ISON v STATE RAIL AUTHORITY OF NEW SOUTH WALES (NO 2) [1989] NSWCA 106

ISON v STATE RAIL AUTHORITY OF NEW SOUTH WALES (NO 2) SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, SAMUELS JA and PRIESTLEY JA 11 December 1989 [1989] NSWCA 106

PRACTICE & PROCEDURE — there is no power in s 107 to enable the Court of Appeal to determine an issue of negligence after a trial by jury in the Court (see s 75A) and thus no power to try an issue of contributory negligence.

JURY — discussion of circumstances in which Court of Appeal may order that a jury be dispensed with for the purpose of trying issues in a new trial for which a jury was originally requisitioned.

Samuels JA. This appeal has been before the Court before on 6 September last. It arises out of an accident which befell the plaintiff, the present appellant, when he was alighting from a suburban railway train at Blacktown Station on 17 August 1979.

His case was, in short, that the train commenced to move before the doors were closed and he, in circumstances which I will not endeavour again to give in detail, attempted to leave the train through the closing doors but was caught and trapped and as a result sustained serious injury.

The appellant brought an action against the State Rail Authority which came to trial before Grove J and a jury on 16 June 1988. We were told today that it was the plaintiff who had requisitioned the jury.

At the trial there was a question whether there was evidence to go to the jury of the plaintiff's contributory negligence. Counsel for the plaintiff submitted that there was not and the learned judge accepted that argument and took theissue from the jury. The jury found a verdict for the plaintiff in an amount of damages which ultimately represented judgment of some $143,000. The plaintiff appealed on the ground that the jury's assessment of damages was inadequate and the defendant, the State Rail Authority, filed a cross-appeal on the ground that the issue of contributory negligence should have been left to the jury.