COSTAINS (AUSTRALIA) PTY LTD v ATKINSON [1995] NSWCA 100

COSTAINS (AUSTRALIA) PTY LTD v ATKINSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and SHELLER JA 14 September 1995, 5 October 1995

[1995] NSWCA 100

APPEAL — new trial — District Court — proper approach to — District Court Act 1973, s126 — discretion of judge — correct approach to evidence most favourable to successful party — held: No error in ordering new trial.

PRACTICE and PROCEDURE — District Court — new trial application — proper approach to.

DAMAGES — hearing loss — tinnitus — jury verdict of $5,000 — inadequacy — new trial properly ordered.

APPEAL — District Court — new trial — jury verdict — alleged inadequacy — immediate application for new trial — application granted by trial judge (PR Bell DCJ) — claim for negligence causing hearing loss — jury finds for plaintiff but awards verdict of only $5,000 — evidence of exposure to noisy conditions — evidence of tinnitus and complaints of difficulty in family and social settings — held: (1) The Court must consider an application for a retrial upon the footing that the jury accepted the evidence most favourable to the party upholding the verdict. Progress and Properties Ltd v Craft (1976) 135 CLR 651; Brown v Dean and Anor [1910] AC 373 (HL); Hill v Cooke (1958) 58 SR (NSW) 49 (FC) appld; (2) The question was whether the amount of the verdict was such that no reasonable jury, properly instructed, could have arrived at it. Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 appld; (3) The jury's verdict was appealably inadequate and the discretion of the judge to order a new trial would not be disturbed. Nominal Defendant v Hook (1962) 113 CLR 641 appld.

PRACTICE and PROCEDURE — District Court — new trial application — District Court Act 1973, s126 — proper approach to — requirement of immediate

application — whether discretion of judge granting new trial miscarried — held: It did not.