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. The appellant asks that the matter should be returned to the District Court for retrial. The respondent joins in that request. It seems sensible to so order, having regard to the information before the Court concerning the damages suffered by the appellant. Therefore that is the course which, in due course, I will propose. The question arose as to whether this Court could safely proceed for itself to assess the damages of the appellant. There would ordinarily be reasons of convenience to do so, to bring this litigation to a close. S107 of the Supreme 2 UNREPORTED JUDGMENTS Court Act 1970 permits the Court to do so where there is consent. Consent was not forthcoming in this case. The issue is whether the Court could nevertheless safely proceed to a reassessment. For two reasons I do not believe it should do so. The first is that the respondent wishes to have matters in contest determined by a jury. A jury was summoned in the first trial. A jury would also be available to the parties in the second trial. The respondent is, on the face of things, entitled to have a jury's verdict, the first trial having miscarried. Secondly, and more importantly, there were conflicts of testimony at the trial, which doubtless, in part, go to explain the way in which the jury approached their verdict. Upon these matters of conflict the respondent is entitled to have the jury's determination. If this Court were to proceed to a reassessment it would suffer the disadvantage that it has not seen the appellant give evidence. Nor do we have any oral evidence from medical practitioners to resolve the differences which emerged at the first trial. The small verdict which was brought in on the first trial, and which will now be set aside, would normally attract, had it stood, the special rules relating to small verdicts brought in the Supreme Court. However, as that verdict will be set aside, it will be necessary for the costs in the first trial to abide the second. It should be left to the discretion of the judge presiding at the second trial, following the second jury's verdict, to determine the order which should be made in respect of the costs in the Supreme Court. Concern was expressed by counsel for the appellant about the great delays which could attend a return of this matter to the District Court. This Court cannot interfere in the organisation of the list of the District Court. It will not do so. However, having regard to the history of the litigation, the failure of the first trial and the desirability of bringing the litigation to a close, it would obviously be sensible for a measure of expedition to be given to the appellant to have his second trial without undue delay. It is understood that there is a list in the Dubbo District Court in February 1993. It would be entirely appropriate for consideration to be given, by that Court, to the expedition of this matter to the list of that Court in February 1993 in Dubbo. The orders which I therefore propose are: 1. Appeal allowed; 2. Set aside the judgment entered by Newman J following the verdict of the jury on 4 July 1990; 3. Order a new trial; 4. Order that the proceedings be remitted to the District Court of New South Wales for the second trial to be conducted in that court in Dubbo upon a date to be fixed by that court; 5. Order that the costs of the first trial abide the exercise of the discretion of the Judge of the District Court following the conclusion of the second trial; and 6. Order that the costs in this Court be paid by the respondent, which will be entitled, if otherwise so qualified, to a certificate under the Suitors' Fund Act 1951. Mahoney I agree. Clarke I also agree. KIRBY P: They are the orders of the Court. 1. Appeal allowed; WRION v LUGAME Pty Ltd TRADING AS BULLITT TRANSMISSIONS, DUBBO (ClarkeB 2. Set aside the judgment entered by Newman J following the verdict of the jury on 4 July 1990; Order a new trial; 4. Order that the proceedings be remitted to the District Court of New 5 South Wales for the second trial to be conducted in that court in Dubbo upon a date to be fixed by that court; 5. Order that the costs of the first trial abide the exercise of the discretion of the Judge of the District Court following the conclusion of the second trial; and 10 6. Order that the costs in this Court be paid by the respondent, which will be entitled, if otherwise so qualified, to a certificate under the Suitors' Fund Act 1951. » Counsel for the Appellant: G Johnson 15 Instructed by: North and Badgery Counsel for the Respondent: DG Nock Instructed by: Hunt and Hunt