Department of Community Services v Dezsery [2000] NSWCA 196

New South Wales Court of Appeal

CITATION : Department of Community Services v Dezsery [2000] NSWCA 196 FILE NUMBER(S) : CA 40107/00 HEARING DATE(S) : 21 July 2000 JUDGMENT DATE : 21 July 2000

PARTIES : Department of Community Services (Claimant) Peter Dezsery (Opponent) JUDGMENT OF : Powell JA at 12; Beazley JA at 13; Stein JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT Knight DCJ FILE NUMBER(S) : LOWER COURT DC 7362/98 JUDICIAL OFFICER :

COUNSEL : H J Halligan (Claimant) H J Marshall/D Kelly (Opponent) SOLICITORS : William K Chambers (Claimant) Beilby Poulden Costello (Opponent) CATCHWORDS : DISTRICT COURT - damages under Workers Compensation Act - Jury - Discretion to dispense with jury - nature of discretion - D LEGISLATION CITED : District Court Act 1973 Workers Compensation Act 1987 CASES CITED: Pambula District Hospital v Herriman (1988) 14 NSWLR 387 DECISION : Summons for leave to appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40107/00 POWELL JA BEAZLEY JA STEIN JA Friday, 21 July 2000 DEPARTMENT OF COMMUNITY SERVICES v Peter DEZSERY JUDGMENT 1 STEIN JA: This is a summons for leave to appeal an order made by Knight DCJ in the District Court dispensing with a jury that had been requisitioned. The claimant is the Department of Community Services, being the defendant in proceedings brought by the opponent, Peter Dezsery. 2 The cause of action which the opponent brought in the District Court was by ordinary statement of claim seeking damages for negligence for personal injuries, those personal injuries being suffered in two separate accidents in Group Homes while in the employ of the claimant. The accidents occurred within a period of approximately 6 months in 1995 and 1996, the first accident having occurred on 10 October 1995 and the second on 9 April 1996. The heads of damage, if liability be established, fell to be determined under the Workers Compensation Act 1987, ss 151E, F, G, H, I, J and K, in particular under ss 151G, H and I. I also mention that if leave is granted by the Court, the parties are agreeable to the Court proceeding to hear and determine the appeal. 3 In dispensing with the jury his Honour made reference to the fact of the two successive accidents while the opponent was a house manager at an institution conducted by the claimant, and the application of the provisions of the Workers Compensation Act to the assessment of damages. He referred to the implications for a jury in that event. His Honour also referred to the leading case within this state on the principles to be applied in considering applications to dispense with a jury, Pambula District Hospital v Herriman (1988) 14 NSWLR 387. Knight DCJ set forth the basic principles expounded by the Court of Appeal in that case. 4 His Honour's conclusions are embodied in the following short quotations from the reasons: Very frequently in trials with juries instead of a general verdict being taken there are detailed questions asked of the jury, for example, in defamation cases before recent Statutory Amendments. However, it seems to me on the facts of this case where you have two allegedly negligently caused injuries separated only by some six months that the detailed questions which would be required of the jury in relation to each of the two incidents render the prospects of a miscarriage of justice very great indeed.