Bunnings Group Ltd v Borg [2014] NSWCA 240

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bunnings Group Ltd v Borg [2014] NSWCA 240 Hearing dates: 17 July 2014 Decision date: 28 July 2014 Before: Basten JA at [1]; Barrett JA at [2]; Leeming JA at [3] Decision: 1. Appeal allowed and cross-appeal dismissed. 2. Set aside the orders made by the District Court on 19 August 2013 and order that there be a retrial. 3. Respondent to pay the appellant's costs of the appeal and the cross-appeal. 4. Respondent to have a certificate pursuant to the Suitor's Fund Act 1951 (NSW). [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: TORTS - negligence - customer injured while in hardware store by timber falling on him - inconsistent testimonial and documentary evidence as to how accident happened - verdict in favour of customer - trial judge relied on photograph of reconstruction of incident - failure to grapple with inconsistencies in evidence - failure to make clear findings of breach and causation - failure to address Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D and 5E - verdict set aside and retrial ordered Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 16 Suitor's Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144; [2008] Aust Torts Rep 81-956 Coote v Kelly [2013] NSWCA 357 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3; 73 ALJR 306 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Woolworths Ltd v Ryder [2014] NSWCA 223 Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 Category: Principal judgment Parties: Bunnings Group Ltd (Appellant/Cross-Respondent) Alfred Borg (Respondent/Cross-Appellant) Representation: Counsel: GM Watson SC / JC Sheller (Appellant/Cross-Respondent) R Sheldon SC / PN Khandhar (Respondent/Cross-Appellant) Solicitors: Gilchrist Connell (Appellant/Cross-Respondent) Brydens Compensation Lawyers (Respondent/Cross-Appellant) File Number(s): 2013/279351 Decision under appeal Date of Decision: 2013-08-19 00:00:00 Before: Robison DCJ File Number(s): 2012/263033