Australian Iron & Steel Ltd v Greenwood - [1962] HCA 42 - HCA 1962 case summary — Zoe

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Australian Iron & Steel Ltd v Greenwood

[1962] HCA 42

High Court of Australia|1962-07-01|Before: Owen JJ, McTiernan J

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Source facts

Court

High Court of Australia

Decision date

1962-07-01

Before

Owen JJ, McTiernan J

Source

Original judgment source is linked above.

Judgment (51 paragraphs)

[1]

High Court of Australia McTiernan, Taylor, Menzies, Windeyer and Owen JJ. Australian Iron & Steel Ltd v Greenwood [1962] HCA 42

[2]

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of New South Wales set aside. In lieu thereof order that the appeal to that Court be allowed with costs, that the verdict of the jury be set aside so far as it assessed the amount of damages and that there be a new trial of the action limited to the assessment of damages.

[3]

I would not interfere with the award of damages made by the jury in this action. The complaint is as to general damages. There is no error in the summing-up. I think we ought to presume that the jury did their best to assess the damages according to the directions in the summing-up. To uphold this appeal we must be satisfied that with those directions to go upon, the jury's award is not one which four sensible men would make having regard to the circumstances of the case. The view which a jury might take of the injuries and sufferings of the plaintiff, and the damage done to his enjoyment of life and economic future is outlined by the observations made by the learned judges of the Supreme Court on the evidence. The case is not merely that of a man who lost a leg and returned to work without reduction of pay. This summary leaves out the account which the evidence proves of extreme pain and suffering, and the doubts which it creates about the future earning capacity and economic security of the plaintiff. At the time of the accident he was thirty years of age and on the evidence had prospects of promotion. The amount of £17,000 is assumed to have been awarded as general damages. Mr. Allen by way of argument suggested that £10,000 to £12,000 would mark the limits of a reasonable award. The argument comes down to a denial that £17,000 is reasonable damages and nothing is advanced to support the argument but the figure itself. The onus in this Court is on the appellant to make out that the learned judges of the Supreme Court ought to have said that the general damages awarded are too much to be within any reasonable limit. I am not prepared to decide that their Honours were wrong. In my opinion no good reason was advanced for so holding.

[5]

The jurisdiction of this Court to hear and determine an appeal from the Full Court of a State granting or refusing a new trial on the ground that a jury's verdict was, or was not, outside the bounds of what is reasonable is part of the jurisdiction conferred by the Constitution and regulated by the Judiciary Act which specifically gives the High Court power to grant a new trial in any case where there has been a trial with a jury. Upon such an appeal this Court has power to give the judgment which the Full Court ought to have given and in considering what judgment ought to have been given when a Full Court has decided that a verdict was, or was not, excessive or inadequate it is necessary for this Court to consider the evidence given at the trial and the quantum of the verdict. From its establishment this Court upon such an appeal has consistently in this way decided for itself whether in its assessment of damages a jury failed to act reasonably: see among the reported cases Miles v. Commercial Banking Co. of Sydney [1] ; Rowe v. Australian United Steam Navigation Co. Ltd. [2] ; Triggell v. Pheeney [3] ; Coates v. Carter [1] ; but in deciding for itself, in a matter that is very largely one of impression, it of course pays particular respect to the decision under appeal: Thatcher v. Charles [2] . Furthermore, when, as here, a new trial is sought upon the ground that a jury's verdict is not reasonably based upon the evidence, the Court must assume that the jury has taken the view of the evidence most favourable to the respondent and only in what seems to it to be a clear case will a new trial be ordered. There is, we think, no difference between our function vis-à-vis the Full Court of a State and that of the House of Lords vis-à-vis a Court of Appeal in considering whether a jury's verdict should be allowed to stand - and it is clear that the House of Lords considers for itself whether a verdict was so high or so low that reasonable men confining their attention to relevant matters could not have arrived at such an estimate: see, to take a recent instance, the statement of Lord Tucker with which the other members of the House agreed in Cavanagh v. Ulster Weaving Co. Ltd. [3] . Moreover, in discharging its duty to substitute its judgment for what it regards as a mistaken judgment of a Full Court of a State with regard to a jury's verdict, this Court has seen no reason to draw any distinction between appeals from the Full Court of the State of New South Wales and those from the Full Courts of the other States for the law which determines the powers and duties of this Court in every such case is Commonwealth law and it is the law of every State where civil actions may be tried with a jury that a jury's award of damages which is outside the bounds of reason should be set aside on the simple ground that the jury has failed in its duty to act reasonably. These are the principles to be applied in deciding this appeal.

[7]

The accident in which the plaintiff received his injuries occurred in April 1956, he then being thirty years of age. He had been employed by the defendant for some years as a shift man and electric locomotive driver in the defendant's colliery and at the time of the accident was earning £19 per week. The trial took place in February 1961 and it was agreed by the parties that his medical and hospital expenses and wages lost up to that time amounted to £2,528 so that the sum of £17,000 represents the jury's award for general damages including, of course, future loss of earning capacity. The injury which the plaintiff sustained was a serious one involving the crushing of his right heel with consequent fractures to the heel bone which had to be removed by surgical treatment. Attempts to save the foot involving a number of skin-grafting operations were made and the plaintiff was in hospital for about three months and during that period suffered considerable pain and discomfort. Unhappily the treatment to the foot proved unsuccessful and ultimately, in August 1957, it was found necessary to amputate his right leg below the knee. In March 1958 he was fitted with an artificial limb which he has worn since. He has since suffered a good deal of pain and discomfort in the stump of his leg and this may well continue. In July 1958 he returned to work as a locomotive driver in the defendant's mine and at the date of the trial he was still working for the defendant as a locomotive driver and was earning the same weekly wages as he would have received had there been no break in his service. There is nothing in the evidence to suggest that the defendant will not continue to be willing to employ him until he reaches the retiring age of sixty, fixed by statute for those who work in mines. The plaintiff said, however, that he found some difficulty in doing the work because of his artificial limb and the jury could have concluded that at some future and necessarily uncertain date before he reached the age of retirement his disabilities might compel him to give up work as a locomotive driver in the mine. The loss of the lower part of his leg has necessarily diminished to a very considerable extent his enjoyment of life and a further fact to be taken into account is that his post-accident employment requires him to work between 1 p.m. and 9 p.m. each working day.

[27]

The position of this Court in a matter of this sort is different from that of the Court of Appeal hearing an appeal from a judgment entered after a trial by a jury in the King's Bench Division. Since the changes made by the Judicature Acts there has not, at all events since Divisional Courts ceased to grant new trials, been any court in England corresponding for present purposes with the Supreme Court in banc. And - except for the abortive Court of Appeal under 4 Geo. IV, c. 96 and the Charter of Justice - there has never been in New South Wales any intermediate court of error or court of appeal comparable with the Exchequer Chamber or the Court of Appeal in England. That is to say there is not, and never has been, an appellate court standing between the Supreme Court and the Privy Council. The jurisdiction that we are asked to exercise in this case is thus comparable with the jurisdiction that before Federation the Privy Council might have exercised in a similar case. By the Constitution the judgments of this Court in its appellate jurisdiction are final and conclusive, subject only to the prerogative preserved by s. 74. In my opinion, we should therefore govern ourselves by much the same considerations as would the Privy Council. This Court was, no doubt, intended by the founders of the Constitution to be more accessible to litigants than in those days the Privy Council could be. But the terms of s. 73 of the Constitution and its history contain nothing to suggest that there was any intention to restrict the discretion of the Supreme Court in controlling the conduct of proceedings at nisi prius and supervising the verdicts of juries. The Judiciary Act s. 73 states that, "The High Court in the exercise of its appellate jurisdiction may affirm reverse or modify the judgment appealed from and may give such judgment as ought to have been given in the first instance ". The important words, for present purposes, are "such judgment as ought to have been given in the first instance". It is hardly necessary to say that "in the first instance" does not refer to the verdict of a jury or to a judgment entered pursuant to such a verdict, for from that there is no appeal: Musgrove v. McDonald [1] ; The Commonwealth v. Brisbane Milling Co. Ltd. [2] ; Fieman v. Balas [3] .

[29]

It has been suggested that the function of this Court in relation to the Supreme Court of a State is analagous to that of the House of Lords in relation to the Court of Appeal in considering juries' verdicts. I do not think the analogy at all close. And in any event I have not read of any appeal to the House of Lords from a decision of the Court of Appeal in any way like the present case. On the first occasion when Phillips v. London & South Western Railway Co. [1] was before the Court of Appeal it was said that the case was to go to the House of Lords; but apparently it did not. I do not know of any case concerning damages for personal injuries that did, or of any case at all in which their Lordships entertained an appeal on a question of quantum of damages alone in a case tried by a jury. In Tolley v. J. S. Fry & Sons Ltd. [2] there was no appeal from the finding of the Court of Appeal that the damages were excessive; so that the House of Lords did not have to consider the matter directly. Moreover, damages for libel have a different basis from damages for personal injury. Mechanical and General Inventions Co. and Lehwess v. Austin and The Austin Motor Co. [3] , was a case in contract. So far as it turned on quantum of damages for breach of an agreement, it was held that the Court of Appeal had followed a wrong principle in reversing the jury's verdict and entering judgment for nominal damages. Taff Vale Railway v. Jenkins [1] , was a case under Lord Campbell's Act, which turned on the relevance of a head of damage claimed as well as on the amount awarded by the jury. The three members of the Court of Appeal in that case had taken different views. The House of Lords upheld the verdict of the jury. I find nothing in these or other cases in the House of Lords that assists in the present question, except of course the well-known passages as to the principles which should guide an appellate court in reviewing the verdict of a jury that appear in the judgment of Lord Wright in the Mechanical & General Inventions Co's Case [3] , principles of which the learned judges in the Supreme Court were fully aware.

[33]

It is worth noticing that considerations similar to those that lead me to the conclusion that, on principle, we ought not to reverse the decision of the Full Court have for a very long time influenced courts in the United States in relation to this very question - the grant or refusal of a new trial on the ground of excessive damages. To begin with, the rule was there quite strict. A new trial could only be had from the court where the verdict was given or to which the record was returnable; and a Federal Court could not review the decision of a State Court, or of a Federal Court of first instance, granting or refusing a new trial on the ground that a jury's verdict was for an excessive or inadequate amount: see e.g. Public Utilities Corporation v. McNaughton [1] ; Baltimore Line v. Redman [2] . The decisions are numerous. They go back to the doctrine enunciated by Story J. in Parsons v. Bedford [3] . They were based sometimes on the letter of the seventh amendment, the words being "according to the rules of the common law", sometimes on the more general ground that the grant or refusal of a new trial is a matter within the trial court's discretion. The rule is perhaps now less strict than originally it was: see Fairmount Glass Works v. Cub Fork Coal Co. [1] . But an order of a trial court granting or refusing a new trial on the grounds that damages for personal injury were excessive will still, speaking generally, not be set aside unless it appears that a wrong principle was applied by that court: see Houston Coca-Cola Co. v. Kelley [2] ; South Pacific Co. v. Guthrie [3] ; St. Louis Southwestern Railway Co. v. Ferguson [4] . In the last of these cases the prevailing view in the United States is summarized as follows: "We have said many times that the excessiveness or inadequacy of a verdict is not a matter for our consideration, but that the entreaty for any such vice lies solely to the judgment and the conscience of the trial judge on motion for a new trial. This is because the amount of a verdict is primarily a factual evaluation on inabsolute elements, while our function traditionally has been regarded as extending only to a testing of the soundness of the processes by which such a result has been achieved" [5] . In the latest American case on the topic that I have seen, Agnew v. Cox [6] , the Eighth Circuit Court once again dealt with the question in a case of personal injury in a motor car accident, and quoted a passage from an earlier judgment: "This Court has consistently adhered to the proposition that the responsibility for keeping jury awards within reasonable bounds is essentially that of the trial courts and not of this Court [1] ". So far as the American decisions are based on the seventh amendment, they are not directly in point. But, so far as they reflect general common law doctrine, they seem pertinent.

[41]

What is reasonable, whether a reasonable price, reasonable time, reasonable valuation or reasonable damages is a question for a jury and not for a court. And the question whether a jury's assessment of the damages shows that they failed in their duty is a question of fact. The common law in its early days did not deviate. A jury's verdict would only be set aside when, in proceedings for attaint, another jury, of twenty-four, unanimously found on the same evidence that the original jury of twelve had found a false verdict. That was long ago; but Lord Morris in Scott v. Musial [2] used words in which there is an echo of the old law. "If the figure of an award seems to be outrageous, or so extravagant that no other jury would repeat it, then there might, in some cases, be ground for suspecting that a jury has been partial or perverse" [3] . When, today, a court is asked to set aside a jury's award of damages as excessive or inadequate, the question it has to consider is a question of fact, not of law. I have already referred above to decisions that this is so. To them may be added the observations of Cussen A.C.J. in Driver v. War Service Homes Commissioner [No. 1] [1] . Damages for pain and suffering, for the loss of a limb and the changed circumstances of life it entails "cannot be calculated and can only be measured according to the standards that generally prevail, and a reasonable conception of what is adequate to the occasion": per Dixon J. in Pamment v. Pawelski [2] . Where are the measure of reasonableness and "the standards that generally prevail" to be found? Mainly, it is said, by considering what damages have been awarded in other cases. Birkett L.J. said in Bird v. Cocking & Sons Ltd. [3] , that "when a particular matter comes for review one of the questions is, how does this accord with the general run of assessments made over the years in comparable cases?" [4] : and see Rushton v. National Coal Board [5] ; Waldon v. The War Office [6] . But in those cases the Court of Appeal was dealing with assessments made by judges whose awards it had power to alter. The "general run of assessments" were decisions of judges either at first instance or in the Court of Appeal. Verdicts of juries stand in a somewhat different position. They may naturally be expected to differ more widely than opinions of judges do, because jurymen have generally no comparable accumulation of experience. And "when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrive must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone": Nance v. British Columbia Electric Railway Co. [1] . This may not seem logically satisfactory. And, as the day to day work of courts is nowadays so much concerned with the accidents that are the consequences of a mechanized age, it is perhaps inevitable, where damages are ordinarily assessed by juries, as they are in the Supreme Court of New South Wales, that judges should try to produce some consistency or apparent consistency. Justice, it was said, requires this. Without some predictability of the monetary consequences of possible occurrences, the whole of the existing system of accident insurance could, it is said, break down, and the settlement of claims be frustrated. Courts have made pronouncements recognizing the influence of these considerations. And some judges have consciously tried to maintain a general level of damages in cases of the same type by setting aside egregious verdicts. Challenged verdicts are professedly tested against the general run of awards made by judges and juries in other cases. Thus guided, the Supreme Court considers whether a verdict is in fact beyond the bounds of reason. If it is out of bounds, the only remedy is the clumsy procedure of a new trial before another jury; for the Court is governed by the principles of the common law and has no power to substitute its own assessment for that of a jury.

[43]

I confess that I have misgivings about much of this. I have stated my views on some aspects of the matter in Thatcher v. Charles [2] . Even if we are to discard altogether as obsolete or old fashioned such statements as that of De Grey C.J. in Spong v. Hog [3] , that "we cannot impeach the opinion of a jury in one cause by the opinion of a jury in another, especially where the evidence is different, and the point in issue not exactly the same", still for me a difficulty remains. No two cases of personal injury are in fact alike. The most important factors in producing a particular award may have been peculiar to the individual concerned. No real scale can be applied, because no basis of classification is satisfactory. What in some classifications are taken as constants are in particular cases submerged by variables. A subjective adjudication, and here it can be nothing else, depends upon reasoning from examples or by analogies, but not perhaps quite in Aristotle's sense. Adjudication involves the detection of decisive differences, as well as the perception of significant similarities. What weight is to be given to similarities and to differences can only be a matter of opinion. Furthermore, the experience and knowledge of other cases varies with the persons called upon to adjudicate. Since courts have said that conformity with empirically induced standards is desirable, text-book writers and commentators have begun to analyse the results of trials and to produce tables of awards that have been given for different kinds of physical injuries. One American tabulation made in 1951 covers three hundred and sixty double column pages referring to cases of excessive damages, and fifty referring to inadequate damages, arranged alphabetically from "abdomen" to "vertigo" and "wrist", with an index of the occupations of the injured persons and other matters: 16 American Law Reports Annotated 2d. 29; see also the American classification referred to in Munkman, Damages for Personal Injuries (1956) p. 123. These painstaking productions, of which there are now examples in England and here as well as in the United States, are it seems intended to assist in that form of the judicial process that Cardozo J. deprecated, the mere matching of the colours of the case in hand against the colours of samples spread out upon a desk. Yet in this field, more perhaps than in any other, circumstances alter cases. Judges have therefore expressed doubts about the value of these collations of desiccated fact. Nevertheless, when the validity of a monetary measure of what is in reality incommensurable is in question, judges must, consciously or unconsciously, depend upon their knowledge of awards in other cases, whether it be derived from personal experience or gathered otherwise. But what it is said we should look to is not the mean of other awards. It is what, in the language of statistics, would be called the mode. And it is not the mode of verdicts that juries have given, but the mode of those verdicts that courts have not set aside.