YOUSEFF v BARRECA [1993] NSWCA 300

YOUSEFF v BARRECA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 1 November 1993, 1 November 1993

[1993] NSWCA 300

DAMAGES — quantum — no question of principle.

Handley JA This is an appeal by a plaintiff from a decision of a jury in an occupier's liability case. The plaintiff slipped and fell in the defendant's greengrocer's shop and sued for damages for breach of a general duty of care owed by the occupier to persons such as the plaintiff lawfully entering the shop.

The trial judge rejected a motion for a verdict by direction for the defendant on the ground that there was no evidence fit to be submitted to the jury on the question of negligence, and the case was left to the jury. The jury found a verdict for the plaintiff, rejected the defence of contributory negligence and assessed the plaintiff's damages in the amount of $14,838.37.

The plaintiff has appealed, alleging that the jury's verdict on damages was unreasonably and appealably inadequate, and the defendant has cross appealed contending that the trial judge erred in leaving the case to the jury and that, in the alternative, if this Court was minded to interfere with the verdict on damages, the new trial that should be ordered should be a new trial on all issues and not limited to damages.

In the end Mr Kalfas, counsel for the defendant, did not press the appeal against the decision of Judge Cooper that there was evidence of negligence fit to be submitted to the jury, so the only questions for the Court were whether the damages were inadequate and, if so, the nature of a new trial that should be ordered. I should say that I agree with Mr Kalfas' decision not to attempt to press the cross appeal as, in my respectful view, there was evidence before the jury on which they could find a verdict for the plaintiff and Judge Cooper was entirely correct in ruling to that effect.