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. Both points deal with matters which could perhaps have been slightly better expressed. Nonetheless, in my opinion, there was no sufficient error in the statements used by the trial judge which was likely to have misled the jury. That consideration must be taken in the context that the appellant was represented at trial by experienced senior counsel who omitted to seek any redirection. While that failure is not necessarily fatal to the appeal, it is a most material matter to be taken into consideration in the exercise of the court's discretion in deciding whether or not there has been a miscarriage of justice or other proper basis upon which the appeal should be allowed and a new trial ordered. Taking all these circumstances into account, and on a fair reading of the summing up as a whole, I am of opinion that no sufficient basis has been shown to warrant this court's interference and that the appeal should be dismissed with costs. 1. (1979) 146 CLR 40. 2 UNREPORTED JUDGMENTS Handley JA I agree Stein JA I also agree. Handley JA The orders of the court will be as proposed by Justice Fitzgerald. Appeal dismissed with costs Counsel for the appellant: P Koroknay 10 Solicitors for the appellant: J Sciglitano & Co Counsel for the respondent: C E O'Connor QC/C E Adamson Solicitors for the respondent: Moray & Agnew