Many readers will be distressed at the unmitigated savaging of Terry Naughton DCJ by Murray Tobias (pictured here) and the NSW Court of Appeal.
It has been a while since we’ve read an appeal court’s trouncing of a trial judge in such robust terms. Naughton, who has a special place in the hearts of many Sydney lawyers, must be particularly disheartened.
Electrician Mark Nevin slashed open the back of his hand down to the bone when working with his dad Graham in removing a stainless steel electrical switchboard enclosure box at Southland Colliery near Cessnock. That was in March 2000.
He sued B & R Enclosures Pty Ltd, the company that produced the box with the razor sharp edge, claiming damages for negligent manufacture.
On October 13 last year Naughton found for the defendant having decided that Nevin had failed to prove, on the balance of probabilities, that any relevant duty of care had been breached.
In overturning this decision, Tobias (supported by Sheller and Beazley) reconsidered the evidence given by the main witnesses, Mark and Graham Nevin and Mr Peel, an electrical engineer employed by the Southland Colliery.
In the primary judgment, Naughton said he had “listened carefully to the oral evidence and took account of the demeanour of all of the witnesses as they gave their evidence. There were many problems with the evidence of the plaintiff and his two witnesses”.
In considering each of these “problems”, Tobias JA rejected all of them as being: “without substance factually wrong without basis either in fact or as a matter of logic extremely odd irrelevant unjustified without foundation of no consequence trivial did not exist untenable [or that] His Honour has simply misunderstood the evidence.”
Further, Tobias thought that Naughton DCJ “misused and misunderstood the rule in Jones v Dunkel”.
Tobias was just getting up a head of steam:
“In my opinion, the primary judge demonstrated no tenable basis for rejecting the accounts of the appellant and his witnesses as to how he came to injure his hand. None of the so-called criticism of any of those witnesses was in any way justified. They were entirely without foundation. Nothing was suggested by the respondent in argument on the appeal to suggest that the demeanour of the appellant, his father or Mr Peel could have played any part whatsoever in his Honours assessment of their credibility.”
And still more demolition:
“In my opinion the present case is one where his Honour has palpably misused his advantage in seeing and hearing the witnesses concerned. There was no proper credit basis upon which he could have legitimately rejected their evidence, insofar as it established how the appellant received his injuries. In my opinion, the evidence overwhelmingly establishes that the accident occurred when the appellant brushed or struck the back of his right hand upon the razor-sharp edge of the escutcheon bracket closest to the hinge of the door of the box. The primary judge has unjustifiably reflected adversely on the credibility of the appellant, his father and Mr Peel. Their credibility should now be restored.”
If Naughty Naughton’s bright pink bottom was not sore enough with all this birching, he got a further couple of whacks because, even though he found for the respondent, he should still have assessed damages, which he conspicuously failed to do.
“Regrettably” it meant that a new trial is necessary, even though it will be limited to the assessment of damages. Tobias had a final flourish:
“In my opinion, where the issue of damages in personal injury cases has been fully litigated, and there is at least a reasonable possibility that the trial judges decision on liability in favour of a defendant may be overturned on appeal, it is both just and convenient that the trial judge should proceed to assess damages to guard against the eventuality of a successful appeal It is regrettable that the primary judge did not see fit to take that course in the present case.”
The appeal judges also held that the respondent was liable for the costs of the District Court case and for the appeal.
What a debacle.