THE WOMEN'S HOSPITAL (CROWN STREET) v KOTADIS [1988] NSWCA 156

THE WOMEN'S HOSPITAL (CROWN STREET) v KOTADIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, HOPE and MAHONEY JJA 7 December 1988, 7 December 1988

[1988] NSWCA 156

PRACTICE AND PROCEDURE — jury trial — appeal against judgment after jury's verdict — complaints about judge's summing up to jury — allegation that instruction inadequate — extent of duty of judge — stringent requirements to secure disturbance by appellate court on the ground of insufficient instruction by the trial judge referred to by Mahoney JA (Kirby P and Hope JA concurring) — reference made to the requirements of Pt51 r16 SCR to secure a retrial.

DAMAGES — quantum appeal — defendant complains about the failure of the trial judge to give sufficient instruction to the jury about the discount to be made for exigencies — proof of pre-existing condition of the spine — trial judge warns jury only to compensate for trauma of the subject accident — other available hypotheses based on the evidence which would sustain the jury's verdict — held: (Mahoney JA; Kirby P and Hope JA concurring) No error in the verdict requires disturbance of the verdict by the Court of Appeal — no issue of principle — appeal dismissed.

Supreme Court Rules, Pt51 r16. ORDER Appeal dismissed with costs.

Mahoney JA On 2 January 1980 the plaintiff fell in the corridor in the building of the defendant hospital. She has sued the hospital. On 24 June 1988 a jury gave a verdict for the plaintiff for $371,412. On 28 June 1988, after argument as to interest, judgment was entered for the plaintiff for $419,720. The difference between the verdict and the judgment is the interest which his Honour saw fit to award. The defendant has appealed to this Court against the judgment.

The facts of the matter are within a very short compass. It is accepted that the plaintiff was in the hospital as, to use the language used in the pleadings, an invitee of the hospital. It was accepted also that she was going to see a doctor in the hospital and was walking along a corridor for that purpose when she fell. The essential difference between the parties in relation to the facts of the accident was why she fell.