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Ve
TINICZ, OT
ORDER,
Appeal dismissed with costs.
Pies
iy
NT
INICZAK
Ve
NOT!
BARWICK C.J.
TAYLOR J.
WINDEYER J.
OWEN J.
Ve
BARTNICZAK
AND ANOTHER
The appellant complains that the trial judge in
this case took a view of her injuries and of her prospects which
on the evidence he was not entitled to take and that for that
reason the award of damages which he made should be set aside.
The appellant also says that in any case, even upon the basis
of his Honour's view of the facts, his award was so inadequate
as to call for a fresh assessment to be made by this Court.
The appellant's case has been forcefully and clearly placed
before us and we have fully considered the transcript of evidence
and his Honour's reasons for judgment.
It is clear that his Honour has taken a minimal view
of the appellant's injuries and a maximum view of her prospects,
both social and economic. His Honour had before him medical
and lay evidence on both matters but also the advantage of seeing
and hearing the appellant for a substantial period during the
trial of the action. He undoubtedly made his own observation
of her abilities and of her disabilities, and formed views
therefrom upon them which were material to his conclusions upon
the facts on which his estimate of general damages was based.
In relation to the appellant's first submission, it is for the
appellant to satisfy this Court that his Honour was wrong in
drawing these conclusions of fact. It is a view which was open
to him and we are not satisfied that his conclusions were
erroneous. Accordingly, the appellant's first submission fails.
As to the second submission, the appellant's counsel
realised that to use the language of Miller v. Jennings 92 C.L.R.
190 at 197, he had to-show that the award was outside the limits
of a sound discretionary judgment. We think that the award of
2.
£4,500 general damages was somewhat low but, in its estimation,
there were many imponderables about which individual judgments
would show marked variations. None the less its amount has
caused us anxious consideration. However, we are unable to
conclude that, upon the view of the facts that the learned trial
judge took, the amount of the award is manifestly inadequate.
We are of opinion, therefore, that the appellant's second
submission also fails and that the appeal must be dismissed.
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