DAVIS v COUNCIL OF THE CITY OF WAGGA WAGGA [2004] NSWCA 34

New South Wales Court of Appeal

CITATION : DAVIS v COUNCIL OF THE CITY OF WAGGA WAGGA [2004] NSWCA 34 HEARING DATE(S) : 2 February 2004 JUDGMENT DATE : 26 February 2004

JUDGMENT OF : Mason P at 1; Beazley JA at 40; Tobias JA at 41 DECISION : Appeal upheld.

CATCHWORDS : NEGLIGENCE - appellate review - whether bound by trial judge's assessment of credibility - whether assessment of adverse credibility open on the facts - whether prior medical histories inconsistent with witness's evidence at trial - failure to confront plaintiff with alleged inconsistencies - principle in Brown v Dunn. (ND) PARTIES : John Bradley DAVIS v COUNCIL OF THE CITY OF WAGGA WAGGA FILE NUMBER(S) : CA 40426/03 COUNSEL : Appellant: B Toomey QC / A Black Respondent: P W Taylor SC SOLICITORS : Appellant: Walsh & Blair, Wagga Wagga Respondent: Phillips Fox, Sydney

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 20854/01 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40426 of 2003

MASON P BEAZLEY JA TOBIAS JA

Thursday 26 February 2004

John Bradley DAVIS v THE COUNCIL OF THE CITY OF WAGGA WAGGA

BACKGROUND The appellant severely injured his left arm when he fell or jumped from a swing in Emblen Park, Wagga Wagga. The respondent was sued as the occupier of the park responsible for installing and maintaining the swing.

The appellant's version of the accident was that he noticed that the cross-bar on the swing was shaking and so thinking that it was going to fall, he attempted to jump off. As he attempted to do so, his shorts caught in the S-hook which connected the swing's seat to the chain which extended to the cross-bar. This interrupted his jump and caused him to fall and injure his arm.