Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Owen JJ. Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9

ORDER Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be allowed with costs. Order that there be a new trial limited to the question of damages.

Cur. adv. vult.

The following written judgments were delivered:—

March 11, 1968 Barwick C.J.

The respondent to this appeal obtained a verdict from a jury for the sum of $166,840 in an action in which he sued the appellant for damages for negligence in the management of a motor car in which he, the respondent, was a passenger. The Supreme Court of New South Wales was unsuccessfully moved for an order for a new trial on the ground that the amount of the verdict was excessive. The appellant now asks this Court on the same ground to set aside the verdict and to order a new trial limited to damages.

There is no dispute as to the respondent's physical condition as the result of the overturning of the appellant's car after running off the Pacific Highway near Bulahdelah, north of Newcastle. To use the description of the learned trial judge, he is "almost a quadriplegic. He has paralysis below the chest level and paraesis of both arms with the consequent disabilities that flow from such a dreadful incapacity." The physician who attended him in hospital with a considerable degree of success says in substance that he has now reached his maximum recovery. I extract the physician's principal conclusions as expressed by him in evidence.

He has got, I think, full use of his shoulder girdle muscles and these are quite all right The patient is able to move his wrists. There is not much power in these movements of his wrist He has function in his thumbs and in his index finger, which is not a full function. Again there is not much power in it, but the movements are such that they give him the possibility of gripping things even if this grip is not too strong. It is better on the left side. It is worse on the right side. He is very weak in his three last fingers on either side He has got a lot of wasting in his hands, small muscles which are enervated from the roots just below the area of lesion, but this amount of movement allows him to hold, for instance, his shaving apparatus, if not shave himself, it allows him to light a cigarette, it allows him to feed himself it should be qualified as only very partial use of his hands and fingers It is very restricted first of all, from the power point of view and also from the movement point of view, in the last fingers. But, as the respondent said in evidence, he cannot cut up his food. Though he may be able to put on some of his clothes, he cannot dress himself.