MURGIDA v HAINES [1998] NSWCA 148

MURGIDA v HAINES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, STEIN JJA and FITZGERALD AJA 22 July 1998, 22 July 1998

[1998] NSWCA 148

Fitzgerald AJA The appellant was the plaintiff in an action for damages for personal injuries allegedly suffered in the course of her employment. The action was heard by a District Court judge and jury who found for the respondent.

The sole ground of appeal in the notice of appeal which has been argued before this Court is to the effect that the trial judge misdirected the jury with respect to foreseeability.

Our attention has been drawn in particular to passages in the summing, up dealing with the foreseeability of the risk that the plaintiff/appellant would be injured which are to be found on p201 and p202 of the Appeal Book.

In essence, the complaint is that the trial judge permitted the matter to go to the jury in a context which included a submission by the defendant, the respondent in this Court, that a verdict should be entered for the defendant if the jury was satisfied that there was no risk of a common sense kind.

Mrs Koroknay in her able argument on behalf of the appellant, who presented every point which could reasonably have been raised, made the submission that the jury should have instead been directed that a risk of injury was foreseeable if it was not remote in the sense that it was extremely unlikely to occur or was not far fetched and fanciful in accordance with the statements by Mason J, as he then was, in Council of the Shire of Wyong v Shirt.!

The subsidiary point, or perhaps better described as a second point which was raised, was that his Honour in his summing, up used the phrase "the plaintiff must prove that failure to eliminate the risk showed a lack of reasonable care for the safety of the plaintiff'. Mrs Koroknay submitted that proof was an inappropriate concept in the context since evidence was not required and a better phraseology would have been "the plaintiff must satisfy you that failure to eliminate the risk" etcetera.