Bunnings Group Ltd v Borg [2014] NSWCA 240

Bunnings Group Ltd v Borg [2014] NSWCA 240

The appeal was allowed because the primary judge's liability finding was affected by appellable error: he relied impermissibly on evidence derived from a reconstruction photograph, failed to grapple with contradictory testimonial and contemporaneous documentary evidence, failed to make clear findings as to the pleaded breaches, and failed to undertake the statutory breach and causation analysis required by ss 5B, 5C, 5D and 5E of the Civil Liability Act 2002 (NSW). The resulting failure in the fact-finding process meant the notice of contention could not sustain liability, and because the Court of Appeal could not resolve the disputed facts itself, a retrial on all issues was required.

Jurisdiction
Australia
Judgment Date
28 July 2014
Procedural Posture
Torts Negligence Appeal and Cross Appeal / Appeal From District Court Orders Made on 19 August 2013; Retrial Ordered
Outcome
Appeal allowed; cross-appeal dismissed; District Court orders set aside; retrial ordered.
Legal Topics
['customer Injured by Falling Timber in Hardware Store' 'breach of Duty and Causation' 'civil Liability Act 2002 (nsw) Ss 5 B, 5 C, 5 D and 5 E' 'appellate Review of Fact Finding' 'use of Reconstruction Photographs' 'retrial']
['torts' 'negligence' 'civil Procedure'] ['customer Injured by Falling Timber in Hardware Store' 'breach of Duty and Causation' 'civil Liability Act 2002 (nsw) Ss 5 B, 5 C, 5 D and 5 E' 'appellate Review of Fact Finding' 'use of Reconstruction Photographs' 'retrial']

Case Brief

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Procedural Posture

Torts Negligence Appeal and Cross Appeal / Appeal From District Court Orders Made on 19 August 2013; Retrial Ordered

Legal Issues

  1. 1 ["Whether the primary judge failed satisfactorily to resolve the central factual issue of how the sleepers fell onto Mr Borg's foot." 'Whether the primary judge impermissibly used a photograph of a reconstruction to find that the forklift tines sloped downwards.' "Whether the primary judge failed to grapple with testimonial and documentary evidence inconsistent with Mr Borg's account." 'Whether the primary judge failed to identify findings of breach and causation by reference to ss 5B, 5C, 5D and 5E of the Civil Liability Act 2002 (NSW).' "Whether Mr Borg's notice of contention could sustain liability notwithstanding the alleged errors." 'Whether a substituted judgment could be entered or a retrial was required.']

Ratio Decidendi

The appeal was allowed because the primary judge's liability finding was affected by appellable error: he relied impermissibly on evidence derived from a reconstruction photograph, failed to grapple with contradictory testimonial and contemporaneous documentary evidence, failed to make clear findings as to the pleaded breaches, and failed to undertake the statutory breach and causation analysis required by ss 5B, 5C, 5D and 5E of the Civil Liability Act 2002 (NSW). The resulting failure in the fact-finding process meant the notice of contention could not sustain liability, and because the Court of Appeal could not resolve the disputed facts itself, a retrial on all issues was required.

Court Disposition

Appeal allowed; cross-appeal dismissed; District Court orders set aside; retrial ordered.

Orders

  • ['Appeal allowed and cross-appeal dismissed.' 'Set aside the orders made by the District Court on 19 August 2013 and order that there be a retrial.' "Respondent to pay the appellant's costs of the appeal and the cross-appeal." "Respondent to have a certificate pursuant to the Suitor's Fund Act 1951 (NSW)."]