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  • Unreported Judgment

Margaret Joy Jenkinson v Trevor William Jenkinson

 

[1975] FC 28

 

No. 23 of 1973

MARGARET JOY JENKINSON

(First Plaintiff)

-and-

TREVOR WILLIAM JENKINSON

(Second Plaintiff) Respondents

-and-

KAREN JOY JENKINSON (an infant by her next friend)

(Third Plaintiff)

-and-

VERONICA ANN HANLEY

(Defendant) Appellant

_____________________

STABLE, J.

DOUGLAS J.

KNEIPP, J.

_____________________

Judgment delivered by Stable, J. on 25th September, 1975

Douglas, J. and Kneipp, J. concurring

_____________________

“APPEAL ALLOWED WITH COSTS. THE AWARDS OF $12,000 AND $5,000 GENERAL DAMAGES SET ASIDE AND JUDGMENT ENTERED FOR THE FIRST AND SECOND PLAINTIFFS IN THE ACTION FOR $8,668.64 AND $2,000 RESPECTIVELY, WITH COSTS OF THE ACTION.”

_____________________

IN THE SUPREME COURT OF QUEENSLAND

No. 23 of 1973

BETWEEN:

MARGARET JOY JENKINSON

(First Plaintiff)

TREVOR WILLIAM JENKINSON

(Second Plaintiff)

-and-

KAREM JOY JENKINSON (an infant by her next friend)

(Third Plaintiff) Respondents

AND:

VERONICA ANN HANLEY

(Defendant) Appellant

JUDGMENT - STABLE J.

Appeal against quantum of general damages assessed in favour of the abovenamed respondents for accidental bodily injuries suffered by the former and loss of consortium suffered by the second respondent as a result of the injuries to the first respondent, his wife. I propose to refer to them as the female respondent and male respondent.

The traffic incident in which the female respondent was injured happened on 22 May, 1971, when she and the child of herself and her husband were run down on a pedestrian crossing by a car driven by the appellant. The child was a plaintiff in the action, but no appeal is brought in respect of the small award of damages made for him.

In the case of each respondent the sole ground of appeal is that the award is manifestly excessive.

An appeal against a judge's assessment of quantum does not succeed unless the judge has applied a wrong principle of law, such as by taking into account an irrelevant factor or leaving out of consideration a relevant one, or, short of this, that the amount awarded is so inordinately low or inordinately high that it must be a wholly erroneous estimate of the damage - Nance v. British Columbia Electric Railway Company Limited (1951) A.C. 601 at p. 613. The High Court has laid down the test in the often quoted passage In Neall v. Watson (1960) 34 A.L.J.R. 364 at p. 367:—

“If an appellate court once concludes that there is a marked disproportion between the amount awarded by a judge and the injury suffered, that in point of law, justifies the court in interfering although it is not possible to point to any specific departure by the primary judge from the principles of assessing damages prescribed by law.”

Denning L.J. (as he then was) expressed the same test in perhaps less formal language in McCarthy v. Coldair Ltd. (1952) T.L.R. 1226 at p. 1229:—

“I think that Mr. Everett expressed the test graphically and rightly when he said that this court would interfere if, on seeing the figure, it said to itself, ‘Good gracious me - as high as that?’”

So the approach of this court to the awards is in accordance with such principles, and with consciousness that the learned trial judge had the advantage of the physical presence of the parties.

The parties themselves were unusual in that the female respondent was before the accident and is a deaf mute, while her husband, the male respondent was then and is partly deaf and almost mute. The female respondent's injuries were found by the judge to have been a comminuted fracture of the left superior and right inferior pubic rami and disruption of part of the pubic symphysis together with a cracked fracture in the right superior pubic ramus. She was discharged from hospital on crutches after three weeks with instructions to rest in bed and to become mobile gradually with the crutches. At home she was cared for by a friend who lived in and attended to her wants for three weeks on a full time basis, and for a further week on a daily visit basis. The learned trial judge - to whose findings no exception was taken - had no doubt that during her period in hospital and for some four weeks or so after her discharge she suffered not inconsiderable pain from her injuries. He found that her residual injuries consist of some tenderness at the fracture sites in the pelvic bones, some pain in her right hip, a painful swelling in the tissue of the upper right thigh and some pain in the right knee. The fractures knitted strongly, but her pelvis was left with some assymetry, particularly on the left side. Examination close to trial was to the effect that her condition had not deteriorated and would not be likely to deteriorate. No further treatment was anticipated. The residual effects of the injury were stationary. There was still a complaint of pain in the outer and upper aspect of the right thigh and the outer aspect of the knee joint. Her hip movements were normal in all directions. Her pelvis was clinically intact but still subject to the distortion referred to. The assessment of the specialist who gave evidence to the above effect, which evidence the judge appears to have accepted, was that the female respondent had a loss of function of the right lower limb of the order of no more than five percent and that further deterioration would be most unlikely.

The trial judge also found that the female respondent at the end of four weeks after the accident was able to cope adequately with her normal work about her home, though not without discomfort and pain, and he accepted that as at the date of trial she suffers some pain on going about some of her tasks.

What appears to have been a large factor in the assessment of general damage is the effect of the residual pelvic injuries upon the female respondent's capacity to engage in and enjoy sexual relations with her husband. Upon her evidence and that of two gynaecologists the learned judge found that for some three to four months after the accident sexual intercourse was impossible for her and that for the remainder of the first year it occurred only on rare occasions and with considerable discomfort to her. Her evidence, the judge related, was that now she and her husband have sexual relations three times a week, which is equivalent to the frequency with which they enjoyed such relations before the accident. She conceded that pain does not occur on every occasion of intercourse and that she has not found it necessary to refuse her husband at any time when he makes advances to her. She agreed that she could do all her housework alright, but said that at times she suffers pain in her pelvis, that the pain in her thigh changes from week to week, and that her knee hurts when she does her housework and causes pain sometimes standing and sometimes bending.

The female respondent was born in May, 1943. Her husband was born in January, 1941. There are two girl children of the marriage, aged nine and seven years. It was accepted that she desires to have another child at least. She has not been using contraceptives, but up to trial had not conceived. The judge found it probable that if she did conceive and carry the child through to delivery she would have to have a Caesarian section delivery with the attendant increased maternal risk. He continued, “Although she wishes to have only one more child it does not follow that she would not conceive on a second or even a third occasion and if she had to have Caesarian sections then she would be at extra risk on each occasion.” On this aspect His Honour appears to have preferred the evidence of the specialist called by the defence, for the gynaecologist called on her behalf expressed the view that there was no limit to the number of children a woman of the female respondent's age could have without risks to her future health or life, in the context of Caesarian section.

The learned judge accepted a submission that her condition of being a deaf mute put this respondent in a position in which her physical well-being was of greater value to her and of greater influence upon the happiness of her life than would be the physical well-being of an otherwise normal person, so that interference with her capacity to enjoy sexual relations would be a greater loss to her than it would be to a normal person who has full capacity to enjoy a variety of amenities. I respectfully agree with this view. But a most important factor is that the female respondent had no economic loss. In the light of this one has to look very closely at the amount awarded, keeping in mind the natural disabilities under which this young woman had to be accustomed to bear through life. Doing this I still find myself unable to accept that the award, subjected to the standards in law to which I have briefly referred, can properly be sustained. Applying myself to the question of an appropriate award in all the circumstances as they were found to be I would set aside the award of $12,000.00 general damage and substitute therefor a sum of $8,500.00.

The matters leading to the award of $5,000.00 for loss of consortium to the male respondent have been largely covered by what I have said about his wife. Again, in his case there is no element of economic loss. He was for a time deprived altogether of the society and services of his wife. He had no intercourse with her for some three or four months, limited intercourse for the remainder of the year after the accident and with pre-accident frequency since - as the judge found in his discussion of the female respondent. His evidence in chief includes:—

“Since the accident is it” (his sex life) “O.K. or no good? --- He said it is different now. He said, ‘My wife is too nervous. It is different now.’

Ask him is he happy now with his wife in the home?--- Yes, I am happy with my wife.

Does his wife refuse him intercourse because of pain? --- I said, ‘Does she ever say no’? and he said, ‘No, she doesn't.’”

Again, as to this respondent the learned trial judge expressed the view that the loss of happiness from his not being able to enjoy sexual life with his wife to the full extent that he was able to before the accident was a more serious burden than it would be to a normal person. But awards for such a loss as that for which he claims have not in the past been, on the authorities, heavy. This case, not losing sight of the natural disabilities under which this respondent lives, does not involve such gross impairment of consortium as has brought down awards in the past. Additionally, as I have said, there is no economic loss. Again, applying the standards to Which I referred at the outset I consider that this assessment is such that it must be reduced. I would set it aside and substitute an award of $2,000.00.

The appeal should be allowed, with costs, the awards of $12,000.00 and $5,000.00 general damages set aside and judgment entered for the first end second plaintiffs in the action for $8,668.64 and $2,000.00 respectively with costs of the action.

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Editorial Notes

  • Published Case Name:

    Margaret Joy Jenkinson v Trevor William Jenkinson

  • Shortened Case Name:

    Margaret Joy Jenkinson v Trevor William Jenkinson

  • MNC:

    [1975] FC 28

  • Court:

    QSC

  • Judge(s):

    Stable, J, Douglas J, Kneipp, J

  • Date:

    25 Sep 1975

Litigation History

No Litigation History

Appeal Status

No Status