POPADIC v GRACE BROS PTY LTD [1989] NSWCA 167

POPADIC v GRACE BROS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS J 18 September 1989

[1989] NSWCA 167

Samuels J In this action in the District Court the statement of claim was filed on 16 February 1984. A requisition for a jury under s78 of the District Court Act was made on 11 May 1984 by the defendant, who is the appellant, and the opponent to this motion. A notice of motion was filed by the plaintiff, the respondent and claimant, to dispense with the jury under s79A, and this was heard two or three days before the action came on for trial by Judge Mahoney, who declined to make the order.

The trial then commenced in the District Court and on the morning of the second day of the trial the opponent admitted liability. At that point a further application was made by the claimant to dispense with the jury. The opponent, having sought instructions, indicated that it did not consent to the jury being dispensed with and the application proceeded to a successful conclusion, Judge Ford, who was the trial judge, discharging the jury during the course of that day and shortly before the case for the claimant was closed.

So far as it may be relevant the reasons which his Honour gave were these. First, he pointed out that he was not dealing with the same case as that which came before Judge Mahoney, because before Judge Mahoney liability was in issue whereas before him, at least when the application to dispense with the jury was made, liability had been admitted, which significantly changed the character of the proceedings. Secondly, the assessment of damages, his Honour said, involved an esoteric issue, as he described it, namely, the award of damages under what is known as the rule in Griffiths v Kerkemeyer. Thirdly, there was some problem involved in the assessment of the consequences of the injury which the claimant had suffered which his Honour thought would tax the capacity of the jury beyond its ability to withstand. So his Honour dispensed with the jury. He awarded the plaintiff a sum of damages which the opponent disputed in a notice of appeal which, apart from challenging the exercise of Judge Ford's discretion under s79A to dispense with the jury, also asserted that the award of damages was excessive. Indeed there were four grounds of appeal which challenged the assessment of damages, and one which asserted error in finding a causal connection between breach and the injuries which the claimant sustained.