BATTAGLIA v AUSTRALIAN TELECOMMUNICATIONS COMMISSION [1995] NSWCA 42

BATTAGLIA v AUSTRALIAN TELECOMMUNICATIONS COMMISSION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and COLE JJA 4 December 1995, 19 December 1995

[1995] NSWCA 42

Industrial injury — Trial by jury — Objection to Summing-up, not taken at trial — Objections to Directions upon compensation tax entitlements and upon proof of mnitigation of damages — Quantum

APPEAL from Common Law Division — Judgment following trial by jury — Industrial injury, judgment for $174,200.

OBJECTIONS TO SUMMING-UP — Not taken at trial — Objections should not be allowed to be taken now.

OBJECTION TO DIRECTIONS upon compensation tax entitlements (Fox vy Wood tax payments) — Directions satisfactory.

OBJECTION TO DIRECTIONS upon proof of mitigation — Directions satisfactory.

QUANTUM OF DAMAGES — Verdict open to jury on evidence — not appealably low.

ORDER: Appeal dismissed with costs.

Mahoney JA The plaintiff Mr Carmelo Battaglia was injured on 10 February 1985 in the course of his employment with the defendant Australian Telecommunications Commission. He sued the Commission for damages. On 3 April 1992, after a trial before McInerney J and a jury, the plaintiff was awarded a verdict of $ 170,000. To this was added interest of $4,200.

The plaintiff has appealed to this Court against the judgment awarded to him. It was at the time noted that "the worker's compensation figure was $128,045". Mr Battaglia suffered injuries of some severity and it may be the amount accruing to him as the result of the present litigation is such that it has influenced his decision to appeal.

Mr O'Brien, counsel for the plaintiff on the appeal, indicated that there were three grounds on which the appeal was pressed: (1) that his Honour misdirected the jury in relation to (as I shall describe them) the plaintiffs compensation tax entitlements; (2) that his Honour misdirected the jury in relation to a particular matter