Williams v Usher [1955] HCA 60

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Taylor JJ. Williams v Usher [1955] HCA 60

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 21 Dixon C.J., McTiernan, Fullagar and Taylor JJ.

This is an appeal from the Supreme Court of Western Australia (Wolff J.) in an action under the English Fatal Accidents Act 1846 (Lord Campbell's Act), which was adopted in Western Australia by ordinance 12 Vict. No. 21. The plaintiff, Margaret Patricia Usher, for the benefit of herself and three very young children, sued the defendants in respect of the death of her husband, Robert Austin Usher, in a motor car accident in that State. By their pleading the defendants originally denied negligence, but at the trial negligence was admitted, and the only issue was as to damages. Wolff J. gave judgment for a total sum of £15,376, which he apportioned as follows:—To the plaintiff £7,926, to the child Helen Usher £1,850, to the child Roderick Usher £3,350, and to the child Elizabeth Usher £2,250.

The learned judge's assessment of damages is attacked mainly (though other points have been raised) on a ground arising out of a claim made by the plaintiff for workmen's compensation in the State of New York in the United States of America. In order to appreciate the point raised, it is necessary to state the circumstances of the deceased's employment, and then to recount the proceedings taken by the plaintiff.

Usher served during the recent war as a member of the United States Marine Forces in Australia and the South West Pacific, and he met and married the plaintiff in Australia in 1943. After the war he returned with his wife to the United States, and entered the employment of the Hoffman Machinery Co., a corporation constituted under the laws of New York and carrying on the business of manufacturing dry-cleaning machinery on a large scale. In August 1949 he was sent to Australia to negotiate a sales agreement for the company. He returned to New York in November 1949, but before the end of the year he was sent again to Australia to promote sales here for the company's machinery. He was accompanied by his wife and children. He took up temporary residence in Melbourne, but his work necessitated visiting all the States of Australia, and it was while he was travelling on the company's business in Western Australia that he met his death in a collision between two motor vehicles on 4th July 1950. The four defendants are respectively the owner and driver of the car in which Usher was a passenger, and the owner and driver of the car which collided with that car.