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. 5 And further, on the same page of his Honour's reasons: I am left at the end of the day with a very firm conviction that, on the alleged facts in this case, if the matter were to proceed for trial before a jury, that because of the difficulties of the questions which would be involved and the inter-relationship of the two alleged injuries there is a very real prospect that justice would not be done. 6 On an application such as this, the onus is on the claimant to persuade the Court that it is appropriate to grant leave. In addition we are dealing with the exercise of a discretion under the District Court Act, which, is, on its face, a fairly wide discretion. 7 The reference by his Honour to the detailed questions led me to ask counsel appearing on behalf of the claimant, Mr Halligan, if he could assist the Court by providing a draft of the questions which a jury would have to answer, so that we could make some assessment of the complexities (or lack of complexities) that may be involved in the jury determining the issues in this case. Mr Halligan handed to the Court some draft jury questions in relation to each accident including, as well as the damages issues under the Workers Compensation Act questions relating to breach of duty of care and contributory negligence 8 There seems to me at least four reasons why the circumstances of this case may be seen as unusual or special and would lead me to decline leave to appeal. There are the complications of the provisions of the Workers Compensation Act, in particular in relation to a situation where there have been two accidents within 6 or 7 months, and the inter-relationship of the accidents, bearing in mind the different workers compensation provisions to be applied. 9 There is also the potential for different verdicts in relation to each accident because the questions, of course, would have to be asked of the jury in relation to each separate accident. If, for example, the questions as suggested were answered affirmatively in relation to accident No 1 in the terms of breach in duty and the succeeding questions, but then in relation to accident No 2 the jury found for the defendant, there are possible complications as to what would ensue in relation to the damages and the answers to the questions relating to the first accident. That is another potential which has to be considered in the equation. 10 The questions handed to the Court by counsel, when examined by the Court, are 27 in number. I should add that counsel on behalf of the opponent, Mr Marshall, does not concede that these would be necessarily the questions to be asked of the jury or the form suggested. Indeed, it may be that there are more questions to be asked than in the document handed to the Court. The fact that there are a large number of questions does not necessarily mean that a jury would not be able to cope. However, the nature of some of the questions in relation to the provisions of the Workers Compensation Act is compounded by their large number. 11 I am not persuaded that there has been any error of law demonstrated in the exercise of the discretion that his Honour was embarking upon, nor any misapplication of principle by his Honour. In my view, his Honour was entitled to conclude that there was the potential for a miscarriage of justice if the matter remained with the jury. Accordingly, the application for leave to appeal should be dismissed and summons dismissed with costs. 12 POWELL JA: I agree. 13 BEAZLEY JA: I agree. 14 POWELL JA: The orders of the Court are thus those that have been proposed by Stein JA. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.