement is a short-term process before ejaculation intervenes, measurement frequently was rushed and, therefore, additionally unreliable.
While the information returned obviously is not definitive, there certainly is no statistical support for the phallic fallacy
that the larger penis increases in size with full erection to a significantly greater degree than does the smaller penis. The difference in average erective size increase between the smaller flaccid penis and the larger flaccid penis is not significant.
Of clinical interest is the fact that the greatest observed penile-size increase from flaccid to erect state occurred in a male study subject with an average flaccid measurement of 7.5 cm. (not included in the experiment reported above). The increase in size from flaccid to erect state was just over 9 cm. This penis more than doubled in length when reacting from flaccid to erect state. The smallest increase in size from flaccid to erect state was observed in one of the larger organs. This penis measured just under 11 cm. in its flaccid state, yet at full erection only 5.5 cm. had been added to the length of this larger organ. At full plateau-phase erection the two organs were measured at identical lengths on three separate occasions.
As Piersol has stated (GA Piersol, Human Anatomy. Philadelphia: Lippincott, 1907), the size of the penis has less constant relation to general physical development than that of any other organ of the body. This statement has been made in recognition of yet another phallic fallacy
. It has been presumed by many cultures that the bigger the man in skeletal and muscular development, the bigger the penis, not only in a flaccid butalso in an erect state.
Detailed examination of the study-subject population of 312 men aged 21 to 89 years supported Piersol's contention that there is no relation between man's skeletal framework and the size of his external genitalia. The largest penis in the study-subject population, measuring approximately 14 cm. long in the flaccid state, was in a man 5 feet, 7 inches tall weighing 152 pounds. The smallest penis, measuring just over 6 cm. in the flaccid state, was in a man 5 feet, 11 inches tall weighing 178 pounds.
Although there is little to support the concept that erective size is proportionally greater for the larger than the smaller penis, there remains the theoretical concern of the man with the small penis as to his potential coital effectiveness. Even with erective ability of the smaller penis (less than 9 cm.) presumed equal to that of the larger penis (more than 10 cm.), the smaller penis in the flaccid state usually remains somewhat smaller in an erect state. The factor that constantly is overlooked in theoretical discussions of penile coital effectiveness is the involuntary accommodative reactions of the vagina in its functional role under coital stimulation as a seminal receptacle (see Pt2 of Chapter 6).
In this context, two things may be said about the award of $275,000.
First, whatever amount be appropriated to the possibility of economic loss at some time in the future, the amount left for general damages is very large.
The court does not compare particular verdicts. But it can - in my opinion it should - observe the level of awards for different kinds of injuries and its duty is to maintain an appropriate relativity between them.
The present award, less the economic component, is at a level achieved by few of the most serious of injuries. The limits of general damages for paraplegia would, in my opinion, be in this area: see, for example, Watson v Haines (10 April 1987) in which Allen J awarded $195,000 for general damages to a boy of twenty years who was permanently partially quadriplegic
. It would exceed the general damages for, eg, the loss of an arm or a leg. I cannot see that the present effects of this injury or such possibilities as there may be for future deterioration can warrant an award of thissize.
Second, the award raises an issue of principle in relation to the role of an appellate court and the nature of its duty in setting aside an excessive award.
The court has the duty to intervene if the jury's verdict is so excessive or so inadequate that no jury could reasonably have awarded them, or, as is sometimes said, out of all proportion to the circumstances of the case
. The use of the conventional terms, excessive
, inadequate
, reasonably
and proportion
poses the question: According to what standards?
The standards on which an appellate court must act are not those of the particular jury: they are those which the court itself formulates. The court has the power and the duty to set aside what the jury has awarded. In doing so, it must therefore - at least in cases where standards are involved - formulate its own standards of what is adequate, reasonable and proportionate and give effect to its standards rather than those on which the juryhas acted.
The standards which the court formulates for determining what is adequate, reasonable and proportionate are neither derived from tariffs or arithmetical calculations nor deduced from abstract principles. They come from what, according to prevailing community values, the court sees as appropriate to compensate a member of this community for the instant injury: compare Thatcher v Charles 104 CLR 57 at 63; Sharman v Evans 138 CLR 563 at 573, 590; Jag Singh v Toong Fong Omnibus Co Ltd [1964] 1 WLR 1382 at 1385.
In formulating such standards, the court can and, in my opinion, should take into account the fact that (if it be so) the particular verdict is based on fallacy rather than fact. If it did not see it as its duty to do so, the court would be abdicating an important part of its function. To accept a verdict as proportionate notwithstanding that it was based on myth or fallacy would, in my opinion, be wrong. To require the court to ignore that it was so based would put the law upon an unacceptable basis.
But this does not, in itself, dispose of the plaintiff's case. The plaintiff's belief in the myth has produced, as the jury could accept, a real psychiatric condition. Must the court, in determining what is reasonable compensation for that condition, ignore the basis of it? I do not think that it must.
It is not the function of a dissenting judgment to pursue these matters in detail. It is sufficient to say that there are distinctions to be made. A psychiatric condition may be irrational or be based on imaginings. That does not disqualify it from compensation. But it does not exempt the basis of it from examination. Some conditions have bases which cannot be disproved or dispelled. This is not that case. The main basis of the plaintiff's condition is his belief that the shape and/or the size of his penis will prevent him having intercourse and fathering children. The effect of that, as the pyschiatrist said, will be determined very much by what happens to him
. He can have intercourse. When once he does have it, the fallacy of that part of his belief will be different. Whether he does will, as the psychiatrist said, depend on the suitable female
and her reaction to him. A condition which depends on such contingencies cannot, in my opinion, warrantthe present award.
And, although it is not necessary to my conclusion, I would add this. It should be recognized that the resources available to provide compensation for injuries - whether the resources be those of the individual wrongdoer or, through insurance, the community - are not unlimited. In determining what, for the purpose of general damages, is reasonable or proportionate, the community may, and the courts should, say that a condition so based has a lower priority in the distribution of those resources than one which is more factually based.
In my opinion, the appeal should be upheld, with costs. The proceeding should be returned to the Common Law Division for a further, albeit a third, trial.
PRIESTLEY JA: I agree with McHugh JA.
McHUGH JA: St Margarets Hospital for Women (the hospital) appeals against an award by a jury of $275,000 damages on the ground that they were out of all proportion to the circumstances of the case. The jury consisted of two men and two women. The plaintiff's claim arose out of a negligent circumcision for which the hospital was responsible. As a result of that negligence, the plaintiff, then six days old, suffered the loss of the head of his penis. This is the second time that the defendant has appealed to this Court. The Court has already set aside a verdict for $500,000 on the ground that it was excessive.
The facts
On 10 February 1966 a circumcision operation was performed on the plaintiff.
Three days after the operation he was found to have gangrene of the end of his penis. The head of the penis was black. It no longer had a meatus or normal opening. Urine came out of a fistula or hole in the gangrenous portion. As there was a clear line between the dead tissue and the healthy tissue of the penis, the dead flesh was allowed to slough off
. A catheter was inserted to drain the urine from the plaintiff's bladder. In April 1966 an operation was performed which made a permanent opening in the penile stump to allow the plaintiff to pass urine. He is able to urinate but, if he does so while standing, the urine sprays his legs.
The plaintiff has lost about one third of his penis. The artificial meatus
is adequate, but there is slight bending in the penile stump. The cosmetic deformity of the penis cannot be improved by surgery. However, further surgery can and is to be performed to correct a minor tethering of the skin under the penis. The plaintiff is able to achieve an erection and masturbates. He has not had sexual intercourse. Sexual penetration, if it ever occurs, will be more difficult than for a normal male; his disability will also cause a diminution in sexual pleasure. But he is able to father children.
The plaintiff's injury has occasioned a number of social and psychiatric problems. He is extremely embarrassed about other persons knowing of his deformed penis. Throughout his life he has gone to great lengths to avoid being placed in situations where others might see it. He has never known his father and, consequently, has not been able to discuss his problems with him.
Nor has he been able to bring himself to discuss them with his brother or sisters. Although he has tried to discuss his problems with his mother, he cannot bring himself to do so. This causes him distress. He is shy and introverted. He seems to have no friends outside his family although in 1984 he began to do voluntary social work helping underprivileged children. He wants to marry and have a family but he has avoided any physical contact with females. He is socially isolated and feels that there is no way out of his predicament. He feels sexually frustrated. In addition he is frequently depressed. He has had counselling on five occasions since 1982. The counselling sessions made him feel better for a time. However, at the time of the second trial in August 1985, he had had no counselling since February 1985. By August, the benefit of it had beenlost.
Dr Greenberg, a psychiatrist, who first saw the plaintiff in 1982 expressed the opinion in that year that the personality development of the plaintiff had been markedly distorted. Dr Greenberg thought that without treatment the plaintiff would progressively develop a neurotic reaction of severe degree. He believed at the time, however, that there was a good chance that the plaintiff would make a good adjustment
as the result of counselling and if he were fortunate enough to meet a suitable girl
. When Dr Greenberg last saw the plaintiff in 1985 he said that, because of counselling, the plaintiff was less anxious and depressed about his condition. But the doctor was much less optimistic in 1985 about the plaintiff making a long term adjustment. Dr Greenberg said: I think it probable that he will continue to avoid social situations which might allow him to develop emotional relationships with the opposite sex and that in consequence he is potentially vulnerable to depressive and anxiety reactions as time goes on and he becomes progressively more frustrated emotionally and sexually.
The plaintiff left school when he was fifteen years of age. At the time of the second trial he was employed as a steel fixer. Dr Greenberg thought that the plaintiff had little life outside his job and that it had assumed an importance for him not normally to be found in a teenager. Dr Greenberg said that in the future the depressive and anxiety state may interfere with the plaintiff's work orientation and application. In cross-examination the doctor agreed that the plaintiff had benefited from counselling and would continue to do so. However, Dr Greenberg also said that there was no certainty of its outcome.
The award was open to the jury This Court can only set aside the jury's verdict if it was out of all proportion to the circumstances of the case: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 369. Assessment of damages for the loss of the penis or a part thereof is not unique. But it is an injury which rarely comes before a court for assessment. It belongs to a class of case where a court should hesitate to interfere with a jury's assessment of damages, since the collective opinion of the jury at the very least is as likely to reflect the community standard as the opinion of a section of the community such as the judiciary. While the correctness of the verdict depends on its reasonableness, its components admit of a very wide range of opinion as to what is the proper assessment of the plaintiff's injury.
In my opinion it was reasonably open to the jury to find that the plaintiff's psychiatric condition would deteriorate. They saw the plaintiff in the witness box. They had an opportunity, denied to this Court, of forming an opinion about the likelihood of the plaintiff ever establishing a relationship with a female. They could reach the conclusion, based on their knowledge of people, their assessment of the plaintiff, and the evidence of Dr Greenberg, that the plaintiff wouldnever overcome the psychological harm which his injury has caused.
The jury could reasonably conclude that the psychological condition of the plaintiff would deteriorate to the point where there was a reasonable prospect that he would withdraw from society and find difficulty in maintaining employment. They had evidence that throughout his life he had withdrawn from sporting and social activities whenever they had given rise to the possibility that his deformity
might be discovered. They could think that in a society, where sexuality is the subject of one of its dominant discourses, the plaintiff's perception of himself as sexually deformed and inadequate would ultimately force him to retreat from most, if not all, forms of social intercourse. His life already contained much evidence that he could not and would not be able to cope with the pressures of adulthood. Moreover, the jury was entitled to take into account, in assessing the plaintiff's future, the long and continuing obsession of Western society with physical beauty and the perfection of the human figure. This obsession has long been a source of pain and distress to those persons, like the plaintiff, who do not measure up to the ideal. Of course, the jury was bound to take into account the possibility that the plaintiff would enter into a loving and affectionate relationship which would persuade him that he had no real problem. But equally the jury had also to consider whether a sarcastic or unfeeling remark could precipitate a psychological crisis. No one could predict exactly what the future held for the plaintiff. But on the evidence the jury was entitled to takea very pessimistic view.
It is not to the point that the penile stump of the plaintiff is adequate for its normal functions. Modern sexologists may have punctured the myth that sexual adequacy depends upon the size of the penis. But the myth persists. It could hardly be otherwise. Throughout human history the phallus has been seen as a symbol of power. Its identification with virility, power and male supremacy has been an enduring theme in the art and literature of many societies. An idea, so deeply rooted in human consciousness, is not easily eradicated. The jury could conclude that it has so affected the plaintiff's perception of himself that he believes and will always believe that he is abnormal and sexually inadequate. They could infer that the plaintiff is so oppressed by his perceived abnormality and inadequacy that his capacity to function as a useful member of society was seriously threatened. Perhaps this was the extreme view of the evidence. Nonetheless, it was a view reasonably open to the jury.
Accordingly, the jury could see the case, not as one concerned simply with the loss of part of a penis which functioned adequately, but as one where the injury had substantially destroyed the plaintiff's capacity to enjoy life and threatened his capacity to earn his living.
Counsel for the hospital contended that the jury could not reasonably award more than $30,000 for loss of earning capacity and no more than $170,000 in total for general damages. However, once it is conceded, as it quite properly was, that the jury could award a substantial sum for loss of earning capacity.
I do not see how a limit of $30,000 could be imposed on the jury's assessment.
The plaintiff was aged 19 at the time of the second trial. He had over forty five years of working life ahead of him. If his psychiatric condition deteriorated markedly by the time he was aged 40, as I think the jury could reasonably find, it could award a sum for loss of earning capacity much in excess of $30,000.
The first jury assessed the plaintiff's damage at $500,000. The second jury assessed it at $275,000. No doubt the second award is high. But in my opinion it was within the range of damages which a jury, mindful of its duty, could award.
Order
The appeal should be dismissed with costs.
Appeal dismissed with costs.
APPELLANT:
MR JD CUMMINS QC with MR SW GIBB
RESPONDENT:
MR M EINFELD QC with MR CT BARRY
SOLICITORS:
APPELLANT
MISS EG SCARPARO
RESPONDENT
MR WM READFORD
14 May 1987
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