McGlen-McLeod v Galloway

The appeal concerned a negligence claim brought by the appellant against the respondents after she fell through rotted floorboards on a veranda. The primary judge had found the respondents breached their duty of care but made findings on causation and damages that the appellant sought to challenge. The appeal court comprised Allsop P, Campbell JA, and Tobias AJA.

The central legal issues before the Court of Appeal were whether the primary judge erred in her assessment of causation and damages. Specifically, the appellant argued that the primary judge failed to adequately consider and assess her evidence regarding which leg fell through the floorboards, and whether this failure, in conjunction with an insufficient assessment of her credibility, resulted in a miscarriage of justice. The appellant contended that the primary judge wrongly determined that her credibility was not central to the issue of causation, instead focusing solely on reconciling her account with contemporaneous records.

The Court of Appeal allowed the appeal, finding that the primary judge had failed to properly assess the appellant's credibility in light of her evidence as a whole. The primary judge had stated that the question of causation depended not on credibility but on reconciling the appellant's version of events with contemporaneous records. However, the Court of Appeal held that the primary judge ought to have grappled with the appellant's credit by analysing her evidence, including her responses in cross-examination, to determine her honesty, particularly concerning the specific detail of which leg had fallen through the floorboards. The Court found that the primary judge's approach, which gave overriding weight to contemporaneous records without a thorough analysis of the appellant's evidence and demeanour, constituted a miscarriage of justice.

Consequently, the Court of Appeal set aside the primary judge's order and ordered a new trial confined to the issues of causation and damages. The respondents were ordered to pay the appellant's costs of the appeal.