Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201

Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201

The CCTV footage clearly showed that the appellant did not slip but simply walked into the fixed glass pane through his own inattention. The primary Judge was entitled to reject the appellant's factual account, and there was no basis to find negligence or breach of duty by either respondent. The proposed further evidence was either available at trial, irrelevant, inadmissible, not properly proved, or not relevant to establishing error in the damages assessment. The appeal and notice of motion were therefore dismissed.

Jurisdiction
Australia
Judgment Date
15 August 2016
Procedural Posture
Civil Appeal in Negligence Personal Injury Proceedings / Appeal From District Court Judgment Dismissing the Appellant's Claim; Notice of Motion Seeking Leave to Adduce Further Evidence on Appeal
Outcome
Notice of Motion dismissed; appeal dismissed; appellant ordered to pay the respondents' costs.
Legal Topics
['collision With Glass Sliding Door Panel' 'cctv Evidence' 'further Evidence on Appeal' 'assessment of Damages' 'liability for Breach of Duty']
['torts' 'negligence' 'personal Injury' 'civil Appeal'] ['collision With Glass Sliding Door Panel' 'cctv Evidence' 'further Evidence on Appeal' 'assessment of Damages' 'liability for Breach of Duty']

Case Brief

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Procedural Posture

Civil Appeal in Negligence Personal Injury Proceedings / Appeal From District Court Judgment Dismissing the Appellant's Claim; Notice of Motion Seeking Leave to Adduce Further Evidence on Appeal

Legal Issues

  1. 1 ["Whether the primary Judge erred in rejecting the appellant's factual account that he slipped before colliding with the glass pane." 'Whether the primary Judge erred in giving weight to the CCTV footage despite evidence concerning inconsistent descriptions of that footage.' 'Whether the respondents were negligent or in breach of duty in circumstances where the appellant collided with a fixed glass pane.' 'Whether leave should be granted to adduce further evidence on appeal.' "Whether the primary Judge's assessment of damages was erroneous."]

Ratio Decidendi

The CCTV footage clearly showed that the appellant did not slip but simply walked into the fixed glass pane through his own inattention. The primary Judge was entitled to reject the appellant's factual account, and there was no basis to find negligence or breach of duty by either respondent. The proposed further evidence was either available at trial, irrelevant, inadmissible, not properly proved, or not relevant to establishing error in the damages assessment. The appeal and notice of motion were therefore dismissed.

Court Disposition

Notice of Motion dismissed; appeal dismissed; appellant ordered to pay the respondents' costs.

Orders

  • ['Notice of Motion filed 29 February 2016 dismissed.' 'Appeal dismissed.' "Appellant to pay the respondents' costs."]