Dunleavy v Peak [2009] NSWCA 72

New South Wales Court of Appeal

CITATION: Dunleavy v Peak [2009] NSWCA 72

HEARING DATE(S): 23 February 2009

JUDGMENT DATE: 8 April 2009

JUDGMENT OF: Ipp JA at 1; Campbell JA at 2; Sackville AJA at 98

(1) Set aside the orders in the court below. DECISION: (2) Remit the matter to the District Court of New South Wales for a retrial. (3) Order the Respondent to pay the costs of the Appellant of the appeal, the Respondent to have a certificate under the Suitors' Fund Act 1951 if qualified. (4) Reserve the costs of the first trial to the judge who conducts the retrial.

CATCHWORDS: EVIDENCE – burden of proof, presumptions, and weight and sufficiency of evidence – need to assess evidence by reference to facts in issue – whether trial judge was required to weigh evidence from one witness against conflicting evidence of other witnesses when evidence from all those witnesses was relevant to the one fact in issue – trial judge accepted one witness' evidence before evaluating conflicting evidence of other witnesses – failure to take account of unchallenged conflicting evidence from other witnesses – EVIDENCE – witnesses – credibility and reliability – whether inability of the witness to estimate distances would allow the trial judge to doubt the reliability of a witness' evidence more generally – TORTS – negligence – essentials of action for negligence – standard of care – whether risk and reasonable response were adequately explained – causation – whether failure to take precaution caused the damage – whether an increase in risk is a sufficient cause – PROCEDURE – courts and judges generally – judges – requirement to give adequate reasons – failure to give reasons in applying the law to the facts – failure to give adequate reasons to support a contingent finding of negligence – APPEAL AND NEW TRIAL – new trial – requirement of a new trial when questions of credibility of witnesses are required