WESTERN SYDNEY AREA HEALTH SERVICE v HART [1996] NSWCA 556

WESTERN SYDNEY AREA HEALTH SERVICE v HART SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, MEAGHER JA and HANDLEY JA 5 July 1996

[1996] NSWCA 556 DAMAGES — quantum — conflicting expert evidence — directions to jury.

A jury awarded the plaintiff $130,000 for repetitive strain injuries arising from work as a cleaner. The defendant appealed on the grounds that the damages were excessive and the jury had awarded damages for injuries to the shoulder which could not be supported on the evidence. It also relied on the failure of the trial judge to give a fuller direction to the jury about the significance of the plaintiff's pre-injury degenerative condition in accordance with Wilson v Peisley (1976) 50 ALJR 207. No redirection had been sought from the trial judge.

HELD, dismissing the appeal: (1) The appellant was not entitled to rely on the non-direction by the trial judge; (2) The jury were entitled to find that the plaintiff's shoulder problems were attributable to the negligence of the defendant; (3) The award was well within the limits of the claim for economic loss and could not be disturbed.

Handley JA. This is a defendant's appeal from a District Court judgment following a trial before Judge Cooper and a jury in an industrial accident case.

The jury returned a verdict for the plaintiff for $130,000 which after adjustments resulted in a judgment for $140,028.22.

A number of grounds are taken in the notice of appeal but most of these have been abandoned. The remaining grounds presented by Mr Hoeben SC for the appellant concerned the size of the verdict and the failure of the trial judge to give a fuller direction to the jury about the significance of the plaintiff's pre-injury degenerative condition in her back in accordancewith the principles discussed in Wilson v Peisley (1976) 50 ALJR 207. Mr Hoeben, however, acknowledged that no redirection was sought from the trial judge by counsel then appearing for the defendant, and in these circumstances I am of the view that any attempt to challenge this verdict on the ground of non-direction by the trial judge fails at the threshold.