1. Appeal allowed. 2. Set aside Orders 1 and 3 made by Sorby DCJ on 6 March 2009. 3. Order that the matter be remitted to the District Court for a new trial. 4. The costs of the first trial to be determined by the District Court on the retrial. 5. The respondent pay the appellant’s costs of the appeal. 6. The respondent, if otherwise qualified, to have a certificate under the Suitors’ Fund Act 1951.
CATCHWORDS:
REASONS - personal injuries claim - respondent trips over obstacle at night - action against licensee of hotel - whether primary judge gave adequate reasons for finding that the lighting was poor - whether primary judge erroneously inverted the burden of proof borne by the respondent.
Neville James Alchin (Appellant) William George Daley (Respondent)
FILE NUMBER(S):
CA 40109/2009
COUNSEL:
J E Maconachie QC; S E McCarthy (Appellant) B Dooley SC; M Best (Respondent)
SOLICITORS:
Davidson Garethy Lawyers (Appellant) Fatches Jones (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 1/2008
LOWER COURTJUDICIAL OFFICER:
Sorby DCJ
LOWER COURT DATE OF DECISION:
6 March 2009
CA 40109 of 2009
McCOLL JA YOUNG JA SACKVILLE AJA
18 December 2009
NEVILLE JAMES ALCHIN v WILLIAM GEORGE DALEY
Judgment
1 McCOLL JA: I agree with Sackville AJA.
2 YOUNG JA: I agree with Sackville AJA.
3 SACKVILLE AJA: This is an appeal against a decision of a Judge of the District Court (Sorby DCJ) given at the Maitland District Court on 6 March 2009. His Honour entered judgment for the plaintiff, the respondent in this Court against the first defendant, the appellant in this Court, in the sum of $206,525.
4 The respondent claimed damages for personal injuries he sustained in consequence of a fall at the rear of the licensed premises known as the “Ballina Hotel”. The appellant was the licensee and occupier of the Ballina Hotel. The fall occurred at about 10.30 pm on 6 January 2005. At the time, the respondent was 54 years of age.
BACKGROUND FACTS
5 The following account sets out the facts not now in dispute, except where specifically noted.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Alchin v Daley [2009] NSWCA 418
Case
[2009] NSWCA 418
Decision Date
CaseChat Overview and Summary
In *Alchin v Daley*, the appellant, the licensee of a hotel, appealed to the Court of Appeal of New South Wales against a decision of the District Court which found in favour of the respondent, who had suffered personal injuries after tripping over an obstacle at night. The respondent's claim was based on allegations of negligence on the part of the appellant.
The central legal issues before the Court of Appeal were whether the primary judge had provided adequate reasons for concluding that the lighting at the hotel was poor, and whether the primary judge had mistakenly reversed the onus of proof, requiring the appellant to prove they were not negligent rather than the respondent proving they were.
The Court of Appeal found that the primary judge's reasons for determining the lighting was poor were insufficient and lacked the necessary particularity. Furthermore, the court held that the primary judge had indeed erred by inverting the burden of proof. Consequently, the appeal was allowed, the original orders were set aside, and the matter was remitted to the District Court for a new trial. The costs of the first trial were to be determined upon the retrial, and the respondent was ordered to pay the appellant's costs of the appeal, with a certificate granted under the Suitors’ Fund Act 1951.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside Orders 1 and 3 made by Sorby DCJ on 6 March 2009.
3. Order that the matter be remitted to the District Court for a new trial.
4. The costs of the first trial to be determined by the District Court on the retrial.
5. The respondent pay the appellant’s costs of the appeal.
6. The respondent, if otherwise qualified, to have a certificate under the Suitors’ Fund Act 1951.