Brandi v Mingot

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IN THE HIGH COURT OF AUSTRALIA
BRANDI
V.
MINGOT.
REASONS FOR JUDGMENT
ORIGINAL
Judgment delivered at...
SYDNEY
on WEDNESDAY 24 NOVEMBER 1976
RM74/30574

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BRANDI
V.
MINGOT
ORDER
Appeal allowed with costs.
Judgment of the Full Court of the Supreme
Court of Victoria set aside. In lieu thereof order
that the appeal to that Court be allowed with costs and
that the verdict and judgment appealed from be set aside
and that there be a new trial of the action limited to
the issue of damages and that the defendant pay the
plaintiff's taxed costs of the trial.

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BRANDI
V.
MINGOT
JUDGMENT
GIBBS A.C.J.
STEPHEN J.
MASON J.
AICKIN J.

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BRANDI
V.
MINGOT
This is an appeal by an appellant in person against
the dismissal by the Full Court of the Supreme Court of Victoria
of his appeal against the quantum of damages awarded to him by
verdict of a jury in an action for personal injuries.
The
appellant had been involved in a motor car accident in April 1964.
His writ was issued in December 1965 but the trial did not take
place until July 1975, more than eleven years after the accident.
The trial was confined to the assessment of damages, liability
being admitted. The jury's verdict was for $10,000.
On the appeal to this Court the appellant, now
appearing in person, proved unable to provide the Court with any
assistance in understanding his appeal. In consequence it has
been necessary to have recourse to his notice of appeal, which
was prepared professionally, and to examine in detail, in the light
of the grounds there stated, the transcript of evidence, the
learned trial judge's charge to the jury and the reasons for judgment
of the Full Court.
Before the Full Court two principal grounds of appeal
were relied upon, that the damages awarded were so unreasonably
low as to call for the setting aside of the verdict and that the

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2.
jury had been misdirected concerning the significance, for them,
of the appellant's failure to call certain medical evidence. The
Full Court was in our view entirely correct in rejecting this latter
ground of appeal; it was of no substance and, although persisted
in on the present appeal, we do not stay to say more of it.
The
other ground of appeal raised matters of real substance. It appears
again in the present notice of appeal, coupled with details of what
are said to be errors discernible in the reasons given by the Full
Court for rejecting it. This ground should, we think, have succeeded
before the Full Court and it provides the basis upon which we would
allow this present appeal.
In April 1964, the appellant was driving to work in the
city area of Melbourne. While his car was stationary at an inter-
section it was struck by a car driven by the respondent which
collided with the rear of it. The appellant described the collision
as a violent one.
The appellant was, at the time of this accident, in April
1964, an employee of the Victorian Railways. He was aged about 29
and was an experienced locomotive fireman. He had then been working
in the railways for almost ten years, having begun to work there
very soon after arriving in Australia as a young Italian migrant of
about twenty. During those years he had advanced from unskilled
work in railway stores through a railway workshops job to his
position of locomotive fireman. Following study and examinations
he was, when the accident occurred, about to become a qualified
engine driver driving diesel engines on Victorian country lines.
He in fact attained this position soon after the accident. He
had always enjoyed good health and was apparently an intelligent
and hard working man.
At the time of the trial engine drivers in
the Victorian Railways were earning just over $200 per week gross,

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3.
including overtime pay, or a little more than $10,000 per annum.
In the case of the appellant income tax would have reduced these
figures to rather more than $150 per week or $7,500 per annum.
The job would have been a secure one and it carried with it contri-
butory superannuation benefits, long service leave rights and
certain rights to free travel on the railways.
This, then, appeared to be, before his accident, what
the future held for the appellant. With it may be contrasted the
employment prospects of the appellant as they appeared at the
trial in mid-1975, affected as they had been by his changed
physical condition.
He had by then left the railways some years
earlier and after some time had moved to Stawell where he lived
with his wife and young family. Iwo experienced and highly
qualified orthopaedic surgeons, the only medical witnesses called
in the trial and who had treated him for some years, spoke of his
physical condition. One of them, Mr. Jens, said that it was such
that the appellant's future employment opportunities would, at
best, be confined to work involving no heavy lifting, bending or
even prolonged sitting, the jolting movements of a railway engine
debarring him from the occupation of an engine driver.
However
unless there was an improvement in the appellant's anxiety state,
associated with his physical incapacities, there was, he thought,
little prospect of any employment for him in the future.
The
other,
a Mr. Beetham, regarded the appellant as unfit for any
physical work involving bending or lifting; given "supportive

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4.
physical therapy and tablet treatment and so on, he can probably
be tided along" in a job not involving such work.
As at the
time of the trial the appellant, he said, had for some time been
unfitted for any work but seemed to be, if anything, somewhat improved
when he had last examined him shortly before the trial.
The appellant's own description of his physical dis-
abilities and their effect upon his capacity for work was, as might
be expected in one suffering a considerable degree of anxiety and
functional overlay, a gloomy one, even less favourable than that
of his doctors. It should, no doubt, on any view be treated with
some reservation as very likely to be much influenced by the
depressed mental state which both doctors attributed to him.
However in the light of the evidence of these experienced
orthopaedic surgeons, whose evidence in this regard was substantially
unaffected despite lengthy cross-examination, it would be quite
perverse for a jury to regard the appellant as having, at the date
of trial, other than a quite substantially reduced earning capacity
when compared with his position before the accident. Their evidence
did not, of course, by any means rely solely upon the account of
symptoms and of pain given by the appellant but were founded upon
examinations conducted over some years of observation and treatment
and involving a wide range of diagnostic aids.
There was no evidence
to suggest that the appellant would improve in the future;
the
medical opinions were to the contrary.

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5.
Unless, then, the jury might, on the evidence, reasonably
fail to be satisfied that the appellant's present physical condition
was brought about by the accident we must regard the damages awarded
as wholly incommensurate with the injury suffered by the appellant.
Bearing in mind his present physical condition, some idea of the
extent of this disproportion may be gained by comparing the verdict
of $10,000 with the sum of over $10,000 to which his gross annual
wage in his former relatively secure employment would probably have
amounted in 1975. Again the damages awarded may be compared with
the unrecouped expenses of $7,750 which the appellant had admittedly
incurred before trial on medical treatment and associated travelling
expenses alone, exclusive of the expenses of his not infrequent
hospitalization.
One possible explanation of the amount of the award may
be disposed of immediately; there was no evidence to suggest that
before the accident the appellant was other than a healthy, active
man.
Indeed he seems to have been both active and enterprising;
not only had he much improved upon his original economic position,
that of an unskilled migrant worker, he had also acquired not insub-
stantial assets, a small farm of over one hundred acres and two blocks
of land in the Moonee Ponds area.
Again, this is not the case of a
jury either refusing to regard a plaintiff as having suffered any
accident-caused injuries or believing a plaintiff to be a mere
malingerer. The jury did award the appellant $10,000 in damages.

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6.
Any explanation of the jury's verdict which is designed to uphold
its rationality must not only account for its apparent want of
correlation with the changes in the appellant's physical condition
and their consequences;
it must also be consistent with the award
of $10,000, an award which itself acknowledges that the appellant
did suffer not insubstantial detriment as a result of the accident.
Such an explanation was sought for and expounded in the
reasons for judgment of the Full Court.
Their Honours' explanation
turned upon a segregation of the appellant's injuries into two
distinct areas, his neck and his lower back, the latter being said
to be such that the jury might reasonably fail to be satisfied that
it was attributable to the original accident. This explanation
relied quite substantially upon two linked factors, what was seen
as the successful attack upon the appellant's credit made in his
cross-examination and the significance which the jury may have placed
upon the failure to call medical evidence which should have been
available to the appellant.
These factors are inter-connected
because they both relate to a feature of the appellant's case, his
apparent relative well-being and lack of need of medical attention
during a period from about mid-1966 until about mid-1967, during
which time, having resigned from the railways, he purchased a run-
down hotel at Stawell and began a career as a successful country
publican.
The suggestion is that he had by 1966 in fact recovered
from his injuries suffered in the accident, which were substantially
neck injuries, and that his evidence to the contrary
was not believed

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by the jury, which might have been influenced to this view by the
appellant's failure to call certain medical evidence as to his
condition during the period before 1967.
It will be necessary to look in some detail at the
reasons for judgment of the Full Court. The Full Court's approach
to the matter was to note at the outset that the only medical
evidence tendered on the appellant's behalf for the period from the
accident in April 1964 until May 1967, when he first attended
Mr. Jens, was a report by a Dr. Wilson, since deceased, given in
July 1965. The appellant had first consulted Dr. Wilson, a general
practitioner in North Melbourne, on the day of the collision in
April 1964 and saw him thereafter over thirty times until the
appellant moved to Stawell.
Dr. Wilson's report, described as "an
interim report only", gives the appellant's account of the accident
and of the resultant neck pain of which he complained on his first
visit to the surgery on the day of the accident.
Then, after the
briefest of references to an x-ray of the cervical spine which
showed no bone abnormality and to a subsequent intensive course of
physiotherapy which "failed to produce any satisfactory results",
it states that the appellant was referred to a Mr. Emmett Spring.
It concludes with the statement that the appellant was still under-
going treatment.
It is not the singularly uninformative nature
of the report that is emphasized by the Full Court but rather its
failure to recount any complaint by the appellant concerning his
back or any mention of injury to the cervical spine or discs.

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8.
This is said to be in contrast to the appellant's history as given
to Mr. Jens in May 1967, that immediately after the accident he had
complained of pain in the neck and in the low back. Mr. Jens'
evidence as to the history obtained from the appellant is illumin-
ating; he described the appellant as telling him
"that he had been driving a car and had been struck severely
in the rear and that he had been thrown about and he immedi-
He
had been treated by his own doctor in Melbourne at this stage,
by physiotherapy and manipulative treatments, and he had some
relief of his low back condition from this.
With passage of
time he had an increasing amount of pain in the neck and the
low back.
Most of the treatment had been directed towards
his neck but he was
having considerable disability from his
back when I saw him." (emphasis added).
It is perhaps significant that Dr. Wilson's report, given in July
1965, some fifteen months after the accident, may well have been
made at a time when, according to the appellant's history as given
to Mr. Jens, it was upon the appellant's neck that attention was
being concentrated, "some relief of his low back condition" having
by then been afforded by physiotherapy and manipulation.
Mr. Beetham's account of the history given by the
appellant is different and better accords with Dr. Wilson's report;
to him the appellant's history immediately after the accident was
confined to the neck pain, low back pain only becoming apparent some
time later. If this be so it would account for the omission of
back pain in Dr. Wilson's report, which in this respect is confined
to events on the day of the collision. Whatever be the reason for
no reference to the appellant's lower back in this report, its
generally perfunctory and fragmentary nature must deprive the omission

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9.
of much of its force.
At all events, five months after this report
a writ was issued in which the particulars of injury alleged "aching
in lumbar spine with right sciatic pain", a description not inappro-
priate to the condition diagnosed by Mr. Jens when he first saw the
appellant in 1967 and one which establishes that at least in December
1965 the appellant was complaining of low back pain.
The Full Court's reasons for judgment, after then noting
that at the trial the respondent fought the case on the footing that
the appellant's low back condition was not caused by or a consequence
of the accident, go on to state that it must be to the successful
attack made on the appellant's credit in cross-examination that the
small amount of the verdict must be attributed.
The reasoning is
explained in this way: it is said that a careful study of the
appellant's evidence makes it clear that the jury were entitled
not be be satisfied with the appellant's account "of the nature and
course of his physical injuries, so as to establish a link with the
accident". There follow five matters which are said to support
this view. First, the absence from Dr. Wilson's report of any
reference to a back injury. Secondly, the appellant's failure to
establish the financial losses which he had allegedly suffered in
his hotel business through having to employ extra labour to
do work
which his injuries made him incapable of doing. Thirdly, the fact
that a variety of witnesses
spoke of occasions, particularly before
1968, when he made no complaints of injury and appeared to be without
disability; some of these witnesses also described and contrasted
his later condition of severe disability. Fourthly, the fact that

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10.
both the appellant and a doctor treating him who sold to him the
Stawell hotel business on extended terms of payment must have regarded
him in 1966 as fit to run that business.
Fifthly, the failure to
call as witnesses doctors who had examined, and, in some instances,
treated, the appellant in the years immediately after the accident.
With the first of these we have already dealt. The
second goes ratherto the credit generally of the appellant. As to
the third matter, the evidence of the witnesses in question does,
we think, establish that when the appellant began his hotel business
in Stawell in 1966 he was in a much better physical condition than
at the trial. The same may be said of the fourth matter to which
the Full Court adverted.
However this fact will be of little significance unless
it leaves open the conclusion that the appellant's condition at
trial was unconnected with the accident; this we do not think it
can do.
The medical evidence was quite unequivocal. Mr. Beetham
said that it was consistent with the appellant's injuries that the
lower back condition should come on more slowly than the original
neck condition, "the lower back condition is often delayed for some
considerable period of presentation after such an accident". The
following passage from this witness's evidence summarises his view
of the matter:
"The time gap is variable in relation to soft tissue injury
effects in the spine.
There is quite commonly a gap between
the, shall we say, the minor symptoms and the major symptoms
by virtue of the type of injuries which can occur to the spine.

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11.
It is quite common to have a time lag and
in fact, you can
have consequences of an injury and then a period when there
is not much trouble and then a very minor effort can produce
symptoms of a major nature.
In other words, one gets an
injury to the back and one of the problems of the back is
that ligaments don't heal well like ligaments in other parts
of the body and so we are left with a situation where various
further problems can occur as a result of the original injury.
His Honour:
What, the injury sets up a situation which is
one which cannot contain the effects of bodily disturbances
that normally the spine would accept?
By nature
of the actual structure of the ligaments and the dise in
particular and if the ligament, which is a very complicated
structure, is damaged and then it has not healed properly,
then such
a movement - - - well, commonly enough a thing like
coughing, sneezing, even cleaning one's teeth.
Treading on a pencil?
Yes,. can produce a severe
aggravation as a result of the original injury."
Mr. Jens said, on the same topic:
•.. there very frequently is on a long-term basis at the
contra end of the spine with an injury, say,
to the neck, a
later appearance of back problems because of the postural
upset of the spinal mechanism.
The spine is a perfect
mechanism almost watchlike in
its precision.
If upset one
part of the watch, throw strain on other parts of it.
frequently find low back injury developing a neck problem
over many months, or vice versa."
Not only was it consistent with the medical evidence that
the appellant might only experience severe back pains long after the
accident but the whole of the evidence, including that of the
appellant and his wife and of the witnesses to whose evidence the
Full Court referred in what we have described above as the third
matter, suggested that this was
precisely what did occur. A number
of witnesses spoke of the change that gradually came over the appellant
while he was engaged in running his hotel at Stawell and even the
appellant, unsatisfactory witness that he was as a result of his

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12.
exaggeratedly depressed mental condition, acknowledged that he had
not always been as incapacitated as
he now considered himself to be.
He said that as the hotel's "business was increasing I was deterior-
ating", he was "gradually worsening to a slow degree"
His wife
gave a similar account; speaking of their time at Stawell she said
"Oh, he was going worse all the time, when we first start he wasn't
very bad, but he was going down with the time". The records of
medical treatment of the appellant are consistent with this, from
September 1966 until November 1967, during his early period at
Stawell, he underwent no medical attention but thereafter was almost
continually under medical care and treatment. It is perhaps worth
remarking, as casting some light upon the genuineness of the
appellant's physical decline, that it occurred at a time when his
hotel business was greatly prospering; the Full Court described him
as an astute and successful businessman. The effect of his physical
decline was, of course, to put an end to his promising future as a
publican.
The remaining matter referred to by the Full Court was
the appellant's failure, without explanation, to call any medical
evidence for the quite lengthy period from the accident, in April
1964, until May 1967, some time after the appellant had moved to
Stawell. It was said, with citation of authorities, that the jury
could conclude that the medical witnesses who were not called
"would, if called, have exposed facts unfavourable to the plaintiff"
and that the respondent's failure to call his own medical witnesses,

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13.
who had examined the appellant on a number of occasions from 1966
onwards, "could not be regarded as affording any excuse for the
plaintiff's failure ...
11
•
This calls, we think, for a number of comments.
First, the jury would not know of the authorities relied upon by
the Full Court; they were, on the other hand, instructed by the
learned trial judge in rather different terms as towhow they should
view this failure on the appellant's part. They were told that
ordinarily it might be inferred from a party's failure to call such
evidence that that evidence "would not have advanced that party's
case". However the learned trial judge went on to say that "this
matter does not affect very clearly the present case" since both
parties had failed to call such evidence. As his Honour said "each
side has to live with the tactics that they have adopted and each
must bear the comment that can be made by their opponents about their
failure to call medical evidence.". So, as far as the jury were
concerned, the directions as to the law given to them would not have
operated upon their minds in the way suggested by the reasons of
the Full Court. If some explanation for the jury's verdict is to
be sought it may be found in the law as it was explained to them by
the trial judge, but will not lie in the law as it may otherwise
appear in the authorities.
Secondly, the Full Court derived some support for the
view that the appellant's uncalled medical witnesses would not have
supported his case from something said to them by the appellant in
argument during the appeal after he had disposed of the assistance

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14.
of his counsel and their instructing solicitors. While such a
statement by the appellant, if made in sufficiently clear terms
and with sufficient knowledge of the facts, might no doubt throw
light upon the reason for not calling these
witnesses, it could in
no way assist in determining the only presently relevant matter,
what it was which led the jury to bring in the verdict it did.
The third comment we would make is that in our view the
learned trial judge's direction to the jury, in the terms summarized
above was, in any event, correct and is to be preferred to the
somewhat different statement of the position by the Full Court. In
the authority relied upon by the Full Court, O'Donnell v. Reichard
[1975] V.R. 916, the joint judgment of Newton and Norris JJ does,
we think, correctly state the law when it says, at p.929, that a
jury may infer that the evidence of the absent witness "would not
have helped that party's case". This is just what the jury were
told in the present case. With this may be contrasted the view
expressed in the judgment now under appeal, that the proper inference
is that the absent witness's evidence would have exposed facts
unfavourable to the case of the party failing to call that potential
witness.
This latter approach reflects the views of Wigmore (3rd
Ed. par. 285 et seq.), as Street J. observed in Dilosa v. Latec
Finance Pty Ltd (1966) 84 W.N. (Pt. 1) (N.S.W.) 557 at p.582.
Like Street Ji, we too regard a narrower view, as expressed in the

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15.
joint judgment in O'Donnell v. Reichard, as that which has come to
be accepted in Australia - The Insurance Commissioner v. Joyce
(1948) 77 C.L.R. 39 at p.61, Jones v. Dunkel (1959) 101 C.L.R. 298,
especially at pp. 308, 312 and 321, Lopes v. Taylor (1970) 44 A.L.J.R.
412 per Windeyer J. at p.418 and per Gibbs J. at p.422, Nuhic v.
Rail & Road Excavations [1972] 1 N.S.W.L.R. 204 per Jacobs J.A. and
Mason J.A.
In the learned trial judge's charge he also stated that
the consequences of failure to call available witnesses did, in this
instance, cut both ways since the case of each party was open to the
like comment. His Honour was, with respect, clearly correct in
saying this in the particular circumstances of this case where, the
appellant having led some expert medical testimony, the evidentiary
onus as to the appellant's physical condition thereupon passed
to
the respondent. Once that stage was reached the respondent's
failure to call available medical evidence was open to the same
inference as that flowing from the appellant's like failure.
No
doubt the former's failure does not "excuse" the failure of the
latter, but in truth no question of excuse arises.
When both sides
fail to call available evidence competing inferences arise and it
will then be for the tribunal of fact to consider the evidence which
is before it, in the present case coming exclusively from the
appellant and his witnesses, in the light of such inferences.

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16.
Two further comments may be made on this matter.
The first is that the foundation of the inference that the absent
witness "would not have helped the party's case" is that the
party or his advisers are presumed to know the content of the
absent witness's evidence, otherwise he would not be a witness
whom
"that party might reasonably be expected to call"
A party
may thus reasonably be expected to call his own medical advisers
but no such expectation could arise as to medical practitioners
who examined him on behalf of other persons and whose reports
may not have been available to the party. The charge mentions
medical practitioners ("the Railway doctors") in the latter
category and thus might have misled the jury. Care should
always be taken to avoid this risk.
The second is a comment
by the trial judge after referring to circumstances where absence
of available medical evidence from one party "tends to make the
mind easier in accepting the medical evidence of the side which
has offered it to you". He said "It may be that you would then
feel happier about drawing any necessary inferences". This
passage, however, is too cryptic to be of assistance to a jury
in a case where both parties refrained from calling medical
evidence which they might have been expected to call. It is a
formula expressed in terms designed for cases where only one party
refrains from calling evidence, and even there some explanation of
the kind of permissible inferences is desirable.
If such a
suggestion can properly be made at all where both parties
have refrained from calling available evidence it needs especially
careful explanation, which was not given in this case.

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17.
It follows that we cannot, with respect, regard the
five matters relied upon by the Full Court as leading to the
conclusion that it was reasonably open to the jury not to be
satisfied that a causal connexion had been established between
the accident and the appellant's condition at the time of the
trial, in 1975.
The reasons of the Full Court go on to ask the question
"What evidence should the jury acting reasonably have accepted in
this case?". They answer this by stating the following propositions:
(a) that the appellant suffered soft tissue injury to his neck, as
reported on by Dr. Wilson;
(b) that he was, in consequence, off work for twelve days and was
treated for this injury during 1964 and 1965;
(c) that his capacity for work as a fireman or engine driver was
not thereby substantially interfered with;
(d) that in October 1966 he was physically capable of running a
country hotel;
(e) that by then he had incurred some expenses, not very great,
for medical treatment;
(f) that he had suffered no financial loss up until the trial
by reason of reduced earning capacity.
It is then said that in the light of these conclusions, reasonably
open to the jury "on the contradictory evidence before it and the

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18.
plaintiff's palpable exaggeration of his claim with a consequential
loss of credit on his oath"
› the verdict of $10,000 was not unreason-
able.
If the appellant's account of his troubles be discounted,
as we think it must be on account of his state of depression and
gloom, there remains, in our view, little, if
any, contradictory
evidence.
The whole account by lay witnesses of the appellant's
physical condition over the years accords well enough with the
medical evidence of what might be entailed in his involvement in
just such an accident as the appellant described. The respondent
chose to give no evidence himself of the accident, which he might
be expected to do if the appellant's account of it was exaggerated.
The medical evidence was consistent and largely unequivocal: the
appellant had been x-rayed in 1967 and this disclosed damage to
soft tissue in the lumbar spine and neck. A later myelogram in
1974 showed a very definite disc injury in the lower lumber spine,
one that was "quite clear cut", showing actual pressure of soft
tissue on the nerve root and Mr. Beetham was satisfied that he
could say on oath, as cross-examining counsel put it, that the
injury was related to the motor car accident;
medical examination
of the appellant had provided, in 1969, clinical evidence of that
injury, as had the x-ray evidence of 1967; the appellant was not
imagining his problems, instead he had positive physical evidence
of them.
The complaint of aching in the lumber spine, appearing
in the writ issued in 1965, was consistent with his subsequently
detected injuries.

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19.
Mr. Jens was equally confident of his clinical findings,
confirmed by x-rays and later by myelogram examination, of injury
to the lumbar spine, "a very definite mechanical problem of his
lower back", a "severe involvement".
In the light of all the evidence we would not ourselves
regard all of the propositions formulated by the Full Court as
being reasonably open to the jury. Moreover we have, in any event,
some difficulty in reconciling those conclusions, if they were those
of the jury, with the bringing in of a verdict for as much as
$10,000. We are by no means satisfied that the verdict can be
attributed to any division of the injuries into neck and lower back,
only the former being regarded as attributable to the accident. We
are:
not uninfluenced by the absence, in cross-examination of the
appellant and of his witnesses, of any suggestion that any event
happened to him after 1964 which might itself be an independent
cause of the low back condition of which the medical witnesses spoke;
the appellant was not even questioned as to the possibility of any
trauma intervening between the original accident and the time when
he first came into the hands of Mr. Jens and Mr. Beetham; the existence
of an intervening accident was never an issue in the case.
It is not irrelevant to observe that his Honour's charge
to the jury was, on the whole, not unfavourable to the appellant and
would not have been in any way calculated to suggest to the jury
that they might arrive at the several conclusions referred to in the
reasons for judgment of the Full Court. On the contrary the jury

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20.
might have gathered from what his Honour said that it was, to say
the least, well open to them to conclude that
the appellant's
condition as described by the medical witnesses at the trial was
attributable to injuries sustained in the collision eleven
years
earlier.
His Honour, when coming to the question of the actual
process of assessment of damages, remarked that the jury might well
think it proper to allow, as special damages to which the appellant
was entitled, the whole of the sum of $7,750 "and then pass on the
general damages", that they might well accept the fact that the
accident involved the appellant in a heavy impact which could have
caused a sudden, even violent movement of his body and in particular
of his head, of which both the appellant's physical symptoms and his
mental depression were all consequences. After exposing the
unsatisfactory nature of the financial accounts of the hotel as
providing any satisfactory basis for ascertaining any economic loss
to the plaintiff flowing from his physical incapacity experienced
while conducting the hotel, his Honour went on to say that the jury
might feel that the appellant must have made more out of the conduct
of the hotel had he been able "to devote full and active time to
running the venture". His Honour concluded by saying
'If you accept the evidence which, if I may say so, I think
would be very hard to reject, that this man either
is suffering
from a serious ohvsical disabilitv or at least believes that he
has a physical disability which has mounted now into a composite
disability, partly physical and partly mental, that you might be
prepared to infer that if he were running a small country hotel
filling in different functions during the working day and the
evening, that a disability
such as this would prevent him
from
attending to it all the time that he could otherwise have
attended to it, and that is a matter for you.".

--- PAGE 24 ---
21.
This passage in particular we find difficult to reconcile with a
view that his Honour regarded as seriously in issue the causal
connexion between the accident-caused injury and the disabilities
affecting the appellant during his latter days at the hotel and
still subsisting at the trial.
If some explanation be sought for the verdict other
than that suggested in the reasons of the Full Court it may lie
in the omission from the charge of any reference to the fact that
the appellant was to be compensated for any loss of earning
capacity in the future. The charge contains only one reference,
a passing one, to the future at all and that in a context which
may have been understood as applying only to pain and suffering and
loss of enjoyment of life. Not only was the future thus ignored
but nowhere was it said that the appellant's damages were now to
be assessed once and for all, without any opportunity of further
claim.
These features of the charge may have been due to the long
period, eleven years, which had elapsed since the accident.
Whatever the cause, once combined with a heavy concentration upon
the past, they were, we think, quite capable of leading the jury to
conclude that it was with the past eleven years that it was either
exclusively, or substantially, concerned in awarding damages.
Occasional passages in the charge may, quite apart from
its general concentration upon the past to the exclusion of the
future, have suggested to the jury that it was only with the past
eleven years that they were concerned. They were told that the

--- PAGE 25 ---
22.
figure at which damages were to be assessed "will be the sum that
is assessed as at the date of the accident, that is in April 1964.
Of course, the future is what you have heard about but
the notion
is that by causing the injury in 1964 the defendant who is liable,
as is not disputed, is liable to pay an amount of damages which
compensates for the loss that would result to the plaintiff as from
that date, so that the history of eleven years overtakes the future
as it appeared in April 1964.". His Honour said that special
damages had to be assessed "up to the date of verdict, that is
today's date, and not beyond it", but the position as to general
damages was not contrasted withthat. They were told that general
damages fell under three heads, pain and suffering, loss of enjoyment
of living and economic loss and it was suggested that they should
ask themselves four questions, what was the plaintiff like before
the accident, what happened to him in the accident, what were his
resultant injuries and how had those injuries affected him in bodily
physical effects, feelings and economic loss. His Honour, in
dealing with this fourth question, took three distinct periods, the
latest of which ended at the date of trial. He said nothing about
any subsequent period save that he did, in dealing with pain and
suffering and loss of enjoyment of living, once refer to "what the
future will probably be". When he turned to economic loss he dealt
at length with the appellant's hotel venture which ended in 1971
and with whether its conduct reflected any loss attributable to the
injury but nothing was said concerning the future.

--- PAGE 26 ---
23.
No doubt counsel for the appellant spoke of the future
and of the effect which the appellant's injuries would have upon
his earning capacity in the future, but if the jury is later directed
in its task of assessment without reference to the future it may well
fall into error, as we think occurred in the present case.
We care
conscious of the absence of any exception taken at the trial by
the appellant's counsel to this aspect of the charge;
however we
are here concerned not with a ground of appeal founded upon mis-
direction but rather with a possible explanation of the jury's
verdict.
To the extent that the charge may provide such an
explanation we think it may properly be consulted for that purpose,
particularly where its effect upon those who heard it is little
likely to have been different from its effect upon those who
subsequently read it.
Whatever may have been the reason or combination of reasons
which led the jury to award no more than $10,000 by way of damages,
we think that in the present case it is correct to say that, as was
said by four members of the Court in Coates v. Carter (1951) 82
c.L.R. 537 at p.543, the placing of too much emphasis upon the need
for considering how the jury have misapplied their minds is likely
to obscure the truth;
it is enough if the conclusion at which they
arrived, however it is to be accounted for, is unreasonable.
That is the conclusion to which we have come despite the
consciousness we have of the particular respect due to the unanimous
decision of a Full Court on any matter which is very largely one of

--- PAGE 27 ---
24.
impression - Australian Iron & Steel Ltd v. Greenwood (1962) 107
C.L.R. 308 at p.311 per Taylor, Menzies & Owen JJ. Taking the view
of the evidence most favourable to the respondent we nevertheless
must regard this as a case which requires that there should be a
new trial as to quantum. We are fortified by the fact that, faced
with the amount of the verdict as compared with the state of health
of the appellant, the Full Court itself felt the need to find an
explanation which might accord to the award a rational basis.
For
the reasons
which we have given we are, with respect, unable to accept
that explanation and in its absence must regard the verdict as a
quite unreasonable one.
We would, for these
reasons, allow this appeal and order
a new trial.

--- PAGE 28 ---
BRANDI
V.
MINGOT
JUDGMENT
MURPHY J.

--- PAGE 29 ---
BRANDI
V.
MINGOT
The assessment of damages was
a jury issue.
Except
where there is judicial error, the verdict of a jury
should not be interfered with unless the case for doing
so is very strong (Precision Plastics Pty. Ltd. V. Demmir
(1975) 6 A.L.R. 311). The judges in this court, or that
below, may have decided the case differently but the issue
was committed not to us or to them, but to the jury (see
Hocking v. Bell (1947) 75 C.L.R. 125 (P.C.); Leotta v.
Public Transport Commission (not yet reported)). On the
evidence, it was reasonably open to the jury to reach the
assessment of $10,000 as it would have been for them to
award
a much higher sum.
On the resolution of this issue of mixed law and fact,
the jury are entitled to the advice of the judge on the
law and to such assistance as he might give on questions
of fact. If the instructions to the jury were adequate,
the assessment should not be disturbed. However, I agree
with the other members of this Court that the instructions
on economic loss were deficient. They amounted to judicial
error.
The appeal should be allowed, and a new trial ordered
on the issue of damages.