Argo Managing Agency Ltd v Al Kammessy

Argo Managing Agency Ltd (the appellant) appealed to the New South Wales Court of Appeal against a decision of the primary judge who had found the appellant liable in negligence for injuries sustained by Mr Al Kammessy (the respondent) when he slipped and fell on a wet patch within a shopping centre managed by the appellant. The dispute concerned whether the appellant had breached its duty of care to the respondent.

The Court of Appeal was required to determine whether the primary judge had erred in finding that the appellant was negligent. Specifically, the court considered whether the evidence, including CCTV footage, supported a finding that the wet patch was present when the cleaner approached the area, and whether the cleaning contract defined or informed the scope of the duty of care owed to patrons. The court also had to assess whether a cleaner exercising reasonable care would have detected the wet patch.

In allowing the appeal, the Court of Appeal reasoned that the primary judge had placed undue reliance on a probability theory to infer the presence of the wet patch. The court found that the CCTV footage, when properly considered, did not establish that the wet patch existed at the relevant time or that the cleaner had failed to exercise reasonable care. The appellate court concluded that the evidence did not demonstrate a breach of the appellant's duty of care. Consequently, the Court of Appeal set aside the primary judge's orders and dismissed the respondent's claim, ordering the respondent to pay the appellant's costs of both the appeal and the original proceedings.