Rowe v Australian United Steam Navigation Company, Ltd [1909] HCA 25;

Rowe v Australian United Steam Navigation Company, Ltd [1909] HCA 25; - HCA 1909 case summary — Zoe

[18]

I proceed now to the question whether the damages awarded are excessive. There can be no doubt as to the rule to be followed by a Court of Appeal in reviewing a jury's finding on damages. Out of the many decisions cited I shall quote from one which appears to me to lay down the principle in language most appropriated to the circumstances now under consideration. But before doing so I would point out that no exception has been taken to the learned Judge's direction to the jury, except in regard to the evidence of permanent damage which I have already dealt with. Nor is there anything to indicate that in arriving at the amount of their verdict the jury gave effect to any consideration that was not properly admissible. The only question for consideration is whether the verdict is so excessive in amount that the Court ought to set it aside. In Johnston v. Great Western Railway Co.[7] Vaughan Williams L.J., after pointing out that Lord Esher's statement of the law in Praed v. Graham[8] must be read in the light of the other decisions on the subject, says: - "But I repeat that, in my judgment, if the only matter which can be urged against the verdict is the overestimate of the damages, then the rule laid down by Lord Esher M.R. should govern our decision, and there is nothing, so far as I can see, in any other decision of the Court of Appeal which at all impugns what I have just said." Now the rule laid down by Lord Esher M.R. in Praed v. Graham[9] is thus expressed: "I think that the rule of conduct is as nearly as possible the same as where the Court is asked to set aside a verdict on the ground that it is against the weight of evidence. If the Court, having fully considered the whole of the circumstances of the case, come to this conclusion only: We think that the damages are larger than we ourselves should have given, but not so large as that twelve sensible men could not reasonably have given them, then they ought not to interfere with the verdict." If one looks merely at the alleged overestimate of the damages in the present case, I am not prepared to say that the damages are so large that twelve sensible men could not reasonably have given them.

[20]

The plaintiff when in full work earned £182 a year. On that basis, which it was open to the jury to adopt, his actual loss of earnings up to the time of the trial would be £274. Mr. Lilley contended that for pain and suffering at the time of and since the injury, and in the time to come for so long as pain and inconvenience are likely to last, a sum of £500 would not be an unreasonably large compensation. On such a calculation that would leave not more than £1,000 to make up to the plaintiff for the decrease in earning power for the rest of his life which his permanently crippled condition would necessarily entail. There is nothing unreasonable in that view. The amount awarded is no doubt full and liberal; it is probably more than would be allowed by this Court if it were charged with the responsibility of awarding the damages in the first instance. But can it be said that the amount is so large that a jury of sensible men could not reasonably have awarded it? There is no evidence from which this Court can gather the extent to which the plaintiff's ordinary powers of movement have been affected; the jury have had the advantage of seeing him and judging for themselves to what extent his crippled condition will interfere not only with his capacity of doing his work, but with the likelihood of his getting work. A man in search of employment at 52, even if his limbs and health are perfect, begins to feel the competition of the younger men who will eventually drive him off the field. To what extent that stage has been hastened in the plaintiff's case? - How far his lameness will diminish his chance of employment in his own business? - How long it will be before he drops into the ever crowded ranks of those who have to live by casual employment? - These are aspects of the plaintiff's future of which it is impossible that this Court can form as accurate a forecast as the jury who have seen him and heard him give evidence. In a case like this, where the amount is so near the border line between what may be or may not be excessive, I find myself forced to the conclusion that the Court would run a grave risk of doing injustice if it were to send the case back for the consideration of another jury on the ground that the amount of damages was such as sensible men with these considerations before their minds could not have reasonably awarded.

[22]

Turning now to the facts, on which the Court has had the advantage of obtaining information from the counsel on both sides on points left doubtful by the Judge's notes and the affidavits, it appears that the defendants have put forward two grounds of surprise. First, that which relates to the passenger ticket. The defendants have in my opinion entirely failed to prove that they were misled by the plaintiff's solicitor before the trial into believing that the plaintiff had the ticket in his possession. On the contrary, it is clear that on two occasions he told them that he had not got it and did not know where it was. Nor was there anything in the pleadings which should have led the defendants to suppose that the plaintiff would be bound to produce the ticket or give secondary evidence of its contents in his case in chief. The third paragraph of the statement of claim alleges that the plaintiff was carried by the defendants as a passenger for reward on one of their steamers. On the contract implied from that relation of carrier and passenger the law infers the duty, failure in the discharge of which is the negligence complained of. The statement of defence admits that the plaintiff was carried by them as a passenger for reward on one of their steamers but avers that the contract arising from that circumstance was subject to a certain condition. On those pleadings it is, I think, clear that the plaintiff could prove his case without production of the ticket, and that the onus of establishing the condition was on the defendants. This, indeed, was apparently the view taken by all parties at the trial. The contrary view, if sustainable, would have entitled the defendants to a nonsuit. But their counsel, although contending that the plaintiff ought to produce the ticket, does not seem to have thought enough of the point to press it as ground for a nonsuit. I have been unable to see what bearing White v. Great Western Railway Co.[11] and Latham v. Rutley[12] have on the point. They were both cases of variance under the old system of pleading, and I am certainly not satisfied that that aspect of the pleadings was ever present to the minds of the defendants' legal adviser, or that it could have in any way affected his expectation as to the production of the ticket at the trial. The information before us leads me to the conclusion that the defendants ought to have concluded that the ticket was not in the plaintiff's possession, and that they believed it not to be in their own possession. Under these circumstances their plain duty was to be prepared to prove it by secondary evidence. It is apparent from Mr. Jameson's telegraphic reply to the inquiries of this Court that he was relying on Reynolds to give the secondary evidence. That witness had been subpœnaed by the defendants as well as the plaintiff. It is not alleged that there was any difficulty in their obtaining from him what he knew of the matter before the trial began, or that they were in any way misled into supposing that he would be able to give secondary evidence of the contents of the ticket. Yet they appeared to have subpœnaed no other witness on that point, nor do they appear to have made any preparation of their own for putting the secondary evidence before the jury. When Mrs. Sandilands gave her evidence they heard apparently for the first time of the refund made on the ticket by the Townsville office. Then followed the real surprise, namely, the discovery of the ticket in their own possession, but at so distant a place that it was impossible to have it in Court before the end of the trial if the procedure were to follow the ordinary course, the defendants being thus prevented from either producing the original document, or in strict law from giving secondary evidence of its contents. The primary cause of the difficulty was the inadvertence of one of the defendants' clerks in attaching the ticket to the wrong bundle of documents. That might not of itself disentitle them to the relief they are now seeking. But however that may be, it is to my mind clear that the plaintiff is in no way to blame for what had occurred. Under these circumstances what course ought the defendants to have pursued? Surely, to obtain and tender in the first place secondary evidence of the ticket. The tickets are printed in hundreds, and one cannot imagine any difficulty in obtaining such evidence from or through the defendants' office in Cairns. If the plaintiff objected, an application for a reasonable adjournment to enable the original ticket, then on its way from Brisbane, to be produced, would have naturally followed, and it is extremely improbable that it would have been refused. The defendants, however, did not take that course, but having waited until all the evidence on both sides had closed, made this one of their grounds for an application for postponement to the next Cairns Circuit Court, in other words, for a postponement of the trial for six months to enable a ticket to be produced which was then on its way to Cairns by post, or to give the secondary evidence of its contents, which might have been obtained in the course of a few hours. The learned Judge, however, with a knowledge of all the facts and a more intimate acquaintance with the surrounding circumstances than this Court can now obtain, very properly refused the application on this as well as on the other ground. The case went on. The plaintiff had a verdict, and the defendants, on substantially the same material as that which the learned Judge had before him on the application for a postponement, have made the application to the Supreme Court, which is now under consideration.

[23]

I turn now to the second ground of surprise - that the plaintiff and his witnesses unexpectedly gave evidence of permanent injury. The statement of claim did not, in my opinion, claim for permanent injuries. And although the contrary view is arguable and was indeed held by the Supreme Court, I shall assume that the defendants were justified in believing when they came into Court that on the pleadings as they stood no evidence of permanent injury could be given. The case lasted, we are told, a day and a half. The evidence of the first witness, Dr. Tyrie, was, as I have already pointed out, clearly evidence of permanent injury. No objection thereto was made by the defendants, and from that time on the Judge and both parties apparently treated the question of permanent injury, as the Supreme Court have pointed out, as one of the issues in the case. In reference to this ground also the question must be asked - Did the defendants act reasonably when the surprise first came upon them? They requested the plaintiff apparently on the first day of the trial to permit himself to be examined by another doctor. He refused. On that the defendants' counsel appears to have suggested to the Judge that the defendants should be allowed some little time to consider the position, but he did not then make any application for postponement. The Judge intimated that the case must go on in the ordinary way. It may well be taken for granted until the contrary is shown that in a town like Cairns there were other competent medical men besides Dr. Tyrie. Yet, during the whole trial the defendants appear to have taken no steps to secure the attendance of a medical witness on their behalf, or to place before the jury any evidence of the plaintiff's condition in answer to that given by Dr. Tyrie. The only step taken by them to meet the evidence, which it is alleged took them by surprise when given by the first witness on the first day of the trial, was the application for the wholly unreasonable adjournment to which I have already referred in which this was made the other ground.

[24]

The learned Judge's reasons for refusing the application refer to both grounds, and they commend themselves to me as being entirely supported by the investigation which the circumstances of the trial have since undergone in the Supreme Court and in this Court. An adjournment for the few days necessary to ensure the production of the original ticket would have given ample time for a full presentation of the defendants' case, both as to the conditions under which the plaintiff was carried and as to the nature of his injuries. No tangible reason to the contrary has been advanced. But the defendants applied for something more than was reasonable, and there appears to have been no suggestion on their part that any shorter adjournment than that asked for would satisfy their requirements. They have therefore no one but themselves to blame for the present position. Under these circumstances I entirely concur in the views expressed by the Supreme Court as to the grounds of surprise. It is difficult to see how any other view of the facts could be taken in fairness to the plaintiff. At the time of the original trial, when both parties and their witnesses were present, a reasonable adjournment would have enabled the defendants to present their full case to the jury without any disadvantage to the plaintiff which could not be adjusted by an order for costs. But it would now be impossible to so adjust the disadvantage to the plaintiff in having to prepare his case anew for another trial. He must in his crippled condition find work where he can, temporary or permanent as it is available. To put him now in the position of having to so order his employment and living so as to be ready with his witnesses and legal advisers for another trial in some months time would be to alter his position in a way for which no order as to costs could be an adequate compensation. Having in view all these considerations I agree with the conclusions of the Supreme Court on the grounds of surprise, and on the whole case I am of opinion that the appeal must be allowed and the order of the Supreme Court granting a new trial set aside.

[42]

The statement of claim alleged in paragraph 3 that the plaintiff was a passenger for reward on the steamship "Aramac": and in paragraph 4 that while a passenger as aforesaid the defendants' servants negligently left open and unguarded one of the hatches whereby the plaintiff fell into the hold and suffered personal injuries. Paragraph 5 stated by reason of the said personal injuries the plaintiff suffered great pain, and was for a long time incapacitated from work. The defendants admit paragraph 3 so that no evidence at all was necessary on the plaintiff's part to establish the relation of carrier and passenger for reward. He was not called upon, so far as the pleadings were concerned, to prove any contract, and his allegations are consistent with either an ordinary or a special contract of carriage. Nor were the defendants at liberty contrary to their express admission to substantively deny that a contract of carriage existed. I can see no concession on the defendants' part at the trial in not asking for a nonsuit, which would have been wrong. From the facts admitted on the pleadings the law implied an obligation to use all reasonable care in carrying the plaintiff unless the defendants succeeded in proving the contrary. All that the plaintiff on his own case had to do was to prove negligence and damage. The defendants, however, besides putting these in issue, set up affirmatively two allegations either of which if true would disentitle the plaintiff to succeed, first contributory negligence (which is now immaterial), and next that the contract included a special condition of exemption from liability. The burden of proving that special condition of the agreement of course rested on the defendants, and in view of the admissions on the pleadings the defendants were bound to be prepared with the necessary evidence either by way of admission or regular proof in order to get rid of the legal presumption otherwise arising. This was elementary, and was fully appreciated by the solicitors of the defendants.

[43]

One circumstance must be remembered in favour of the defendants. Some of the evidence, explanatory of the defendants' omission to sufficiently prepare for the necessary proof, was not before the learned primary Judge, and so the Full Court had additional means of reconsidering the position. But that tribunal, giving full weight to all the circumstances, nevertheless indicated its opinion as already stated. We have nothing new to guide us. The material facts as to this portion of the case are that on 11th September, nearly a fortnight before the trial, notice to produce the original ticket was given by defendants' solicitors to plaintiff's solicitors, and on the same day a separate notice to admit a ???orm of ticket was given. Defendants apparently went into Court prepared with notice to produce the original, if plaintiff still had it; and with proof of unavailing search if they had had it and lost it, and a form of ticket as secondary evidence. So far as it went, this was admirable. But circumstances rendered it impossible to adduce secondary evidence. Before the defendants' case was opened there was proof that the original was the subject of a refund by the defendants, and was probably or possibly in a department yet unexamined. Its loss, therefore, was not then provable. But the plaintiff was not to blame for the defendants' omission to search in that department. He had, as he swears, actually given up the ticket to the fore-cabin steward of the "Aramac" when he went on board, and had never seen it afterwards. This was on 16th March. Mr. Barnett's affidavit of 5th October 1908, as to the surrender of the ticket on 13th May, appears to be based on inaccurate information. On 13th May a refund was allowed in respect of the unused portion, Townsville to Gladstone, upon a written request of the plaintiff, but the ticket was not then surrendered. Mrs. Sandilands says: - "There was a refund made to the plaintiff on his ticket. I got the money in Townsville at defendants' office on plaintiff's order, £1 15s. Plaintiff did not give me any ticket to give them. I got the money seven weeks afterwards on my return from Rosedale. They did not ask for the ticket." So that it had been surrendered nearly two months before the refund; in all probability returned to the Brisbane office, and put away in its ordinary place (see Mr. Johnson's affidavit). Then says Mr. Stahlschmidt it was - and apparently shortly after 13th May - inadvertently put away in the accountant's department, instead of being handed over to him as the officer in charge of the personal accident correspondence. This at once suggests - rightly or wrongly - that at the time the ticket was put away, the head office had some knowledge that the purchaser of the ticket had sustained an accident. This was by no means improbable, and the order of the plaintiff dated 13th May upon which the refund was made described him in an illiterate way as still being in the hospital, so that a claim was not unlikely. The inference I draw from Mr. Stahlschmidt's affidavit is that with the knowledge then in the company's possession the ticket ought in the ordinary course to have been handed to him to be kept in connection with the accident papers, but by inadvertence was wrongly sent to the accountant's branch. That was error number one. The plaintiff, having personally delivered up the ticket before the accident, cannot be brought into the defendants' difficulty. Mr. Wilson's statement to Mr. Barnett was perfectly true, and in no way misleading. Mr. Wilson was under no obligation to do more; he was not even requested to. His case did not require production of the ticket, and both parties knew that. His reply therefore ought, if anything, to have stimulated the defendants' advisers to require an affidavit of discovery, which would have tested the plaintiff's personal possession of the ticket, and have, at all events, compelled him to state what he had done with it. This is the very object of the provision for that affidavit, and although such a document is sometimes unnecessarily required, this was manifestly a case in which the expedient might have been most advantageously adopted, and would have avoided the whole difficulty. That was error number two.

[47]

When the facts sworn to at the trial traced the ticket to the defendants' possession, and the defendants had not searched in the accountant's department, it was impossible, without further unavailing search, and the presence of the searcher in Court, to prove the loss of the document. No copy of the ticket was tendered and no request was made at the trial to admit a copy by consent. The witness Reynold's inability to prove the verbal identity of the form produced and the ticket issued appears to have paralysed the arrangements of the defence. Reynolds was subpœnaed by both sides, but does not seem to have been definitely asked as to this before going into the box, and so in this respect, as well as with regard to the production of the original ticket, too much trust was reposed on the chance of events which - perhaps unfortunately for the defendants - did not happen as the probabilities suggested. That, however, was the defendants' responsibility. Accepting the most favourable suggestion made on their behalf as to the course taken by the defendants' counsel at the trial, he urged that in view of Reynold's evidence, the plaintiff's counsel should prove the contract by producing the ticket - a contention quite unsupportable upon the pleadings. He also said on the first day he might make an application for an adjournment - apparently to give him time to consider what to do - and eventually he decided to make a formal application for a postponement of the trial for six months. This latter was the only one that the learned Judge had to deal with, whatever had previously taken place this was the real application on behalf of the defendants. There were two grounds on which it was asked, both of which appear to have determined the defendants' counsel, after full consideration, to require the six months postponement - not a temporary adjournment. One ground was to produce the ticket or give evidence of loss and secondary evidence; Mr. Jamieson's telegram of 4th May 1909 produced to the Court stated: - "I applied for postponement trial in order to produce ticket or give secondary evidence in event of it being lost or destroyed." Although it was conceded in argument before us that at some point or other of the trial the learned Judge was told the ticket had been found, defendants' counsel preferred in making the informal application not to assume that absolutely. The other reason was to obtain evidence - that is to search for evidence - as to the nature and extent of the plaintiff's injury complained of. It is observable that no suggestion of surprise as to permanency of injury was made, merely a recognized deficiency or weakness of evidence. The learned Judge refused to "postpone" the trial. That would have involved discharging the jury after all the evidence was closed, when not merely the plaintiff's brief, but his mind and the minds of his witnesses had been probed, and when one avowed object, necessitating probably more than a slight adjournment, and requiring, as the defendants thought and proposed, a lengthened postponement, namely, to look for evidence as to the plaintiff's injuries "complained of," an expression inconsistent with surprise. It would have meant compelling the plaintiff to remain at Cairns until the next sittings, or to return to Cairns, however circumstances may have otherwise led him elsewhere, and it would have required the whole trial to be repeated before another jury. The defendants were asking the learned Judge for the concession to overcome the result of their own errors, having already had the fullest opportunity of meeting every issue created by the plaintiff, and of establishing the issues raised by themselves. The concession would certainly have afforded them an advantage not to be compensated for in costs.

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Parties

Cases Cited (2)

Rowe v Australian United Steam Navigation Company, Ltd [1909] HCA 25; (1909) 9 CLR 1 (10 May 1909)