INGHAMS ENTERPRISES PTY LIMITED v JOHNSON [No 2] [1990] NSWCA 97

INGHAMS ENTERPRISES PTY LIMITED v JOHNSON [No 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, MAHONEY and HANDLEY JJA 13-14 March 1990, 23 March 1990

[1990] NSWCA 97

JURY — directions to — obligations of trial judge in action against employer for negligence — evidence of medical witness — entitlement of jury to Act on evidence entitlement of jury to accept or reject parts of evidence — redirection sought and given by trial judge — adequacy and accuracy of redirection — held: (1) A jury is not bound to accept or reject the whole of the evidence of a witness but may accept some parts and reject others. Herbert v Benson (1944) 44 SR (NSW) 382 applied; (2) The trial judge's redirections were not shown to have been in error. Schulmann v Peters (1961) ALR 209, 213 and Manning v Bernard Managing Pty Ltd (1960) 101 CLR 345, 351 referred to; (3) Appeal (on the ground of misdirection) dismissed.

APPEAL — miscarriage — appeal from jury verdict — proper approach to — jury awards 51 year old Yugoslav woman $350,000 for injuries suffered from repetitive strain to her arms — component of $95,000 for general damages — whether verdict so high as to be unreasonable — Held: It was — verdict set aside as unreasonable —

new trial ordered — Australian Iron and Steel Limited v Greenwood (1962) 107 CLR 308, 311 and Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, 369 applied.

Kirby ACJ I agree with the judgment of Handley JA.

Mahoney JA I agree with the judgment of Handley JA.

The principles upon which an appellate court exercising the power which this Court exercises: cf Precision Plastics Pty Limited v Demir 132 CLR 362 at 369-70; have not been in dispute. If the present judgment had been a judgment of a judge, it is clear that it would be set aside. But, as Handley JA has indicated, it is not so clear that, being the verdict of a jury, the court should intervene.