Nevin v B & R Enclosures Pty Ltd - [2004] NSWCA 339

CITATION: Nevin v B & R Enclosures [2004] NSWCA 339

HEARING DATE(S): 29 July 2004

JUDGMENT DATE:
24 September 2004

JUDGMENT OF: Sheller JA at 1; Beazley JA at 2; Tobias JA at 3

DECISION: (a) Appeal allowed; (b) Orders made by Naughton DCJ on 13 October 2003 be set aside and in lieu thereof there be judgment for the appellant against the respondent on the issue of liability; (c) The proceedings be remitted to the District Court for the purpose only of assessment of damages; (d) The respondent pay the costs of the proceedings to date in the District Court and of the appeal, but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS: EVIDENCE - Burden of proof - Prof by direct evidence - Proof by other facts - Proof of someone's negligence - On probability, proof of respondent's evidence - EVIDENCE - Findings by trial judge - Credibility - Rejection of evidence due to lack of credibility - Evidence overwhelmingly supports uncreditable witness - Restoration of credit on appeal - APPEALS - Negligence - Defendant wins at first instance - Trial judge did not deal with damages - Limited new trial required - Trial judge ought to have dealt with all litigated issues

LEGISLATION CITED: Evidence Act 1995
Workers Compensation Act 1987

CASES CITED: Jones v Dunkel (1959) 101 CLR 298
Payne v Parker [1976] 1 NSWLR 191
Devries v Australian National Railways Commission (1993) 177 CLR 472 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121

PARTIES :
Mark Nevin
B & R Enclosures Pty Limited

FILE NUMBER(S): CA 40968/03

COUNSEL: A: Mr Brian Donovan QC
R: Mr Simon J Harben SC

SOLICITORS: A: Bale Boshev Lawyers, Hamilton
R: Thomas Laycock Solicitors, Newcastle

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 657/01

LOWER COURT
JUDICIAL OFFICER : Naughton DCJ

CA 40968/03
DC 657/01

SHELLER JA
BEAZLEY JA
TOBIAS JA
Friday 24 September 2004

MARK KENNETH NEVIN v B & R ENCLOSURES PTY LIMITED

Judgment

1 SHELLER JA: I have had the benefit of reading the judgment of Tobias JA in draft. I agree with it.

2 BEAZLEY JA: I agree with Tobias JA.

3 TOBIAS JA: Mark Kenneth Nevin (the appellant), sliced open the back of his right hand when it came into contact with what he thought was the sharp edge of a stainless steel electrical switchboard enclosure box (the box) while at work on 21 March 2000. He commenced proceedings in the District Court not against his employer, but against the manufacturer of the box, B & R Enclosures Pty Limited (the respondent), claiming damages for personal injuries caused by the respondent’s negligent manufacture of the box.

4 On 13 October 2003 the primary judge, Naughton DCJ, entered a verdict for the respondent on the basis that the appellant had failed to prove, on the balance of probabilities, that the respondent had breached any relevant duty of care to…

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

Case: [2004] NSWCA 339
Decision Date: 24 September 2004

CaseChat Overview and Summary

The appeal in *Nevin v B & R Enclosures Pty Ltd* concerned a dispute where the appellant, Nevin, sought to establish the respondent's negligence. The primary judge had found in favour of the respondent, B & R Enclosures Pty Ltd, and had not dealt with the issue of damages. The appeal was heard by Sheller, Beazley and Tobias JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the appellant had failed to prove the respondent's negligence on the balance of probabilities, and whether the primary judge ought to have addressed all litigated issues, including damages, even though liability had been found against the appellant.

The Court of Appeal allowed the appeal, finding that the evidence overwhelmingly supported the appellant's version of events, despite the primary judge's adverse findings regarding the credibility of the appellant's witnesses. The Court determined that the primary judge's rejection of the evidence was not supported by the findings made and that the evidence, when properly considered, established the respondent's negligence on the balance of probabilities. The Court applied the principle that findings of fact by a trial judge, particularly those concerning credibility, are entitled to significant weight but can be overturned if the evidence overwhelmingly points to a different conclusion.

Consequently, the Court of Appeal set aside the orders of the District Court and entered judgment for the appellant on the issue of liability. The proceedings were remitted to the District Court for the sole purpose of assessing damages. The respondent was ordered to pay the costs of the proceedings to date in the District Court and the costs of the appeal, with a certificate for the respondent under the Suitor's Fund Act 1951 if otherwise qualified.

Orders

Orders of the court

(a) Appeal allowed; (b) Orders made by Naughton DCJ on 13 October 2003 be set aside and in lieu thereof there be judgment for the appellant against the respondent on the issue of liability; (c) The proceedings be remitted to the District Court for the purpose only of assessment of damages; (d) The respondent pay the costs of the proceedings to date in the District Court and of the appeal, but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

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.

CITATION:	Nevin v B & R Enclosures [2004] NSWCA 339
HEARING DATE(S):	29 July 2004
JUDGMENT DATE:	24 September 2004
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 2; Tobias JA at 3
DECISION:	(a) Appeal allowed; (b) Orders made by Naughton DCJ on 13 October 2003 be set aside and in lieu thereof there be judgment for the appellant against the respondent on the issue of liability; (c) The proceedings be remitted to the District Court for the purpose only of assessment of damages; (d) The respondent pay the costs of the proceedings to date in the District Court and of the appeal, but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified
CATCHWORDS:	EVIDENCE - Burden of proof - Prof by direct evidence - Proof by other facts - Proof of someone's negligence - On probability, proof of respondent's evidence - EVIDENCE - Findings by trial judge - Credibility - Rejection of evidence due to lack of credibility - Evidence overwhelmingly supports uncreditable witness - Restoration of credit on appeal - APPEALS - Negligence - Defendant wins at first instance - Trial judge did not deal with damages - Limited new trial required - Trial judge ought to have dealt with all litigated issues
LEGISLATION CITED:	Evidence Act 1995 Workers Compensation Act 1987
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Payne v Parker [1976] 1 NSWLR 191 Devries v Australian National Railways Commission (1993) 177 CLR 472 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
PARTIES :	Mark Nevin B & R Enclosures Pty Limited
FILE NUMBER(S):	CA 40968/03
COUNSEL:	A: Mr Brian Donovan QC R: Mr Simon J Harben SC
SOLICITORS:	A: Bale Boshev Lawyers, Hamilton R: Thomas Laycock Solicitors, Newcastle

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 657/01
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ