WAIN V. CARRUTHERS

IN THE HIGH COURT OF AUSTRALIA

cee _-CARRUTHERS...

ers

REASONS. FOR JUDGMENT

Judgment delivered at. SY¥AMEY. ne W. M. Housrox, Govt, Print. Melb. on..Friday,.18th.May..1956....... _

©.1978/85

CARRULHERS WA

ORDER

Application refused.

JUDGMENT DIXON Code

CARRUTHERS ev. WAIN

This was a motion upon notice for leave to appeal from an interlocutory order of the Supreme Court of New South Wales, The application was on the part of the plaintiff who, in an action for personal injuries, had recovered a verdict for £9800 damages. The defendant appealed to the Full Court of the Supreme Court both on the ground that there was no evidence of the cause of action and that the damages were excessive, The Full Court sustained the finding of the jury on the question of liability but ordered a new trial limited to damages. The order as to the costs of the first triel was that they should follow the event of the new trial, It is agreed on behalf of the defendant that the result of this is that, since the plaintiff has a verdict or finding on the issue of liability, the defendant must pay the costs of the first trial in any event, it not being a case where it would be possible for the

jury to award no damages.

In support of the application for leave to appeal it is urged on the part of the plaintiff that in the reasons given by Street C.J. and Herron J., in which Manning J. concurred, the evidence concerning damages was examined as if the Court were entitled to form its ow judgment upon the facts. It seems hardly necessary to say that when an award of damages by a jury is attacked upon the ground that the damages are excessive the court of appeal stands in relation to the evidence of damage in no different position from that which it occupies in dealing with any other issue of fact. -On the subsidiary questions of fact which may be involved in the award of damages such as the character of the plaintiff's injuries, their permanency, the probability of the continuance of incapacity, or