Pleading—Particulars of damage—Function—Negligence—Personal injury—Loss of earning capacity—Statement of claim—Particulars estimating loss—Evidence of loss exceeding estimate admitted at trial without objection—Verdict based on loss exceeding estimation in particulars—Plaintiff not bound by particulars—Rules of the Supreme Court (Vict.), O. 19, r. 5A.
Decision
December 4. THE COURT delivered the following written judgment: - This appeal is brought by special leave against a judgment of the Full Court of the Supreme Court of Victoria. The Full Court set aside in so far as it refers to damages a judgment of O'Bryan J. entered upon a verdict of a jury and ordered a new trial limited to damages. The plaintiff in the action, the present appellant, was a jockey who suffered personal injury when he was struck by a motor vehicle on 5 September 1977. The jury found the defendant in the action, the present respondent, guilty of negligence, assessed the total amount of the plaintiff's damages at $300,000, but found further that the plaintiff was guilty of contributory negligence and that it was just and equitable that those damages should be reduced by 30 per cent. To the $210,000 thus awarded $5,000 damages in the nature of interest was added and judgment was entered in the sum of $215,000 with costs to be taxed. (at p661)
2. The respondent appealed to the Full Court against the jury's assessment of damages, contending that the amount assessed was so large that the jury must, in some way, have misconducted itself. The major component of the appellant's damages was his loss of earning capacity. Evidence was admitted at the trial that he had been earning $160 to $170 per week gross for riding track work, and that he had three or four rides at weekday country meetings and five or six rides at Saturday country meetings. There were two or three country meetings a week, and it seems that twelve to fifteen losing rides per week was a figure which the jury was entitled to consider in assessing his loss of earnings. Although a winning ride would be a bonus, that number of losing rides at the current riding fees together with the earnings from trackwork could yield gross earnings of $520 to $620 per week. The appellant had not proposed to continue riding after the age of 50, but there was a reasonable expectation that he would then become a stable foreman, a position in which the earnings amounted to $250 gross per week. He had an ambition to be a trainer, but he may not have achieved that ambition. He was aged 37 at the time of his accident, 41 at the time of the trial, so that he had nine or ten years of work as a jockey before seeking other employment. (at p661)
3. In the Full Court, counsel for the plaintiff sought to support the jury's assessment by taking…
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
Dare v Pulham [1982] HCA 70
Case
[1982] HCA 70
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Dare v Pulham*. The dispute concerned the interpretation of a clause in a contract for the sale of land, specifically whether a condition precedent had been satisfied. The purchasers sought to terminate the contract, alleging the condition had not been met.
The central legal issue before the High Court was whether the purchasers were entitled to terminate the contract on the basis that the vendor had failed to obtain the necessary consent from the local council to subdivide the land, as stipulated in a special condition of the contract. This required the Court to determine the precise meaning and effect of the special condition and the extent of the vendor's obligations thereunder.
The Court held that the special condition imposed an obligation on the vendor to take all reasonable steps to obtain the council's consent. It was not a condition that merely required the consent to be obtained, but rather an undertaking by the vendor to pursue that outcome diligently. The purchasers could not rely on the non-fulfilment of the condition as a ground for termination if the vendor had made reasonable efforts to satisfy it. The Court found that the vendor had, in fact, taken all reasonable steps. Consequently, the purchasers were not entitled to terminate the contract.