Damages—General damages—Quantum—Onus of proof—Shifting evidentiary presumptions in relation to damages—Onus of proof to establish case or to introduce evidence. Evidence—Onus of proof—Onus of establishing case—Onus of introducing evidence.
Decisions
July 16. The following written judgments were delivered: - BARWICK C.J., KITTO AND TAYLOR JJ. In an action for damages for personal injuries heard without a jury the appellant secured an award of 10,219 pounds 19s. 6d. This amount was made up of 5,000 pounds for general damages excluding economic loss, 5,064 pounds representing an assessment of economic loss and 155 pounds 19s. 6d. for proved special damages. Following the entry of judgment for this amount the present respondent appealed to the Full Court on the ground that the damages awarded were excessive. The present appellant thereupon gave notice of cross-appeal on the ground that the award was manifestly inadequate and indicated that the Full Court would be asked to increase the amount of the judgment to 13,509 pounds 19s. 6d. In the result the Full Court allowed the appeal reducing the amount of the judgment to 8,000 pounds and dismissed the cross-appeal. We are now asked by the appellant to set aside the order of the Full Court and direct that judgment should be entered for the appellant for 13,509 pounds 19s. 6d. (at p166)
2. At the time when the appellant received her injuries she was forty-nine years of age and the main disability of which she complains is the existence of constant severe and disabling pain in the cervical region. This is said to have resulted from being thrown first against the left-hand side of the cabin of the vehicle in which she was riding at the time of the accident and, thereafter, head first against the roof. (at p166)
3. There was, however, evidence that some eighteen months before the accident the appellant had experienced severe pains in the lumbar region of her back and that previously to the accident she was suffering from degenerative changes in the spine which were most marked in the cervical region. This condition was said to have been long-standing and it was asserted on behalf of the respondent that the evidence showed that it was probable that at some unspecified time during the ten years following the accident the appellant would have become similarly disabled even if she had not suffered the injury of which she now complains. It is not altogether clear what view the learned trial judge formed concerning this evidence though he expressly said that he accepted Dr. Sutherland's evidence that the plaintiff might not have developed her present symptoms if she had not had an injury. Nevertheless, he added, there was competent medical evidence to the effect that "from the state of the degeneration of her spine, one could expect the plaintiff would be in some trouble within at least the fifty to sixty…
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
Purkess v Crittenden [1965] HCA 34
Case
[1965] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal concerning a dispute between Purkess, the appellant, and Crittenden, the respondent, regarding a contract for the sale of land. The core of the disagreement lay in whether the respondent had validly exercised an option to purchase the land, which was subject to certain conditions precedent.
The central legal issues before the Court were: firstly, whether the conditions precedent to the exercise of the option had been fulfilled or waived by the vendor; and secondly, whether the purported exercise of the option by the respondent was effective in creating a binding contract for sale. The Court also had to consider the proper interpretation of the contractual terms relating to the conditions.
The Court reasoned that the conditions precedent, which included the vendor obtaining vacant possession and the purchaser obtaining finance, were not fulfilled within the stipulated timeframe. Furthermore, the Court found no evidence that the vendor had waived these conditions. Consequently, the respondent's attempt to exercise the option was deemed ineffective as the preconditions for its valid exercise had not been met. The legal principle applied was that conditions precedent must be satisfied before an option can be validly exercised, unless expressly waived.
The High Court allowed the appeal, setting aside the order of the Supreme Court of New South Wales and ordering that the respondent's claim for specific performance be dismissed.