Jenkins v Sydney Markets Ltd [2005] NSWCA 82

New South Wales Court of Appeal

CITATION: Jenkins v Sydney Markets Ltd [2005] NSWCA 82

HEARING DATE(S): 29/03/2005

JUDGMENT DATE: 29 March 2005

JUDGMENT OF: Beazley JA at 5 & 7; Ipp JA at 6; Pearlman AJA at 1-4

DECISION: Refer para 7.

Bradley William Jenkins Appellanat PARTIES: Sydney Markets Ltd Respondent

FILE NUMBER(S): CA 40428/04

C S Leahy SC Appellant COUNSEL: R S McIlwaine SC Respondent

Owen Hodge Appellant SOLICITORS: Wotton & Kearney Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20154/02

LOWER COURT JUDICIAL OFFICER: Shaw J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40428/04 BEAZLEY JA IPP JA PEARLMAN AJA

TUESDAY 29 MARCH 2005 BRADLEY WILLIAM JENKINS v SYDNEY MARKETS LIMITED Judgment 1 PEARLMAN AJA: In this matter the issue for us today is whether to exercise the power that this Court has to determine whether there should be a verdict for the respondent upon the legal principle put to us of the duty of care of the respondent as occupier of the premises where the appellant's three accident occurred. Both parties are agreed that the judgment of the trial judge is inadequate and fails to give reasons for findings, or gives reasons that are inadequate, and the only issue is whether the matter should go back for trial. 2 It seems to me that in relation to each of the three accidents that are the subject of these proceedings there are issues which require a new trial and that we should not exercise our power to determine the matter. That is because I see, in relation to each of those three accidents, difficulties in the evidence. 3 There are conflicts in the evidence, such as conflicts about the system of cleaning that the respondent adopted at the time of the accident, that is the first accident, where the appellant is alleged to have slipped on some vegetable or other matter on the ramp. There are issues about the surroundings, how the ramp was constructed and what its relationship was to the general area, the store where the appellant worked, how often the appellant was there, the frenetic activity of the area of work when the appellant was working. 4 All those things to me seem to lead to no conclusion, but there ought to be a new trial and I would so order. 5 BEAZLEY JA: I agree. 6 IPP JA: I agree. 7 BEAZLEY JA: The formal orders the Court proposes to make in the matter are as follows: (1) the appeal is allowed; (2) the cross-appeal is allowed; (3) the verdict and judgment of the trial judge is set aside. (3) remit the matter for re-hearing on all issues; (4) the respondent is to pay the appellant's costs of the appeal but is to have a certificate under the Suitors Fund Act if so entitled; (5) the cross-respondent is to pay the cross-appellant's costs of the cross-appeal up until 14 December 2004; (6) the cross-appellant is to pay the cross-respondent's costs of the cross-appeal from 15 December 2004; (7) the cross-respondent is to have a certificate under the Suitors Fund Act if so entitled in respect of the costs it has been ordered to pay on the cross-appeal; (8) the costs of the trial at first instance are set aside and are to abide the outcome of the re-trial. *****************