Cullen v Trappell [1980] HCA 10

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ. Cullen v Trappell [1980] HCA 10

ORDER Allow the appeal and the cross-appeal. Order that par. 2 of the order of the Court of Appeal of the Supreme Court of New South Wales be varied by substituting the words and figures the sum of $125,322 for the words and figures the sum of $137,662. Order that the appellant pay the respondent's costs of the appeal and cross-appeal.

Cur. adv. vult.

The following written judgments were delivered:—

May 1 Barwick C.J.

Since writing my reasons for judgment in Atlas Tiles Ltd. v. Briers [1] I have had the advantage of reading the written submissions of the parties in this case and of hearing the oral argument of counsel in elaboration of those submissions. I have also taken the opportunity of looking once again at the material that was available to me when writing the reasons in Atlas Tiles and of reading the reasons for judgment of those Justices who participated in the hearing of that case and also of those Justices who participated in the present appeal.

1. (1978) 144 C.L.R. 202.

My reasons in Atlas Tiles covered the circumstances of this case in that I dealt almost primarily with the case of personal injury and the evaluation of the capacity to earn which by injury a person had either lost or had had impaired. I feel bound to say that nothing I have read or heard has caused me to alter the reasons which I gave for decision in Atlas Tiles. There are, however, one or two supplementary remarks which I desire to make.

I feel I ought at the outset to state explicitly the approach which, in my opinion, this Court ought now to make to the decision of principles of the common law applicable in Australia. Long since the Court decided that it was not bound by the decisions of the Court of Appeal or of the House of Lords. For a considerable time, thinking uniformity of decision in matters of common law within the British Commonwealth, or at least as between the courts of the United Kingdom and this Court, desirable the Court made a considerable endeavour to maintain that uniformity even to the point of deferring to a decision of the English Court of Appeal rather than maintain one of its own: see Waghorn v. Waghorn [2] . But the maintenance of that uniformity could scarce survive the decision of the Privy Council in Australian Consolidated Press Ltd. v. Uren [3] .