MCKENZIE V. WHITEHEAD AND ANOTHER

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{N THE HIGH COURT OF AUSTRALIA

WHITEHEAD AND

OTHER.

REASONS FOR JUDGMENT

Acgolaide

Judgment delivered at

On

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ie

Appeal dismissed with costs.

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EHEAD AND AJOTHE

EUG ENT wie (ORAL)

ITE ND _ANOTHE:

In this appeal the appellant submits in substance two things: he says that the trial judge either misdirected himself or gave improper weight to some circumstances disclosed in the evidence; he says secondly, I think, that the award itself, locked at as a figure, is so inadequate in relation to the injuries for which it is said to compensate as to be beyond the exercise of a proper discretion in assessing the damages.

The appellant has failed to convince me of either of these points. The question for this Court is not whether this Court would have found a different figure for damages, but whether it is shown that the trial judge had fallen short of the exercise of a proper discretion in the assessment he made.

In my opinion, the trial judge did not conmit any error in relation to the facts of the case, nor did he misdirect himself in any matter which related to the assessments

So far as the amount is concerned, I am not convinced that it is an amount which is inadequate in the sense that it demonstrates an erroneous exercise of discretion. Consequentiy, 1 would dismiss the appeale

MokENZIE Ve

Me REEAD AND ANOTHER

MENZ

McKENZIE

Ve

WHITEHRAD AND ANOTHER

Mr, Burbank, in the course of on argument that put all that can be said in favour of the appellant's case, seemed to me to advence two argunents for the revision by this Court of the damages assessed by the learned trial judge.

The first is that his Honour took a too optimistic view of the plaintiff's employment prospects. His Honour did, however, have the evidence of Dr. Holmes that the appellant would be & good tradesman. It seems, moreover, that up to the date of the trial the appellant's endeavours to obtain work were probably not directed to the field in which he has the best prospects. His Honour's sonslusion "I do not think he will become unemploye able, but the kind of work which he will be able to do will not be as congenial, or necessarily very easy to find" seems to me to have been warranted by the evidence.