[1981] VR 421
PRESTINENZI v STEEL TANK AND PIPE CONSOLIDATED PTY LTD
SUPREME COURT OF VICTORIA
YOUNG, CJ, KAYE AND McGARVIE, JJ
15, 16, 19 May, 02 October 1980
[1981] VR 421
Practice and procedure — Plaintiff injured in course of employment — Damages
awarded unreasonably low — Insufficient evidence upon which jury could find
contributory negligence — Judgment ordered to be entered non obstante
veredicto — Whether trial judge entitled to order entry of a judgment
inconsistent with the findings of the jury.
.
There is no power in a trial judge, without leave having been reserved, to
direct judgment to be entered in a manner inconsistent with the jury's
verdict.
When a question arises in the course of the trial of an action whether there
is sufficient evidence on which the jury could properly find that there was
negligence on the part of the plaintiff, either of two courses are open to the
trial judge: he should reserve leave to the plaintiff to move non obstante
veredicto, take the jury's verdict, and then rule on the motion; or he should
rule on the question before committing the case to the jury, and, if he is
persuaded there is no evidence, he should direct the jury to answer the
question in favour of the plaintiff.
The plaintiff claimed damages for injuries suffered by him in the course of
his employment by the defendant. In answer to specific questions, the jury
found that there was negligence on the part of the defendant, and that there
was contributory negligence on the part of the plaintiff and the jury assessed
the plaintiff's damages and fixed the percentage by which the total damages
should be reduced by reason of the plaintiff's negligence. On hearing a motion
for judgment, the trial Judge upheld a submission on behalf of the plaintiff
that there was no evidence upon which the jury could have reasonably found the
plaintiff guilty of contributory negligence, and contrary to the jury's answer
to the question relating to that issue, he entered judgment for the plaintiff
for the total damages assessed. On appeal by both parties,
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[1981] VR 421
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