McLEOD v PACIFIC WASTE MANAGEMENT (NSW) PTY LTD [1991] NSWCA 299

McLEOD v PACIFIC WASTE MANAGEMENT (NSW) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, CLARKE and HANDLEY JJA 12 and 13 August 1991, 13 August 1991

[1991] NSWCA 299

DAMAGES — Jury verdict — Appeal on ground that damages inadequate — Jury acting reasonably bound to accept plaintiff's uncontradicted and unchallenged case on damages — Test whether the damages are out of all proportion to the circumstances of the case. Held: The appellant had demonstrated that the verdict of the jury could not be allowed to stand and the Court of Appeal was entitled to reassess damages rather than order a new trial.

Australian Iron and Steel v Greenwood (1962) 107 CLR 308 Precision Plastics v Demir (1975) 132 CLR 362

Handley JA This is an appeal by a plaintiff from the verdict of a jury. The plaintiff sued his employer for damages for negligence arising from injuries he sustained in the course of his employment on 10 October 1983. The action was tried before Whitlam AJ and a jury of four who returned a verdict for the plaintiff for $143,261.95. Judgment was entered for this amount after deduction of an agreed figure representing the Workers' Compensation payments.

The notice of appeal contained three grounds, two of which related to an alleged misdirection and non direction by the trial judge. The third was that the damages awarded by the jury were inadequate. At the hearing however the only ground of appeal that was pressed by Mr. Toomey, of Queens Counsel for the appellant, was that relating to the inadequacy of the damages.

The principles which guide an appellate court in reviewing the verdict of a jury on the ground that the damages were either excessive or inadequate are well settled. They were summarised by Gibbs J in Precision Plastics v Demir (1975) 132 CLR 362 at 369 in a passage that has frequently been referred to. The test, for present purposes, is whether the damages are so small as to be unreasonable, so inadequate that no jury could reasonably have awarded them or, as is sometimes said, out of all proportion to the circumstances of the case.