KATICA KAJIC v NEWCASTLE WORKERS' CO-OPERATIVE CLUB LIMITED [1990] NSWCA 100

KATICA KAJIC vy NEWCASTLE WORKERS' CO-OPERATIVE CLUB LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and HANDLEY JJA 3 October 1990, 3 October 1990 [1990] NSWCA 100

KEY WORDS: NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — ASSESSMENT OF DAMAGES NEGLIGENCE — female plaintiff slips on slippery highly polished dance floor whilst attending concert — slips on way to toilet — sues owner of venue for damages in negligence — jury returns verdict in favour of the plaintiff — defendant challenges verdict on appeal — also challenges finding by jury that defendant had not proved contributory negligence — held (Handley JA; Kirby P and Samuels JA concurring) (1) There was ample evidence of negligence to sustain the jury's verdict; (2) There was ample evidence upon which the conclusion of the jury on contributory negligence could be supported; (3) Accordingly, challenge to the verdict and the judgment which followed, dismissed.

DAMAGES — left wrist — female aged 51 at trial — fracture of ulna bone — painful injury — off work for 14 weeks — jury returns verdict of $10,000 — agreed out of pocket expenses $2,200 — agreed wage loss $3,669 — general damages therefore allowed is $4,130 — held (1) The verdict was so low as to require the setting aside of the verdict by the Court; (2) As there had been no attack on the credit of the plaintiff at the trial the Court could safely proceed to a reassessment; (3) Upon a reassessment, judgment of $26,458 substituted.

ORDERS

(1) The cross-appeal be dismissed with costs.

(2) The appeal be allowed with costs.

(3) The judgment which Mr Justice Finlay directed to be entered in favour of the appellant following the verdict of the jury be set aside.

(4) In lieu thereof judgment be entered by this Court in favour of the appellant in the sum of $26,458.