McGlen-McLeod v Galloway [2012] NSWCA 368

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McGlen-McLeod v Galloway [2012] NSWCA 368 Hearing dates: 9 October 2012 Decision date: 09 November 2012 Before: Allsop P at [1]; Campbell JA at [2]; Tobias AJA at [3] Decision: 1. Appeal allowed. 2. Set aside Order 1 of the District Court made on 14 October 2011. 3. There be a new trial confined to the issues of causation and damages. 4. The respondents to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act 1951, if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: NEGLIGENCE - appellant fell through rotted floorboards of veranda - respondents breached duty of care - appeal in relation to causation and damages - whether the primary judge failed to take into account and assess the appellant's evidence that it was her right leg which fell through the rotted floorboards - whether the primary judge was required to made an assessment of the appellant's credibility in the light of her evidence as a whole

NEGLIGENCE- whether the primary judge's failure to consider in any direct way the appellant's evidence on the issue of causation resulted in a miscarriage of justice - Uniform Civil Procedure Rules Part 51.53(1) - whether a substantial wrong or miscarriage had been occasioned Legislation Cited: Suitors Fund Act 1951 Cases Cited: Adamson v Ede [2009] NSWCA 379 Mason v Demasi [2009] NSWCA 227 McGlen-McLeod v Galloway [2011] NSWDC 163 McGlen-McLeod v Galloway (No 2) [2012] NSWDC 11 The Nominal Defendant v Kostic [2007] NSWCA 14 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Whalan v Kogarah Municipal Council [2007] NSWCA 5 Category: Principal judgment Parties: Anne McGlen-McLeod (Appellant) Nathan David Galloway (First Respondent) Daniel Eli Galloway (Second Respondent) Representation: Counsel: C Curtin SC (Appellant) G M Watson SC (Respondents) Solicitors: CMC Lawyers (Appellant) McCabe Terrill Lawyers (Respondents) File Number(s): CA16658 of 2012 Decision under appeal Citation: McGlen-McLeod v Galloway [2011] NSWDC 163 Date of Decision: 2011-10-14 00:00:00 Before: Gibson DCJ File Number(s): DC 2009/338654