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McGlen-McLeod v Galloway

McGlen-McLeod v Galloway

Case [2011] NSWDC 163 14 October 2011

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District Court

New South Wales

Medium Neutral Citation: McGlen-McLeod v Galloway [2011] NSWDC 163
Hearing dates: 10 and 11 October 2011
Decision date: 14 October 2011
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the plaintiff for $700.
(2) Defendants pay plaintiff's costs.
(3) Liberty to restore in relation to costs.
(4) Exhibits retained for 28 days.

Catchwords: TORT - negligence - plaintiff briefly treated for minor left leg injury after stepping on rotting floorboards - claim made two years later of serious injury to her right leg and back - nature and extent of injury and disabilities - role of surveillance film in personal injury proceedings
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), Pt 31 r 31.10
Cases Cited: Annetts v State of New South Wales (District Court of New South Wales, 19 November 2010)
Beard v North Coast Area Health Service (District Court of New South Wales, 11 November 2010)
Boyes v Colins [2000] 23 WAR 123; [2000] WASCA 344
Brown v Metro Meat International Ltd [2000] WASCA 123
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; (2011) 85 ALJR 694; [2011] HCA 21
Digby v Essex County Council [1994] PIQR P 53
Grace v Shad (District Court of New South Wales, McLoughlin DCJ, 6 August 2010)
Halpan v Lumley General Insurance Ltd [2009] NSWCA 372
Jaber v Rockdale City Council [2008] NSWCA 98
Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278
Khan v Armaguard Ltd [1994] 1 WLR 1204
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mason v Demasi [2009] NSWCA 27
McGuiness v Kellogg Co of Great Britain Ltd [1988] 1 WLR 913
Miller v Galderisi [2009] NSWCA 353
Oraha v The Nominal Defendant (District Court of New South Wales, 1 October 2010)
R v Kotzmann [1999] 2 VR 123
Ralston v Bell & Smith t/a Xentex Patch & Grout [2010] NSWSC 245
Ramsay v Watson (1961) 108 CLR 642
Tchen v The Nominal Defendant [2010] NSWCA 45
The Nominal Defendant v Kostic [2007] NSWCA 14
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Texts Cited: The Honourable Justice Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales
Category: Principal judgment
Parties: Plaintiff: Anne McGlen-McLeod
First Defendant: Nathan David Galloway
Second Defendant: Daniel Eli Galloway
Representation: Plaintiff: Mr A P Quinlivan
Defendants: Mr S E Torrington
Plaintiff: CMC Lawyers
Defendants: McCabe Terrill Lawyers

File Number(s): 2009/00338654
Publication restriction: None

Judgment

The plaintiff, by statement of claim filed on 18 December 2009, seeks damages for negligence arising out of the circumstances in which she suffered injury falling through a rotten floorboard in the veranda of the house which she and her family were renting. The subject premises in question is at 2/489 Valery Road, Valery in the State of New South…

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.

Continue reading McGlen-McLeod v Galloway

Details

AGLC: McGlen-McLeod v Galloway [2011] NSWDC 163
Case: [2011] NSWDC 163
Decision Date: 14 October 2011

CaseChat Overview and Summary

McGlen-McLeod brought a claim against Galloway for negligence. The plaintiff had a brief encounter with rotting floorboards, resulting in a minor injury to her left leg. She later claimed to have suffered significant injuries to her right leg and back, which she attributed to the earlier incident. The matter was brought before the court for determination of liability and damages. The primary legal issues before the court were the plaintiff's capacity to establish the causal link between the initial incident and her subsequent injuries, and the admissibility and weight of surveillance footage as evidence in personal injury proceedings. The court examined the evidence and testimony to ascertain whether the plaintiff's claims were credible and whether they were sufficiently connected to the initial incident. After careful consideration, the court found that the plaintiff was not able to convincingly demonstrate the causal link between the initial incident and her subsequent injuries. The court also found that the surveillance footage did not provide sufficient evidence to support the plaintiff's claims. Consequently, the court dismissed the plaintiff's claim and ordered judgment in favour of the defendant for the nominal amount of $700. The court also ordered the defendant to pay the plaintiff's costs and granted liberty to restore in relation to costs. The exhibits were retained for 28 days.

Orders

Orders of the court

(1) Judgment for the plaintiff for $700.

(2) Defendants pay plaintiff's costs.

(3) Liberty to restore in relation to costs.

(4) Exhibits retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

McGlen-McLeod v Galloway [2011] NSWDC 163

Most Recent Citation

Wainright v Barrick Gold of Australia Limited [2012] WADC 79

Cases citing this decision · 8 of 8 shown

Hawchar bht Manal El Haj Dib v Diab (No 3); Dib v Diab (No 3)
[2018] NSWDC 282 Para 1

…al judgment for each plaintiff is no firm reason why the plaintiff should be deprived of their costs of the proceedings. See McGlen-McLeod v Galloway [2011] NSWDC 163 at [129]; and McLennan v Antonios (No 2) [2014] NSWDC 38 at [16]-[18];…
Clapp by his tutor Hilton v Brady
[2018] NSWDC 312

…lls a lie or a series of lies or exaggerates is not a basis for rejection of their evidence without careful investigation: McGlen-McLeod v Galloway [2011] NSWDC 163 (Gibson DCJ).”…
Martin v Minister for Health
[2016] WADC 15 Para 40

…lls a lie or a series of lies or exaggerates is not a basis for rejection of their evidence without careful investigation: McGlen‑McLeod v Galloway [2011] NSWDC 163 (Gibson DCJ).…
Re Farmer
[2015] WADC 91

…J & J v J (Unreported, WASC, Library No 920598, 19 November 1992) Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McGlen-McLeod v Galloway [2011] NSWDC 163 MJN v MAJS (2003) 35 SR (WA) 219 MW v CW [2001] WADC 234 Nguyen v Assessor of Criminal Injuries Compensation [2000] WADC 221 R v Forsythe [1972] 2 NS…
Gialouris v Surfside Buslines Pty Ltd
[2014] NSWDC 223 Para 3

…general practitioner a week later and a further X-ray recommended, as she had slipped and hurt her left leg a second time ( McGlen-McLeod v Galloway [2011] NSWDC 163 at [12]). She did not consult any medical practitioners about leg injuries until 10 November 2009, when she told a doctor she had injured her left le…
McGlen-McLeod v Galloway
[2012] NSWCA 368 Para 5

…ft leg. She then awarded the appellant damages in the sum of $700 and ordered the respondents to pay the appellant's costs ( McGlen-McLeod v Galloway [2011] NSWDC 163). It is from those orders that the appellant now appeals to this Court.…
Wainright v Barrick Gold of Australia Limited
[2012] WADC 79

…ta (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 March v E & MH Stranmare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 McGlen‑McLeod v Galloway [2011] NSWDC 163 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 Medlin v State Government Insurance Commission (1995) 182 CLR 1 MR & RC Smith Pty Ltd t/as Ultra Tune (…
Dinsey v Queensland Building Services Authority
[2012] QCAT 720 Para 7

…ility results in irrelevance and inadmissibility.”[7] [7] Dasreef Pty Ltd v Hawchar [2011] HCA 21 per Heydon J at [133]; McGlen-McLeod v Galloway [2011] NSWDC 163.…

View all 8 citing cases →

Cases cited in this decision · 20 of 20 shown

Dasreef Pty Ltd v Hawchar
[2011] HCA 21 Para 1

…More recently, in Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; (2011) 85 ALJR 694; [2011] HCA 21 Heydon J (as His Honour now is) has reviewed and refined these observations, and noted at [133]:…
Ralston v Bell and Smith trading as Xentex Patch and Grout
[2010] NSWSC 245 Para 1

…Where a plaintiff has advance notice of such film ( Ralston v Bell & Smith t/a Xentex Patch & Grout [2010] NSWSC 245 at [160]) there is an opportunity to deal with this by evidence in reply or explanation. In Ralston v Bell & Smith t/a Xentex Patch & Grout the film was made available to medico-legal experts, but th…
Halpin v Lumley General Insurance Ltd
[2009] NSWCA 372 Para 1

…prior indication that such film had been taken ( McGuiness v Kellogg Co of Great Britain Ltd [1988] 1 WLR 913; Halpan v Lumley General Insurance Ltd [2009] NSWCA 372). The practice of producing the surveillance film at the trial has increasingly come into conflict with changing concepts of case management and proc…
Miller v Galderisi
[2009] NSWCA 353 Para 1

…nts also submit that the plaintiff fails to reach the threshold for both past and future home assistance and draws my attention to Miller v Galderisi [2009] NSWCA 353.…
Owners of Strata Plan 36131 v Dimitriou
[2009] NSWCA 27 Para 1

…uries has been considered and explained by the NSW Court of Appeal in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 27, and I have taken account of their Honours' warnings to trial judges about the correct methods of assessment of evidence where such inconsistencies o…
Container Terminals Australia Ltd v Huseyin
[2008] NSWCA 320 Para 1

…iff's evidence of complaints and injuries has been considered and explained by the NSW Court of Appeal in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 27, and I have taken account of their Honours' warnings to trial judges about the correct methods of assessment of ev…
Jaber v Rockdale City Council
[2008] NSWCA 98 Para 1

…3 WAR 123; [2000] WASCA 344; Digby v Essex County Council [1994] PIQR P 53; Khan v Armaguard Ltd [1994] 1 WLR 1204). In Jaber v Rockdale City Council [2008] NSWCA 98 at [56], Tobias JA cautioned:…
Nominal Defendant v Kostic
[2007] NSWCA 14 Para 1

…records of the time. The manner in which a trial judge should approach this task is set out by the Court of Appeal in The Nominal Defendant v Kostic [2007] NSWCA 14; Whalan v Kogarah Municipal Council [2007] NSWCA 5; and The Honourable Justice Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme…
Whalan v Kogarah Municipal Council
[2007] NSWCA 5 Para 1

…dge should approach this task is set out by the Court of Appeal in The Nominal Defendant v Kostic [2007] NSWCA 14; Whalan v Kogarah Municipal Council [2007] NSWCA 5; and The Honourable Justice Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales < >.…
Goodrich Aerospace Pty Ltd v Arsic
[2006] NSWCA 187

…e witness. I have elsewhere expressed the inherent unreliability of credibility findings based on demeanour alone: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187."…
Boyes v Colins
[2000] WASCA 344 Para 1

…rmit withholding disclosure until trial ( Brown v Metro Meat International Ltd [2000] WASCA 123 at [24] ( obiter ); Boyes v Colins [2000] 23 WAR 123; [2000] WASCA 344; Digby v Essex County Council [1994] PIQR P 53; Khan v Armaguard Ltd [1994] 1 WLR 1204). In Jaber v Rockdale City Council [2008] NSWCA 98 at [56], To…
Brown v Metro Meat International Ltd
[2000] WASCA 123 Para 1

…0 resulted in courts in England and in Western Australia refusing to permit withholding disclosure until trial ( Brown v Metro Meat International Ltd [2000] WASCA 123 at [24] ( obiter ); Boyes v Colins [2000] 23 WAR 123; [2000] WASCA 344; Digby v Essex County Council [1994] PIQR P 53; Khan v Armaguard Ltd [1994] 1…
R v Kotzmann
[1999] VSCA 27 Para 1

…Expert evidence is no better than the facts upon which it is based: R v Kotzmann [1999] 2 VR 123 at 135 per Callaway JA, referred to in Makita (Australia) Pty Ltd v Sprowles at [80].…
Ramsay v Watson
[1961] HCA 65 Para 1

…I commence by noting that, in Makita (Australia) Pty Ltd v Sprowles at [67], Heydon JA refers to the statement in Ramsay v Watson (1961) 108 CLR 642 that for a medical witness to give evidence "only that in his opinion something is more probable than not does not conclude the case". The tribunal of fact must look at…
Jones v Dunkel
[1959] HCA 9

…New South Wales, McLoughlin DCJ, 6 August 2010) Halpan v Lumley General Insurance Ltd [2009] NSWCA 372 Jaber v Rockdale City Council [2008] NSWCA 98 Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278 Khan v Armaguard Ltd [1994] 1 WLR 1204 Makita (Australia) Pty Ltd v Sprowles…
Jones v Dunkel
[1959] HCA 8 Para 1

…The defendants asks me to draw a Jones v Dunkel inference ( Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278) concerning the plaintiff's failure to call her former partner. Mr Quinlivan, for the plaintiff, while noting that the separation had been unpleasant and involved c…
Tchen v The Nominal Defendant
[2010] NSWCA 45 Para 1

…Defendant v Kostic which concerned the Court of Appeal was a delay of a matter of weeks or perhaps months; the delay in Tchen v The Nominal Defendant [2010] NSWCA 45 was two months. Unless I accept that the plaintiff told either the hospital or her general practitioners (or both) about her back, right leg and wris…
[1994] 1 WLR 1204
[1994] 1 WLR 1204 Para 1

…WASCA 123 at [24] ( obiter ); Boyes v Colins [2000] 23 WAR 123; [2000] WASCA 344; Digby v Essex County Council [1994] PIQR P 53; Khan v Armaguard Ltd [1994] 1 WLR 1204). In Jaber v Rockdale City Council [2008] NSWCA 98 at [56], Tobias JA cautioned:…
Pty Ltd v Sprowles
636 F Supp 1419 Para 1

…In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [35], Heydon JA states:…
[1988] 1 WLR 913
[1988] 1 WLR 913 Para 1

…f showing surveillance film in cross-examination without prior indication that such film had been taken ( McGuiness v Kellogg Co of Great Britain Ltd [1988] 1 WLR 913; Halpan v Lumley General Insurance Ltd [2009] NSWCA 372). The practice of producing the surveillance film at the trial has increasingly come into con…

Legislation cited in this decision · 2

Evidence Act 1995 (Cth)
1 mention
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	McGlen-McLeod v Galloway [2011] NSWDC 163
Hearing dates:	10 and 11 October 2011
Decision date:	14 October 2011
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff for $700. (2) Defendants pay plaintiff's costs. (3) Liberty to restore in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT - negligence - plaintiff briefly treated for minor left leg injury after stepping on rotting floorboards - claim made two years later of serious injury to her right leg and back - nature and extent of injury and disabilities - role of surveillance film in personal injury proceedings
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), Pt 31 r 31.10
Cases Cited:	Annetts v State of New South Wales (District Court of New South Wales, 19 November 2010) Beard v North Coast Area Health Service (District Court of New South Wales, 11 November 2010) Boyes v Colins [2000] 23 WAR 123; [2000] WASCA 344 Brown v Metro Meat International Ltd [2000] WASCA 123 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; (2011) 85 ALJR 694; [2011] HCA 21 Digby v Essex County Council [1994] PIQR P 53 Grace v Shad (District Court of New South Wales, McLoughlin DCJ, 6 August 2010) Halpan v Lumley General Insurance Ltd [2009] NSWCA 372 Jaber v Rockdale City Council [2008] NSWCA 98 Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278 Khan v Armaguard Ltd [1994] 1 WLR 1204 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mason v Demasi [2009] NSWCA 27 McGuiness v Kellogg Co of Great Britain Ltd [1988] 1 WLR 913 Miller v Galderisi [2009] NSWCA 353 Oraha v The Nominal Defendant (District Court of New South Wales, 1 October 2010) R v Kotzmann [1999] 2 VR 123 Ralston v Bell & Smith t/a Xentex Patch & Grout [2010] NSWSC 245 Ramsay v Watson (1961) 108 CLR 642 Tchen v The Nominal Defendant [2010] NSWCA 45 The Nominal Defendant v Kostic [2007] NSWCA 14 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Whalan v Kogarah Municipal Council [2007] NSWCA 5
Texts Cited:	The Honourable Justice Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales
Category:	Principal judgment
Parties:	Plaintiff: Anne McGlen-McLeod First Defendant: Nathan David Galloway Second Defendant: Daniel Eli Galloway
Representation:	Plaintiff: Mr A P Quinlivan Defendants: Mr S E Torrington Plaintiff: CMC Lawyers Defendants: McCabe Terrill Lawyers
File Number(s):	2009/00338654
Publication restriction:	None