BOGOEVSKI v METROPOLITAN WATER SEWERAGE & DRAINAGE BOARD [1995] NSWCA 52

BOGOEVSKI v METROPOLITAN WATER SEWERAGE & DRAINAGE BOARD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirpy P, HANDLEY JA and POWELL JA 21, 28 April 1995 [1995] NSWCA 52

APPEAL — jury verdict — whether against the weight of evidence — two counts — evidence available that first accident did not occur and that second accident caused no damage — held: Verdicts reasonably open on the evidence — no issue of principle — appeal dismissed. Calin vy The Greater Union Organisation Pty Limited (1991) 173 CLR 33 applied.

Kirby P. I agree with Handley JA.

Handley JA. These are appeals by a plaintiff from judgments entered by Finlay J pursuant to verdicts of a jury. The plaintiff had sued his then employer the Metropolitan Water Sewerage & Drainage Board to recover damages for injuries allegedly suffered in February 1977 while he was a passenger on the back of a motor lorry operated by the Board which was taking employees to Liverpool Station. In the second action the plaintiff sued the owner and driver of a motor vehicle for injuries allegedly suffered as the result of a rear end collision at Bankstown in February, 1982. The actions were heard together in April 1989 and the jury returned verdicts for the defendant in both cases.

The sole ground of appeal is that the jury's verdicts were so unreasonable that they should be set aside and new trials ordered. A party who has failed before a jury in an action conducted according to law faces a difficult task in seeking to have the jury's verdict set aside. The principlewhich this Court must apply is that formulated in Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41 as follows:

A court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in a sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.