Watson v Burley [1962] HCA 53; (1962) 108 CLR 635 (23 October 1962)

HIGH COURT OF AUSTRALIA

WATSON v. BURLEY [1962] HCA 53; (1962) 108 CLR 635

New Trial

High Court of Australia
Dixon C.J.(1), McTiernan(1), Taylor(1), Menzies(1) and Windeyer(1) JJ.

CATCHWORDS

New Trial - Application for a third trial - Same verdict arrived at by two juries - Damages - Action under Compensation to Relatives legislation - Mode of calculation of damages.

HEARING

Sydney, 1962, August 8;
Melbourne, 1962, October 23. 23:10:1962
APPEAL from the Supreme Court of New South Wales.

DECISION

October 23.
The COURT delivered the following written judgment: -
In December 1958 William Burley was killed in a road accident. He was then brought on behalf of the widow, who at the time of her husband's death was twenty-eight years of age, and the two children of the marriage (one born in January 1955 and the other in March 1959) against the appellant Watson for damages for negligence occasioning the death of her husband. The first trial took place in Newcastle in October 1960 and resulted in a verdict and judgment for the plaintiff for 12,180 pounds, of which 180 pounds represented an agreed amount for funeral expenses. The verdict was apportioned as follows: the widow 11,180 pounds; each child 500 pounds. The defendant made an application to the Full Court of the Supreme Court of New South Wales for a new trial and a new trial limited to the question of damages was ordered in June 1961. The second trial was heard in Newcastle in August 1961 when the jury returned a verdict for 12,730 pounds - that is, 550 pounds in excess of the first verdict. Again the verdict included 180 pounds for funeral expenses and the apportionment was 500 pounds for each child and the balance for the widow; this balance was 11,730 pounds. The defendant again applied for a new trial and the Full Court by a majority refused this application and it is from that refusal that this appeal is brought. The majority (Sugerman and Manning JJ.), having set out their general impression that the verdict "gave virtually full value to every factor which the plaintiffs were entitled to have considered in their favour, and yet gave virtually no value to many other factors which should have been considered to the contrary" (1962) 79 WN (NSW), at p 525 and their opinion that it was "most difficult to justify the conclusion at which we think the jury necessarily arrived that the factors which should have been taken into consideration in reduction of damages could be substantially disregarded" (1962) 79 WN (NSW), at p 525 and having stated that they did not desire to dissent from the earlier judgment, nevertheless attaching decisive importance to the fact that "a second jury has awarded a sum which is a few hundred pounds in excess of the amount of the verdict in the first trial" (1962) 79 WN (NSW), at p 525 , expressed their conclusion as follows: - "If we could bring ourselves to feel that the amount of this award was 'outrageous', we would feel compelled to order a third trial. But these are, in reality, questions of degree, and in our opinion the extent by which this award exceeded what we would have thought was the maximum of the permissible range open to the juries is not so great as to justify ordering a third trial" (1962) 79 WN (NSW), at p 526 . Brereton J. dissented, saying that although he appreciated that a court of appeal would be even more reluctant to order a third trial than to order a second, he thought that because this was an action under the Compensation to Relatives Act in which it was shown mathematically that the jury's verdict was too high, a third trial should be ordered. He said that "in no case can the views of juries override the rules of mathematics" (1962) 79 WN (NSW), at p 527 and "this was not a matter of sweet reasonableness but of mathematical equivalents" (1962) 79 WN (NSW), at p 528 . (at p637)

2. It is, we think, desirable to consider this case in the first place without regard to the circumstance that it was a third trial which the appellant sought. The verdict, leaving out of account the funeral expenses of 180 pounds, was for 12,550 pounds. The deceased when he was killed was an acting fireman employed by the New South Wales Railways Department and earning 17 pounds or 18 pounds a week. He would have become a classified fireman in March 1960 and his next promotion, after passing an examination, would have been to acting driver, a classification which he could have expected to achieve by October 1960. The starting base rate of an acting driver ruling at the date of the death of the deceased was about 30s. a week higher than that of a fireman, rising annually by increments of about 1 pounds a week to about 23 pounds a week. These rates have already been increased. Ordinary promotion subject to the passing of an examination would have taken the deceased to the classification of driver in 1971, but thereafter his promotion would not have been automatic but would have depended very much upon ability and aptitude. There was evidence that the deceased was quick, intelligent and industrious and that he had passed and would continue to pass his examinations as they came due. Upon this evidence the jury could infer that before he was forty he would probably have been earning not less than 25 pounds per week and that he could have been expected to continue to earn a somewhat higher rate until he was sixty-five or seventy years of age when he would be entitled to superannuation at 600 pounds per annum. It seems that the deceased, who was of frugal habits, brought home most of his wages and, although it is not easy to extract the figures from the evidence, it was common ground between counsel that before his death, the deceased was providing his wife with about 11 pounds per week for the family after the deduction of his own living expenses. This evidence it seems was misunderstood upon the earlier application for a new trial, for it was said by the Court that the 11 pounds per week which was brought into the family purse was used for the maintenance of the family including the deceased man himself and the widow assessed a figure of 4 pounds a week as the amount which she estimated was required to provide for the support and maintenance of the deceased man. It was agreed before us that it is to 11 pounds a week and not to 7 pounds a week that attention must be paid. The deceased was an enterprising and industrious man who outside his working hours had built the family home and maintained a useful garden which provided the family with vegetables. (at p638)

3. Actuarial evidence was given that, calculated in accordance with The Australian Life Tables 1946-1948, 1 pounds per week for the period of the joint lives of the deceased and his wife but not exceeding the attainment of the age of sixty-five by the deceased would at an investment rate of five per cent have a present value of 825 pounds and at six per cent 736 pounds. (at p638)

4. Upon the basis of the foregoing evidence and taking into account that the deceased and his wife were in good health and were happily married, it would not, we think, have been unreasonable for the jury to have started their assessment by considering that the family loss would probably be of the order of 15 pounds per week for most of the relevant period and that the sum to provide this at five per cent would, according to the actuary's figures, amount to 12,375 pounds. Of course, the assessment could not end with this figure for not only is it but an approximation but there would be contingencies not covered by the actuary's figures that would have to be taken into account. Some of these would go to increase the amount (e.g. the deceased's enterprise as evidenced by his building activities); some would go to decrease it (e.g. the possibility of the widow remarrying); and some would increase it or decrease it according to the opinions that the jury might form (e.g. that average figures were too favourable or not favourable enough in the circumstances of the particular case). The assessment could never be a simple matter of mathematical calculation but, taking into account the mathematical data which the evidence provided, 12,550 pounds does not seem an extravagent sum at which to assess the loss of a young widow and infant family arising from the death of a frugal and dutiful husband, aged twenty-six, who had established himself in the Railways Department as a keen and reliable officer whose earnings might be expected to rise from about 1,000 pounds to about 1,300 pounds per year and who in all probability would have continued to exert himself outside his employment for the welfare of his wife and family. Upon this basis the verdict does not appear to us to be one that should be set aside. (at p639)

5. We appreciate the distinction, on which Brereton J. insisted, between damages for personal injuries and damages under the Compensation to Relatives Act. But it is, we think, a mistake to regard the latter as always susceptible of precise mathematical calculation. In an action for personal injuries the plaintiff's pain and suffering, discomfort and deprivations have to be compensated for in money, although they are not really measurable in money. In a case under the Compensation to Relatives Act pecuniary loss only is to be compensated. But the difficulty is often to know what is the extent of that loss, that is to say, what would have been the pecuniary advantages that the dependants of the deceased man would have enjoyed had he not died when he did. To determine this involves some assumptions of what, in a financial sense, the future would have had in store for him. Because his future could not have been certainly predicted the damages to which his dependants are entitled cannot be precisely calculated. In this case, for reasons we have given, we do not think it was incumbent upon the Supreme Court upon the basis of any exact mathematical calculation to set aside the verdict of the jury. (at p640)

6. Moreover, the application was for a third trial. Two juries had returned verdicts for about 12,000 pounds on substantially the same evidence. This the majority of the Supreme Court thought was a decisive consideration against a new trial - and in our opinion they could rightly think so. Setting aside a jury's verdict and granting a new trial is a discretionary remedy. The scope for the exercise of the discretion for error in fact is necessarily somewhat reduced when two juries arrive at the same verdict. A court may then very properly think it right not to interfere again with the jury's decision. This is old law. And it is especially applicable when the question is the amount of damages in cases in which damages cannot be precisely determined. It is sufficient to quote the report of Clerk v. Udall [1795] EngR 117; (1702) 2 Salk 649 (91 ER 552) : "Upon a trial at nisi prius the jury gave excessive damages, and for this cause a new trial was granted. The second jury gave the same damages again, and a second new trial was moved for, and denied, because there ought to be an end of things; but several cases were cited which the Chief Justice allowed, that where upon the second trial the jury have doubled the damages a third trial had been granted". This decision was followed in Chambers v. Robinson (1726) 2 Stra 691 (93 ER 787) . There is, however, no rule against granting a third trial, although it is unusual to do so: see Hocking v. Bell (1945) 71 CLR, at p 500 and cases there cited. Sometimes a court, being of opinion that its reasons for setting aside a first verdict remain unshaken by a second jury returning a similar verdict, has ordered a third trial: Everett v. Bayliss (1882) 3 NSWLR 174 is an example. And, in recent times, in Commissioner for Government Transport v. Cullinan (1954) 54 SR (NSW) 197; 71 WN 146 a third trial as to damages was ordered, the jury having, as here, returned a verdict on the second trial somewhat greater than that previously set aside as excessive. But a court need not adhere to its view of what a jury should find. And it must give great weight to the fact that two juries arrive at the same verdict. In Swinnerton v. Marquis of Stafford [1810] EngR 415; (1810) 3 Taunt 232 (128 ER 92) , Sir James Mansfield C.J. said: - "The jury, who are the competent judges, have again had the case before them, and have decided it. Even if, on nicely scrutinizing all the evidence, we had a doubt whether the verdict was right, it could be never right for us to make no weight of two verdicts of a jury, in order to take the chance of a third" (1810) 3 Taunt, at p 233 (128 ER, at p 93) . The primary consideration for a court on a motion for a third trial is not consistency in its own attitude, but whether justice demands that it send the case again to a jury. No reason was shown in this case for us to interfere with the decision of the Supreme Court not to do so. (at p641)

7. There is one further matter to which we should refer. After the learned trial judge had completed his summing up, counsel for the defendant, relying upon the fact that the widow was a double-certificated nurse who after her marriage had worked when she could, asked the learned judge to direct the jury to take into account that, if the husband had not died, when the children were off the widow's hands she might have gone back to work and made herself financially independent of her husband. His Honour refused to give his direction and this refusal was put forward to us as a ground upon which a new trial should be ordered. It is sufficient to say that his Honour did no more than refuse to comment upon one aspect of the evidence and that this refusal did not in any sense involve any misdirection even as to the facts of the case. (at p641)

8. Accordingly we are of the opinion that the appeal should be dismissed. (at p641)

ORDER

Appeal dismissed with costs.