Afoa v McBride [2017] NSWCA 323

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Afoa v McBride [2017] NSWCA 323 Hearing dates: 25 October 2017 Decision date: 14 December 2017 Before: Macfarlan JA at [1]; Payne JA at [77]; Sackville AJA at [78] Decision: Appeal dismissed with costs. Catchwords: NEGLIGENCE – personal injury – child appellant injured after ingesting corrosive substance left in a glass – whether respondent responsible for presence of substance in glass – credit based findings led to primary judge's rejection of appellant's case – Fox v Percy (2003) 214 CLR 118 – whether primary judge's findings were glaringly improbable

EVIDENCE – reliability of hospital and other medical records – relevant factors – Container Terminals Australia Ltd v Huseyin considered Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Category: Principal judgment Parties: Vai Afoa by his tutor Christine Taylor (Appellant) Barry Anthony McBride (Respondent) Representation: Counsel: A J Stone SC / P R Glissan (Appellant) P Cummings SC (Respondent)

Solicitors: John McEncroe & Company (Appellant) Moray & Agnew (Respondent) File Number(s): CA 2016/326627 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2016] NSWSC 1415 Date of Decision: 6 October 2016 Before: Harrison AsJ File Number(s): SC 2013/44853