NEWELLS CREEK SAWMILLING CO PTY LTD v SYRON [1994] NSWCA 232

NEWELLS CREEK SAWMILLING CO PTY LTD v SYRON

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and SHELLER JA 6 July 1994

[1994] NSWCA 232

APPEAL FROM JURY VERDICT — REMIT CASE FOR RETRIAL ON ISSUE OF DAMAGES

Clarke JA. The appellant has sought to have a jury verdict in favour of the respondent in the sum of $ 715,000 set aside as beyond the permissible range. Figures were provided in the written submissions which suggest — and I say no more than suggest — that the minimum amount allowed by the jury for general damages was $ 331,293.

While the respondent suffered severe injuries, they were not of the type which would, prima facie, support an order for general damages of that order.

The appellant initially sought a new trial of the whole action and alternatively a new trial limited to damages. The respondent resisted the allowance of the appeal initially and submitted that if the appeal was allowed, there should be a re-assessment.

It was pointed out to counsel for the respondent that there were difficulties in a reassessment as there were a number of credit questions involved. It was also pointed out to counsel for the appellant that there were no grounds apparent for awarding a general new trial.

In the event, counsel for the appellant has sought an order the appeal be allowed and that a new trial limited to damages be ordered.

Counsel for the respondent has told the court that he is not in a position to consent to the making of those orders, but offers no argument in opposition to their making.

In the circumstances, and having regard to the whole of the written submissions with particular reference to the matter I have mentioned, it is in my opinion appropriate that theappeal be allowed and that a new trial limited to damages be ordered. The question of costs, however, remains to be argued.