General Motors-Holden's Pty Ltd v Moularas

General Motors-Holden's Pty Ltd v Moularas - [1964] HCA 39 - HCA 1964 case summary — Zoe

[20]

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.

[28]

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] .

[32]

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".

[35]

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".

[37]

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.

[39]

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.

[45]

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.

[49]

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.

[65]

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.

[67]

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.

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Judgment (68 paragraphs)

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