CLUTHA DEVELOPMENTS PTY LTD v DOWD [1995] NSWCA 79

CLUTHA DEVELOPMENTS PTY LTD v DOWD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SHELLER and POWELL JJA 13 September 1995, 5 October 1995

[1995] NSWCA 79

DAMAGES — comparison of like verdicts — whether permissible in industrial deafness cases with many common features — held: Not permitted.

Planet Fisheries Pty Ltd v La Rosa and Anor (1968) 119 CLR 118 appld.

DAMAGES - deafness - tinnitus - plaintiff aged sixty-four - jury verdict $70,000 - held: Appealably excessive - reduced to $40,000.

LAW REFORM - comparison of like verdicts - possible need for statutory authority.

LAW REFORM - jury trial - possible need for larger judicial facility to dispense with juries in busy lists.

DAMAGES - comparable verdicts - facility of comparison in Court of Appeal - jury's verdict in favour of retired plant operator claiming deafness and tinnitus - verdict of $70,000 - appeal against verdict as excessive - whether Court may compare other verdicts in like cases held: (1) (by the Court): Such comparison is forbidden by Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; and Moran v McMahon (1985) 3 NSWLR 700 (CA); (2) (Per Kirby P): It is difficult to justify, conceptionally, the facility of comparison in defamation cases allowed by Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44. Consideration should be given to a statutory facility of comparison.

DAMAGES - deafness - tinnitus - jury verdict of $70,000 - plaintiff plant operator aged 64 suffers deafness after working in noisy environment for many years - whether damages appealably excessive - held: (1) It was a serious matter to deprive a party of a jury's verdict, given the advantages which the jury had of assessing damages and reflecting community values. Brown v Dean and Anor [1910] AC 373 (HL) appld; (2) But the judgment was appealably excessive. Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 appld.