Welsh v Carnival PLC trading as Carnival Australia [2014] NSWCA 430

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Welsh v Carnival PLC trading as Carnival Australia [2014] NSWCA 430 Hearing dates: 2 December 2014 Decision date: 12 December 2014 Before: McColl JA at [1] Sackville AJA at [11] Adamson J at [12] Decision: (1) Appeal allowed. (2) Set aside the orders made in the District Court on 27 September 2013. (3) Order that the matter be remitted to the District Court for a new trial limited to damages. (4) Order that the costs of the new trial be in the discretion of the trial judge presiding at the second trial. (5) Order the respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitor's Fund 1951 (NSW) 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: TORTS - damages - plaintiff injured when ceiling panel fell on his head while on a cruise ship - whether primary judge's reasons engaged with the plaintiff's medical case - whether reasons sufficient

APPEAL - new trial - whether substantial miscarriage of justice Legislation Cited: Civil Liability Act 2002 (NSW), s 15 Civil Procedure Act 2005 (NSW), s 56 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 Demirok v The Queen (1977) 137 CLR 20 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343 Lu v Heinrich [2014] NSWCA 349 Mastronardi v New South Wales [2007] NSWCA 54 Mifsud v Campbell (1991) 21 NSWLR 725 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Scoway Pty Limited v Faxon Pty Limited [2004] FCA 249 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Category: Principal judgment Parties: Graham Welsh (Appellant) Carnival PLC trading as Carnival Australia (ABN 23 107 998 443) (Respondent) Representation: Counsel: Dr AS Morrison SC/R Royle (Appellant) M McCulloch SC/V O'Halloran (Respondent) Solicitors: Slater & Gordon Lawyers (Appellant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2013/320008 Publication restriction: Nil Decision under appeal Date of Decision: 2013-09-27 00:00:00 Before: Sorby DCJ File Number(s): 2012/198495