Williams v Usher

The appeal concerned the assessment of damages in an action brought under Lord Campbell's Act in the Supreme Court of Western Australia. The plaintiff, Margaret Patricia Usher, sued the defendants, Reginald Owen Williams and others, for damages arising from the death of her husband, Robert Austin Usher, in a motor vehicle accident. The defendants appealed to the High Court of Australia against the judgment of Wolff J. in the Supreme Court of Western Australia.

The primary legal issue before the High Court was whether the damages awarded to the plaintiff should be reduced by the amount of workmen's compensation received by her and her children under the law of New York. This issue arose because the deceased was employed by a New York company, and his dependants had claimed and received compensation in New York. A further issue concerned the proper assessment of damages under Lord Campbell's Act, including considerations of the deceased's earning capacity, the children's dependency, and the possibility of the widow's remarriage.

The High Court held that the damages awarded were not subject to diminution by reason of the New York workmen's compensation. This was because the plaintiff had given an undertaking to refund any compensation received from the proceeds of the Western Australian action, which was considered a valid compromise of an appeal against the New York award. The court reasoned that this undertaking meant there was no "real gain" to the plaintiff that needed to be brought into account under Western Australian law. The court also considered and rejected other grounds of appeal relating to the assessment of damages, finding no error in the trial judge's approach to calculating the deceased's earning capacity, the duration of dependency, or the allowance for contingencies such as remarriage.

The High Court allowed the appeal in part, varying the Supreme Court's judgment by increasing the total amount ordered to be paid by the defendant to £2,250. This sum was to be divided, with £2,000 for the plaintiff, £150 for Darryl Alvin Ball, and £100 for Beverley Lenna Ball. The cross-appeal was dismissed.