Electricity Commission (NSW) v Lapthorne [1971] HCA 11

High Court of Australia Barwick C.J. McTiernan, Menzies, Owen and Walsh JJ. Electricity Commission (NSW) v Lapthorne [1971] HCA 11

ORDER Appeal dismissed with costs as incompetent.

Cur. adv. vult.

The following written judgments were delivered:—

April 21 Barwick C.J.

The respondent to this appeal whom I shall for convenience call the plaintiff sued the appellant (the defendant) under the provisions of the Compensation to Relatives Act, 1897-1953 NSW commencing her action by writ on 29th September 1966. The action was heard by a judge sitting without a jury pursuant to the provisions of the Supreme Court Procedure Act, 1900-1965 NSW. At the conclusion of evidence the trial judge reserved his decision. Subsequently he delivered written reasons in which he came to the conclusion that the defendant was negligent but that the deceased husband of the plaintiff was lacking in care for his own safety. He said: "Consequently there will be a verdict for the defendant." So far the provisions of s. 5 of the Supreme Court Procedure Act were satisfied: but the judge did not direct judgment to be entered in conformity with his verdict. See s. 5 (2). It does not appear from the appeal book filed in this Court whether judgment was in fact entered for the defendant. However, the plaintiff appealed against the whole of the "order, decree, judgment or verdict" of the judge. By the notice of appeal the plaintiff sought (i) a verdict for the plaintiff; and (ii) the assessment of damages.

This appeal was evidently in purported pursuance of s. 5 (6) of the Supreme Court Procedure Act. The Court of Appeal Division of the Supreme Court (which for ease of reference I shall call the Court of Appeal) heard the plaintiff's appeal and came to the conclusion that the trial judge was not in error in concluding that the defendant's negligence caused the death of the plaintiff's husband but that he was in error in concluding that the deceased was lacking in care for his own safety. The Court of Appeal's order was that "The appeal is allowed. Judgment for the defendant set aside and in lieu thereof order that judgment be entered for the plaintiff; direct that the amount of damages be assessed by a judge without a jury." The defendant lodged in due time a notice of appeal to this Court from the whole of the judgment of the Court of Appeal seeking—(i) an order allowing the appeal; and (ii) an order setting aside the judgment of the Court of Appeal and in lieu thereof entering judgment in the action for the appellant with costs.