SYRON v NEWELLS CREEK SAWMILLING COMPANY PTY LIMITED [No 2] [1995] NSWCA 465

SYRON v NEWELLS CREEK SAWMILLING COMPANY PTY LIMITED [No 2]

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, KIRBY P and COLE JA 8 September 1995

[1995] NSWCA 465

APPEAL — jury verdict — second appeal — disputed facts concerning causation of back disability — whether causally related to operation following subject work incident — whether constitutional weakness bound to manifest itself — second jury returns verdict alleged to be appealably inadequate — complaint of misdirection by trial judge — no objection or request for redirection to jury at trial — judge withdraws schedule earlier tendered for plaintiff — schedule contains sums appropriate only to resolution of factual dispute favourable to plaintiff — possibility that schedule misleading — complaint that withdrawal prejudiced plaintiff — held: (1) In the context the judge's remarks were fair and accurate; (2) No substantial wrong or miscarriage was shown; (3) Accordingly, appeal based on alleged misdirection dismissed.

Kirby P. Before the Court is an appeal from a judgment entered by Barr AJ following a jury verdict.

The background facts can be briefly stated. The appellant, an Australian Aboriginal of limited education whose jobs involved labouring and work as a farm assistant, was employed by the respondent as a sawmiller. He was employed in that capacity for many years before he suffered injury on 17 June 1985. He had a experienced a history of back problems. However, these were described as muscular in nature or a result of a fracture to the upper part of his back. He performed heavy and arduous duties for the respondent. There was no suggestion that he was having time off work or having any other difficulties in coping with his employment in the period immediately prior to the accident of 17 June 1985 upon which he sued.