Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332

Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332

The appeal was dismissed because, despite accepting that the hospital notes did not directly support a finding that the appellant was mopping and that any such definitive finding would have been unsupported, the appellant failed to establish on the balance of probabilities that she slipped on water emanating from a leaking toilet. The primary judge did not err in refusing to draw a Ferrcom inference, the absence of independent and expert evidence about the leak and flush cone was properly considered, the credit findings were not shown to be contradicted by incontrovertible evidence or glaringly improbable, and any error concerning the mopping explanation caused no substantial miscarriage...

Jurisdiction
Australia
Judgment Date
28 October 2015
Procedural Posture
Appeal in Negligence Personal Injury Proceedings / Appeal From the District Court of New South Wales Decision Dismissing the Appellant's Claims
Outcome
Appeal dismissed with costs.
Legal Topics
['negligence' 'personal Injury' 'slip and Fall' 'breach of Duty' 'causation' 'ferrcom Inference' 'jones V Dunkel Inference' 'witness Credit' 'prior Inconsistent Statements' 'appellate Review of Findings of Fact' 'landlord Liability']
['torts' 'evidence' 'civil Procedure'] ['negligence' 'personal Injury' 'slip and Fall' 'breach of Duty' 'causation' 'ferrcom Inference' 'jones V Dunkel Inference' 'witness Credit' 'prior Inconsistent Statements' 'appellate Review of Findings of Fact' 'landlord Liability']

Case Brief

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Procedural Posture

Appeal in Negligence Personal Injury Proceedings / Appeal From the District Court of New South Wales Decision Dismissing the Appellant's Claims

Legal Issues

  1. 1 ['Whether the primary judge erred in not drawing an inference adverse to the respondents because the Telstra technician was not asked about the state of the laundry floor or cleaning equipment.' 'Whether the primary judge erred in findings concerning the absence of independent evidence that the toilet leaked and that water on the floor came from a toilet leak.' 'Whether the primary judge erred in relying on the absence of expert evidence about the flush cone.' 'Whether the primary judge erred in findings as to the credit of witnesses, particularly Mr Mladen Nestorovic.' "Whether the primary judge erred in the use made of a prior inconsistent statement attributed to the appellant's husband." 'Whether the primary judge erred in finding, or treating as more likely, that the appellant fell while mopping.' 'Whether the appellant established on the balance of probabilities that her injuries were caused by water on the laundry floor emanating from a leaking toilet.' 'Whether, on the notice of contention, the first respondent could be liable absent knowledge, actual or imputed, of the alleged leak.']

Ratio Decidendi

The appeal was dismissed because, despite accepting that the hospital notes did not directly support a finding that the appellant was mopping and that any such definitive finding would have been unsupported, the appellant failed to establish on the balance of probabilities that she slipped on water emanating from a leaking toilet. The primary judge did not err in refusing to draw a Ferrcom inference, the absence of independent and expert evidence about the leak and flush cone was properly considered, the credit findings were not shown to be contradicted by incontrovertible evidence or glaringly improbable, and any error concerning the mopping explanation caused no substantial miscarriage...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']