Nevin v B & R Enclosures [2004] NSWCA 339

New South Wales Court of Appeal

CITATION : Nevin v B & R Enclosures [2004] NSWCA 339 HEARING DATE(S) : 29 July 2004 JUDGMENT DATE : 24 September 2004

JUDGMENT OF : Sheller JA at 1; Beazley JA at 2; Tobias JA at 3 DECISION : (a) Appeal allowed; (b) Orders made by Naughton DCJ on 13 October 2003 be set aside and in lieu thereof there be judgment for the appellant against the respondent on the issue of liability; (c) The proceedings be remitted to the District Court for the purpose only of assessment of damages; (d) The respondent pay the costs of the proceedings to date in the District Court and of the appeal, but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS : EVIDENCE - Burden of proof - Prof by direct evidence - Proof by other facts - Proof of someone's negligence - On probability, proof of respondent's evidence - EVIDENCE - Findings by trial judge - Credibility - Rejection of evidence due to lack of credibility - Evidence overwhelmingly supports uncreditable witness - Restoration of credit on appeal - APPEALS - Negligence - Defendant wins at first instance - Trial judge did not deal with damages - Limited new trial required - Trial judge ought to have dealt with all litigated issues LEGISLATION CITED : Evidence Act 1995 Workers Compensation Act 1987 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Payne v Parker [1976] 1 NSWLR 191 Devries v Australian National Railways Commission (1993) 177 CLR 472 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 PARTIES : Mark Nevin B & R Enclosures Pty Limited FILE NUMBER(S) : CA 40968/03 COUNSEL : A: Mr Brian Donovan QC R: Mr Simon J Harben SC SOLICITORS : A: Bale Boshev Lawyers, Hamilton R: Thomas Laycock Solicitors, Newcastle