General Motors-Holden's Pty Ltd v Moularas

The essential facts of the case were simple in the extreme. The plaintiff's tasks included the clearing of the mouth of an operating furnace containing molten metal for which purpose, by the defendant's concession, he needed for his safety a rake of some fifteen feet in length. Also, by the defendant's concession, he needed not merely gloves but gauntlets to protect his lower arms.

Admittedly, on the day of his injury the plaintiff was working at the furnace - and apparently had worked for the greater part of his shift - with a rake not more than eleven feet in length and was wearing at the time of the occurrence gloves but not gauntlets. The disputed area between the parties consisted, on the one hand, in the assertion by the defendant that at another furnace some sixty feet away from that at which the plaintiff was working there was a rake of adequate length, that the plaintiff knew that such a rake was likely to be there, that during his six months' employment with the defendant the plaintiff had on other occasions gone to that other furnace and procured such a rake for his use, that the plaintiff had not bothered on this occasion to look for another rake, that the defendant had provided the plaintiff with gauntlets and had exhibited notices directing their use by employees in the plaintiff's circumstances, and that by its foreman the defendant had on other occasions directed the plaintiff to use them when he was observed not to be doing so; and, on the other hand, in the plaintiff's denial that there was another rake available to him, in his assertion that he had looked around for another and longer rake unsuccessfully, that he had complained to the foreman on this day of the shortness of the rake without any replacement being forthcoming, and in the plaintiff's denial that gauntlets were at any time available to him, or that any notice about them as asserted by the defendant was brought to his attention or that he had ever been spoken to about not wearing them.

The plaintiff was burnt as a result of flame emitted from the mouth of the furnace which he was clearing with the aid of the short rake. The burns extended along and up his arm, higher, it seems, than the part of his forearm which gauntlets of the kind claimed by the defendant to be available to him would have covered had they been in use. The burns healed well but the plaintiff developed a condition of hysterical paralysis, which although temporarily responsive to treatment, ultimately rendered the plaintiff unemployable for a substantial period. His right hand and arm, right leg and right eye became progressively involved and apparently his sexual capacity was affected. He was in this condition at the date of the trial, having deteriorated to such a degree that, as the trial judge observed, he presented a pitiable spectacle. The medical evidence called for the plaintiff - none being called for the defendant - gave the plaintiff a less than even chance of full recovery but a more than even chance of partial recovery. But no medical evidence was given as to when either event might be expected, beyond the statement that there was a possibility of an early autogenous recovery and that treatment of a sophisticated kind might accelerate the event at least of partial recovery. No prognosis was offered of the degree of his employability in the event of either full or partial recovery, or of the nature of the work for which he would then be fitted. It was clear that recovery of the use of his right hand - he being a right-handed worker - was at best and in any event remote.

The plaintiff was a Greek who had migrated here in 1955 and still had very little English, giving his evidence at the trial through an interpreter. He was approximately thirty-eight years and nine months of age at the time of his injury and was a labourer capable of doing heavy work, an above average workman, of a happy disposition and a regular attendant at work. At the time of the injury he was in receipt of £22 per week, of which £19 odd represented his basic rate of pay and the balance overtime. An actuary was called who gave the present values of £1 per week payable to a man aged forty for life as £799, until he was seventy as £748; and until he was sixty-five as £703. These figures he derived from use of the mortality tables and compound interest at the rate of five per cent per annum. In cross examination the actuary admitted that his calculation did not take into account the contingencies of illness and unemployment but only the uncertainty of the date of death. He also admitted that he had used an average rate of interest, on the assumption that the actual rates would fluctuate above and below that rate throughout the periods he was covering in his calculation.

The grounds of the motion to the Full Court were that the trial judge had inadequately presented to the jury the facts of the case, specifically certain facts claimed to tell in favour of the defendant both as to the issue of negligence and as to the issue of contributory negligence, and had failed adequately to relate the facts of the case to the last mentioned issue. But the directions of the learned trial judge on the law to be applied by the jury were not attacked.

In addition, the defendant complained that in presenting the evidence of the actuary as to the present values of a sum of £1 per week for the various periods, and in referring to the plaintiff's earnings current at the time of the injury, his Honour had failed to call the jury's attention to the contingencies and hazards of life and of employment which the plaintiff might have had in any case to endure, contingencies and hazards not reflected in the actuary's computations; and that therefore his Honour's directions as to damages amounted to a misdirection. Finally, the defendant attacked the amount of the verdict itself as excessive.

The members of the Full Court in considered judgments, although not unanimous as to the adequacy of the summing up in relation to the actuary's evidence and to the need to consider the contingencies which might have affected the plaintiff's earnings in any event, were all of opinion that no substantial wrong or miscarriage of justice had occurred and that the damages were not excessive. Accordingly, having regard to the terms of O. LVIII, r. 6, the Full Court dismissed the appeal.

Before this Court the appellant repeated the submissions made to the Supreme Court, adding others which sufficiently appear from what follows.

I need take no time in discussion of the appellant's submissions so far as they seek a new trial of the issues of negligence and contributory negligence. Although the precise relationship of the facts to the issue of contributory negligence might have been more specifically drawn to the jury's attention, in my opinion the summing up as a whole brought sufficiently to their attention both issues and the facts which bore on their resolution. In my opinion there was no misdirection in respect of the issues of liability.

The appellant's submission before us, in addition to complaining that the trial judge had failed to call the attention of the jury to the fact that the actuary's figures ignored the ordinary contingencies of life such as sickness, unemployment or supervening accident, was that the learned judge had failed both in relation to the use of the actuary's figures and to the use of the plaintiff's current earnings, to remind the jury that when estimating general damages they should take into account the plaintiff's predisposition to hysterical reaction if they were prepared to accept the medical evidence on this point.

At the conclusion of the summing up counsel for the defendant submitted that his Honour had not and should have dealt in the summing up "with the proper method of dealing with the actuarial figures" which, as counsel pointed out, did not take into account "imponderables such as unemployment, sickness or other form of accident". Counsel submitted that these matters required the actuarial figures to be discounted.

Both the terms of that submission and what followed are highly significant. The submission related only to a qualification of the summing up in relation to the actuarial evidence, and the suggested qualification related only to what I might call the normal contingencies and hazards of life and did not relate to the abnormal contingencies which might flow from any pre-injury disposition of the plaintiff to hysterical reaction.

The trial judge, on hearing the defendant's submission, was clearly conscious of the fact that he had not given the jury any direction as to the need to consider contingencies and hazards of life which in any case might have reduced the plaintiff's earnings in the future. He asked counsel did he ask him to recall the jury and take up the matter of damages with them again. Counsel, who realized that he faced a dilemma - of either risking undue emphasis in the minds of the jury on the issue of damages or of forfeiting or risking the benefit of the deficiency in the summing up by not requiring the judge to amend his charge, opted to take that risk. In my view he chose not to ask the judge to correct the summing up in the aspects he had raised. In thus reciting the conduct of the trial I am far from criticizing the course counsel took. He was in the atmosphere of the trial and chose what may well have been the wiser course in the interest of his client. But his choice cannot be regarded as without consequence before the Full Court and before us on appeal from the Full Court.

It is quite plain that the trial judge did not, either in relation to the actuary's evidence or in relation to the use of the plaintiff's current earnings, call the jury's attention to the need to have in mind those contingencies of life to which all people in the plaintiff's situation are subject, and specifically to those to which the plaintiff might be peculiarly liable because of his pre-injury condition, if the jury chose to accept the medical evidence of the pre-existence of that condition.

His Honour followed the course of dealing with the facts, including the medical evidence, in a global manner, counsel no doubt having done so in addressing the jury. This led him to refrain from specifically relating the evidence as to the plaintiff's pre-existing disposition to hysterical reaction to the need to consider to what contingencies the plaintiff might have succumbed had there been no injury. But in dealing with the matter of the assessment of damages generally and very properly charging the jury not to be extravagant but to be fair to both parties, doing the best they could in weighing the uncertainties in the case, his Honour did call their attention to the evidence that the plaintiff was thought to have an hysterically predisposed personality, and that what had happened to him subsequent to the injury was a condition that might develop in other circumstances. I think in this case his Honour ought specifically to have alerted the jury to the way in which they were entitled to use this evidence when assessing damages. But I do not think that, having regard to what he did say, there was any misdirection. In addition, counsel, who had heard the summing up and who may have thought that the jury had had their attention sufficiently called to the significance of the plaintiff's alleged predisposition to hysterical reaction, made no request to his Honour to alter his summing up in this respect.

Dean J. and Gowans J. thought that the jury ought to have been told to have in mind the ordinary contingencies and hazards of life when using the actuary's figures. Gowans J. felt constrained to this conclusion because of the authorities to which he referred in his judgment, but particularly because of what was said by the Court of Common Pleas in Phillips v. London and South Western Railway Co. [1] .

No doubt there are some directions to a jury which are so indispensable that they must be given in all cases, but as to other directions, the infinite variation of the facts of cases, and the varying consequences of the manner in which they are fought and the different ways in which a summing up may communicate the issues and the facts of a case to a jury make it, in my opinion, undesirable to make any universal and inflexible rule with respect to them. I do not read the authorities as setting up any such rule with respect to the direction to a jury that in assessing damages for future economic loss in respect of uncertain periods of time, account must be taken of the contingencies and hazards of life which might in any case have reduced the plaintiff's earnings had no injury taken place. But it ought to be given as of course, unless there are some special features in the case which make it clear that the jury are unlikely, having regard to what has taken place at the trial, including the terms of the summing up itself, to overlook the matter. The circumstance that these contingencies are not the subject of specific, or of any, evidence and that their existence is a matter of general knowledge rather requires that the direction be given than excuses the failure to do it. In general, the jury should be clearly told that in assessing future economic loss, they must have regard to such effect as they think the ordinary contingencies of life including, where appropriate, the possibility of his advancement, would have had on the plaintiff's earnings. Where actuarial computations are proffered in evidence it is most important that the jury are clearly told of the contingencies of which the actual computations take no account, and directed to make allowance in their use of these figures, if they use them at all, for the effect which they think these contingencies would have had in the plaintiff's case. Nothing of this kind was put to the jury in this case and there was nothing in its facts, or in its conduct, or in the summing up generally which, in my view, relieved the trial judge of the need to give such a direction to the jury. In my opinion the summing up was defective in this respect.

However, the defendant at the trial raised only the failure of the judge to call the jury's attention to the need, when considering the actuary's figures, to consider the contingencies of life. None of the other matters were raised in any form or at all during or at the conclusion of the summing up. As I have already indicated, counsel for the defendant did raise the first mentioned matter but deliberately declined to ask the trial judge to recall or redirect the jury on the point.

The Supreme Court in exercising its jurisdiction to grant a new trial is supervising its own procedures to ensure that no miscarriage of justice has occurred. In this it has of necessity a wide discretion which ought not to be reduced by any universal formulation of the occasions for its exercise. No rule has been made in Victoria requiring that, without the leave of the Court, new trials will not be granted for misdirection or non-direction where the point of criticism of the summing up has not been taken at the trial in such manner that the trial judge has an opportunity to remove the criticism by redirecting the jury before they consider their verdict. But the common law on this matter is quite clear. Without attempting an exhaustive statement, it is established that, generally speaking, a criticism of the summing up which is capable of being cured at the trial must be taken at the trial and the judge asked to correct it. If this is not done in a case where it ought to be done, a new trial on the basis of that criticism of the summing up will, in general, not be ordered. Again, the matter is not the subject of any hard and fast rule, because the court retains a general discretion and is able in a proper case in the interests of justice to relax the requirement.

But there are, in my opinion, no features in this case for not insisting on applying the general rule and refusing a new trial because no exception was taken to the summing up except as to one limited point and as to that point the judge was not asked to correct his summing up.

This is sufficient to dispose of the submissions other than that which asserts that the damages were excessive. I would wish to say, however, that I see no reason to disturb the finding of the Full Court of the Supreme Court that they were not satisfied that any substantial wrong or miscarriage resulted in this action. It may be conceded that if a jury are not told to take into account contingencies which may reduce the estimate of damages, they may possibly give a higher amount than they would have otherwise given. But to say that, therefore, the very failure to give the necessary direction is a wrong or miscarriage is, to my mind, to eliminate from the rule its most salutary feature, namely, that notwithstanding the error in the summing up, the court must be satisfied that there was a substantial wrong or miscarriage. Nor is this feature of the rule satisfied by a defendant raising the theoretical possibility that the jury may have been misled by the erroneous summing up. There must be something in the actual result which points to that possibility, and points to it as something more than a mere speculation.

It may also be conceded that a decision of the Court that the damages in a case are not excessive does not, in general, mean that there can have been no substantial wrong or miscarriage. But in some cases it would be exceedingly difficult to be satisfied that there has been such a wrong or miscarriage where the damages are found not to be excessive. This, to my mind, is such a case. I do not merely find the damages not excessive (and in this regard I am content with the judgment of Gowans J.), but I find nothing in the amount of the damages to lead me to think that this jury may have been misled by the errors of the summing up into failing to make allowance in estimating damages for matters of general knowledge and, in relation to the plaintiff's condition, of evidence.

In my opinion this appeal should be dismissed and I find it necessary to advert only to the question whether the learned trial judge's charge to the jury was deficient on the issue of damages and whether, if so, a new trial should be ordered. On all other matters I am content to adopt the reasons given by Gowans J. in the Supreme Court.

The particular attack which was made upon his Honour's charge was that in directing the jury as to the manner in which they should approach the problem of assessing the appellant's future economic loss he neglected to tell them that they should take into consideration "imponderables such as unemployment, sickness or other forms of accident". The objection was taken at the conclusion of his Honour's charge that he had so neglected and it sufficiently appears that his Honour recognized that it would have been proper, in the circumstances of the case, to have given such a direction. But I agree with the Chief Justice that the discussion which then ensued and which is recorded in the transcript shows that counsel for the defendant at the trial elected to leave the matter where it stood and not have the jury recalled to hear a further direction on damages. No doubt he made this election having in mind that he had dealt with the matter in his address and that his Honour had observed towards the conclusion of his charge that counsel had addressed at length and submitted their arguments to the jury and that they should give such weight to those arguments as they thought they deserved.

In my view the charge to the jury was defective in the particular suggested. However, I do not wish to be taken as saying that it is imperative that in all cases and in all circumstances such a direction, which it is suggested should have been given, must be given. But having regard to the directions which were given in the present case it was, I think, necessary that the qualification which the omitted direction tends to introduce should have been explicitly brought to the notice of the jury. Nevertheless, I am firmly of the opinion that its omission in this case should not lead to a new trial. I have in mind the emphatic observations of Lord Halsbury in Nevill v. Fine Art & General Insurance Co. [1] in which the other noble Lords who sat in that case concurred and which have been followed in cases such as Seaton v. Burnand [1] ; Greenlands Ltd. v. Wilmshurst and The London Association for Protection of Trade [2] and Barber v. Pigden [3] . Some of these cases were referred to by Windeyer J. in Jones v. Dunkel [1] in a passage which has recently received the approval of the Judicial Committee in Jones v. Skelton [1] . It is true, no doubt, that a new trial may be ordered in spite of the fact that the relevant objection was not taken at the trial, but when a point of the description now raised is taken at the trial and then, to all intents and purposes, abandoned it is difficult to conceive what justification there could be for directing a new trial. It may be that some cases may arise where the interests of justice may require that there should be a new trial in such circumstances but in my view they would have to be of a very special character and that is not the case here. I observe in passing that in Balenzuela v. De Gail [2] and Bray v. Ford [3] , which were relied upon by the appellant, new trials were sought upon points which had been taken at the trial and it is not to be supposed that Lord Halsbury, who delivered the first speech in Bray v. Ford [3] , thought that his observations in that case provided the answer to the point which, in the following year, he discussed in Nevill's Case [4] .

1. [1897] A.C. 68, at p. 76. 2. [1900] A.C. 135, at p. 143. 3. [1913] 3 K.B. 507, at p. 563. 4. [1937] 1 K.B. 664. 5. (1959) 101 C.L.R. 298, at p. 315. 6. (1963) 37 A.L.J.R. 324, at p. 329. 7. (1959) 101 C.L.R. 226. 8. [1896] A.C. 44. 9. [1896] A.C. 44. 10. [1897] A.C. 68. Menzies J.

The appellant, against whom a jury found a verdict for £19,797 14s. 0d. damages for negligence in an action against it by the respondent, an employee who was injured while at work, unsuccessfully appealed to the Full Court of the Supreme Court of Victoria seeking a new trial. This is an appeal from that refusal.

The appellant asserts misdirection on the part of the learned trial judge both on the question of liability and that of damages and also attacks the verdict as unreasonably high. Because I have no doubt that the decision of the Full Court was correct in so far as it held that the direction in relation to the appellant's negligence was unimpeachable and that the amount of the verdict was not so high as to be unreasonable, I shall say no more about these matters. I do, however, find it necessary to examine in some detail the criticisms that have been made on behalf of the appellant of the charge to the jury in relation both to contributory negligence and to damages.

The respondent is a labourer who came to Australia from Greece in 1955. He still has little English. When the accident with which this litigation is concerned happened he was about forty years of age. In 1960 he began to work for the appellant and part of his job was to feed swerf, as scraps of soft metal are called, into an electric furnace and to keep the lip of the furnace clear by periodically using what was called a rake to push accumulations of molten metal into the furnace. A rake with a handle about fifteen feet long was normally used for this purpose but on the occasion in question the respondent was using a rake with a handle only nine feet long. It was not in dispute that the handle of the rake which the respondent was using was so short as to be dangerous, for the operation necessitated pushing the rake about three feet into the furnace. The respondent was severely burnt when, while so engaged and about four feet from the furnace, flames shot out of the opening. The negligence alleged was the failure to provide a rake with a longer handle and long gauntlets to protect the respondent's arms. The contributory negligence alleged was failure to use a proper rake alleged to have been available, and gauntlets, with which, it was alleged, the respondent had been supplied. There was a sharp conflict of evidence between the respondent and the appellant's foreman. The former swore he had complained to the foreman about the rake available for his use and that his complaint had been disregarded and that, further, he had not been provided with gauntlets until after the accident. The foreman denied the complaints alleged, swore that a long-handled rake was readily available in the vicinity of the furnace and claimed that he had issued the respondent with gauntlets and told him to wear them at all times when pushing swerf into the furnace. The foreman said further that he had remonstrated with the respondent from time to time for failing to wear gauntlets and that he had explained to the respondent a notice in English posted in the vicinity of the furnace directing the use of gauntlets when pushing swerf into the furnace. It is apparent, therefore, that the allegations of negligence and contributory negligence both arose out of matters upon which the respondent and the foreman contradicted one another. In these circumstances it was quite natural and proper for the learned trial judge in charging the jury to deal but once with the facts upon which issues of negligence and contributory negligence both depended. However, his Honour did this when dealing with one of the questions put to the jury which related only to the issue of the appellant's negligence. His Honour had earlier directed the jury upon the law relating to contributory negligence and later, when coming to the application of that law to the facts while dealing with another question, his Honour did no more than say: "The question of contributory negligence, I have endeavoured to explain to you what that means too, that contributory negligence on the part of the plaintiff. I have told you that the onus of proving that is on the defendant and you have got to ask yourselves whether that has been shown. I do not propose to go into the details bearing on that, gentlemen. These matters have been canvassed before us in argument in the addresses by counsel for the defendant and counsel for the plaintiff, and if there is any part of the evidence which you think might bear upon that issue, then I will be only too glad to read it from the notes to you if you will let me know".

The appellant complains that the circumstances of the case required a direction which explained why particular findings open to the jury upon the evidence could lead to the conclusion that there had been contributory negligence and how it would affect the verdict - for example, a finding that gauntlets had been issued and that the plaintiff's neglect to wear them contributed to the accident. This was a case in which the application of the law might have not been simple but in all the circumstances I am not prepared to differ from the view of the Full Court that the issue of contributory negligence was sufficiently presented to the jury. The law was correctly stated and the jury could not have failed to understand that the issues of negligence and contributory negligence were separate, notwithstanding that their conclusion as to each would depend very much upon the view they took of the conflicting evidence of the respondent and the appellant's foreman.

This leaves for consideration the question of his Honour's direction about damages for loss of earning capacity.

It appeared that the respondent had, after recovering from his burns, started work again with the appellant but soon became completely incapacitated by reason of hysterical paralysis and hysterical anaesthesia. From the medical evidence called on behalf of the respondent himself the jury could and perhaps should have found that the respondent, before the accident, was a man disposed to hysterical disabilities. The burden of that evidence was that the accident had precipitated the type of reaction to which he was predisposed. At the time of the trial the respondent's condition was described by the learned trial judge to the jury as follows: "He presents a pitiful spectacle, a spectacle I suppose that must evoke the sympathy of us all". It is not my purpose to catalogue the many disabilities contributing to this result but, to take one of them, the respondent's arm was described by Dr. Springthorpe as virtually dead. In relation to it the doctor said: "Cannot move. Cannot feel. Cannot do anything". Dr. Springthorpe, however, gave the respondent a fifty/fifty chance of complete recovery. When asked about the prospects of less than a complete recovery, the doctor thought an improvement in his condition short of complete recovery was less probable. Part of the plaintiff's case was the evidence of an actuary that the present capital value of an annuity for a male aged forty at the rate of £1 a week on the basis of a five per cent return was for life £799; until age of seventy £748; and until age of sixty-five £703. His Honour's direction upon damages emphasized that the evidence was that the respondent had a reasonable chance (a fifty/fifty chance) of recovery. His Honour went on to say: "That means that he" (i.e. the respondent) "has not satisfied you that probably he will not, but there is the risk - and a very appreciable risk - that he will not recover, and for that risk that he will be compelled to go on submitting to these injuries, and all the disadvantages and disabilities that flow from them, he is entitled to be compensated but you do not approach it on the footing that you have been satisfied that he will never get better. The evidence does not justify such a conclusion. You have been told that he may get better very quickly, with a little bit of treatment. You have been told, on the other hand, that he may not, and it is a very difficult question, gentlemen". Then follows a passage which has been subjected to a good deal of criticism: "You have had the evidence of the actuary as to what the loss of one pound a week means over various periods, and that has been referred to in the addresses of counsel, but, of course, once you depart from those periods, those figures perhaps are not of very great assistance to you, but you will realize that he was, according to the evidence, earning, with overtime, something like £22 a week, and for the period for which he may be deprived of the capacity of earning his living, then he will be entitled to be compensated on that footing, bearing in mind that any sum that you award him for loss of future wages will be a lump sum now, instead of a sum spread over the period it would have taken him to earn it".

Neither in the passage just quoted nor in any other part of the direction did his Honour point out to the jury that if the accident for which the respondent was seeking damages had not happened, nevertheless other circumstances might have happened to prevent or hinder the respondent, a man predisposed to hysterical paralysis, from earning his living. The first question is whether, in the circumstances of this case, that omission amounts to a misdirection.

I agree with Dean and Gowans JJ. that it does because in the result the jury were not adequately instructed that, in considering loss of future earnings or of earning capacity, they should arrive at a figure which in their judgment represented the present value of wages which the plaintiff could have been expected to earn in the future had this accident not occurred, having regard inter alia to his own condition of health prior to the accident and the vicissitudes of life such as early death, sickness, accident and unemployment, the occurrence of which would affect the estimate. In the passage last quoted from the direction, the learned trial judge did refer to the evidence of the actuary which in this case is substantially a matter of arithmetic. His Honour did, I think, discourage the jury from applying that evidence but quite properly left it open to them to do so. The direction meant that, if the jury accepted one of the actuary's three periods as the respondent's probable working life, they could use the actuary's figures in reaching a figure without any warning that, if they did so, they might find it necessary to make adjustments to that figure for what are often called contingencies. In this way his Honour left it open to the jury to calculate the damages upon the actuary's figures without telling them that, should they do so, they could not simply do a multiplication sum without bringing other contingencies - favourable or unfavourable - into consideration. Now it may be said that, if the jury had chosen to work upon the actuary's figure of £703, it could be that they chose that figure in preference to one of the other higher figures because they thought that the respondent's abnormal susceptibility to the risk of incapacitating illness would confine his working life to the age of sixty-five years. Nevertheless, even if that were to be the case - and there were other possibilities that were not to be disregarded by the jury - the jury should have had present to their minds that they should also give consideration to other contingencies such as unemployment and sickness before the age of sixty-five as factors possibly reducing his future earnings. The authorities hereafter cited show, I think, that it is for the judge to ensure by an appropriate direction that the jury will have such considerations in mind. In the passage of the direction under discussion his Honour went on to point out that, if the jury were not to accept any of the actuary's three periods, his figures of £799, £748 and £703 would not be of assistance and went on to say "but you will realize that he" (i.e. the respondent) "was, according to the evidence, earning, with overtime, something like £22 a week, and for the period for which he may be deprived of the capacity of earning his living, then he will be entitled to be compensated on that footing". The words "for the period for which he may be deprived of the capacity of earning his living", which counsel for the respondent sought to read as meaning "for the period which you may think he is likely to be deprived of the capacity of earning his living", do, I think, in themselves constitute a misdirection, for the words his Honour here used, if taken literally left it open to the jury to say that, as the injured man's chance of recovery is only fifty/fifty, he may be deprived for life of the capacity of earning his living and he is therefore entitled to damages on the footing of £22 more or less per week for life. Furthermore, however, if the actuary's figures were to be put on one side, it was necessary for the judge to indicate to the jury that in that event they should consider whether, if the accident had not happened, other things might have occurred to prevent the injured man from working before death or old age would, in the ordinary course of events, put an end to his working life. It is not my purpose to attempt to lay down a rule of universal application but the rule generally applicable in such a case as this is, I have no doubt, that to be derived from the decision of the Court of Appeal in Phillips v. London and South Western Railway Co. [1] . That general rule is that when a jury has to assess damages for loss of earning power or future earnings resulting from an injury, they ought to be directed inter alia that they should in some way take into account the possibility that, independently of the injury, the occurrence of other contingencies to which the plaintiff was subject might have brought about some loss of earning capacity or earnings. Damages of this sort, whether regarded as for loss of earning capacity or as for loss of future earnings - and I do not enter into the kind of debate to be found in Street's Principles of the Law of Damages, pp. 44 et seq. - must, in the ordinary case, be calculated by reference to the loss of expected future earnings and it is necessary for the jury to be directed to take into account matters affecting that expectation in the particular case. There is, of course, no hard and fast rule determining how a jury must take these and other vicissitudes into account. It could, in such a case as this, be by making adjustments to a life annuity: see Phillips' Case [1] , per James L.J. [2] . It could be in choosing, as the term of the successful plaintiff's working life, a period which allows for susceptibility to harm peculiar to the particular man and making such minor adjustments as may be thought necessary for unemployment, temporary sickness and the like. The only point made here is that in some way or other the jury must, in the ordinary case, have their attention adequately directed to their task of fixing this element of damages by taking the present value of the plaintiff's loss of expected future earnings.

1. (1879) 5 C.P.D. 280. 2. (1879) 5 Q.B.D. 78. 3. (1879) 5 Q.B.D., at p. 84.

To establish what I have called "the general rule", I need do no more than cite three passages from the judgments of the Lords Justices in Phillips' Case as reported in [1] . Bramwell L.J. said: "I have put a case where a definite term may be fixed upon within which the party injured will recover; but suppose a case in which no definite term can be fixed: in that case the direction to the jury is that they must consider for themselves how long the plaintiff will be incapacitated from earning his livelihood or practising his profession, but that they must take into account the chance of his losing employment if he had not met with the accident" [1] . Brett L.J. said: "I have so far been speaking of the period between the time of the accident and the date of the trial. With regard to subsequent time, if no accident had happened, nevertheless many circumstances might have happened to prevent the plaintiff from earning his previous income; he may be disabled by illness, he is subject to the ordinary accidents and vicissitudes of life; and if all these circumstances of which no evidence can be given are looked at, it will be impossible to exactly estimate them; yet if the jury wholly pass them over they will go wrong, because these accidents and vicissitudes ought to be taken into account. It is true that the chances of life cannot be accurately calculated, but the judge must tell the jury to consider them in order that they may give a fair and reasonable compensation" [2] . Cotton L.J. said: "The plaintiff is not to receive an annuity for the rest of his life calculated on the amount of his income; it was possible that he might have been disabled by illness or other causes from continuing to earn it; after taking into account the chances affecting the income, the jury were to say what, in their opinion, was a fair compensation for the disability, whether permanent or temporary, under which the plaintiff came of practising his profession and earning the income which he previously enjoyed" [3] . Phillips' Case [4] was applied by the Full Court of the Supreme Court of Victoria in McDade v. Hoskins [5] and Ritchie v. The Victorian Railways Commissioner [6] . I am not disposed to regard Tonkin v. Jumbunna Coal Mine N.L. [7] as a departure from the rule adopted by the Supreme Court of Victoria in the earlier cases. The decision there, so it seems to me, was that the trial judge had by his direction fairly brought to the attention of the jury that they should remember that no man who lives by his hands or by work can be sure how long he will be able to earn anything at all, how long he will live, or how long he will be unaffected by those vicissitudes which are liable to affect any and every man. The decision, I think, turns upon the view that was taken of the particular charge under consideration and whether, as to that, it was right or wrong, is unimportant. I would add, however, that to the extent to which there is any inconsistency between Tonkin's Case [1] and the earlier cases I think the earlier cases are to be preferred and, in particular, I would say here, in anticipation of what I will elaborate later, that I do not see how the size of a verdict between the limits of what is not unreasonably low and what is not unreasonably high can help a court to decide whether or not a judge's direction upon the law as to damages has been sufficient.

1. (1879) 5 C.P.D. 280. 2. (1879) 5 C.P.D., at p. 287. 3. (1879) 5 C.P.D., at pp. 291, 292. 4. (1879) 5 C.P.D., at p. 293. 5. (1879) 5 Q.B.D. 78. 6. (1892) 18 V.L.R. 417. 7. (1899) 25 V.L.R. 272. 8. [1906] V.L.R. 41. 9. [1906] V.L.R. 41.

This case presented no special features to take it outside what I have described as the general rule. Indeed, the evidence that the respondent was predisposed to hysterical paralysis constituted a special consideration weighing heavily against the correctness of his Honour's departure from that rule. This was not merely a case for taking into account the ordinary vicissitudes of life; in addition there was evidence that the respondent was abnormally susceptible to incapacitating disability.

It does not follow, however, that the inevitable consequence of the non-direction, which left the direction given a misdirection, is an order for a new trial on the question of damages and it is necessary now to consider both the application of O. LVIII, r. 6, of the Rules of the Supreme Court of Victoria and the course that was taken at the trial with regard to the learned trial judge supplementing his original direction.

Dean and Gowans JJ., having found that there had been misdirection as to the assessment of damages, applied O. LVIII, r. 6, which provides, so far as is relevant, that a new trial shall not be granted on the ground of misdirection "unless in the opinion of the Full Court some substantial wrong or miscarriage has been thereby occasioned in the trial". It is perhaps unnecessary to say that this Court pays particular regard to the Full Court on matters involving the practice of the Supreme Court and would make an order different from that of the Full Court in a case involving the rule in question only when this Court is nevertheless satisfied that the order of the Full Court is wrong. When that happens this Court must, of course, make the order that ought to have been made in the first instance (Judiciary Act, ss. 36 and 37; Burston v. Melbourne and Metropolitan Tramways Board [1] ; Fairbairn v. Cummins [1] ). Furthermore, the Full Court has from time to time expounded O. LVIII, r. 6, and again great weight must be accorded here to the exposition so given.

1. (1948) 78 C.L.R. 143. 2. [1961] A.L.R. 205.

The leading Victorian case on the subject is unquestionably Holford v. Melbourne Tramway and Omnibus Co. Ltd. [2] , a decision of Madden C.J., a'Beckett and Cussen JJ. which has often been referred to with approval in the Supreme Court and in this Court - e.g. by Dixon C.J. in Balenzuela v. De Gail [3] . There Cussen J., in a judgment of great authority, said with regard to the rule under consideration: "But it is an error to think there never can be a wrong or miscarriage unless it can be shown that the jury were in fact influenced in giving their verdict by a misdirection. There is a wrong or miscarriage occasioned by a misdirection in law, or as to the application of evidence, if, as a final result of what has been said by the Judge, the jury retire to their room under a wrong impression in relation to these matters, and the result of the case is such as to show that they may have been influenced in their verdict by the misdirection. "Miscarriage" is a technical word, and includes this technical meaning. The plaintiff's counsel contended that the onus of showing the miscarriage is on the party asking for the new trial. I think this is clearly right, but I think that onus is satisfied when the facts appear to be as above set out, and that unless the party opposing the grant of the order for a new trial can point to some further fact, the conclusion that there was a miscarriage must be drawn" [4] . When Cussen J. said "and the result of the case is such as to show that they may have been influenced in their verdict by the misdirection", his Honour was not directing attention to considerations such as the size of the verdict in such a case as this although no doubt if, in the event, the verdict had happened to be not more than the lowest figure that a reasonable jury could properly have found, no new trial would be ordered because that result would show that the jury had not been influenced by the misdirection. It seems to me clear that the rule is not to be read as allowing a new trial to be ordered for misdirection or for improper rejection or admission of evidence only in a case where, had there been no such error, a new trial would have been ordered for some other reason, e.g. that the verdict was unreasonably large or small. Cussen J., in the passage under consideration, was saying that unless the result is consistent with a substantial miscarriage in the trial - that is, consistent with the jury having been misled by a misleading direction - a new trial will not be ordered. There is, of course, the highest authority against an appellate court applying the rule by undertaking to decide for itself whether or not a misdirection of law actually affected the assessment of damages: Bray v. Ford [1] and the passage in the judgment of Dixon C.J. in Balenzuela v. De Gail [1] where Bray v. Ford [1] is cited.

1. [1909] V.L.R. 497. 2. (1959) 101 C.L.R. 226. 3. [1909] V.L.R., at p. 526. 4. [1896] A.C. 44. 5. (1959) 101 C.L.R., at p. 236. 6. [1896] A.C. 44.

The question at this point is then whether the misdirection with regard to the assessment of damages occasioned a substantial miscarriage in the trial. I cannot escape from the conclusion that it did for it left the jury to assess damages for future loss of earnings or loss of earning power on a wrong basis prejudicial to the appellant and there is nothing to show that the jury were not misled. In Balenzuela v. De Gail [2] Dixon C.J. said: "The form in which the judicature rule is cast seems to indicate an intention that the court should not grant a new trial unless it reached a positive opinion, in other words unless it was persuaded that a substantial wrong or miscarriage had been occasioned by the error" [3] . In this case I am so persuaded. In coming to the opposite conclusion Dean J. said: "In the present case I cannot suppose that the omission of the learned judge to direct the attention of the jury to the necessity for considering possible events in the future really affected their ultimate assessment of damages. The actual amount awarded is not so high that it should be set aside as excessive and unreasonable. The matter omitted was not one to which any evidence was or could be directed. It was a matter which would be likely to occur to a jury when it was determining the probable period of the future employment of the plaintiff, even though not expressly referred to by the learned judge". Gowans J. said: "In the present case the nature of the misdirection or non-direction and the question of the damages awarded, must be weighed together to see if the jury has been misled" and his Honour then concluded that the award was not so high as to be outside the limits of what was reasonable. This led to his decision that the rule applied.

1. (1959) 101 C.L.R. 226. 2. (1959) 101 C.L.R., at p. 235.

It will be seen that each of the learned judges rests his decision that the rule forbade the ordering of a new trial in this case wholly or in part upon his conclusion that the damages awarded were not so high as to be outside the limits of what was reasonable. In this way the absence of an independent ground for a new trial has been made the criterion for determining that there should not be a new trial for misdirection. So understood, the rule would, in a case like the present, warrant an order for a new trial only in a case where the appellant was otherwise entitled to a new trial. With this I must, with respect, disagree. When there has been a misdirection of law that puts a party to the hazard of a verdict higher than if there had been no misdirection, the fact that a verdict not so high as to be unreasonable has been found would ordinarily be an immaterial consideration even if the question for the court of appeal were whether the misdirection had actually affected the verdict. If in a case a reasonable verdict would have been between £15,000 and £20,000, how could the return of a verdict either of £16,000 or £19,000 show whether or not a misdirection, the maximum result of which could not be ascertained, had influenced the verdict? The question for the court of appeal, however, is not whether the misdirection did affect the verdict; it is, as Cussen J. said in Holford's Case [1] , whether the jury may have been influenced in their verdict by the misdirection. If so and in the absence of anything else, the misdirection brought about a substantial miscarriage in the trial. The manner in which Cussen J. in Holford's Case [1] drew a distinction between misdirection of law and misdirection of fact illuminates the point under discussion. His Honour said: "There is a distinction, in my opinion, between a misdirection in the law relating to a material issue or relating to the application of evidence and a misdirection relating merely to facts. In the latter case there may be no substantial wrong or miscarriage, unless it appears affirmatively from the verdict or otherwise that the misdirection has led to injustice, which generally is the same in effect as saying that the verdict is against evidence. It is assumed in most cases that the jury, who have or ought to have heard the evidence, will probably correct any mistake of mere fact. But in matters of law and relevancy of evidence, the jury should be guided by the Judge, and as it is practically impossible to inquire into their deliberations, the cases show that a wrong or miscarriage has been done when the Judge finally allows them to retire with a wrong or imperfect guide, and that it is not necessary, in order to get a new trial, to show affirmatively that the verdict would have been the other way if the direction had not been given" [1] . The judgment of Cussen J. is in accord with Bray v. Ford [2] and is supported by the judgment of Dixon C.J. in Balenzuela v. De Gail [1] . It is true that in the lastmentioned case the Chief Justice's observations about the judicature rule were not necessary for the decision of that appeal but they were deliberately made with the citation of the relevant authorities. His Honour, after referring to the questions of onus of proof and to the possible existence of a distinction that a more substantial miscarriage is required under the judicature system than at common law to justify the granting of a new trial, said: "But whether it be the rule at common law or under the judicature system a much more important restraint must be observed upon the discretion of the court to refuse a new trial. The court, where the determination of questions of fact is not entrusted to it, cannot substitute its judgment for that of the jury in purporting to decide whether a substantial wrong or miscarriage has occurred" [1] . His Honour, after referring inter alia to a misdirection touching standards of liability wrongly exposing a party to the appreciable hazard of a verdict against him that otherwise might not have been found, said [2] : "But where the error is of law and is one of the foregoing description, it is not for the court to proceed to inquire into the facts of the case and form a conclusion as to what the jury would or should have done had the trial proceeded entirely in conformity with law and without any misdirection or misreception or erroneous rejection of evidence. That is what the decision of the House of Lords in Bray v. Ford [3] means. See per Lord Greene M.R. in Braddock v. Bevins [4] ". Here the misdirection resulting from the non-direction was not merely about the evidence which had been given nor as to matters of fact in issue at the trial. The misdirection was a misdirection of law because, by reason thereof, the jury were left to assess damages without the guidance of a complete and correct statement of the way in which the law required that damages should be assessed.

1. [1909] V.L.R. 497. 2. [1909] V.L.R. 497. 3. [1909] V.L.R., at p. 527. 4. [1896] A.C. 44. 5. (1959) 101 C.L.R., at pp. 235, 236. 6. (1959) 101 C.L.R., at p. 235. 7. (1959) 101 C.L.R., at p. 236. 8. [1896] A.C. 44. 9. [1948] 1 K.B. 580, at pp. 599, 600.

It follows, I think that although an appellate court can and should determine whether a misdirection upon a point of law may have affected the verdict of the jury, there is in the ordinary case no way for an appellate court to decide whether or not a misdirection did so and the rule does not invite an appellate court to attempt to decide this.

Accordingly, in this case in the absence of any further relevant consideration there was a substantial miscarriage in the trial occasioned by the misdirection in the law which exposed the appellant to a higher verdict than if the misdirection had not occurred and O. LVIII, r. 6, does not prevent the making of an order for a new trial upon the issue of damages.

In the judgments of other members of the Court, reference has been made to what occurred between counsel and the learned trial judge in the absence of the jury concerning the misdirection as to damages. The objection that was taken, as I read it, did not cover the whole ground of the misdirection and it was advisedly not pressed to the point of a request for further direction. As Cussen J. said in Holford's Case [1] : "The practice in Victoria, and I think England as well, has been uniform that an error in law in the direction of the Judge on a material issue may be taken advantage of on an application for a new trial, though no objection has been taken at the trial [1] ". Here, however, counsel deliberately and perhaps not unwisely chose that the jury should return their verdict without any further direction from the learned trial judge upon the question of damages and, in these circumstances, I agree with the other members of the Court for the reasons which they have given that this Court should not exercise the discretion which it has to order a new trial.

1. [1909] V.L.R. 497. 2. [1909] V.L.R., at p. 524.

My view of this case accords generally with that of the Chief Justice. I wish only to state my opinion on some matters of general application that were discussed during the argument.

First, as to calculations of future economic loss put forward in cases of personal injury: These are ordinarily based primarily on a discounting of notional future periodic earnings at an assumed rate of interest - five or six per centum being usually taken. A question then arises, and I agree that a jury should be made aware of it, of the allowances to be made to relate such calculations to the probabilities of a particular case. They are necessarily made on certain assumptions, and their value must depend upon how far those assumptions are accepted as valid. Those assumptions are twofold. One is as to the period of time for which the plaintiff would, if he had not been injured, have earned or been capable of earning - that is to say the duration of working life of which he has been deprived by the accident. In a case of total incapacity that is often taken to be until the age of sixty or sixty-five. The other assumption is as to the rate of remuneration that, if he had not been injured, the plaintiff would for the assumed period have enjoyed. In most cases neither assumption necessarily fits the facts. Some allowances and qualifications are called for by what are now commonly referred to in this connexion as the contingencies of the future or the vicissitudes of life. What should be the extent and manner of that correction must depend upon the circumstances of the particular case, upon the jury's estimate, necessarily imprecise, of what, had he not been injured, would have been the lot of the plaintiff in future years. Is it likely that he would have continued to earn or been able uninterruptedly to earn throughout the assumed period? Might his earning capacity have been cut short within the period, or might it on the other hand have endured beyond it?

It is for the jury to consider these things. If the calculation put before them be an actuarial one, made by reference to average mortality experience, the possibility of the assumed period of working life being cut short by death is already allowed for to the extent of the average of the community; but probabilities peculiar to the individual plaintiff have not. If before the injury he in fact had some frailty or disease likely to result in early death or incapacity for work, some further allowance for that may seem to a jury proper. If, on the other hand, the calculation under consideration be not of an actuarial character but purely arithmetical, then it should be remembered that it makes no allowance at all for the possibility of death within the assumed period; and that is to be allowed for. Interruptions of the assumed earning period by sickness, unemployment or other causes must also be allowed for to the extent that seems reasonable in the particular case. But it is necessary to bear in mind that it is not interruptions of any kind of a notionally continuing employment that have to be allowed for, but only interruptions during which the plaintiff would have been unpaid or for which he would not have been entitled to compensation.

The assumed rate of wages or remuneration is usually that which the plaintiff was earning before he was injured. In some cases it may be reasonable to assume that it would have remained constant throughout the assumed period. In other cases the probability may be that he would have prospered or been promoted and earned at a higher rate. On the other hand the probability may be that, because of his age or other circumstances, his rate of remuneration would have declined. A jury, or a judge sitting without a jury to assess damages, cannot predict such contingencies and evaluate their effect with any precision or by reference to any formula. Provided they be borne in mind the consequences of doing so are much at large. I have said all this because, when it is said that in assessing damages regard must be had to the contingencies and vicissitudes of life, what is meant is not some idea of the chances of the future in the abstract or of the lot of mankind in general. It is the case of a particular person, the plaintiff, that has to be considered, having regard to what it was likely that the future would have had in store for him.

I agree that, in general, a trial judge in summing up the facts to a jury and instructing them in the way in which they should approach their task in a case of this sort should refer to these matters. But what he should say must vary with the particular case. It must much depend upon the course of the trial, including what counsel said in their addresses. Appropriate directions on matters of fact cannot be made into formulas of universal application, for the facts of cases vary. Sometimes a compressed statement may serve as a sufficient reminder to a jury of the bearing that the contingencies of the future may have upon their assessment. Sometimes more explanation may be desirable. Seldom, I would think, would any elaborate disquisition be required. Enough should be said, however, to direct their minds to these considerations, lest they should be carried away by mere abstract calculations. I agree that in this case the learned trial judge when summing up the case to the jury did not adequately put this aspect to them, although I find it hard to suppose that they had been left unaware of it by counsel.

It is important to bear in mind, however, that this means only that the jury were inadequately instructed on a matter of fact, not that they were misdirected on a matter of law. I have stated in other cases my view of the effect of this distinction in its relation to new trials. To avoid entering upon the topic here I merely refer to Jones v. Dunkel [1] ; Balenzuela v. De Gail [1] ; and Transport and General Insurance Co. Ltd. v. Edmondson [2] . An erroneous direction of law, if on a material matter and capable of affecting the result of a trial, will, generally speaking, be a ground for a new trial as of right. But a new trial is not necessarily ordered because of the way the trial judge has discussed the facts. There is then a wider discretion. The observations of this Court in Manning v. Bernard Manning & Co. Pty. Ltd. [3] are in point. We were pressed with what was said by Cussen J. in Holford v. Melbourne Tramway and Omnibus Co. Ltd. [4] . I fully appreciate the force of it in a case to which it is applicable. But it is not applicable to this case. Here there was no misdirection in point of law. If defects in a summing up on some matter of fact are to be made the ground of an application for a new trial, the matter should have been brought to the attention of the judge at the trial while there was an opportunity for him to correct the mistake or supply the omission, as the Privy Council recently recognized in Jones v. Skelton [1] . This is not an inflexible rule; for a common law court in banc has a wide discretion to order a new trial in an action tried by a jury when justice appears to require it. But it is a salutary rule which should ordinarily be observed. I can see no reason for departing from it in this case.

1. (1959) 101 C.L.R. 298, at pp. 313, 314. 2. (1959) 101 C.L.R. 226, at p. 244. 3. (1961) 106 C.L.R. 23, at pp. 31, 32. 4. (1960) 101 C.L.R. 345, at p. 351. 5. [1909] V.L.R. 497, at pp. 522-526. 6. (1963) 37 A.L.J.R. 324, at p. 329.

The Supreme Court of Victoria did not think this case was one for a new trial. That decision ought not, I think, be disturbed. I would therefore dismiss the appeal.

This is an appeal against an order of the Full Court of the Supreme Court dismissing a motion for the new trial of an action in which the jury had awarded the respondent £19,797 14s. 0d.

In 1961 the respondent was employed by the appellant as an unskilled labourer, his duties being to attend to an electric furnace in which steel scrap was melted. His work necessitated opening the furnace door from time to time and pushing back the material in the furnace to prevent it from obstructing the door. For this purpose he was provided with a metal "rake". On 8th March 1961 he was carrying out this work when a flame came out through the furnace door and his right hand and arm were burnt. The burns themselves were not of a serious nature but the incident produced a supervening incapacitating condition of "hysterical paralysis" which affected first his hand and arm and later his leg. By the date of the trial in May 1963 this condition had become worse and, on the medical evidence, it was open to the jury to conclude that it was probable that it would continue for a long time and perhaps for the rest of his life. At the time of the accident the respondent, a Greek who had come to Australia in 1955, was 38 years of age and was earning a net weekly wage of £22 2s. 6d. His claim against the appellant was based upon two allegations of negligence. First that the "rake" with which he had been supplied was not reasonably adapted for the purpose of clearing the opening into the furnace because it was too short and he had therefore to stand closer to the furnace than would have been necessary had a longer rake been provided. Next, that he was supplied with gloves which covered only his hands and wrists instead of gauntlets which would also have protected his forearms. That there was evidence upon which a finding of negligence on both these points could be made against the appellant was not questioned. Nor was it suggested that a finding of contributory negligence could not have been made since there was evidence that gauntlets were provided but that, on this occasion, he was not wearing them and that a longer "rake" was to his knowledge available for his use.

The new trial was sought upon a number of grounds. In the first place it was submitted that, although the learned trial judge had correctly directed the jury on the law relating to negligence and contributory negligence, he had failed to present adequately to them the evidence upon which the appellant relied in denial of the charge of negligence made against it and in support of the charge made by it that the respondent had been guilty of contributory negligence. In the Full Court, Gowans J. dealt in detail with the contentions put forward on behalf of the appellant on this part of the case. His Honour reached the conclusion that no ground had been shown for granting a new trial on these issues and Herring C.J. and Dean J. agreed with that conclusion and the reasons for it. In the course of his judgment his Honour quoted and applied a passage from the judgment of Dixon J. (as he then was) in Bugg v. Day [1] , which is much in point in the present case: "To grant a new trial in a civil case upon the ground that the charge to the jury did not fairly and adequately submit the case of one or other party to them is a course which the court may take where the court is satisfied that it would be a manifest injustice to leave the verdict standing. But it must be a very strong case and that is a description which certainly cannot be applied in the present instance" [1] . I think it unnecessary to say more than that I am of opinion that, for the reasons given by Gowans J. with which I agree, the case is not one in which it would be proper to order a new trial on the issue of liability. The evidence relating to the charges of negligence and contributory negligence was short, clear and simple. The trial lasted for some days and was conducted by experienced counsel on both sides who no doubt emphasized to the jury the evidence relating to liability on which each relied. There is no justification, in my opinion, for thinking that it would be a manifest injustice to leave standing the findings for the respondent on the issues of negligence and contributory negligence.

1. (1949) 79 C.L.R. 442. 2. (1949) 79 C.L.R., at p. 462.

It was further submitted that the learned trial judge, when summing up on the question of damages, failed to tell the jury that, in considering what amount they should include in their verdict for future loss of earning capacity due to the injury, they should take into account the contingencies and vicissitudes that might have affected the respondent's capacity to earn had the accident not occurred. These contingencies and vicissitudes might of course have operated either in his favour or against him. For example the possibility that, if he had not been injured, his pre-accident rate of earning might at some future date have increased would require to be taken into account along with the possibility of reduced earnings due to such matters as illness and the like or to periods of unemployment. The cases, of which Phillips v. London and South Western Railway Co. [1] is an example, show these are relevant matters to which the attention of the jury should be drawn by the judge presiding at a trial. Unfortunately no reference to them was made in the summing up in the present case, although parts of the cross-examination of a medical witness and of an actuary called for the respondent were clearly directed to the point and it is reasonable to assume that counsel for the appellant did not overlook them in his address to the jury. Their Honours in the Full Court rightly took the view that in this respect the summing up was defective. They were, however, not satisfied that, having regard to all the circumstances, the failure to give the direction had occasioned a "substantial wrong or miscarriage" within the meaning of O. LVIII, r. 6, which provides that "A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence unless in the opinion of the Full Court some substantial wrong or miscarriage has been thereby occasioned in the trial, a new trial should not be granted". While I agree with their Honours that the summing up was defective in this respect, I felt some doubt whether it could properly be said that the appellant had failed to show that a substantial wrong or miscarriage was thereby occasioned. On reflection, however, I am not prepared to disagree with the view taken by the Full Court, and, in addition to the matters to which their Honours referred, I am influenced by the attitude adopted by counsel for the appellant at the close of the summing up. He drew the learned judge's attention to the fact that in dealing with the actuarial evidence he had failed to point out to the jury that it took no account of contingencies "such as unemployment, sickness or other forms of accident", prefacing his remarks by saying: "The final matter that gives me some concern and I confess I am not sure whether now is the right time to do it or that anything can be done". His Honour asked him: "Do you think it is a good thing if I take up this matter of damages again with them?" Counsel replied: "As I prefaced these remarks I am in a dilemma, Your Honour, as to whether you ought to do it now or not; but it is submitted it ought to have been done in the charge. That is why I feel at this stage it may be throwing the charge out of balance by adverting to those matters, but it may be hereafter someone will have a comment to make from on high that, "Well, you had your chance and you did not take it" ". His Honour said: "Yes. Well, you are asking me to do it" and counsel replied: "It is submitted those are the matters". It seems plain enough from what occurred that while counsel did not wish to be met, if there should later be an appeal, with the objection that he had not asked the judge to make good the omission in the summing up, he was fully aware, as would be anyone with experience of nisi prius work, of the real risk of prejudice to his client should the jury be called back to Court, after they had retired to consider their verdict, to hear some further direction from the judge on the subject of damages. It was no doubt for this good reason that, in answer to what was obviously an enquiry from the Bench whether he wanted to take that risk, he made the cryptic reply: "It is submitted that those are the matters". I have no doubt that, in the circumstances as they then appeared, counsel was acting in the best interests of his client. But it does not seem to me that he can now complain that a substantial wrong or miscarriage occurred when the fact is that he preferred, at that stage of the trial, that the omission in the summing up should not be rectified.

Finally, it was submitted that the amount of damages awarded was excessive. Here again the relevant evidence is set out in considerable detail in the judgment of Gowans J. It is unnecessary to repeat it or to do more than express my agreement with him and the other members of the Full Court that the amount awarded, although undoubtedly high, did not exceed the limits of reason.