Watson v Burley [1962] HCA 53

High Court of Australia Dixon C.J. McTiernan, Taylor, Menzies and Windeyer JJ. Watson v Burley [1962] HCA 53

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 23 Dixon C.J., McTiernan, Taylor, Menzies and Windeyer JJ.

In December 1958 William Burley was killed in a road accident. He was then twenty-six years of age. An action under the Compensation to Relatives Act was brought on behalf of the widow, who at the time of her husband's death was twenty-eight years of age, and the two children of the marriage (one born in January 1955 and the other in March 1959) against the appellant Watson for damages for negligence occasioning the death of her husband. The first trial took place in Newcastle in October 1960 and resulted in a verdict and judgment for the plaintiff for £12,180, of which £180 represented an agreed amount for funeral expenses. The verdict was apportioned as follows: the widow £11,180; each child £500. The defendant made an application to the Full Court of the Supreme Court of New South Wales for a new trial and a new trial limited to the question of damages was ordered in June 1961. The second trial was heard in Newcastle in August 1961 when the jury returned a verdict for £12,730—that is, £550 in excess of the first verdict. Again the verdict included £180 for funeral expenses and the apportionment was £500 for each child and the balance for the widow; this balance was £11,730. The defendant again applied for a new trial and the Full Court by a majority refused this application and it is from that refusal that this appeal is brought. The majority (Sugerman and Manning JJ.), having set out their general impression that the verdict "gave virtually full value to every factor which the plaintiffs were entitled to have considered in their favour, and yet gave virtually no value to many other factors which should have been considered to the contrary" [1] and their opinion that it was "most difficult to justify the conclusion at which we think the jury necessarily arrived that the factors which should have been taken into consideration in reduction of damages could be substantially disregarded" [1] and having stated that they did not desire to dissent from the earlier judgment, nevertheless attaching decisive importance to the fact that "a second jury has awarded a sum which is a few hundred pounds in excess of the amount of the verdict in the first trial" [1] , expressed their conclusion as follows:— "If we could bring ourselves to feel that the amount of this award was "outrageous", we would feel compelled to order a third trial. But these are, in reality, questions of degree, and in our opinion the extent by which this award exceeded what we would have thought was the maximum of the permissible range open to the juries is not so great as to justify ordering a third trial" [2] . Brereton J. dissented, saying that although he appreciated that a court of appeal would be even more reluctant to order a third trial than to order a second, he thought that because this was an action under the Compensation to Relatives Act in which it was shown mathematically that the jury's verdict was too high, a third trial should be ordered. He said that "in no case can the views of juries override the rules of mathematics" [1] and "this was not a matter of sweet reasonableness but of mathematical equivalents" [2] .