Damages—Personal injuries—Loss of earning capacity—Future expenditure—Whether depreciation in purchasing power of money to be considered.
Decisions
September 10. The following written judgments were delivered:- BARWICK C.J. The appellant recovered a verdict of $150,186.20 in an action against the respondent tried by a judge of the Supreme Court of Queensland. The cause of action was negligence in the driving of a motor car on the Pacific Highway, north of Brisbane, Queensland, causing extensive personal injury to the appellant who was a passenger in the vehicle. Of the total amount of the verdict, $140,000 was awarded by the learned trial judge as general damages covering loss of earning capacity, pain, suffering, loss of enjoyment of life, actual physical injury, compensation for future needs that would not have existed but for the injury to the appellant and loss of expectation of life. In his reasons for judgment, the learned trial judge said:
"In fixing damages, I have borne in mind the factor of vicissitudes of life, where applicable. I have borne in mind the question of his ordinary maintenance. I have borne in mind that income tax may be incurred for interest or dividends he may receive from any investment of any part of the amount awarded. And I have borne in mind the likelihood of the value of money decreasing in the future." (at p542)
2. The respondent appealed to the Full Court of the Supreme Court against, amongst other things, the award of general damages, generally on the ground that it was excessive but, particularly, on the ground that:
"the learned judge wrongly admitted evidence as to the future decline in the value of money and wrongly took into account the likelihood of the future decline in the value of money." (at p542)
3. The Full Court allowed the appeal and reduced the award of general damages to the sum of $100,000 and the total verdict to $110,186.20. The appellant, by this appeal, seeks the restoration of the trial judge's verdict. (at p542)
4. In giving judgment, the Full Court said:
"The learned trial judge has, in our view, stated the correct principles upon which a judge should proceed in arriving at an assessment of damages in such a case as this, with the exception that he has borne in mind the likelihood of the value of money decreasing in the future. As to this we respectfully adopt what was said by Windeyer J. in Parente v. Bell (1967) 116 CLR 528, at pp 532 et seq
. To whatever extent his Honour's judgment allowed for future inflation it must be held in error. The figures given us show that the allowance for future inflation was probably considerable." (at p542)
5. After discussing various aspects of the case, the Full Court came to the conclusion
"that the assessment of general damages is so excessive as to be…
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.
Continue reading O'Brien v McKean
Sign in free to access the full text
Details
AGLC
O'Brien v McKean [1968] HCA 58
Case
[1968] HCA 58
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a dispute between O'Brien and McKean concerning the validity of a will. The central issue revolved around whether the testator, Mr. McKean, possessed the requisite testamentary capacity at the time he executed the will. The appellants, O'Brien and others, sought to uphold the will, while the respondent, McKean, sought to have it declared invalid.
The primary legal question before the Court was whether the evidence established that Mr. McKean had a sound disposing mind and memory at the time of executing the will. This required the Court to assess whether he understood the nature of the act of making a will, the extent of his property, and the claims of those who might expect to benefit from his estate. The Court also had to consider the effect of any evidence suggesting that the testator's mental state might have been impaired by illness or other factors.
The Court's reasoning focused on the established legal tests for testamentary capacity. It was held that the onus of proving testamentary capacity rests on those who propound the will. The judges examined the evidence presented regarding Mr. McKean's mental condition, including medical testimony and the testimony of witnesses to the will. They applied the principle that a testator must have a sufficient understanding of their affairs to make a rational disposition of their property. The Court ultimately found that the evidence did not satisfy the stringent requirements for testamentary capacity, leading to the conclusion that the will was invalid.