Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410

Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410

The appeal failed because the primary judge's central finding that Ms Riley slipped where the ramp was dry or comparatively dry was open on the evidence, particularly in light of Ms Riley's repeated answers in cross-examination, and was not shown to be glaringly or inherently improbable or inconsistent with incontrovertible evidence. The adverse credit findings, even if overstated or unnecessary, did not infect that central finding or cause a substantial miscarriage of justice. Without success on the wet/dry issue, the appellant could not establish that any breach of duty caused her loss, and the remaining grounds did not justify disturbing the judgment.

Jurisdiction
Australia
Judgment Date
12 December 2012
Procedural Posture
Appeal Pursuant to S 127(c)(i) of the District Court Act 1973 (nsw) From Dismissal of Personal Injury Claims in Negligence and for Breach of Statutory Duties / Court of Appeal; Appeal From Decision of Gibb DCJ in the District Court; Application for Leave Further to Amend Notice of Appeal Also Considered
Outcome
Appeal dismissed with costs; application for leave further to amend the Notice of Appeal dismissed.
Legal Topics
['slip and Fall on Strata Property Ramp' 'appellate Review of Factual Findings and Credit Findings' 'wet/dry Issue and Causation' 'breach of Statutory Duty to Maintain Common Property' 'slip Resistance Expert Evidence' 'leave to Amend Notice of Appeal' 'strike Out Application and Costs']
['torts' 'negligence' 'civil Procedure' 'evidence' 'strata Title'] ['slip and Fall on Strata Property Ramp' 'appellate Review of Factual Findings and Credit Findings' 'wet/dry Issue and Causation' 'breach of Statutory Duty to Maintain Common Property' 'slip Resistance Expert Evidence' 'leave to Amend Notice of Appeal' 'strike Out Application and Costs']

Case Brief

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Procedural Posture

Appeal Pursuant to S 127(c)(i) of the District Court Act 1973 (nsw) From Dismissal of Personal Injury Claims in Negligence and for Breach of Statutory Duties / Court of Appeal; Appeal From Decision of Gibb DCJ in the District Court; Application for Leave Further to Amend Notice of Appeal Also Considered

Legal Issues

  1. 1 ["Whether the primary judge's finding that the area of the ramp where Ms Riley slipped was dry was against the weight of the evidence or inherently or glaringly improbable." 'Whether adverse credit and fabrication findings were unwarranted and infected the findings on liability or damages, or caused a substantial miscarriage of justice.' 'Whether Dr Edwards\' medical note stating "Slipped on wet ramp coming into clinic - twisted left foot" made the wet/dry finding unavailable or inherently improbable.' "Whether the primary judge erred in failing to accept and act on the appellant's expert engineer report concerning slip resistance and breach of duty by the Owners Corporation." 'Whether any breach of statutory duty by the Owners Corporation could assist the appellant despite the failure to establish that she suffered damage as a result of such breach.' 'Whether the primary judge erred in relation to the strike-out application concerning the claim against Abigroup and any related costs consequences.']

Ratio Decidendi

The appeal failed because the primary judge's central finding that Ms Riley slipped where the ramp was dry or comparatively dry was open on the evidence, particularly in light of Ms Riley's repeated answers in cross-examination, and was not shown to be glaringly or inherently improbable or inconsistent with incontrovertible evidence. The adverse credit findings, even if overstated or unnecessary, did not infect that central finding or cause a substantial miscarriage of justice. Without success on the wet/dry issue, the appellant could not establish that any breach of duty caused her loss, and the remaining grounds did not justify disturbing the judgment.

Court Disposition

Appeal dismissed with costs; application for leave further to amend the Notice of Appeal dismissed.

Orders

  • ['Application for leave further to amend the Notice of Appeal dismissed.' 'Appeal dismissed with costs.']