Gillett v Murphy & Ors [2001] NSWCA 199

New South Wales Court of Appeal

CITATION : Gillett v Murphy & Ors [2001] NSWCA 199 FILE NUMBER(S) : CA 40407/99 HEARING DATE(S) : 13 June 2001 JUDGMENT DATE : 28 June 2001

PARTIES : Terry Brian Gillett v Geoffrey Norman Murphy; Peter Julian Joss; Brian James Dixon; Leslie John Daniels; Kevin O'Donnell; Ronald Alan Wharton; Garnet Terrence Duffy and Tony Allport JUDGMENT OF : Mason P at 1; Rolfe AJA at 2; Grove AJA at 71

LOWER COURT JURISDICTION : District Court LOWER COURT DC 1419/97 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

COUNSEL : Claimant - C.T. Barry QC / I. Davidson Opponent - I.G. Harrison SC SOLICITORS : Claimant - Schrader & Associates Opponent - Riley Gray-Spencer CATCHWORDS : Negligence - finding of trial judge on credibility of witnesses - negligence - whether plaintiff should have been allowed to reopen case - evidence. LEGISLATION CITED : Evidence Act 1995 CASES CITED: Browne v Dunn (1893) 6 R 67 Rosenberg v Percival (2001) HCA 18 DECISION : Application for leave to appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40407/99 DC 1419/97

MASON P ROLFE AJA GROVE AJA

Thursday, 28 June 2001

GILLETT v MURPHY & ORS

NEGLIGENCE - finding of trial judge on credibility of witnesses - standard of review of such findings.

NEGLIGENCE - whether plaintiff should have been allowed to reopen its case - plaintiff took a strategic decision in not calling a witness itself and was not necessarily entitled to reopen its case when the defendant failed to call the witness.

EVIDENCE - whether s54 of the Evidence Act 1995 confers an obligation on the trial judge to use a view as evidence and is obliged to state what was observed on the view even though no inference was drawn. The appellant was an apprentice jockey who was injured when his horse fell while on the racetrack owned and conducted by the respondents. The appellant claimed that the fall occurred when another horse came racing around the track, frightening his horse and causing it to run very close to the rail on the inside of the track. The appellant stated that the horse stumbled on the uneven ground under the rail, and that he fell of the horse at this point. The respondent submitted that the appellant fell from his horse immediately after the other horse frightened it, and that this fall occurred some distance from the inside rail. The trial judge found for the respondent. The appellant contended that the trial judge was in error in finding that the appellant had not proved its case, and in failing to state whatever conclusions she had drawn from her viewing of the racetrack, and in refusing the appellant leave to reopen their case in order to call a key witness. It was also claimed that the respondent's case was not adequately put to the appellant at trial. HELD (per Rolfe AJA, Mason P and Grove AJA agreeing):