KADKHODAZANDEH v WARMAN INTERNATIONAL LTD [1995] NSWCA 227

KADKHODAZANDEH v WARMAN INTERNATIONAL LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and COLE JJA 13 March 1995, 13 March 1995

[1995] NSWCA 227

Appeal from Common Law Division — Industrial accident, plaintiff injured — Verdict of jury — Small verdict, contributory negligence 20 per cent — No ground for setting aside jury's verdict.

Mahoney JA The plaintiff was injured on 5 January 1985 in the course of his work. From that time onward he worked for a short period, perhaps intermittent periods, but ultimately on 18 June 1986 he was dismissed by the defendant. On 28 May 1993 after a substantial trial of the issues of liability and damages before a judge and a jury a verdict was given in his favour for damages for $46,200. He was held to be guilty of contributory negligence, the extent being twenty per cent. After adjustments judgment was given for him for $11,725.

He has appealed to this Court against that judgment. The matters which have been argued by Mr Gross QC for the appellant/plaintiff are contributory negligence and the quantum of damages.

In relation to the issue of contributory negligence the notice of appeal raises the question whether there was evidence of contributory negligence and, if so, whether the assessment of twenty per cent was one which was open to the jury.

It is proper to point out in passing that at the end of the evidence the issue of contributory negligence and its being left to the jury was the subject of discussion between judge and counsel. It is proper and of assistance that there be such discussion. Having ascertained from the defendant's counsel, Mr Hoeben, what aspects of contributory negligence were pressed, his Honour said this:

"Mr Gross, do you agree there is evidence that the jury could find contributory negligence in not asking Angelo for the crane and not asking Jack to give him a hand beforehand?"