Duggan v Ampelite Fibreglass Pty Ltd [2003] NSWCA 357

New South Wales Court of Appeal

CITATION : Duggan v Ampelite Fibreglass Pty Ltd [2003] NSWCA 357 HEARING DATE(S) : 27 November 2003 JUDGMENT DATE : 27 November 2003

JUDGMENT OF : Giles JA at 1; Ipp JA at 17; Brownie AJA at 28 DECISION : (1) Appeal allowed and cross-appeal dismissed; (2) Set aside the verdict and judgment for the defendant; (3) Order that there be a new trial; (4) Respondent pay the appellant's costs of the appeal and cross-appeal; (5) Set aside the order for costs made by the judge; (6) Costs of the proceedings below to be as ordered by the judge conducting the new trial.

CATCHWORDS : Damages for personal injury - plaintiff slipped on fibreglass sheeting - disputed evidence of how he came to fall and whether he was warned - judge made no findings - could not be satisfied that plaintiff fell as he said because of "discrepancies" between witnesses - failure in judicial function - failure to give reasons why was unable to decide how plaintiff came to fall - new trial - no question of principle. PARTIES : Garry Robert Duggan - Appellant Ampelite Fibreglass Pty Ltd - Respondent FILE NUMBER(S) : CA 41080/02 COUNSEL : J S Drummond - Appellant ACA Bridge SC & S E Torrington - Respondent SOLICITORS : McClellands - Appellant Phillips Fox - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 6152/01 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41080/02 DC 6152/01

GILES JA IPP JA BROWNIE AJA