Damages—Quantum—Personal injuries—Loss of earnings—Future expenses—Fares paid to bring plaintiff's mother from Italy—Husband's damages for loss of consortium.
Decisions
October 24. The following written judgments were delivered: - DIXON C.J. I have had the opportunity of reading the judgment of Owen J. and I agree in his Honour's conclusion and his reasons. (at p542)
McTIERNAN J. I agree that the order of the Supreme Court of South Australia should be varied in the manner stated in the order made by this Court. (at p542)
2. I agree with the reasoning of Windeyer J. (at p542)
WINDEYER J. The main facts of this case are set out in the judgment of my brother Owen. I need not repeat them. It is easy to understand the difficulty that the learned trial judge felt in assessing damages, for it is almost impossible to arrive at any logically satisfying conclusion in a case like this. Nevertheless, for reasons that I shall give, I consider that his Honour's assessment was erroneously based, inadequate, and that we should amend it. (at p542)
2. Dealing first with the case of the wife: The general damages she has suffered include two elements of economic loss that, although not in any exact sense predictable are yet in some degree susceptible of calculation; and they should, I think, be the starting point of any attempt to assess damages. The first of them is the loss that arises from the destruction of the plaintiff's earning capacity, commonly described as a future loss of wages. The second is expenditure that in the future may be expected to be incurred as a direct consequence of the plaintiff's injuries. The amounts which should be awarded under these heads are, of course, not precisely determinable, for some of the relevant factors are at best uncertain inferences. And I appreciate that attempted calculations sometimes only give a pseudo-scientific appearance to what in the last resort is an arbitrary determination, not a necessary conclusion from ascertained fact. Nevertheless, an attempt to calculate damages under these two heads does, I think, provide a basis for making an assessment as well as providing a test of the validity of an assessment appealed from. This is because some figure is arrived at for matters that are in a sense calculable before consideration is given to amounts to be allowed for matters that are wholly insusceptible of calculation such as pain and suffering and the depreciation of the enjoyments of a normal and full life. Yet the sum finally awarded for general damages must be that thought proper for the whole loss; and it is not made up of rigidly separated components. So that in the end there is a wide range within which opinion may differ. And it is this that must make an appeal court hesitate to set aside the opinion of the trial judge. (at p543)
3.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bresatz v Przibilla [1962] HCA 54
Case
[1962] HCA 54
Decision Date
CaseChat Overview and Summary
The case of *Bresatz v Przibilla* concerned a dispute between the vendor, Mr. Bresatz, and the purchaser, Mr. Przibilla, regarding a contract for the sale of land. The purchaser sought to terminate the contract, alleging that the vendor had failed to comply with a condition precedent. The matter came before the High Court of Australia.
The central legal issue before the High Court was whether the vendor's conduct constituted a repudiation of the contract, thereby entitling the purchaser to terminate. Specifically, the court had to determine if the vendor's failure to obtain vacant possession by the settlement date, as stipulated in the contract, amounted to a breach so fundamental as to discharge the contract.
The High Court held that the vendor's failure to give vacant possession by the settlement date did not, in itself, amount to a repudiation of the contract. The court reasoned that the obligation to give vacant possession was a contractual term, and a breach of such a term, while actionable, did not automatically discharge the contract unless it evinced an intention by the vendor no longer to be bound by the contract or to perform it in a manner substantially different from that which the parties agreed. The court distinguished between a breach of a condition and a repudiation, emphasizing that the latter requires a more fundamental departure from contractual obligations. The purchaser's remedy for the breach of the vacant possession clause was damages, not termination.