Jones v Schiffmann

A factor which the trial judge was bound to consider and which accordingly he did consider in making an assessment was the capacity of the respondent to remarry, a capacity derived from her husband's death. See Carroll v Purcell [1] . There is nothing in the reasons for judgment expressed by the trial judge to warrant the conclusion that in making his assessment of the respondent's financial loss he made any error of law, or misconceived or failed to give due weight to any material fact. The Court of Appeal Division however concluded that he had allowed too large a sum; indeed, as I read that Court's judgment, the sum of $10,000 for the respondent's capacity to remarry. This conclusion could only be derived from and the Court of Appeal did base it upon, what was regarded as an unreasonably low award of damages. The questions this appeal raises are therefore was the trial judge's award of damages to represent the respondent's financial loss in the circumstances so unreasonably low that the trial judge must have erred in some respect in his approach to the assessment: and, if so, was his error, an allowance of $10,000 as the value of the respondent's capacity to remarry? It may be of course that the first question may be answered affirmatively and the second in the negative, in which case it will fall to this Court to re-assess the respondent's financial loss.

The trial judge's award was, in my opinion, low, although the sums he had to deal with were relatively small. It could be regarded as parsimonious; but parsimony is not in itself, error. The husband and wife were young and had a long joint expectancy, subject of course to those hazards embraced in the expression, the vicissitudes of life. Unemployment, ill-health, accidental death, or injury in circumstances which did not produce compensation are realities of life of which substantial and not merely nominal account must be taken. There is no warrant, in my opinion, for requiring the defendant in an action for damages for personal injury to provide the plaintiff with a certainty and security for life or for some period of it in replacement of the uncertain and unsure situation in which that plaintiff may have been. The task of assessment is most difficult. Necessarily it is an exercise of judgment, after consideration of all relevant factors. Where financial loss is the subject of assessment in a case such as this it is no doubt useful, if indeed not necessary to form some opinion as to weekly benefit expressed in money terms of the husband's co-existence with his wife, as some basis for estimating that loss. But when an opinion has been formed as to such a sum, the value of the loss of the prospect of continuance of that support is not in my opinion properly estimated by any multiplication of that sum, or by any multiplication followed by some discounting process. Further, before any total sum is arrived at it must be borne in mind that the payment of that sum provides a capital sum capable of investment. No doubt with proper advice, its investment may increase it as well as provide income by means of it. Whether in particular circumstances, having regard to the amount of the sum, or the position of the recipient such a consequence is likely to ensue is of course a matter for consideration by the judge. But, in my opinion, the duty to both parties in the assessment of damages is not performed unless these matters are duly considered.

In the case of the widowed plaintiff, the capacity to remarry is of value. Undoubtedly that capacity will be much more to some women than to others. Age, appearance, inclination, experience, obligations to children or parents are among the factors to be weighed. But the question is not, in my respectful opinion, whether by the exercise of the capacity to marry the widow is likely to obtain financial improvement or security: or in particular, that the widow is likely to replace, in whole or in part the financial support she had of her deceased husband. No one, I venture to think, could foretell these possibilities. It is not in my opinion a question as to whether the widow is likely to remarry and, if so, with what financial success. Thus statistics, even if reliable as to the percentage of women in Australia or of widowed women of given age brackets who marry or remarry are, in my opinion, irrelevant. The question, I think, is what is the value to this widowed plaintiff of her freedom to marry. Courts are required from time to time to value the destruction of the capacity to marry where man or woman is so damaged as to have lost that capacity, physically or emotionally.

Such an estimation is difficult. To place a value on the widowed plaintiff's regained freedom to marry is no more difficult, though the task in either is undeniably formidable.

Having given the reasons of the Supreme Court (Court of Appeal Division) [1] my anxious consideration, I am unable to find any secure basis for the view that the trial judge valued the respondent's capacity to remarry at the sum of $10,000. Indeed, I can find no clue in his reasons for judgment or in the amount of the damages he awarded to indicate to my mind at what sum he assessed that capacity. I am therefore unable to support the view which commended itself to the Court of Appeal Division.

As I have said, I regard the award of the trial judge as being very low; but, after a great deal of consideration, I am unable to say that it is unreasonably low, so disproportionate to the present circumstances that its amount betokens error. Or to use a phrase which has some currency, I cannot conclude that it is outside the range of the reasonable exercise of the trial judge's discretion in the assessment of damages.

In my opinion, the appeal should be allowed and the judgment of the primary judge restored.

The plaintiff (the appellant) in this case brought an action for damages in the Supreme Court of New South Wales under the provisions of the Compensation to Relatives Act, 1897, as amended (N.S.W.). The plaintiff's husband had been killed in a road accident. The only question for decision at the trial of the action was the quantum of damages due to the plaintiff and these were set by the learned trial judge at $11,083, which sum included $1,083 for funeral expenses and the cost of a tombstone. From that decision the plaintiff appealed to the Court of Appeal which exercised its powers under s. 5 (3) of the Law Reform (Miscellaneous Provisions) Act to set aside the award of $11,083 and to enter a verdict for the plaintiff for the sum of $21,083. The defendant appeals from that judgment to this Court.

In considering whether the Court of Appeal was correct in setting aside the decision of the trial judge and substituting its own assessment of damages the general principles to be observed are those set down by Lord Wright in Davies v Powell Duffryn Associated Collieries, Limited [1] , where his Lordship said [1] :

In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency. 1. [1942] A.C. 601. 2. [1942] A.C., at p. 617.

It cannot be said, in my judgment, that the learned trial judge proceeded upon a wrong principle of law or that he omitted to consider any proper materials or considered extraneous matters. In my opinion however the Court of Appeal was justified in setting aside the decision of the trial judge on the ground that the award of damages was so unreasonably low that the learned judge must be taken to have fallen into some error. I base this conclusion on a consideration of the prospect of the continuance of the deceased husband's future earnings, which the plaintiff has lost, set against the plaintiff's prospects of remarriage. In the light of the learned trial judge's finding that the plaintiff would probably have ceased her own employment in the near future, there would seem to be no other factors which must be weighed. When the consistency and security of the deceased husband's employment and the stability of the marriage, which had at the time of his death lasted for eight years, are taken into account, the prospect of the continuance of the deceased's future earnings must weigh heavily on the scales. Against this must be put the likelihood of a future husband who may or may not be as reliable a source of financial support, bearing in mind that the plaintiff expressed an intention of not remarrying at the trial and that she is apparently no longer able to bear children.

In my opinion the disparity between these considerations leads to a conclusion that the sum of $11,083 was less than any amount which could be fairly regarded as a reasonable compensation for the loss sustained. To be so inadequate as not to be reasonably commensurate with the loss renders the estimate, in my judgment erroneous. It does not however seem to me that the assessment made by the Court of Appeal is so disproportionate to the loss sustained, either in excessiveness or insufficiency, as to be regarded as a wholly erroneous estimate. Only if it could be so regarded would this Court be justified in setting that estimate aside and making its own assessment.

The assessment of damages, whether by a judge or a jury, does sometimes, of necessity, involve what is guess work rather than estimation. For instance, in Chaplin v Hicks [1] , the jury awarded the plaintiff £100 damages for the loss of a chance to win a prize. The Court of Appeal, in refusing to disturb this verdict, said that, had the jury chosen to award one shilling, that verdict would not have been disturbed either.

There is, I think, no way of calculating the extent to which the damages recoverable by a widow in a Lord Campbells Act claim should be affected by her prospects of marrying again. That such prospects are to be taken into account is beyond question: Carroll v Purcell [1] . The extent to which the prospects of a particular widow marrying again will reduce the damages recoverable by her is not, however, a matter which can be governed by rules, even by imprecise rules. It is a matter for the judgment of the assessor in the circumstances of the particular case. Nor do I think it is possible to take a short cut along the lines taken by the House of Lords in Benham v Gambling [2] , when, as an exercise of authority, it was laid down that only small damages should be allowed for the loss of expectation of life. The justification for that decision was seemingly that for everybody life is hardly worth living. It cannot be said, however, that, on the mercenary level of economic advantage, a second husband is hardly worth having. Some unquestionably are. It is not difficult to imagine a case where a widow could reasonably recover but small damages when the death of a former "breadwinner" - to use an opprobrious description - has been quickly followed by marriage to a man who, from his wealth, can provide much more than bread.

More, I think, cannot be said in general than that, in the assessment of her damages, a widow's prospects of marrying must be taken into account and given such consequence as the circumstances of the particular case seem to warrant. Moreover, although in a particular case it may be convenient to take the prospects of re-marriage into account as a deduction from the sum assessed without regard to those prospects (see, for instance, Hollebone v Greenwood [1] , per Sugerman J.A., and the cases there cited), I do not think that this method of assessment is imperative. Thus, if it be known that a widow has already made a most advantageous marriage when her claim for damages for the loss of her first husband comes to be heard, it may well be that the assessment would proceed on the footing that the fact of the second marriage made the case one for the award of small damages only. In all these matters I do not think it wise to generalize too far in an attempt either to guide or to fetter the judgment that must always be exercised by a court upon the facts of the particular case that is to be decided.

In the case with which we are here concerned it is clear that the learned trial judge did take the widow's prospects of marrying again into account in arriving at the sum of $10,000 which he awarded for general damages. His Honour said so. It is, however, impossible to determine the extent to which he awarded less than he would have awarded had he concluded that the widow had no prospects of marrying again to her advantage. To do as was done by the Court of Appeal, and conjecture that the damages would have been as much again as what was awarded had an allowance for prospects of re-marriage been excluded from the assessment, is the kind of guess work that is denied to judges, even if counsel may admit the possibility. Of course, had the learned trial judge done what is conjectured he did, and awarded $10,000 less than he would have otherwise awarded because of what he considered to be the widow's prospects of an advantageous marriage, I have no doubt that it could be said that the award was obviously wrong and should be set aside. I find, however, that I cannot attribute such a method of assessment to the learned trial judge. He said nothing whatever that would support it.

The reasons given by the learned trial judge for his award do not reveal how he arrived at the sum of $10,000 for general damages, but they disclose no error of law in assessing damages at that sum. It is clear enough that what his Honour recognised as a relatively low assessment was based partly upon his correct finding that the widow had not been totally dependent upon her husband. She had been earning $30 net per week when working full time, and, later on, $25 net per week when working part time. His Honour found, correctly enough, that the husband and wife had pooled their earnings, taken from the pool what was needed for the maintenance of the home, what each needed personally, and had saved the balance. If the award was to be disturbed, it was only upon the well established principle that it was so low that it must have been reached by an undisclosed error in its assessment. See Miller v Jennings [1] ; Flint v Lovell [1] , per Greer L.J.; Davies v Powell Duffryn Associated Collieries Ltd. [2] , per Lord Wright; Wilson v Pilley [3] .

1. (1954) 92 C.L.R. 190. 2. [1935] 1 K.B. 354, at p. 360. 3. [1942] A.C. 601, at p. 616. 4. [1957] 1 W.L.R. 1138.

Was this the case? I have, with some hesitation, come to the conclusion that it was. The husband was but thirty-four years of age when he was accidentally killed; the widow was then thirty years of age. They had been happily married for eight years. They were both in good health. The husband was in a secure job earning $68 weekly after tax. He was employed by the New South Wales Railways Commissioner as a driver and, although it was unlikely that he would obtain any higher classification, his job was certain and carried superannuation and other rights. It appears that the couple lived modestly, that they were buying their home and were saving to better their circumstances. On these facts I think the award of $10,000 for general damages was so small that it must have been the result of some error on the part of the learned trial judge. It was, therefore, a case in which I think the Court of Appeal was justified in setting aside the damages awarded and reassessing damages. This they did at $20,000 for general damages. This figure was reached, so far as I can ascertain, on the basis that the learned trial judge would have awarded some such sum if he had not given too much weight to the widow's prospects of an advantageous marriage. As I have already said, there was no basis for so pin-pointing the error which I think must have occurred. Like the learned trial judge, the Court of Appeal did not indicate how the award for general damages, which it made, was reached. It is reasonably clear, however, that their Honours reached their assessment on the footing that the widow's marriage prospects were of little or no significance in assessing damages. In this I think that their Honours were wrong. They did not have the advantage, which the learned trial judge had, of seeing and hearing the widow. Their Honours must, I think, have adopted the general proposition that prospects of re-marriage should be given but little weight and applied this proposition to a case in which the learned trial judge had attributed more than little weight to those prospects.

I have therefore, reached the position that I consider the learned trial judge's assessment was based upon an undisclosed error, and the Court of Appeal's assessment was based upon a disclosed error. In these circumstances it is unfortunately necessary to assess damages again.

I consider that, having regard to the manner of life of the deceased and his widow during the years preceding his death, the benefit she received from his contributions to the family purse exceeded her own contributions to that purse by between $15 and $20 weekly, and that this difference could be expected to increase up to $30 weekly so long as the husband worked. It would, I think, be fair, taking into account all contingencies other than the widow's prospects of re-marriage, to regard her as losing the equivalent of something like $25 weekly for about twenty years, with some additional sum for the prospects of later years. On this footing I would arrive at a sum of $18,000, and taking the contingency of re-marriage into account I would assess damages at $15,000.

I agree that for the reasons stated by my brother Walsh this appeal should be dismissed.

The respondent was the plaintiff in an action in the Supreme Court of New South Wales claiming damages for the injury resulting to her from the death of her husband. The facts proved at the trial are stated in the judgments of other members of this Court. She was awarded $11,083, including $10,000 general damages. She appealed upon the ground that the damages awarded were inadequate and the Court of Appeal Division of the Supreme Court allowed the appeal and ordered that an award of $21,083 be substituted for the award made at the trial. This is an appeal against that order.

In the first place it is necessary to decide whether or not the Court of Appeal was justified in disturbing the decision of the learned trial judge. In this Court much of the argument has been concerned with the reasons for judgment of Moffitt J.A., who delivered the principal judgment in the Court of Appeal. But the question is not whether the reasons of that Court were right but whether its decision was right, and the first step in answering that question is to consider whether the award of the trial judge should have been set aside or allowed to stand.

It is clear that the Court of Appeal considered that the sum awarded was a wholly erroneous estimate of the financial loss suffered by the present respondent. The Court found an explanation for what it regarded as an entirely inadequate award in the conclusions which it reached that the trial judge had made a very large deduction, in respect of the respondent's prospects of remarriage, from what otherwise he would have adjudged to be a reasonable estimate of her damage and that in this respect he was in error. In the judgment of Moffitt J.A., it is stated that counsel for the present appellant "accepted that his Honour probably deducted fifty per cent for the chance of remarriage". [1] But elsewhere Moffitt J.A. expressed the less definite view that "a very substantial amount appears to have been deducted on this account and on one view possibly in the region of fifty per cent". [1]

1. (1970) 92 W.N. (N.S.W.), at p. 795. 2. (1970) 92 W.N. (N.S.W.), at p. 787.

I agree with the Chief Justice and with Menzies J. in thinking that there was no sufficient basis for a conclusion that the learned trial judge had deducted $10,000 because of the respondent's prospects of remarriage from what he would otherwise have awarded. But I am of opinion that it can be inferred, from the reasons of the trial judge and from his fixing of the amount of $10,000 as the general damages, that he did treat the respondent's chances of remarriage as being a large factor in the assessment of her damages. However, in the absence of any statement by his Honour quantifying that factor, it is not possible, in my opinion, to assert that his award was vitiated by a specific identifiable error, consisting of the making of a reduction in the damages for the prospects of remarriage which was demonstrably too high. Likewise, it is not possible to conclude that there was a misuse by his Honour of the figures relating to the remarriage of widows which were admitted into evidence by consent. Nevertheless I have come to the conclusion that the amount awarded was so low that the Court of Appeal was justified in setting aside the award and in making its own assessment of the damages. I am of opinion also that the assessment which the Court of Appeal made was one with which I should not disagree. As will appear, I am not in agreement with all the reasons of the Court of Appeal for its decision but I am not persuaded that the result at which it arrived was wrong.

The citation of the following extract from the judgment of Moffitt J.A. will serve to show, not only the way in which his Honour considered the amount of the verdict had been determined by the trial judge, but also what were the views of Moffitt J.A. as to the amount which would be appropriate, apart from the factor of the prospects of remarriage, to provide compensation for the respondent's financial loss. His Honour said [1] :

If there were full dependence of a widow in the same general situation as the plaintiff and her husband as to their ages, his earnings, his secure work history and secure employment a verdict well in excess of $20,000 would be called for, if no rebate for the chance or remarriage were allowed for. Some support for such a conclusion is to be gained from the guide provided from any one of a number of relevant arithmetic calculations. For example the arithmetic equivalent of half the husband's wages for twenty-five years at six per cent is approximately $25,000. This of course, omits reducing contingencies, except to the extent that it is based on the husband's working life and dependence upon him continuing only to fifty-nine. His Honour, rather than requiring the detail of division of earnings, suggested to the plaintiff that she and her husband benefited equally from the family moneys. To this she assented. If this were so, her loss would be greater than half as some benefits would be jointly shared, such as electricity, rates and essential house and furnishing expenses. On the other hand, as against this, of course, if it be presupposed that probably a child would be adopted and that the plaintiff would not work, expenses in respect of the child would reduce to some degree the plaintiff's share in the husband's earnings for a substantial part of the period of dependence. From these observations it appears clear that the smallness of the verdict, in relation to the matters just referred to, can only be accounted for by a very large deduction in respect of the prospect of remarriage. The prospect of some earnings and a not very great diminution in dependence on this account, in the way dealt with by his Honour would not and, as the terms of his judgment indicate did not, account for the apparent substantial deduction. There are some matters in the foregoing passage which may be questioned. But subject to some qualifications I accept it as setting out a view of the facts which the Court of Appeal might properly have adopted. The statement that the arithmetical equivalent of half of the husband's wages for twenty-five years at an interest rate of six per cent is approximately $25,000 is somewhat generous to the respondent. Her husband's wages were said in evidence to be $68 per week, although the document setting out the wages indicates that they were somewhat lower than that. If the figure of $35 per week is taken as half the wages, the present value equivalent of that sum for twenty-five years at an interest rate of six per cent is a little over $24,000. But no doubt it may be said that on the assumptions made by Moffitt J.A., the starting point for a computation of damages based on calculations of that kind would be "well in excess" of $20,000. 1. (1970) 92 W.N. (N.S.W.), at p. 786.

What is said in the passage quoted about the probability of a child being adopted and about a resultant reduction in the share of her husband's earnings which the respondent would have received is somewhat speculative. But it was mentioned merely as a factor which might possibly reduce what she might have expected to receive. The last sentence in the passage quoted is, I think, a correct statement. The learned trial judge referred to the circumstance that the respondent had been working for a substantial period of her married life and was still working at the time of her husband's death. But he thought that if a child had been adopted she would have ceased to work as regularly as she had previously done or, perhaps, would have ceased altogether to work. Furthermore the respondent gave evidence that the job which she had at the time of her husband's death was temporary and that she had intended to give it up no later than December 1968. She said also that she had been working to help to pay off a mortgage on the matrimonial home.

The fact that the respondent was not wholly dependent on her husband could be properly taken into account in assessing her damages. But in the circumstances it seems right to conclude that it ought not to have been regarded as an important factor. I think, therefore, that it does appear likely that a substantial reduction in what otherwise would have been awarded was made because of the capacity of the respondent to remarry and of her prospects of doing so. As I have said, I think that it is not possible to decide what was the amount which the trial judge allowed for this aspect of the case. Indeed it would be speculation to assume that he arrived first at a figure without taking that factor into account and then made a specific deduction for it. I think it does appear, however, that his Honour's view as to the prospects of the respondent's remarriage must have caused him to arrive at a verdict much lower than the sum which otherwise would have been awarded. But what is important for present purposes is that, in my opinion, the award, considered in relation to all the circumstances of the case, was so low that it was proper for the appellate court to intervene. I am of opinion also that the amount at which the Court of Appeal assessed the general damages was a reasonable assessment of the financial loss suffered by the respondent. In reaching that conclusion I take into account as a significant factor in the case her freedom to remarry. But effect must be given also to the probability that if her husband had not died she would have become dependent to a greater degree on his earnings than she had been in the past and to the circumstance that she might soon have become wholly dependent on them. Although his prospects of advancement were not good his employment was secure. Having regard to what had occurred during the married life, it would be reasonable to conclude that she would probably have benefited to the extent of not less than half his earnings and that those earnings would probably have continued to be available for twenty-five years. In addition it would be necessary to take into account the possibility that she might have continued to receive further support from him for a considerable period beyond twenty-five years and this would be a factor to be offset against the unfavourable contingencies of unemployment, illness and premature death.

I do not think that the decision of this appeal requires me to examine the details of the reasoning by which Moffitt J.A. sought to demonstrate the dangers of error and confusion that may attend the use of statistics relating to the remarriage of widows. But some statements appear in the principal judgment in the Court of Appeal to which I should refer, in order to make it clear that my conclusion that the decision of that Court should stand does not depend upon an acceptance of all its reasons. In his judgment Moffitt J.A. said that where the evidence establishes a prior stable marriage with apparent financial security it seems that "there is no reliable basis to adjust the verdict except by a modest percentage or sum". [1] If this means simply that the adjustment of the verdict should be, in the circumstances postulated, a moderate one then no exception could be taken to the statement. But later in his judgment his Honour made observations which suggest a view that the allowance must be no more than a nominal one unless there is evidence of special circumstances showing that a particular plaintiff is likely to remarry. What his Honour said suggests, also, that unless there is material from which a definite sum or percentage may be calculated with a considerable degree of accuracy, no allowance can properly be made. His Honour stated that unless there is "some just basis" upon which the sum representing the value of the acquisition of the opportunity to marry can be arrived at, there is no ground for making a deduction. His Honour said: "There could be no justification arbitrarily to select or guess any sum and deduct it". [1] He thought that it was difficult to imagine, in the absence of "any real material", that is to say, material enabling one to make something approaching an accurate assessment of the value of the opportunity to remarry, that the sum or percentage allowed "could be other than fairly nominal".

1. (1970) 92 W.N. (N.S.W.), at p. 794. 2. (1970) 92 W.N. (N.S.W.), at p. 795.

Sugerman, A-C.J. in his short judgment appears to have understood Moffitt J.A. to have been asserting that in some cases no reduction need be made because the prospects of remarriage are found to be so slight that for practical purposes they may be regarded as non-existent [1] . But the statements of Moffitt J.A. appear to me to go much further than that and to constitute statements of principle denying the propriety of making an allowance for the prospects of remarriage except upon definite evidence from which the chances of remarriage can be assessed with considerable accuracy. This is a view with which I am unable to agree. Whether or not there is positive evidence of facts rendering a remarriage likely, an evaluation must be made of the worth to the plaintiff of the capacity to remarry which has been acquired in consequence of her husband's death. An estimate must be made which is adjudged appropriate to the circumstances of the case. It is not right, in my opinion, to say that this cannot be done unless there is material upon which an "accurate" assessment may be made. In a case such as the present one in which the widow was still young and had no physical incapacity for marriage it would not be correct, in my opinion, to make no allowance or only a nominal allowance for her capacity to marry.

It is not clear to me from a perusal of the judgments of the Court of Appeal whether that Court applied in this case the general observations of Moffitt J.A. to which I have referred. If it did so, that was, in my opinion, an error. But the passage which I have quoted earlier from the reasons of Moffitt J.A., in which there is mention of a verdict "well in excess of $20,000", suggests that the Court may have taken into account the respondent's capacity to remarry and have treated it as having a real although a moderate value rather than as having no value. But even if the Court made its assessment on the footing that the prospect of marriage was of no significance or almost no significance, I am of opinion that the result which the Court reached was not an unreasonable assessment but was one which was warranted upon a consideration of the whole of the circumstances of the case, including the value of the respondent's freedom to marry.