AMWAY OF AUSTRALIA PTY LTD v VERNALL [1997] NSWCA 20

AMWAY OF AUSTRALIA PTY LTD v VERNALL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, BEAZLEY and STEIN JJA 12 November 1997, 18 December 1997

[1997] NSWCA 20

Jury verdict — negligence and breach of statutory duty — whether judge's summing-up to jury overstepped role of jury as finders of fact, so that there was an unfair trial — whether judge erred in failing to take statutory counts away from the jury — whether judge failed to adequately put the appellant's case on damages to the

jury

The respondent was injured in a workplace accident and claimed against her employer in negligence and for breach of statutory duty. A jury entered a verdict for the respondent of over $500,000.

On appeal:

The jury's verdict was challenged on 3 bases:

1. that the summing-up of the trial judge was such that the appellant (defendant at first instance) could not obtain a fair trial.

2. that the trial judge erred in failing to remove all of the statutory counts from the jury.

3. that the trial judge failed to adequately put the appellant's case on damages to the jury.

Held:

The trial judge's summing-up and redirections to the jury, taken as a whole, did not have the effect that the judge overstepped his role and usurped the role of the jury to decide the facts in the case. The essential issues of fact in dispute were left to the jury. They involved a decision as to which party's account was to be believed. Nor was there any unfairness to the appellant in the judge's summing-up in relation to damages.

Jones v Dunkel [1958-1959] 101 CLR Murray v Wilson [1962] NSWR 1155 Hoger v Ellas [1963] NSWR 1033 applied

Meagher I agree with Stein JA. Beazley JA I agree with Stein JA.

Stein JA This is an appeal from a verdict of a jury which found in favour of the plaintiff (the respondent in the appeal) in relation to injuries she suffered in the course of her employment by the appellant at its premises at Castle Hill. The jury found for her on negligence and certain breaches of statutory duty arising under the Factories, Shops and Industries Act, 1962. Judgment was entered for the plaintiff in the sum of $534,034.91.