Warren v Gittoes [2009] NSWCA 24

Warren v Gittoes [2009] NSWCA 24

The appeal failed because, on the appellant's own evidence and the primary judge's accepted findings, he became aware of the fence no later than, and in fact earlier than, he would have become aware of it had the respondents erected an adequate warning sign 50 metres from the fence visible from about 75 metres. The...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
27 February 2009
Procedural Posture
Tort Negligence Claim for Damages / Appeal From District Court Dismissal on Causation; Respondents Filed a Notice of Contention on Breach
Outcome
Appeal dismissed with costs
Legal Topics
['negligence' 'duty of Care' 'breach of Duty' 'causation' 'failure to Warn' 'use of Photographic Evidence to Assess Distance']
['torts' 'evidence'] ['negligence' 'duty of Care' 'breach of Duty' 'causation' 'failure to Warn' 'use of Photographic Evidence to Assess Distance']

Source-derived case record

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Procedural Posture

Tort Negligence Claim for Damages / Appeal From District Court Dismissal on Causation; Respondents Filed a Notice of Contention on Breach

Legal Issues

  1. 1 ["Whether the respondents' admitted duty of care was breached by failing to provide adequate warning of a fence erected across an unsealed track." "Whether any breach by failing to erect an adequate warning sign caused or materially contributed to the appellant's injuries." "Whether photographs could be used to reject the appellant's evidence about distances and infer that skid marks commenced closer to the plum tree than his estimate."]

Ratio Decidendi

The appeal failed because, on the appellant's own evidence and the primary judge's accepted findings, he became aware of the fence no later than, and in fact earlier than, he would have become aware of it had the respondents erected an adequate warning sign 50 metres from the fence visible from about 75 metres. The appellant therefore did not prove that the absence of the warning sign caused or materially contributed to his injuries, and the photographs did not provide a reliable basis to displace his distance estimates.

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed with costs']