WALLER v SYDNEY COLLEGE OF ADVANCED EDUCATION [1989] NSWCA 221

WALLER v SYDNEY COLLEGE OF ADVANCED EDUCATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and MEAGHER JJA 10 February 1989, 21 April 1989

[1989] NSWCA 221

Negligence — damages — alleged physical injury and psychiatric injury — contest as to plaintiff's veracity — low verdict -whether jury entitled to reach verdict.

DAMAGES — jury verdict — plaintiff injured following collapse of ceiling — claims continuing disability and severe psychiatric consequences — alleges continuing incapacity defendant's psychiatrist gives evidence that the plaintiff is exaggerating on the basis of investigative films — jury returns very small verdict — plaintiff appeals

COSTS — discretion of trial judge — jury brings in verdict of $10600 — judge orders full costs and payment of senior counsel's fees — cross-appeal

ORDERS

Appeal dismissed with costs.

held: Although very small, on the plaintiff's case the verdict was open to the jury on the basis of accepting the defendant's case. Appeal dismissed. Precision Plastics Pty Limited v Demir (1975) 132 CLR 362, 364; Gamser v The Nominal Defendant (1977) 136 CLR 145, 159 and Petersville Limited v Vidakovic (No 2), Court of Appeal, unreported, 7 April 1989 applied; Lucas v Peterson [1967] 2 NSWR 663 distinguished.

held: No such error was shown in the exercise of the discretion such as to warrant interference by an appellate Court. In re the Will of Gilbert (1946) 46 SR (NSW) 318 applied; - cross-appeal dismissed.

Kirby P Before the Court is an appeal and cross-appeal. They arise out of a judgment which Enderby J directed to be entered following a jury's verdict and an order which his Honour subsequently made in respect of costs.

Injury to the appellant The incident out of which the litigation arises occurred on 27 November 1978. The appellant was, at that time, employed by the respondent College as a clerk-clerical assistant. She had been so employed since 1977. On the day of her accident, she was sitting at a desk in the Registry of the College. She heard a loud noise above her head. She looked up to see the roof shaking. A moment later the ceiling collapsed. A person who had been working inside the ceiling fell to the floor. There was evidence to suggest that, as the ceiling collapsed, the appellant was hit on the head by an object, possibly a metal bar. Certainly, the appellant suffered an injury to her head and neck and probably a mild concussion.