KANAT v NONFERRAL (NSW) PTY LTD [1989] NSWCA 115

KANAT v NONFERRAL (NSW) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS and PRIESTLEY and MEAGHER JJA 1 March 1989, 1 March 1989

[1989] NSWCA 115

DAMAGES — quantum — jury — no question of principle. ORDER Appeal dismissed with costs.

Samuels JA This is an appeal from the verdict of a jury in a trial which commenced on 9 September 1987 before Finlay J. The proceedings arose out of an accident which befell the plaintiff, the present appellant, at work on 24 March 1981. In that accident the plaintiff fell from a platform about five feet above ground in consequence of an explosion and sustained burns to his back and to an ear and injuries to the low back and neck.

There had been an earlier trial and an appeal to this court, which ordered a new trial, and the present appeal is from the jury's assessment of damages in that new trial and is again on the ground that the award was inadequate. The jury assessed the damages in the sum of $120,000 from which certain deductions were required to be and were made but for our purposes we must consider the gross figure.

The grounds of appeal contend that the assessment was manifestly inadequate, perverse and against the evidence and the weight of evidence. There is not I think a great deal of difference in point of principle between the requirements which must be satisfied to make good each of those three grounds, if they are separately regarded. They should, of course, be examined with reference to the point of the case, which is the assessment of damages. In Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Gibbs J, as he then was, with whom other members of the court agreed, said at 369 that in order to succeed in an appeal from a jury on the ground that the assessment of damages was inadequate, it was necessary for the appellate court to be satisfied that they were so inadequate that no jury could reasonably have awarded them, or were out of all proportion to the circumstances of the case. To say that a jury's verdict is perverse is again to say that it is unreasonable; that it is a finding at which no reasonable jury properly instructed could have arrived.