© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the official source for authoritative text.
[1961] HCA 5
High Court of Australia
1961-03-06
Fullagar J
Original judgment source is linked above.
THATCHER v. CHARLES [1961] HCA 5; (1961) 104 CLR 57
Fullagar(1), Kitto(2), Menzies(3) and Windeyer(4) JJ.
Negligence - Child injured by defendant's car - Conversation with defendant prior to accident - Threat of retaliation by child's father if child injured - Admissibility - Conversation with defendant subsequent to accident - Defendant accused of driving too fast - No reply - Admissibility - Whether wrongful admission of evidence justified new trial - Whether damages awarded excessive - Action for damages - General Rules of the Supreme Court (N.S.W.), O. XXII, r. 15.
FULLAGAR J. In this case the Full Court of the Supreme Court of New South Pamela Ann Charles, recovered damages against the defendant Thatcher in respect of injuries suffered when she was struck by a motor car driven by him. The grounds of the appeal to that Court, and of the appeal to this Court, were (1) that the learned trial judge was in error in admitting evidence of certain conversations, (2) that the damages awarded by the jury were excessive. (at p60)
2. The conversations in question were two. The first took place at some unspecified time before the accident. There was evidence that Thatcher was in the habit of riding a motor cycle about the community housing centre in which the accident occurred, and evidence (which I should have thought clearly inadmissible) that he rode it in a dangerous manner. The father and mother of the plaintiff deposed that on one occasion the father (who was chopping wood at the time) said to Thatcher in the presence of the mother: "If you run over one of my children, I will put this hatchet through you." To this, it was said, Thatcher made no reply. The two versions of what was said are not identical, but the difference is immaterial. (at p60)
3. This evidence was, in my opinion, clearly inadmissible. It was put that it conveyed to the defendant a warning of the fact that children frequented the area. But this appears to me to be an altogether unreal view. Neither the purport of what the father said, nor the purpose of its being tendered in evidence seems to me to have had any genuine relation to the knowledge of the defendant that children frequented the place of the accident. The evidence went to show that the defendant was in the habit of riding his motor cycle so recklessly as to provoke an emphatic protest from an observer. This was quite irrelevant matter, and the only possible way in which its introduction could really advance the plaintiff's case or damage the defendant's case was by creating prejudice in the minds of the jury by conveying the impression that the defendant was an habitually reckless driver of motor vehicles. In that aspect it could be very damaging indeed to the defendant, but it had no real bearing on any issue in the case, and it ought, in my opinion, to have been excluded. (at p61)
4. The other conversation took place shortly after the accident between the plaintiff's mother and the defendant. According to the plaintiff's mother, she said to the defendant: "Why did you do it? You drive too fast around here. We have always said you would collect somebody." To this, she said, the defendant made no reply. This evidence also was, in my opinion, inadmissible. This is a civil case and not a criminal case, but even in a civil case I do not think, generally speaking, that evidence of statements made to a person and not denied by him is admissible unless it is fairly open to a jury to infer an admission of a relevant fact from the silence of that person. Here it was, I think, out of the question for the jury to infer any admission. What was said (apart from the introductory question) did not relate to the specific occasion in question. It may be that there should be implied in it an accusation of fault on the specific occasion. But the defendant (who denied the conversation) said that he was "very upset" after the accident - as he would naturally be - and the mother was most probably even more upset. He would naturally be most unwilling to enter into an argument with her. In the circumstances, it would be most unfair to treat his silence as an admission - so unfair that I do not think it could properly be left to the jury to say whether there was an admission or not. Again, of course, the suggestion of habitual reckless driving could be gravely prejudicial to the defendant. (at p61)
5. The question then arises whether a new trial on the question of liability should be ordered by reason of what I regard as the erroneous admission of the two conversations. It is easy to imagine cases in which a new trial would be ordered almost as a matter of course on such a ground. But a new trial is never a matter of course, and I am of opinion, on the whole, that a new trial on the question of liability should not be ordered in this case. The evidence of negligence was very strong indeed. There was a lily that needed no painting by inadmissible evidence. The objectionable evidence being excluded, it is almost impossible to imagine a jury finding against the plaintiff on the issue of negligence. It is quite impossible, I think, to say that an affirmative finding on that issue involves or may involve, a miscarriage of justice. Apart altogether from the fact that no objection was taken to the second conversation, I do not think that a new trial should be ordered on the question of liability. (at p62)
6. It remains to consider whether the damages awarded are excessive in the relevant sense. The verdict was for 15,000 pounds, of which something less than 1000 pounds is to be regarded as special damages. (at p62)
7. This is what might be described as an extremely "sympathetic" case, and peculiarly apt to be tried, as some of these cases are, in an atmosphere of some artificiality. The learned trial judge fully realized this, and - very wisely, I think - warned the jury against allowing sympathy to lead them to undue generosity. But I think that the risk of such a result here was materially increased by the admission of the evidence which I regard as inadmissible, and I do not think that the jury in fact gave adequate heed to his Honour's warning. It is only with much reluctance that I differ from the learned judges of the Supreme Court, but I think that, if we apply the principles which have been so often laid down, we must order a new trial as to damages. (at p62)
8. I do not propose to review the evidence, though I have, of course, anxiously considered it. I agree with the general view of it set out in the judgment of Menzies J. (at p62)
9. Nor do I think it necessary to discuss the law relating to damages for personal injuries or to the proper function of appellate courts in relation to the verdicts of juries. I would, however, make two observations of a negative character. (at p62)
10. First, I am quite unable to accede to the proposition that it is not material to consider the income which may be derived from the investment of the amount of a jury's verdict. On the contrary, I think it must often be a most material consideration. There are cases in which a plaintiff cannot be properly compensated except by means of something in the nature of an endowment, which will provide him with a substantial income for the rest of his or her life. This is not, in my opinion, such a case. Surely it must be material to consider that the sum awarded may be safely invested to produce a gross income of about 15 pounds per week. The only objection to considering it, so far as I can see, is that it tends to bring out the realities of the situation - the practical significance of the verdict. Secondly, while it is quite true to say that the purchasing power of money has declined very considerably over the years, the fact remains that even today the sum of even 10,000 pounds is, to the vast majority of people, a large sum of money. (at p63)
KITTO J. I have had an opportunity of reading the judgment of my brother Fullagar. I agree in it, and I have nothing to add except as to the quantum of damages. The jury awarded 15,000 pounds. Special damages were proved to the extent of about 630 pounds, and estimates were given that possible future operations, if undergone, would cost about 300 pounds. The amount given for general damages must have been at least 14,000 pounds. The task of the jury in regard to general damages was not to fix an amount which could be regarded as a perfect compensation or an equivalent of the mischief done for restitutio in integrum by means of money is not possible and is not the objective which the law accepts: British Transport Commission v. Gourley [1955] UKHL 4; (1956) AC 185, at p 208 . The objective is to give fair compensation, neither more nor less. The question for the Full Court of the Supreme Court was whether the jury's award was out of all proportion to the circumstances of the case. The question for us is, I think, the same, although in considering it we must of course pay great attention to the opinions which have been expressed by the learned judges below. Consideration of the material before us has led me to the conclusion, notwithstanding the weight of their Honours' opinions, that the jury awarded more for general damages than could reasonably have been considered fair compensation for the plaintiff's injuries. The plaintiff was quite badly hurt, and obviously is entitled to substantial damages; but the permanent or long-term effects upon her are fortunately not grave. In making a detailed catalogue of the consequences which have flowed from the accident there is a danger of making them seem more serious than they are. The outstanding fact is that the plaintiff is to a very great extent restored to her former brightness and to the full enjoyment of life. Disadvantages remain, and they are not negligible; but their seriousness may easily be overstated. In particular I may mention the use that was made during the argument of the fact that the plaintiff has some residual and probably permanent facial scarring. To an extent, as the evidence shows, the scars may be concealed by suitable arrangement of the hair. We were asked to assume that nevertheless there is so considerable a disfigurement that even the plaintiff's chances of future employment may be substantially affected. Although it was pointed out to counsel that the point was not one for assumptions, we were not invited to judge for ourselves whether the jury, who saw the plaintiff, might reasonably have taken so serious a view. From the whole of the evidence I have formed a clear opinion that although the plaintiff must necessarily recover damages to the extent of some thousands of pounds the limit of reasonableness falls quite definitely short of the verdict. (at p64)
2. No doubt in many cases the fact that a long time has gone by since the happening of the accident may be taken into account in deciding whether there ought to be a new trial on a question of liability. The reasons are obvious. But as regards damages for personal injury, the same considerations hardly apply. There may even be a distinct advantage in a later over an earlier trial, because the later the time the more fully informed may be the conclusion which is reached as to the enduring results of the accident for the injured person. The lapse of time in the present case appears to me to provide no argument against directing a new assessment. (at p64)
3. I would allow the appeal and order a new trial as to damages. (at p64)
MENZIES J. This appeal from a decision of the Full Court of the Supreme Court of New South Wales is concerned with an action where there was a verdict and judgment for 15,000 pounds damages in favour of the respondent against the appellant for injuries which the respondent suffered when in March 1952 she was knocked down by the appellant's car, which he was backing in a passage way between huts at the Community Housing Centre, Hargrave Park, where the respondent lived with her parents. The respondent is a girl, who at the time of the accident was six years of age. In the Full Court, the appellant unsuccessfully contended that at the trial evidence had been wrongly admitted and there had been a misdirection in relation to the evidence and that excessive damages had been awarded. The same contentions were advanced before us. (at p64)
2. The questions of admissibility concern two statements sworn to have been made to the appellant; the first by the respondent's father in the presence of her mother some time before the accident; the second by the respondent's mother immediately after the accident. (at p64)
3. After giving evidence of the later conversation, the mother's evidence in the course of her examination-in-chief was as follows:-
"Q. Prior to this occasion had Thatcher ridden around on his motor bike in and round and between the huts where you lived? A. Yes - (objected to).
Mr. Henchman: I take the same objection as before to that question.
His Honour: This would be on a different basis - his knowledge.
Mr. Henchman: Yes.
Mr. Moffitt: Q. Is that right? A. Yes. Q. Were you present on an occasion
after that had been happening, when your husband said something to him? A. Yes.
Mr. Henchman : I object. If it had to do with his knowledge, well and good, but if it has to do with his riding of the motor cycle, then I object.
His Honour : I will allow it.
Mr. Moffitt : Q. Firstly, just answer this question : Was something said in
this conversation, about your children ? A. Yes. Q. I do not want the other parts, but the part that was said about your children, in reference to his driving ?
Mr. Henchman : Before or after the accident ?
Mr. Moffitt : Q. Was this before the accident ? A. Yes. Q. Tell us what your
husband said in reference to your children. A. He said 'If you run over one of my children I will put this hatchet through you'.
Mr. Henchman : I submit that has nothing whatsoever to do with this case.
His Honour : It must have ; he was being warned about the fact that there
Mr. Henchman : What has this gentleman's threats to do with any liability in this case - 'I will put a hatchet through you'.
His Honour : I should have thought that that was most material.
Mr. Henchman : I ask that my objection be noted.
His Honour : Yes. I allow that question."
The father also, after referring to the appellant's riding a motor cycle in the neighbourhood, gave the following evidence in the course of his examination-in-chief:-
"Q. I do not want all that was said, but did you prior to this accident speak to Thatcher, the defendant, and make some reference to your children ? A. That is correct.
Mr. Henchman : The same objection as before.
His Honour : I will allow it.
Mr. Moffitt : What was it you said to Thatcher ? A. I said 'If any of you
fellows hit any of my kiddies' (I was chopping wood at the time) 'I will drive a tomahawk through you', or words to that effect." (at p65)
4. The setting in which the evidence of the father's statement was given suggests to me that the real concern of the respondent's counsel was to prove that the appellant had the reputation of a reckless motor cyclist whose mode of riding before the accident had merited a blunt warning of retaliation in the event of injury to the family to which the respondent belonged, but the prejudice that the evidence would unquestionably create afforded no ground for the rejection of the evidence if it were relevant. The ground of its admission, as is apparent from what has already been quoted, was that the appellant was being warned that there were children in the neighbourhood, i.e., in the vicinity of the hut where the respondent lived with her parents. The warning of the likelihood of the presence of children where motor vehicles may be driven is a common expedient to put drivers upon the alert to exercise particular care for their safety, but I have with some hesitation reached the conclusion that this evidence was not really of that character. I need say no more on this matter than that I agree with what has been said by Fullagar J. (at p66)
5. The second statement concerned forms part of the setting to which I have already referred because, sandwiched in the middle of her evidence relating to the appellant's riding of his motor cycle before the accident, which led up to evidence of the father's threat, the respondent's mother gave the following evidence of a conversation which took place immediately after the occurrence of the accident. It was as follows:-
"Q. After this accident, on the same day, did you go and speak to Thatcher ? A. Yes, I did. Q. Whereabouts was he then ? A. Still in Mrs. Cornish's hut. Q. What did you say to him ? A. What I can remember, I said 'Why did you do it ? You drive too fast around here. We have always said you would collect somebody'. What else I said I do not remember. Q. What did he say to that ? A. He did not say anything." (at p66)
6. This is the other evidence that the appellant claims was wrongly admitted, but it was, understandably enough, not objected to. I say this because counsel could not have anticipated evidence of the sort that was sprung upon him. The failure to object, however, is fatal to the admission of the evidence constituting a ground of appeal because O. XXII, r. 15 of the Supreme Court Rules (N.S.W.) provides that no decision as to the admission of evidence shall, without the leave of the Court, be allowed as a ground of appeal unless objection is taken at the trial. (at p66)
7. My conclusion, therefore, is that the appellant is not entitled to a new trial upon the ground that evidence was wrongly admitted, notwithstanding that the way in which the evidence in question was adduced engenders some misgiving about this aspect of the case. (at p66)
8. Upon the conclusion of his Honour's summing-up, counsel for the appellant made the following application:-
"Mr. Henchman : . . . Your Honour referred to the conversation that Mrs. Price had with the defendant, and the defendant's silence as being possibly an admission. I submit your Honour ought to direct the jury that that conversation could not be taken as an admission of negligence in this case because it was not a charge of negligence in this case.
His Honour : No, it was a charge of driving too fast.
Mr. Henchman : On other occasions.
His Honour : That may be, yes.
Mr. Henchman : And it could not be taken as an admission of negligence in
His Honour : I will not direct the jury on that." This refusal, which related to the second statement to the appellant, is the next ground of appeal. It seems to me, however, that once evidence of the second statement was admitted, it would have been wrong for his Honour to have told the jury that it could not be taken as an admission of negligent driving at the time of the accident. It was only as such an admission that it was admissible, and however flimsy it may appear as an admission of careless driving on the occasion of the accident - and for my part I do not regard what occurred as amounting to such an admission - it is not possible to order a new trial on the ground that his Honour should have told the jury to disregard evidence that had without objection been admitted, which is what the application that was made really amounted to. This was, however, a case where the following warning of his Honour to the jury was most apposite : "This is a case, gentlemen, where it would be very easy for you to allow your sympathies to rule your judgment, and you must guard against that because if you were to allow your sympathies to prevail, it is obvious that you would be denying to the defendant the justice that he is entitled to expect at your hands. You must regard the matter and consider the issues dispassionately and cold-bloodedly and if you do that, then nobody will be prejudiced." (at p67)
9. This brings me to the submission that the award of 15,000 pounds damages was excessive. The injuries that the respondent suffered were very serious. First and foremost, her skull was fractured with the loss of bone that will leave a permanent hole in the skull, which, however, is covered with firm fibrous tissue that will protect the underlying brain except that "any sharp instrument could readily penetrate there", to use the language of Dr. Sofer-Schreiber. She also suffered severe lacerations to her face, which healed leaving scars. There was a compound fracture of the right humerus which, though serious at the time, has healed and is unlikely to cause any disability. The left tibia was also fractured, but it too has healed. Her injuries required surgical and medical attention involving some twelve months in hospital and nine or ten operations, including some plastic surgery to reduce the disfigurement caused by the lacerations to the respondent's face. Whether when she has grown older it will be worth while for her to submit to further plastic surgery to remove a scar on her temple which her hair can be arranged to obscure, is problematical. She also has scars on her arm and thigh. A squint that can be remedied by operation is another element in her disfigurement. It was also open to the jury to conclude that there has been some diminution of her mental capacity, although it was proved that she is at least an average pupil and at the age of twelve has finished her elementary education and has gone to high school. There was general agreement among the witnesses that notwithstanding all these disabilities she is a bright little girl. She has, of course, suffered greatly and her disfigurement has caused her some embarrassment, particularly at school. Her prospects of marriage and her prospects of employment in some vocations that might have appealed to her have been adversely affected. The evidence, however, would afford no ground for the conclusion that she will not be able to earn her own living. (at p68)
10. This enumeration of the respondent's injuries, disabilities and disadvantages makes it obvious that she was entitled to an award of heavy damages, and although the members of the Full Court thought that the damages were high, it was their opinion that it could not be said that the verdict went so far beyond proper bounds that it should be set aside. For instance, Herron J. said : "On the question of damages the verdict was certainly a high one. It represents, I think, the upper limit that a jury could have awarded without calling for the interference of this Court". Upon appeal to this Court, while according respect to these views, I must reach a conclusion of my own, and the one that I have reached is that the verdict was beyond what is reasonable. If, of the 15,000 pounds awarded to her, 1,000 pounds were to be attributed to out-of-pocket expenses, which on the evidence seems a proper figure, and a further 6,000 pounds to her injuries, pain and suffering, there would be left a sum of 8,000 pounds which, while remaining intact, would produce an income of 400 pounds a year as compensation for her reduced opportunities of marriage and employment. These figures indicate that the award was unusually high, and in awarding the sum of 15,000 pounds I consider that the jury disregarded his Honour's warning not to allow sympathy and prejudice to distort justice. (at p68)
11. I consider, therefore, that the appeal should be allowed and there should be a new trial limited to the assessment of damages. (at p69)
WINDEYER J. On the trial of this action evidence was given that before the accident the father of the respondent had said to the appellant, who was riding a motor cycle : "If you run over one of my children I will put this hatchet through you". He was chopping wood at the time. The evidence was admitted against an objection by the defendant's counsel, because the learned trial judge said it amounted to a warning of the likely presence of children in the vicinity. I feel misgivings about the matter, because I think that the evidence was tendered for the illegitimate purpose of creating a prejudice against the defendant rather than to establish that he was negligent on the occasion here in question. A protest against the manner in which a man was riding a motor cycle cannot establish that on a later occasion he was negligent when backing a motor car. Nevertheless the evidence was, I think, admissible. What the father said could, and the jury might think should, have brought home to the appellant the special risks in taking a vehicle, whether motor cycle or motor car, between the huts, and the need for care in doing so because of the presence of children there. That a defendant in an action of negligence had in fact been expressly told of the risks of his conduct must, I think, always be admissible. It is true that, in a sense, negligence depends entirely upon an objective standard. "Instead of saying that the liability for negligence should be coextensive with the judgment of each individual, . . . we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe" (per Tindal C.J. in Vaughan v. Menlove [1837] EngR 424; (1837) 3 Bing NC 468, at p 475 [1837] EngR 424; (132 ER 490, at p 493) .) But that does not mean that actual knowledge that a defendant has of the risks of what he is doing is irrelevant ; for the question is whether he was negligent in the circumstances. If the fact that a warning was given was admissible, the manner in which it was conveyed and the terms in which it was expressed could be proved. It matters not, I think, that it was couched in terms of extravagant protest and threat not of temperate warning. It was said it was superfluous, because the appellant knew the locality and must have been aware of the need to keep a look out for children there : but that does not, of itself, make the evidence inadmissible. (at p69)
2. The next matter concerns the remarks that the respondent's mother made immediately after the accident. These amounted to a charge that the appellant had on former occasions acted with a reckless disregard for children, and that he had done so again this time. The respondent sought to justify the giving of the mother's remarks in evidence as the appellant, it was said, did not answer and this could be taken as an admission. A failure to answer an accusation "you drive too fast round here" could hardly be an admission by the appellant that he ought not to have backed his car where and when he did. And furthermore, surely little if anything should be inferred against a man, who had just had the misfortune to run down a child, because he made no answer to the recriminations of a distraught mother? Evidence of conversations in the presence of a party at the scene of an accident and immediately after its occurrence is commonly given : and, generally speaking, it is admissible. It is not surprising therefore that the defendant's counsel, not knowing what was to come, did not object to the question that elicited the mother's reproaches. However, leaving this conversation altogether aside, there was strong evidence that the appellant was negligent in backing his car as he did ; especially as he need not have backed at all but could have gone forward ; perhaps negligent too in driving at all between the huts, as he could have gone to and fro by a different and safer, if slightly longer, way. A verdict in the defendant's favour was scarcely within the bounds of possibility on his own evidence. If such a verdict had been found it could not, I think, have been allowed to stand. In these circumstances the reception of the challenged evidence does not necessarily give a right to a new trial. It would not do so even if a sufficient objection had been taken ; and that was not done. Other aspects of the question of the conversations and the way in which the learned judge dealt with them in his summing-up are considered in the judgment of Else-Mitchell J. and I think correctly disposed of for the reasons he gives. (at p70)
3. The appellant complained that the damages awarded were excessive. Accompanying this submission was a suggestion that the jury might have inflated the damages because they thought the defendant had been habitually careless - that is to say that the amount awarded contained a punitive element. No doubt the consequences of gross negligence may weight more heavily with juries than would the same consequences of an error of judgment. This may be so although they be well aware that under the system of compulsory third party insurance it is the insurer, not the defendant, who pays. And here the evidence of what was said by the father and mother was, I feel, too shrewdly introduced. Therefore, if I thought there was any sure reason for supposing that the jury's verdict was not their honest and reasonable assessment of the damages the plaintiff suffered, I would agree that there should be a new trial of the issue of damage. But I do not think so, although I regret that this leads me to differ in my conclusion from the other members of the Court. (at p71)
4. We do not know what the jury thought of the evidence of the father's threat and of the mother's reproaches, both of which the appellant had denied. So that the only ground on which the appellant could impugn the verdict was that it was too large ; and his complaint came down to that. The learned trial judge had, however, directed the jury clearly on their duty and as to the matters they could consider in assessing damages. This is not an appeal from an award of damages by a judge, when the court can substitute its own assessment if it thinks his was clearly erroneous. This is an appeal from the Full Court of the Supreme Court on the ground that it was wrong in law in not ordering a new trial. There is a great distinction between an appeal from a judge's award and an application for a new trial on the ground that a jury's award cannot be supported. (See the cases collected in Halsbury's Laws of England 3rd ed. vol. 11, pp. 310-312, and in Mayne on Damages 11th ed. (1946) pp. 634-638 ; also Scott v. Musial (1959) 2 QB 429 and Miller v. Jennings [1954] HCA 65; (1954) 92 CLR 190, at pp 195, 196 ). (at p71)
5. So much of the work of common law courts to-day is concerned with damages for personal injuries caused by traffic accidents that it is understandable that courts should try to produce some measure of consistency. Judges must consciously, if not avowedly, draw upon their experience of other comparable cases when considering what sum would be proper in a particular case : and appellate courts, faced with the question whether a particular sum was or was not excessive or inadequate, must, to some extent, do so too. But the problem is not susceptible of a normative solution. A tariff for various physical disabilities - the loss of a leg or an arm and so on - cannot be devised by a court. English law had abandoned the idea of fixed bots before the Norman Conquest. In theory it might seem that the most serious physical injuries should always attract the heaviest damages. Therefore it is sometimes suggested that damages given in cases of paraplegia should be regarded as at the top of a scale and used as a basis for other estimations. But that involves an erroneous hypothesis. Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same ; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious in principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables. The law insists that it be done, but can give no sure guidance on how it is to be done. Jurymen usually have only a scanty knowledge of verdicts given in other cases - certainly not enough to provide them with any pattern for comparisons : and they are not to be told of them (Waldon v. The War Office (1956) 1 All ER 109, at p 111 ). They approach the question unaided, and unfettered, by such knowledge. To say, therefore, that a jury's award of damages is one that reasonable men could not reach simply because, when compared with a standard distilled from other awards, it appears egregious, may well be unjustly to accrue the jury of a failure to perform their duty according to their oaths. I respectfully think that what is said in the recent telling judgments of the Court of Appeal in Scott v. Musial (1959) 2 QB 429 is in accordance with old principle and should be followed in this Court. (at p72)
6. In New South Wales, where the old common law system of trial by jury at nisi prius continues, it is the task of the court in banc to supervise the verdicts of juries. Misdirections and wrongful admissions or rejections of evidence are ordinarily grounds for a new trial as of right ; but, on a complaint that a verdict is against the weight of evidence, the court has always had a wider discretion to grant or refuse a new trial. The one was a matter of error, and a proper subject for a bill of exception : the other ordinarily was not. A new trial is not to be had on the grounds of excessive damages awarded by a jury, unless the amount awarded was altogether disproportionate to the facts - that is so absolutely unreasonable that it shows that the jury did not perform their duty (see Bocock v. Enfield Rolling Mills Ltd. (1954) 3 All ER 94 ). "So extravagant that no other jury would repeat it" was how Lord Morris, then Morris L.J., expressed it in Scott v. Musial, (1959) 2 QB, at p 438 : he was, of course, assuming another jury properly instructed and not perverse. The learned members of the Full Court were agreed that that was not so here, and that therefore the verdict, although large, should stand. Herron J. said "it is enough for me to say that it was peculiarly a matter for a jury's assessment, and I am unable to hold that the verdict for 15,000 pounds was one that no reasonable jury could arrive at or one that was a wholly erroneous estimate of the plaintiff's loss". McClemens J. was of the same opinion. He said : "It is immaterial that I might have taken a more conservative view, or that I might have regarded some of the evidence in the case as being far-fetched". Else-Mitchell J. said : "In this State it is not part of the function of a court of appeal to substitute its views for those of a jury ; the jury is the constitutional tribunal charged under our law with the determination of issues of fact and the assessment of damages (Jury Act, 1912-1951 (N.S.W.), s. 29) and no matter how unsatisfactory it may be in some cases, the Full Court cannot on appeal draw its own inferences of fact from the evidence or otherwise review findings of fact implicit in a jury's verdict. (Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430, at pp 441, 442, 487, 488 ; [1947] HCA 54; (1947) 75 CLR 125 ). Is it possible then for this Court to say that if the jury took the most pessimistic view of the evidence as to the plaintiff's future life (as it was entitled to) the verdict was so far beyond proper bounds that it should be set aside. Such a conclusion could be reached, I think, only by this Court substituting its own views of the evidence for those of the jury, or by its applying its own concepts of the proper amount of damages in a field where of necessity the damages are at large and a matter exclusively for the jury (cf. Scott v. Musial (1959) 2 QB 429, at pp 437-440 ; Hocking v. Bell (1945) 71 CLR, at pp 487, 488 )." This, I think, exactly states the law and applies it correctly to the facts of this case. They may be stated briefly. (at p73)
7. The plaintiff was a young child living in the housing settlement at Hargrave Park at the time of the accident. She was apparently a bright, intelligent child. What the future would have brought her if the accident had not occurred it is impossible to say, and what it will bring her now is equally uncertain. But much of what the accident caused is certain. She was very badly wounded in the head ; her skull was fractured ; part of her scalp torn away ; her face lacerated : she had a compound fracture of the right arm, and a fracture in the left leg. She was seven times in hospital, for fifty-four weeks in all, spread over four and a half years. She had twelve or more operations, including extensive skin grafting. The pain and suffering and tedium of all this is past. But some serious effects of her injuries remain. There is a permanent hole in her skull. It is covered with fibrous tissue ; but according to a medical witness it is "a permanent defect of about one and a half inches in diameter . . . you have the tissue over it but not to make it other than a vulnerable defect". There is also an area of her scalp that is bald and the grafted skin there is so thin that it is vulnerable in a sense that a normal person's skin is not : a blow or other small injury there would cause ulceration and make a re-graft necessary. The same thing applies to the areas on her face and arm where skin was grafted. The trial judge in his summing up said these areas of her body are "more vulnerable to injury than they otherwise would have been ; and if she does receive injury in those regions then the danger of ulceration is always present". The risk is the greater because she has lost sensitivity in parts of her head and face - in the very places that have been made vulnerable, so that for example she could, without knowing it, cause herself injury by using a sharp comb. She seems to have to have sustained some damage to her brain. An electro-encephalogram reading was, according to the neuro-surgeon who took it, inconclusive but "strongly suggestive of brain damage". And the fact, deposed to by, among others, her school teacher, that since the accident she has had attacks of vomiting accompanied by headaches, also, according to medical evidence, points to some brain damage. The conclusions of a clinical psychologist based on her responses to tests were said to confirm this and to indicate a lessening of some aptitudes. Her progress at school does not seem to have seriously deteriorated : she is of at least average intelligence. But the jury might certainly think that there was some brain damage, the consequences of which in the future they could not predict. Furthermore, after the accident she developed a squint, of the kind known as a concomitant squint : that is the muscles of her eyes are intact ; and the eyes move together, but they do not both point to the same thing. The evidence of an eye specialist was that this could be rectified by operation, but that there is no assurance that one operation would suffice. Her appearance has been affected, as she is partially bald and her face is scarred. She can, it seems, arrange her hair so as to hide the facial blemishes. But that does not mean that they are not there : and the need to hide them makes it necessary for her to arrange her hair in a way that perhaps she might otherwise not wish to adopt. Not having seen her, I can say no more of this than that the trial judge who saw her in the witness box, speaking to the jury who had also seen her, said : "She has been very seriously disfigured and scarred, and to a girl or a woman any disfigurement is in the nature of a tragedy. I suppose that to look and be attractive is to a woman, and particularly a young woman, a matter of first importance". And later he said : "It may well be that the disfigurement which she has suffered need not necessarily prevent her marriage, but in the nature of things you might think that her chances of marriage will not be so good as they would have been. Quite apart from the comfort and happiness that marriage brings there is also the economic loss to be considered". It is apparent that his Honour did not regard what he called a "serious disfigurement" as any small matter. There was no reason why the jury should not think it a great matter. Evidence was given that the respondent had become moody and solitary. As his Honour put it, "she is, naturally I suppose, sensitive as to her appearance". (at p75)
8. It was urged that in considering whether or not a particular sum is excessive we should take note of what it would yield if invested, either on the basis that the capital is to be kept intact, or on an annuity basis having regard to the recipient's expectation of life. Such exercises in arithmetic may be illuminating, although I personally do not find that 15,000 pounds appears any greater or any less by noticing that invested at five per cent it will yield over 14 pound per week and leave the capital intact. I agree entirely with what McClemens J. said on this aspect. It is, I think, unsound in a case like this to think of a sum given for general damages as the total of amounts attributable to separate elements conventionally called pain and suffering, loss of the amenities of life and economic loss. All are to be considered and naming them helps to ensure that they are considered. But they are not always so distinct and distinguishable that separate sums can be put against each. For example, in the case of an adult, incapacity to work at his former vocation or to follow some intended career is generally called an economic loss. But many people like their work and enjoy the companionship of those with whom they work. For them, inability to continue in a particular employment, or to follow a chosen vocation and exercise a craft or skill, may mean, not only pecuniary loss, but a loss also of enjoyment, a deprivation of part of the good of life, as great as a loss of ability to engage in some game or other recreation. Damages for personal injury, apart from special damages properly so called, are given as compensation for the plaintiff's general loss : and that loss is the whole complex of the consequences of the injury for the particular individual. When the aim is to make good loss of earnings, or to provide an income to meet future expenses expected as a result of an accident, attention may be primarily directed to awarding such sum as will produce the required income on an annuity basis. For example, if a plaintiff has been rendered a permanent invalid in need of constant care, then the emphasis in any assessment may well be on the need for an income to ensure this care and also to provide such comforts as he would otherwise lack and which his mental and physical state will enable him to benefit from or enjoy. But in very many cases damages are given, not to meet particular needs, but so that the injured person may use the money as he wishes : so that by it he may get things, tangible or intangible, that he otherwise could not have had to make up for the loss of the things that he now can never have again. In cases of that sort - and, apart from the respondent being an infant, this is one - to ask what income a sum will yield if invested or what the plaintiff will do with the money if he does not invest it is, I think, of little assistance in ascertaining what sum is a proper award ; and this is especially true when the future is uncertain. The learned judge here said to the jury, and no doubt it was present to their minds and properly so : "To the extent that her life has been prejudicially affected and to the extent that her enjoyment of life has been impaired as a result of her injuries, she is entitled to be compensated. You should compensate her now, gentlemen, once and for all. Should her condition deteriorate - and there is reason to suppose that it will - she could not come along to another jury in a few years time and complain that you had not given her enough". (at p76)
9. A hundred and thirteen years ago Lord Wensleydale, when a judge of the King's Bench, in directing a jury said : "It would be most unjust if whenever an accident occurs, juries were to visit the unfortunate cause of it with the amount which they think an equivalent for the mischief done" (Armsworth v. South Eastern Railway Co. (1847) 11 Jurist 758, at p 760 ). And nearly ninety years ago Lord Esher, then Brett J., said that the only legal direction to a jury was that "they must not attempt to give damages to the full amount of perfect compensation for the pecuniary injury, but must take a reasonable view of the case, and give what they consider under all the circumstances a fair compensation" (Rowley v. London and North Western Railway Co. (1873) LR 8 Ex 221, at p 231 ). These cases were referred to by Greer L.J. in Owen v. Sykes (1936) 1 KB 192, at p 198 . And Lord Goddard referred to them in British Transport Commission v. Gourley [1955] UKHL 4; (1956) AC 185 , where he said, "it would be well to remember that it has always been laid down that damages cannot be a perfect compensation" (1956) AC, at p 209 . That, as the rest of his Lordship's remarks make clear, is because the vicissitudes of the future cannot be surely predicted, so that what sum would be perfect compensation cannot be exactly determined. Moreover money cannot make good permanent physical or mental disablements, nor altogether make up for all the deprivations they entail. But, whatever may have been the position a century ago when Parke J. and Lord Esher were speaking, parts of what they said on this matter can, I think, be misapplied to-day. Why, for example, when pecuniary loss is in question is "fair compensation" something less than complete compensation for that loss ? In times when the defendant had to bear the whole burden of a verdict for damages it was natural for juries to hesitate to give a plaintiff all that they might think he ought to have. They might not wish to impose so great a burden on the defendant, or they might not wish to force him into bankruptcy and so prejudice the plaintiff recovering the fruits of his verdict. But to-day there is an insurer to meet most claims of persons injured in motor accidents. Compulsory third party insurance has made sympathy for the defendant or fear of his bankruptcy as misplaced now as sympathy for the plaintiff should be as a substitute for a just appreciation of loss. The removal of what in the past was a check upon generosity overcoming judgment has no doubt led to larger sums being given as damages : but it does not follow that they are always the product of generosity rather than of judgment. Sometimes, no doubt, juries are carried away and bring in verdicts that are extravagantly large. To award "fair compensation" is still a proper formulation of their task. I would, however, respectfully adopt what Dixon J., as he then was, said in Lee Transport Co. Ltd. v. Watson [1940] HCA 27; (1940) 64 CLR 1 : "But, while remembering that fair compensation between the parties is what must be arrived at, it is equally important to keep in mind that after all it is compensatory and that the figures to which in former times courts grew accustomed ought not to govern our notions of what should be awarded in the terms of the money of to-day with its reduced purchasing power" (1940) 64 CLR, at p 14 . That was said twenty years ago. The purchasing power of money has further declined since then and, again to quote Dixon J., "it seems no longer necessary to remind ourselves of the importance of making conservative estimates of the compensation a plaintiff should receive for physical injury" (Pamment v. Pawelski [1949] HCA 43; (1949) 79 CLR 406, at p 411 ). It is in all the conditions of the present time, and they are so very different from those of former times, that the compensation is to be assessed. Some of the considerations to be borne in mind are countervailing factors to the decline in value of money and to the prevalence of insurance. For example, a loss of earning capacity in a particular employment, commonly called loss of wages, was serious indeed in times when it was hard to get work. Today a man incapacitated for one form of employment can often get other employment perhaps just as remunerative : so that he is not in a pecuniary sense worse off. That does not mean, however, that he has not suffered any economic loss. He has ; for he has a reduced earning capacity as the range of activities in which he can be employed is less. It does mean, however, that conventional methods of calculating economic loss by reference simply to wages formerly earned are not appropriate. Or, to take another example, loss to a woman of the opportunity of marriage was more serious in an economic sense in the days when there were few employments open to women than it is to-day. To-day it must be weighed rather in terms of human relationships and social security. And on top of all other changes is the great expansion of social welfare services provided by the State, including invalid and old age pensions, and also assistance in the rehabilitation of the injured and their restoration to a useful life in the community. The value of the social service benefits that a particular individual is receiving may generally be not a matter to be taken into account in the estimation of damages recoverable from a tort-feasor. But in making that estimation jurymen must do so against the background of the conditions of to-day. It is appropriate to quote what Lord Normand said in the House of Lords in Glasgow Corporation v. Kelly (1951) 1 TLR 345 : it was said in reference to solatium under Scots law, but is applicable to damages generally : "I adhere to the opinion that permanent changes in the value of money must be considered in making awards for solatium. No doubt, also, the recent expansion of the social services must be set against the depreciation of the pound sterling. But I agree with the Judges of the First Division that the economic changes of the last 20 or 30 years require that awards of solatium should be considerably greater than they were then (1951) 1 TLR, at p 347 ". (at p78)
10. The only question for us in this case is, did the Full Court err ? It is only for the purpose of arriving at an answer to that question that I have referred to the evidence that was before the jury. The learned members of the Full Court thought that on that evidence the jury might arrive at the estimate they did. I can see no reason for saying that in refusing a new trial they wrongly exercised their discretion, so far as it was a matter of discretion ; or that they infringed any principle governing the interference by a court in banc with the verdict of a jury at nisi prius, or failed to consider any material matter. Therefore, in my view, this Court ought not to disturb their decision. I do not say that the amount awarded was the right amount ; but it was an amount that the Full Court could rightly think the jury might think right. If this were a re-hearing of the action, not an appeal from the Full Court, I might myself think a considerably smaller sum would have been proper. But I have not seen the respondent : and I did not hear the evidence: and we are not re-hearing the action. If I were to decide that some particular sum would be a proper award - and unless I can do so I cannot be satisfied that the jury's sum is grossly excessive - I would only be saying that I, with less knowledge than they had, have by pondering what is really imponderable reached a ponderation different from theirs. That would be merely substituting my opinion for theirs on a matter that is very much one of opinion. And this the law does not permit me to do. (at p79)
11. I would add that, apart from anything else, the lapse of time since the accident, coupled with the strong evidence that the appellant was negligent is, as the Chief Justice recently pointed out, a weighty reason against a new trial generally : Clark v. Ryan [1960] HCA 42; (1960) 103 CLR 486 . And, in considering the validity of the assessment of damages and the claim for a new trial on that issue, it is relevant that the respondent was injured eight and a half years ago and that the appellant was found to be liable in April 1959, and that the respondent, and not the appellant, or his insurer, ought since then to have had the benefit of whatever sum of money she was properly entitled to. (at p79)
Appeal allowed with costs. Set aside order of Full Court of Supreme Court, and in lieu thereof order that the appeal to that Court be allowed with costs and that a new trial of the action be had limited to the question of damages.
# Thatcher
Charles \[1961\] HCA 5;
(1961) 104 CLR 57
(1954) 92 CLR 190
(1945) 71 CLR 430
(1947) 75 CLR 125
(1940) 64 CLR 1
(1949) 79 CLR 406
(1960) 103 CLR 486