GILBARCO AUSTRALIA LTD v CLARKE [1991] NSWCA 101

GILBARCO AUSTRALIA LTD v CLARKE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLY and CLARKE JJA 30 August 1991, 4 October 1991

[1991] NSWCA 101

DAMAGES — jury verdict — whether appealably high — answer to question on past general damages whether available to demonstrate error — whether verdict explicable reference to hypotheses — held: It is DAMAGES — General damages — breakdown of marriage — proper approach to. DAMAGES — Personal injuries — jury verdict of $304,258.00 agreed economic 1088 of $59,604.00 — jury answers question as to past general damages for non-pecuniary loss in the sum of $89,406.00 — whether answer admissible to demonstrate that verdict is appealably high — whether general verdict show jury misdirected themselves — held: (1) The Court may have regard to the answer to the question asked by the trial judge to determine whether the answer demonstrates, either on its own face or by the inferences drawn from it for the balance of the verdict, that the verdict was appealable excessive. Otis Elevators Pty Limited v Zitis (1986) 5 NSWLR 171 (CA) referred to; (2) So examined, the verdict, was not so high as to authorise the Court of Appeal to set it aside because it could be explained upon various hypotheses such as (a) by a proper economic allowance for the future economic loss suffered by the plaintiff; — and/or (b) by the allowance the jury may have made for general damages for the breakdown of her marriage and association with her husband in professional ballroom dancing consequent upon her painful injuries.

Kirby P This is a defendant's damages appeal against a jury verdict. I state at once that in my view the Court is not authorised to disturb the jury's verdict.

Proper approach to testing a jury's verdict

The facts were not in dispute. They are sufficiently set out in the charge to the jury by Allen J and I will not repeat them. The jury, after a three hour retirement, brought in a verdict in favour of Mrs Margaret Clarke (the respondent). They assessed her damages in the sum of $304,258.00. In accordance with the direction which they were earlier given by Allen J, they also responded to a question which his Honour had posed for them for his own purposes: Associate: "Of the amount in which you assess the Plaintiff's damages what sum do you apportion to pain and suffering and loss of enjoyment of life to the present time? Jury Foreman: $89,406.00. "