MOON v LUGAME Pty Ltd TRADING AS BULLITT TRANSMISSIONS, DUBBO [1992] NSWCA 161

MOON v LUGAME Pty Ltd TRADING AS BULLITT TRANSMISSIONS, DUBBO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJ 2 December 1992, 2 December 1992 [1992] NSWCA 161

JURY — verdict — alleged inadequacy — jury answers judge s questions on liability favourably to plaintiff — but verdict includes only special damages — no general damages allowed — held: (Kirby P; Mahoney and Clarke JJA concurring): The verdict was on its face erroneous and must be set aside.

Cousins v Bradford Kendall Foundries Pty Ltd (1986) 7 NSWLR 428 (CA) applied; Schuldiener and Anor v Power, unreported, CA, 19 March 1981; Aleksic v Goodyear Tyre and Rubber Co (Aust) Ltd, unreported, CA, 16 November 1988; (1988) NSWJB 220 considered. Supreme Court Act 1970, s107.

Kirby P This is an appeal from a judgment of Newman J entered following the verdict of a jury on 4 July 1990. The verdict was given in proceedings brought by Mr Paul Moon (the appellant) against Lugame Pty Ltd, trading as Bullitt Transmissions (the respondent in the Supreme Court). The appellant's claim followed injuries which he suffered on 25 August 1983.

Newman J asked the jury to answer certain specific questions in reaching their verdict. The first and second of these were whether, in relation to the accident suffered by the appellant, the respondent was negligent and in breach of statutory duty. Both of those questions were answered in the affirmative. The third question related to the damages of the appellant. The jury brought in a verdict in favour of the appellant in the sum of $6064.

It appears that that sum is the amount of the out of pockets and special damages proved by the appellant. This makes it plain that the jury made no allowance at all for general damages. In the circumstances and having regard to the jury's answers to the questions posed by the judge and the verdict, the appellant was undoubtedly entitled to general damages. The failure of the jury to provide an award which included an amount for general damages was an error which authorises this Court to set aside the verdict and the judgment which followed. See Schuldiener and Anor v Power, an unreported decision of this Court, 19 March 1981; Cousins v Bradford Kendall Foundries Pty Ltd (1986) 7 NSWLR 428 (CA) and Aleksic v Goodyear Tyre and Rubber Co (Aust) Ltd, Court of Appeal, unreported, 16 November 1988; (1988) NSWJB 220. So much was not in contest in the hearing of the appeal today.