Bunnings Group Ltd v Borg

[2014] NSWCA 240

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Occupier's liability
4. › Customer injured in hardware store
5. › Timber falling from forklift
6. › Whether breach of duty established
7. › Whether causation established
8. › Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E
1. Appeal
2. › Appeal from District Court
3. › Findings of fact
4. › Failure in fact-finding process
5. › Failure to grapple with inconsistent evidence
6. › Whether retrial required
7. › Uniform Civil Procedure Rules 2005 (NSW), r 51.53
1. Evidence
2. › Photographic evidence
3. › Reconstruction photographs
4. › Whether photograph of reconstruction can be used to establish facts at time of incident
1. Torts
2. › Negligence
3. › Standard of care
4. › Hardware store operator
5. › No obligation to ensure safety
6. › Obligation to take reasonable care to minimise hazards
7. › Civil Liability Act 2002 (NSW), ss 5B, 5C

Quick Take

A hardware store operator owes a duty to take reasonable care to minimise hazards but has no obligation to ensure customer safety. Trial judges must address ss 5B, 5C, 5D and 5E of the Civil Liability Act 2002 (NSW) and must grapple with inconsistent evidence rather than simply preferring one witness's account without adequate reasons for rejecting contradictory testimonial and documentary evidence. Photographs of reconstructions cannot be used to trump testimonial evidence about conditions at the time of an incident.