Jones v Schiffmann

[1971] HCA 52

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Owen and Walsh JJ.

JONES v. SCHIFFMANN

(1971) 124 CLR 303

12 November 1971

Damages

Damages—Assessment—Lord Campbell's Act—Action by widow in respect of death of husband—Matters to be taken into account—Earnings of widow—Prospects of remarriage—Compensation to Relatives Act, 1897, as amended (N.S.W.).

Decisions

November 12.
The following written judgments were delivered: -
BARWICK C.J. In the trial of an action at common law in the Supreme Court of New South Wales, a verdict was given in favour of the respondent for the sum of $10,000. Upon an appeal to the Court of Appeal Division, that Court (1970) 92 WN (NSW) 780 increased the amount of damages to the sum of $20,000. The appellant now seeks in this Court the restoration of the trial judge's verdict. (at p304)

2. The respondent's husband was killed as the result of the appellant's negligence. The task for the learned trial judge was the assessment of the financial loss suffered by the respondent by reason of her husband's death. They had been married some eight years during which time they were paying off amounts due on the house in which they lived. They were both in good health but childless. The deceased was in the employ of the Commissioner for Railways in New South Wales. He earned at the time of his death $68 per week after appropriate deduction of income tax. The respondent had taken employment, sometimes working full time and sometimes part time. When working full time she was paid $30 per week after due deduction of income tax and $25 per week net after tax when working part time. They pooled their earnings, expending therefrom their household and personal expenses and their outgoings on the house. What was left they saved. At the date of the death of the deceased, he was thirty-four years of age and the respondent thirty. His employment was secure. He was entitled to superannuation. But he had no real prospect of advancement in the Commissioner's service. (at p304)

3. A factor which the trial judge was bound to consider and which accordingly he did consider in making an assessment was the capacity of the respondent to remarry, a capacity derived from her husband's death. See Carroll v. Purcell (1961) 107 CLR 73 . There is nothing in the reasons for judgment expressed by the trial judge to warrant the conclusion that in making his assessment of the respondent's financial loss he made any error of law, or misconceived or failed to give due weight to any material fact. The Court of Appeal Division however concluded that he had allowed too large a sum; indeed, as I read that Court's judgment, the sum of $10,000 for the respondent's capacity to remarry. This conclusion could only be derived from and the Court of Appeal did base it upon, what was regarded as an unreasonably low award of damages. The questions this appeal raises are therefore was the trial judge's award of…