KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD [1995] NSWCA 238

KEREMELEVSKI v PAYLESS SUPERBARN (NSW) PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and SHELLER JJA 9 March 1995, 4 April 1995

[1995] NSWCA 238

DAMAGES — inadequacy — jury trial — duty of appellate court to view the evidence in its entirety — whether verdict against the evidence — presentation of conflicting medical evidence — whether room to compromise in the evidence and whether jury's verdict and judgment should be set aside and retrial ordered — risk of quadriplegia — held: (by maj): Judgment sustained. Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 appld.

DAMAGES — jury verdict — inadequacy of — review by appellate court — duty to consider entirety of evidence — presentation of alternative medical evidence at trial — defendant's medical witness rejects plaintiffs claim of serious injury plaintiff's medical witnesses assert serious physical and psychological injuries — plaintiff's witness asserts possibility of development of quadriplegia for which substantial verdict would be required — jury, by inference, rejects defendant's witness' opinion — returns verdict of $300,000 for which judgment entered — no complaint about directions by the trial judge (Hunt CJ at CL) — whether, in the whole of the evidence, the jury's verdict is inconsistent with the evidence and is against the weight of the evidence — held: (Mahoney JA and Sheller JA; Kirby P dissenting): There was evidence upon which the jury could have accepted a view of the plaintiff's condition between that primarily urged by the witnesses for the plaintiff and the defendant — upon that basis the verdict was not, viewing the evidence in its totality, against the weight of the evidence — accordingly the judgment should not be disturbed — observations by Mahoney JA on the necessity to avoid the encroachment upon the right of a jury, civil or criminal, to deliver a verdict which, on the evidence, is open to them. Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Morris v The Queen (1987) 163 CLR 454; Nair v Health Administration Corporation and Anor, Court of Appeal (NSW), unreported, 16 December 1994; [1994] NSWJB 146; Francis v ICI Australia Operations Pty Ltd, Court of Appeal (NSW) unreported, 2 March 1995; [1995] NSWJB 18 applied.