CONCRETE CONSTRUCTIONS PTY LTD v KOVACEVIC [1988] NSWCA 24

CONCRETE CONSTRUCTIONS PTY LTD v KOVACEVIC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and MCHuGH JJA 20 June 1988, 20 June 1988

[1988] NSWCA 24

APPEAL AND NEW TRIAL — jury misdirecting itself — possible inference from amount of jury's assessment that they had added two components of the damages and ignored others — whether inference should be drawn — whether miscarriage of justice. JURY — assessment of damages — whether inference of misdirection available. JURY — miscarriage of justice — appeal — new trial.

ORDERS Appeal allowed — judgment below set aside save for the order for costs. Order new trial limited to damages respondent to pay appellant's costs of the appeal.

Samuels JA The plaintiff in the trial before Campbell J and a jury was born inYugoslavia in August 1943 and came to Australia in 1965. His command of English was poor. He had spent his working life in Australia as a labourer or as a concrete finisher, at all events engaged in heavy work. He had no other skills. The action was one in which he sued the appellant, the defendant of course below, in negligence and for breach of statutory duty.

The plaintiff, as I will continue to call him, contended that on a day in December 1981 while working for the appellant on a building site in Sydney, he stepped on the butt end of a nail protruding from concrete, it appears to have been a ramset nail, and drove it through his right foot.

The major contest on liability at the trial, apart from questions of negligence and some points upon the construction of the regulation upon which the plaintiff relied, concerned the question whether it was the right foot which the plaintiff had punctured or the left. As I have said, the plaintiff asserted that it was the right, the appellant contended that it was the left.