GERRIT WYNBERGEN v THE HOYTS CORPORATION PTY LTD [1996] NSWCA 568

GERRIT WYNBERGEN v THE HOYTS CORPORATION PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and COLE JJA 4 July, 2 August 1996

[1996] NSWCA 568

Appeal and new trial — verdict of jury — apparent inconsistency — whether jury performed proper function. Damages — contributory negligence — inadequate damages.

The plaintiff, a supervising employee of the defendant, alleged that he injured his knee when he fell while inspecting toilets. At issue was whether the defendant had been negligent in failing to provide a safe system of work, whether the plaintiff had failed to take care of his own safety, and the extent of the injuries for which damages should be paid. These issues were left to the jury in the form of three questions. The jury held that though the defendant had been negligent, the plaintiff had also been negligent and was 100% to blame for any injury, and that the plaintiff's damages caused by the negligence of the defendant were an out-of-pocket expense of $38 incurred on the day of the fall. The plaintiff appealed seeking a new trial on the grounds that the finding of 100% contributory negligence was perverse and the damages inadequate. The issues in the appeal became whether the jury's answers to the questions finding $38 damages arising from the defendant's negligence was inconsistent with the answer that the plaintiff was guilty of 100% contributory negligence.

HELD, dismissing the appeal: (1) The apportionment of 100% for the plaintiffs contributory negligence was open to the jury; (2) The apportionment was not inconsistent with the facts, or with the finding that the defendant was negligent; (3) It was open to the jury to find that the plaintiff suffered no discomfort worthy of general damages; Zelkovic v SRA (unrep CA 2519195) distinguished; (4) The jury's answers to questions 2 and 3 could only be held to be inconsistent by the application of legal principles which had not been explained to the jury; (5) The jury answered the questions and the apparent inconsistency was a result of a non-direction; (6) There was nothing to indicate that the jury had failed to follow the judge's directions or otherwise misunderstood their function: see Carr v Sydney Council (1963) 80 WN (NSW) 397; Coroneo v Kurri Kurri Amusement Co Ltd (1934) 51 CLR 328; Huysse v Snowy Mountains Authority [1975] 1 NSWLR 401; (7) The Court should refuse a new trial where the verdict would be small: see Hannan v Cooper [1850] Legge 634; (8) A new trial is not lightly granted and there was no substantial wrong or miscarriage: see Dakhyl v Labouchere [1908] 2 KB 325 n; Brown v Dean [1910] AC 373.