Afoa BHNF Christine Taylor v McBride [2016] NSWSC 1415

Supreme Court New South Wales

Medium Neutral Citation: Afoa BHNF Christine Taylor v McBride [2016] NSWSC 1415 Hearing dates: 17, 18 May 2016; 16 June 2016 Date of orders: 06 October 2016 Decision date: 06 October 2016 Jurisdiction: Common Law Before: Harrison AsJ Decision: Judgment:

(1) Judgment is entered in favour of the defendant.

The Court orders that:

(2) The plaintiff is to pay the defendant's costs on an ordinary basis as agreed or assessed. Catchwords: TORT – negligence – breach of duty of care – plaintiff ingested corrosive chemical at a barbeque – whether defendant used caustic soda to clear drain in kitchen – whether defendant left glass containing caustic soda residue in kitchen – issues of credit in plaintiff's camp – verdict for the defendant Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Jones v Dunkel (1959) 101 CLR 298 Category: Principal judgment Parties: Vai Afoa bhnf Christine Taylor (Plaintiff) Barry Anthony McBride (Defendant) Representation: Counsel: PR Glissan (Plaintiff) P Cummings SC (Defendant)

Solicitors: John McEncroe (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2013/44853 Publication restriction: Nil

Judgment 1. HER HONOUR: This is a tragic case. On 8 April 2012 the plaintiff, who was three years of age, suffered serious injuries when he accidently ingested a highly corrosive substance. The plaintiff is presently aged 7 years. This is a judgment on liability only. 2. The plaintiff is Vai Afoa by his tutor, his mother, Christine Ann Taylor. The defendant is Barry Anthony McBride. 3. On 13 May 2015, Wilson J made an order that separate hearings were to be conducted to determine firstly the issue of liability and subsequently the issue of quantum. 4. There are major factual disputes as to the circumstances by which the plaintiff came to ingest a corrosive substance at the barbeque held on Easter Sunday 2012. Credibility of all the lay witnesses (but not the medical staff) is strongly in issue.