Chirray v Christoforidis

[1966] NSWCA 1

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Chirray v Christoforidis [1966] NSWCA 1
Hearing dates:	8 February 1966
Decision date:	08 February 1966
Before:	Wallace P, Jacobs & Asprey JJA
Decision:	Appeal allowed
Legislation Cited:	Suitors Fund Act Supreme Court Act 1970 s160A
Category:	Principal judgment
Parties:	Chirray Christoforidis
File Number(s):	15442/1961
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Before: Taylor J

Judgment

1. WALLACE P: This is a motion for a new trial and for an order setting aside a verdict given by a jury before Taylor J. The only ground of appeal is that the damages awarded by the jury were excessive.

2. It appears that the plaintiff, who was a lady of about 58 years of age at the time of the trial in 1965, is a single woman who was employed In clerical duties by the Department of Taxation, and that as a pedestrian she was knocked down by the defendant's car in 1958. As a result of the accident she sustained the following injuries: multiple abrasions and lacerations, a severe laceration and haematoma of the left eyebrow, a fractured left lower rib and fractures of the right and lefts pubic bones. After the accident she was treated in hospital for about 52 days and on being discharged she remained at home for seven days, during which period she was unable to do her own household duties and had to be assisted from outside sources.

3. The fractures have all united satisfactorily, albeit in the case of the pelvic fracture there is some slight deformity, resulting in some tenderness which derives from interference with a nerve, but it does seem, although there are residual disabilities, that by and large the lady recovered well enough from the injuries. She sustains some disability in connexion with walking: although she does walk it makes her tired, and occasionally there is some loss of control of the left leg, but this does not last very long. She also has some pain in the head from time to time, but this intermittent pain does not appear to me to be of a very serious nature compared with instances that we see from time to time in more serious cases. The learned trial Judge himself described the case as of a somewhat modest nature compared with other cases that come before the Supreme Court. The jury awarded all her out-of-pocket expenses, including medical and hospital, and the cost of having her housekeeping done during her period of incapacity, and over and above such sum aggregating as it did £324.5.0, they awarded her £7,000 by way of general damages for pain and suffering, loss of amenities and so on. She has, it may be said, sustained some loss of amenities in that her walking disability probably prevents her from playing golf or swimming to any large extent, and perhaps dancing, in all of which activities she used to indulge.

4. Viewing the case as a whole and taking into consideration the various factors which are so well known as correct factors in this type of case, I am clearly of opinion that the amount awarded was out of proportion and obviously excessive, having regard to all the circumstances. After all, even in these days £7,000 is very substantial sum which would return permanent income of £300 or £400 at modest rates of interest, and whilst one has sympathy with the lady because of her unfortunate experience, the jurisdiction of this Court must, I think, be of a nature warranting our interfering in such a case where the amount awarded is as high as it is here.

5. I consider that the appellant succeeds and that the Court should set aside the verdict of the jury and order a new trial on the issue of damages. We have been asked by both parties if the contingency occurred that this Court should consider a new trial should be ordered, to exercise our jurisdiction under the new section, s160A. Before speaking further on that matter I should like my brother Judges to give their views on the main point.

6. JACOBS JA: I agree with the opinion expressed by the learned President and consider that the appeal should be upheld and the verdict set aside.

7. ASPREY JA: I agree also with what has fallen from the learned President and my brother Jacobs.

8. WALLACE P. On the question of the exercise by us at the invitation of both parties of our jurisdiction under s160A, I am of opinion, there being no issue of fact whatsoever as far as I can see in the case, (which, as the learned trial Judge said, was conducted with commendable brevity, although full Justice was done to the plaintiff) that in all the circumstances the sum of £4,000 plus the out-of-pockets of £324.5.0 would be a fair and just verdict in the case.

9. JACOBS JA: I agree.

10. ASPREY JA.: I agree.

11. WALLACE P:: In the result the order of the Court is as follows: The appeal is upheld with costs; the respondent is to have a certificate under the Suitors' Fund Act; at the invitation of both parties we assess the damages which should be awarded to the plaintiff in the sum of £4,324.5.0, and judgment should be entered accordingly.

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Decision last updated: 03 February 2016