ZELKOVIC v STATE RAIL AUTHORITY [1995] NSWCA 536

ZELKOVIC v STATE RAIL AUTHORITY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and COLE JJA 25 September 1995, 25 September 1995

[1995] NSWCA 536

APPEAL — District Court jury — verdict of out of pockets only — whether portrays error held: Cannot stand — new trial ordered.

PRACTICE AND PROCEDURE — District Court appeal — reassessment of damages contested issues of liability and damages held: Unsuitable for reassessment.

LAW REFORM — motion for retrial after verdict — should be available beyond day of verdict.

APPEAL — jury verdict — miscarriage of function — no error of direction on law or fact alleged — after six day trial, strongly contested on liability and damages, jury returns with verdict of $200.40 — such sum is the out of pockets for physiotherapy agreed between the parties as sum to which plaintiff entitled in the event of recovering a verdict — On application for leave to appeal and appeal to the Court of Appeal — held: (1) The Court could and should treat the summons for leave to appeal as the hearing of the appeal and did not for that purpose require the totality of the evidence of the six day trial to be placed before it. Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 distinguished; (2) Nonetheless, the Court would only reluctantly disturb a judgment based on a jury's verdict and then only for clear error being demonstrated. Brown v Dean and Anor [1910] AC 373 applied; (3) The jury verdict displayed such error, suggested compromise and indicated a misconception of the jury's function. Either the plaintiff was entitled to no verdict at all or to a verdict proper to her injuries and, at the least, general damages for the physiotherapy expenses that were found by inference to be her entitlement; (4) New trial ordered.

PRACTICE AND PROCEDURE — Court of Appeal — appeal from District Court- personal injuries claim — jury verdict — disputed issues of liability and damages — judgment based on jury verdict set aside — whether Court of Appeal should reassess — avoidance of second protracted trial — held: unsuitable for reassessment by Court of Appeal — general new trial ordered.