Rowe v Edwards [1934] HCA 32; (1934) 51 CLR 351 (23 August 1934)

HIGH COURT OF AUSTRALIA

Rowe Plaintiff, Appellant; and Edwards Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

23 August 1934

Rich, Starke, Dixon, Evatt and McTiernan JJ.

Cassidy (with him J. W. Bavin), for the appellant.

Owen (with him Vincent), for the respondent.

Cassidy, in reply.

The following judgments were delivered:—

Rich J.

In this case I think that the appeal should be allowed. The evidence shows that the appellant suffered very serious injuries, and the uncontradicted medical opinion is that the appellant will carry permanent disability. The verdict returned by the jury was very trivial having regard to such injuries. In their judgment dismissing the appeal to them, the Full Court of the Supreme Court appear to declare that the Court was not able to control the verdict for such a trivial sum for such serious injury. Special leave was granted because it seemed that the Supreme Court had not properly applied the principle in such a case. That principle has been stated in several cases, one of which I referred to during the argument, Smith v. Schilling[1]. In the circumstances the verdict cannot stand. The damages are so small as to lead me to the conclusion that the jury took into account matters which they ought not to have taken into account.

The appeal, therefore, should be allowed, and on the whole I am inclined to think that the new trial should be limited to the question of damages.

Starke J.

I am surprised that the Supreme Court did not interfere in this case. The verdict is unreasonable. But I doubt the wisdom of this Court granting special leave to appeal in these small and trivial cases. I should prefer that the case went down for a new trial generally. It seems to me an absolute denial of justice to tie the hands of the defendant on the main issue of negligence. The impression I have is that the verdict of £50 was probably the result of a compromise on the question of negligence.

Dixon J.

In my opinion there should be a new trial in this case.

The principle determining the question when the Court should interfere with a jury's verdict on the ground of inadequacy of damages awarded for personal injuries is difficult in its application rather than its statement. In this particular case, the injuries were very serious and of a lasting nature and inflicted much pain and involved deprivation of earning capacity. The jury assessed the damages correctly so far as they were special and awarded the sum of £50 only for general damages, including loss of earnings, actual and prospective, and pain and suffering. That sum appears to me so small as to be entirely out of proportion to the injury to be compensated. The rule was formulated in the Supreme Court in a manner which cannot be said to be incorrect, but which, nevertheless, emphasizes the need for considering how the jury have misapplied their minds and does not make it clear that it is enough if the conclusion at which they arrived, however it is to be accounted for, is unreasonable. The matter has been dealt with recently in the case referred to by Rich J., Smith v. Schilling[2], where Phillips v. London and South Western Railway Co.[3] was cited. Greer L.J. states the rule thus (at p. 440): "The verdict may be set aside if the Court of Appeal upon all the circumstances comes to the conclusion that the damages awarded are so small or so large that twelve sensible jurors could not reasonably have awarded them; or if the Court is satisfied that the jury have taken into account matters which they ought not to have taken into account or have disregarded matters which they ought to have taken into account." That decision does appear to me to show that the ultimate question to which the Court should address its mind is the unreasonable character of the conclusion. The learned Chief Justice felt himself unable to find in the quantum of £50 anything which indicated that the jury had not taken into consideration the various matters proved, and in particular the medical evidence, or had not directed their minds to the seriousness of the injuries. Whether it is possible or not to say that they failed to take any particular matter or matters into account, it appears to me to be quite clear that the sum of money arrived at is so grossly inadequate as to be such that no reasonable man with a proper understanding of the matter could have arrived at. In such a case, although it may be true that the formulation of the general rule does not admit of much difference of opinion, I think it is proper for this Court to intervene and express its view of what may or may not be done in the particular case. It is the application of general rules which elucidates their significance and determines their effect. The control of the Court over the verdict of a jury is an important matter. It arises with frequency and is attended with difficulty. In the present case, I cannot account for the jury's verdict. Two views have been suggested. One is that they were distracted from the performance of their task by a reference to the right of the plaintiff to workers' compensation which was made by counsel. The other view is that they may have been unable to agree and made a compromise. I do not feel that either of these explanations has anything to support it but conjecture. Each is possible, but on the whole I think there is such a chance of the jury having completely failed to deal with the whole case, that the action should be sent down for re-trial generally and not as to damages only.

Evatt J.

I agree that the appeal should be allowed.

The award by the jury of £50 compensation to the plaintiff is utterly unreasonable, having regard to the uncontradicted evidence as to the serious character of his injuries. Such an award amounts to a miscarriage of justice, and, where such a miscarriage occurs, the Full Court has the right, as it also has the duty, of intervening and setting aside the unreasonable finding.

It has been contended that we should order a new trial generally. I see no reason to justify such a course. I am inclined to the view that the award of £50 is to be explained by the intrusion into the case by the defendant of the reference to the plaintiff's right of obtaining compensation under the Workers' Compensation Act in respect of the same injuries. Such a reference may operate just as unfairly to a plaintiff as a reference to insurance may operate against a defendant—all such references have therefore to be suppressed. The jury's statement that the £50 was to be "additional" suggests the possibility that they were misled into thinking that the plaintiff would, in addition to the £50, receive certain workers' compensation payments.

In this case, there is no ground for concluding that the jury's finding as to negligence should be regarded as vitiated by their unreasonable finding as to damages (see the observations of Isaacs and Gavan Duffy JJ. in Ryan v. Ross[4], which were adopted and applied by the Court in the recent case of Coroneo v. Kurri Kurri and South Maitland Amusement Co. Ltd.[5]).

The new trial should therefore be limited to the assessment of damages.

McTiernan J.

I agree that the appeal should be allowed and that there should be a new trial limited to damages. I have nothing to add to the reasons which have been given for the proposed order to that effect.

Appeal allowed with costs. Judgment of Supreme Court discharged. New trial to be limited to the question of damages. Respondent to pay the costs of the appeal to the Full Court. Costs of first trial to be costs in the cause.

Solicitors for the appellant, Hunt & Hunt.

Solicitor for the respondent, H. R. Currie.

[1] (1928) 1 K.B. 429, at p. 440.

[2] (1928) 1 K.B. 429.

[3] (1879) 4 Q.B.D. 406; 5 Q.B.D. 78.

[4] (1916) 22 C.L.R. 1, at pp. 33, 34.

[5] Ante, p. 328.