Carroll v Purcell [1961] HCA 81

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Carroll v Purcell [1961] HCA 81

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that the appeal to that Court be allowed with costs. Order that a new trial be had limited to the question of damages.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 7 Dixon C.J., Kitto, Taylor and Windeyer JJ.

The appellant's husband, who was a fitter and turner employed in Newcastle, was killed in a road accident on 16th October 1955. There were two children of the marriage—Valerie and Jeanette—who were, respectively, eleven and six years of age at the time of their father's death. The plaintiff, herself, was then nearly thirty-three years of age. In an action subsequently brought pursuant to the Compensation to Relatives Act N.S.W. for the benefit of herself and the two children the jury returned a verdict of £6,770. This sum was apportioned, as to £4,520 thereof, to the widow and as to £1,000 and £1,250, respectively, to the children. Upon appeal to the Full Court of the Supreme Court of New South Wales it was urged that the amount of the verdict was inadequate, that certain evidence relating (1) to the earnings of the appellant after the death of her husband and, (2) to certain rents which she had thereafter received, had been wrongly admitted and that, in relation to these matters, the jury had been misdirected. The appeal was dismissed and this appeal is now brought from the order of the Full Court.

It appears, though the evidence on the point is far from satisfactory, that upon the death of her husband the appellant succeeded to the cottage at Lambton near Newcastle in which the family had lived up to the time of his death. This cottage, it seems, had been purchased by the deceased with the assistance of a loan from a Starr-Bowkett Society and the deceased was obliged to make monthly repayments to this Society. According to the plaintiff she had "finished the payments" at the time of trial but how much was owing at and paid after the death of the deceased does not appear. The unencumbered value of the cottage was said to be about £2,500. But after the death of her husband the appellant let the cottage at a rental of £8 a week and came to Sydney. There she arranged for her two children to be admitted to the Masonic School at Baulkham Hills and took up residence with her father and mother in their flat. Then she obtained a situation at the Masonic Hospital at Ashfield where she worked for about 14 months. Since then she has worked as a telephonist. She says that she has undertaken these activities in order "to make ends meet". Cross-examination of the plaintiff elicited, first of all, that her wages whilst she was employed were about £12 per week and, secondly, that she has paid approximately £4 a week for the accommodation provided for her in her father's flat. This evidence was admitted in spite of objection and the submission is now made that its admission was erroneous. Further, it is said, the learned trial judge misdirected the jury in relation to these matters. It should be added that although the general ground was taken that the damages awarded were inadequate it is not contended that this ground can be made out independently of the two particular objections which have been raised.