Bunnings Group Ltd v Borg

Case [2014] NSWCA 240

Court of Appeal

New South Wales
Case Title: Bunnings Group Ltd v Borg
Medium Neutral Citation: [2014] NSWCA 240
Hearing Date(s): 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: Counsel:
GM Watson SC / JC Sheller (Appellant/Cross-Respondent)
R Sheldon SC / PN Khandhar (Respondent/Cross-Appellant)
- Solicitors: Solicitors:
Gilchrist Connell (Appellant/Cross-Respondent)
Brydens Compensation Lawyers (Respondent/Cross-Appellant)
File Number(s): 2013/279351
Decision Under Appeal
- Before: Robison DCJ
- Date of Decision:  19 August 2013
- Court File Number(s): 2012/263033

JUDGMENT

  1. BASTEN JA: I agree with Leeming JA.

  2. BARRETT JA: For the reasons stated by Leeming JA, there is no alternative in this matter but to order a new trial on all issues. Orders should be made as his Honour proposes.

  3. LEEMING JA: The appellant (Bunnings) occupied premises in Dural, Sydney, which it…

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AGLC
Bunnings Group Ltd v Borg [2014] NSWCA 240
Case
[2014] NSWCA 240
Decision Date

CaseChat Overview and Summary

Bunnings Group Ltd appealed to the Court of Appeal of New South Wales against a District Court verdict that found it liable for negligence. The dispute concerned injuries sustained by Mr. Borg, a customer, who was struck by falling timber while shopping at a Bunnings warehouse. The trial judge had found in favour of Mr. Borg, but Bunnings contended that the judge failed to properly address significant inconsistencies in the evidence presented regarding the circumstances of the accident.

The Court of Appeal was required to determine whether the trial judge had adequately grappled with the conflicting testimonial and documentary evidence, and whether clear findings of breach of duty and causation had been made. Furthermore, the court needed to consider whether the trial judge had properly applied the provisions of the *Civil Liability Act 2002* (NSW), specifically sections 5B, 5C, 5D, and 5E, in reaching the verdict.

The Court of Appeal found that the trial judge had failed to adequately address the inconsistencies in the evidence, particularly in relation to the reliance placed on a photograph of a reconstruction of the incident. This failure meant that the essential elements of breach of duty and causation were not clearly established in accordance with the relevant legal principles. Consequently, the court concluded that the verdict could not stand.

The appeal was allowed, the cross-appeal was dismissed, and the orders of the District Court were set aside. A retrial was ordered, with Bunnings Group Ltd to pay Mr. Borg's costs of the appeal and cross-appeal, and Mr. Borg to receive a certificate pursuant to the *Suitor's Fund Act 1951* (NSW).

Orders

Orders of the court

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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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