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. In the first action the plaintiffs case as pressed at the trial and on appeal was that the Board was negligent in failing to provide a reasonably safe system of work. The plaintiff's evidence was that the truck on which he and a group of his workmates were travelling suddenly braked throwing the group onto the floor of the tabletop and this fall caused the plaintiff his injuries. The Board was said to have failed to provide a reasonably safe system of work because there were no hand holds, straps or other forms of restraint which the plaintiff and his workmates could have used to stop themselves falling onto the floor. On this issue the jury were faced with a clear conflict of evidence. The Board called two fellow workers who were on the truck at the time, Mr Kmiecik and Mr Smith. Both denied that the plaintiff fell onto the floor. Both said he was not hurt and that he did not complain of being injured. Mr Kmiecik said that when the truck arrived at Liverpool Station everybody got off in a normal fashion and went their own ways. The Board tendered a statement from Mr Lamb, the driver who 2 UNREPORTED JUDGMENTS said that the truck was travelling at about fifteen mph when he braked and that when he reached Liverpool Station all the men got off down a ladder and no-one complained of being injured. There were also several significant inconsistencies in the plaintiffs evidence. The trial Judge in his summing up reminded the jury of the submission made by counsel for the Board that they should not accept anything the plaintiff said about this accident. Counsel was entitled to make this submission and the jury were entitled to accept it. There is simply no foundation in the evidence for a finding by this Court that the jury's verdict was in any way unreasonable. In the second action there was no dispute that the rear end collision had occurred and that the defendant had failed to exercise reasonable care. The sole issue for the jury's consideration was whether the plaintiff had suffered a whip lash injury in the accident. He relied upon his own evidence and evidence of complaint to his local doctor, Dr Manevski. There is no dispute that the plaintiff did complain to that doctor on the day of the accident. The doctor's statement to that effect was read to the jury. On the other hand the plaintiff did not complain to either the defendant or to the attending constable and when referred by his local doctor to a specialist, Dr McJannet on 10 May, 1982 he did not mention the February 1982 accident or complain about his neck or shoulders. The plaintiff had previously complained to Dr McJannet of neck trouble on 9 September and 10 December 1981. Professor Jones said that x-rays of his neck taken on the day of the accident showed that premature degenerative arthritis was already present. There was also a substantial body of medical evidence before the jury that the plaintiff was malingering. Evidence to this effect was given by Drs McJannet, Watts, Haber, Morse and Tracey. The jury was also shown a film taken in August 1987 which demonstrated free and unrestricted movement of the plaintiff's neck. It showed that shortly before he got to Dr Revai's rooms he put on a neck brace which he removed shortly after leaving. The Judge reminded the jury in his summing up that counsel for the defendant had submitted that they couldnot be satisfied that the plaintiff had injured his neck in this accident. There was ample material before the jury which entitled them to reach that conclusion. Ms Cotter-Moroz who appeared for the appellant, but who did not appear at the trial, thoroughly prepared the case and in her written and oral submissions said everything that could possibly have been said on behalf of her client. However her diligence and skill have not persuaded me that this Court is entitled to interfere with these verdicts. These were strong defendants" cases and the verdicts, if not inevitable, were certainly reasonably open on the evidence. In my opinion the appeal should be dismissed with costs. Powell JA. I agree with Handley JA. Appeal dismissed with costs. Counsel for the appellant: A A Cotter-Moroz Solicitors for the appellant: Evan A Kontoulas and Associates Counsel for the respondent: H J Mater Solicitors for the respondent: G M Meadows: Solicitor for Government Insurance Office of New South Wales