SUTHERLAND v ZALAKOS and ANOR [1996] NSWCA 510

SUTHERLAND v ZALAKOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, MEAGHER and BEAZLEY JJA 19 June 1996, 8 October 1996

[1996] NSWCA 510

JURY TRIAL — Verdicts and Findings — Questions put to jury after summing up — Whether separation of jury after jury charged to consider verdict — Failure to discharge jury after deliberation upon verdict beyond statutory time limit- Jury Act 1977 s57, s58; Jury Act 1912 s66; Supreme Court Act s90

JURY TRIAL — Contributory negligence

JURY TRIAL — Verdicts and Findings — General verdicts — Questions put to jury after summing up- Trial judge directed jury to consider verdict — Whether separation of jury after being charged to consider verdict — Consequences of failure to discharge jury after deliberation upon verdict beyond statutory time limit, considered.

JURY TRIAL — Contributory Negligence — Whether sufficient evidence of contributory negligence for issue to be left to jury — whether jury entitled to make finding on evidence

APPEAL AND NEW TRIAL — Grounds for — Whether trial judge failed to discharge jury after expiration of statutory time limit for deliberation upon verdict.

Jury Act 1977, s57, s58; Jury Act 1912, s66; Supreme Court Act 1970 (NSW) s90

The first respondent sustained injuries in the course of his employment as a strapper with the appellant horse-trainer. The appellant had requested the first respondent to fide an ex-trotter around one of the training tracks at Rosehill Racetrack, in the course of which the first respondent lost control of the horse and injured his left knee. By jury verdict, the respondent was awarded damages for those injuries, however the award was reduced by 20% for contributory negligence on the part of the respondent.

On 22 September 1992, during the hearing, following the trial judge's summing up, Smart J issued the jury of four with a list of nine questions to consider. The jury, after indicating that they could not reach agreement on answers to the questions, were permitted to separate for the day. The jury was retired for about 2 hours. The following day, 23 September 1992, at 11.06 am, the trial judge directed the jury to consider a list of verdicts which he had given them. At 3.21 pm that day, the trial judge recalled the jury and informed them that it was possible to take their verdict or to accept the decision of 3 out of 4 of them as the verdict under s57 Jury Act 1977. At 3.34 pm, the trial judge took the jury's majority verdict.