ZDRAVKO ALEKSIC v GOODYEAR TYRE and RUBBER CO (AUST) LTD [1988] NSWCA 5

ZDRAVKO ALEKSIC v GOODYEAR TYRE and RUBBER CO (AUST) LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY AND MCHUGH JJA 16 November 1988, 16 November 1988 [1988] NSWCA 5

JURY — verdict specifically for out of pocket expenses only without any allowance for damages for pain and suffering — jury must have misdirected themselves — therefore miscarriage of justice — new trial ordered. ORDERS Appeal allowed with costs; verdict and judgment below set aside and a new trial ordered limited to damages. The respondent must pay the appellant's costs of the previous trial.

Samuels JA This is an appeal from a verdict of a jury in a trial over which his Honour Judge Levine presided in the District Court.

The plaintiff, the present appellant, suffered injury at work when a piece of molten rubber entered his eye. He sues the defendant, the present respondent, alleging negligence, which was not admitted. Hence, at the trial there were two issues: one of liability and one of damages.

The injury was sustained on 17 August, a Friday, and it seems that on the following Tuesday, 21 August, the appellant consulted a doctor, who removed a foreign body from his eye, no doubt the piece of molten rubber. The appellant was off work for three or four days and subsequently had further medical treatment and ultimately complained that two weeks or so after the event a spot developed before his eye which limited his vision in a minor degree and caused him other discomfort At the trial there was an agreement upon the mathematical total of the out-of-pocket expenses in the total sum of $620.98, made up of $487 for medical expenses and $133.98 for loss of wages.

The appellant does not appear to have been cross-examined significantly upon the incident itself - that is to say, whether he sustained injury at work - but what was very much in dispute at the trial was whether or not any spot had developed, and if so whether it could be attributed to the accident at work of which he complained. As I have said, upon this matter there was a sharp difference and plainly involved in its determination was a real question of the appellant's credibility.