COSTAIN AUSTRALIA LTD v GILMORE [1992] NSWCA 46

COSTAIN AUSTRALIA LTD v GILMORE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 15 April 1992, 15 April 1992 [1992] NSWCA 46

APPEAL from District Court — Judgment follows trial before judge and jury — Damages awarded by jury $70,000.

DAMAGES awarded by jury to include economic loss and general damages — Analysis of amount which jury could have awarded for economic loss — On that basis, Court of Appeal should not conclude amount awarded for general damages was excessive.

DEFENDANT negligent in causing plaintiff's loss of hearing by noisy operations - Liability for damages not in issue. ORDERS - Appeal dismissed with costs.

Mahoney JA The plaintiff in these proceedings, Mr Gilmore, has sued the defendant for damages in negligence. The basic cause of action on which the plaintiff claims is the negligence of the defendant in allowing the plaintiff to work in circumstances which resulted in a measure of deafness in him.

The plaintiff was a person who worked, as the jury might well conclude, in a labouring capacity. He was still working for the defendant at the time of the trial. The claim that he made was for compensation for loss of amenity (using that word in the compendious sense with which the courts are familiar) and loss of economic capacity.

On 22 June 1989 following a trial by a judge and jury in the District Court an assessment was made of his loss at $70,000. The learned judge added an amount of $13,066 by way of interest, making a total sum of $83,066. He deducted workers' compensation payments and entered judgment for $80,739. The defendant has appealed to this Court against the judgment which has been entered.

Mr Curtis, for the defendant, has submitted essentially that the amount awarded by the jury, namely $70,000, is beyond the range of what was open to the jury to award on the evidence that was before it. In order to consider the submissions that have been made - and Mr Curtis, though putting the matter briefly, has said everything that can be said for the defendant - it is necessary to consider the components of the verdict, that is, the losses by reference to which the jury came to assess the plaintiff's verdict. In order to do this it is necessary to refer briefly to the evidence that was before the jury.