Kirkland v Moore & Anor [1999] NSWCA 305

Kirkland v Moore & Anor [1999] NSWCA 305

Even assuming that the first defendant owed and breached a duty to warn, the giving of the angle grinder to the second defendant was insufficiently connected with the plaintiff's accident, as a matter of ordinary common sense and experience, to be regarded as a cause of the injury. The second defendant and plaintiff were tradesmen familiar with angle grinders, the defects including the missing guard were obvious, and the tool had remained with the second defendant for up to eighteen months before the accident.

Jurisdiction
Australia
Judgment Date
25 August 1999
Procedural Posture
Negligence Action for Personal Injury Involving Defective Equipment / Appeal From District Court Judgment on Liability
Outcome
Appeal upheld
Legal Topics
['duty of Care' 'failure to Warn' 'defective Equipment' 'causation' 'personal Injury']
['torts' 'negligence'] ['duty of Care' 'failure to Warn' 'defective Equipment' 'causation' 'personal Injury']

Case Brief

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Procedural Posture

Negligence Action for Personal Injury Involving Defective Equipment / Appeal From District Court Judgment on Liability

Legal Issues

  1. 1 ['Whether the first defendant owed a duty to the plaintiff or others not to pass on the angle grinder in its condition or to reduce or abate the danger.' 'Whether the first defendant owed and breached a duty to warn the second defendant about the condition of the angle grinder before use.' "Whether any breach by the first defendant caused the plaintiff's injury."]

Ratio Decidendi

Even assuming that the first defendant owed and breached a duty to warn, the giving of the angle grinder to the second defendant was insufficiently connected with the plaintiff's accident, as a matter of ordinary common sense and experience, to be regarded as a cause of the injury. The second defendant and plaintiff were tradesmen familiar with angle grinders, the defects including the missing guard were obvious, and the tool had remained with the second defendant for up to eighteen months before the accident.

Court Disposition

Appeal upheld

Orders

  • ['Appeal upheld.' 'Judgment below against first defendant set aside.' 'Judgment for first defendant against plaintiff.' "Plaintiff to pay first defendant's costs of trial and appeal." 'Plaintiff to have certificate under Suitors Fund Act.']