Condos v Clycut Pty Ltd

Case [2009] NSWCA 200

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Condos v Clycut Pty Ltd [2009] NSWCA 200

FILE NUMBER(S):
40422 of 2008

HEARING DATE(S):
24 June 2009

JUDGMENT DATE:
16 July 2009

PARTIES:
James Condos - Appellant
Clycut Pty Ltd - First Respondent
Reflections Security Pty Ltd - Second Respondent

JUDGMENT OF:
McColl JA Campbell JA Macfarlan JA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
 85 of 2006

LOWER COURT JUDICIAL OFFICER:
Goldring DCJ

LOWER COURT DATE OF DECISION:
9 September 2008

COUNSEL:
RW Seton SC with KW Andrews - Appellant
RA Cavanagh -  First Respondent
AJ Hourigan - Second Respondent

SOLICITORS:
Konstan Laawyers - Appellant
HWL Ebsworth Lawyers - First Respondent
Corporate Counsel, Reflections Group - Second Respondent

CATCHWORDS:
TORTS – negligence – proof of negligence – sufficiency of evidence – plaintiff allegedly struck by barricade blown over by strong wind in shopping centre – no eyewitness evidence as to circumstances of plaintiff’s fall – no evidence as to nature of any barricade – no evidence that managing agent or security services appointed by occupier failed to discharge duties – whether inference of negligence could be drawn
EVIDENCE – burden of proof, weight and sufficiency of evidence – generally
EVIDENCE – unexplained failure to call witness – whether adverse Jones v Dunkel inference could be drawn – lack of forensic utility in drawing adverse Jones v Dunkel inference against all parties

LEGISLATION CITED:
Evidence Act 1995 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29
Anikin v Sierra [2004] HCA 64; 79 ALJR 452
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135
De Gioia v Darling Island Stevedoring & Lighterage Co Limited (1941) 42 SR (NSW) 1
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155
Hampton Court Limited v Crooks [1957] HCA 28; (1957) 97 CLR 367
HML v R [2008] HCA 16; (2008) 235 CLR 334
Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470
Jackson v Lithgow City Council [2008] NSWCA 312
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Manly Council v Byrne [2004] NSWCA 123
Payne v Parker [1976] 1 NSWLR 191
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Portelli v Tabriska Pty Ltd & Ors [2009] NSWCA 17
Progressive Recycling Pty Limited v Eversham [2003] NSWCA 268; (2003) 40 MVR 141
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308; (2006) 150 LGERA 11
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 10; (2006) 226 CLR 161
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Wynn…

Continue reading Condos v Clycut Pty Ltd

Sign in free to access the full text

Details
AGLC
Condos v Clycut Pty Ltd [2009] NSWCA 200
Case
[2009] NSWCA 200
Decision Date

CaseChat Overview and Summary

The appellant, Mr Condos, brought proceedings against Clycut Pty Ltd and Reflections Security Services Pty Ltd (the respondents) in the New South Wales Court of Appeal. Mr Condos alleged he was injured when struck by a barricade that was blown over by strong winds while he was in a shopping centre. There was no eyewitness evidence of the incident, nor was there evidence detailing the nature of any barricade or establishing a failure by the managing agent or security services to discharge their duties.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the appellant had not established sufficient facts to draw an inference of negligence against the respondents, and whether the primary judge was correct in his assessment of the evidence, including the sufficiency of the evidence to establish a duty of care and a breach thereof. The court also considered the implications of the failure to call a particular witness and the potential for drawing an adverse inference.

The Court of Appeal affirmed the primary judge's findings. It was held that while Clycut, as the occupier, owed a duty of care to lawful entrants, this duty could be delegated to agents who were engaged with reasonable skill and care. The evidence did not establish that Clycut had failed in its duty to select competent agents, nor did it demonstrate that the agents themselves had breached their duties. The court found that the appellant had not discharged the burden of proof to establish, on the balance of probabilities, that the existence of the barricade and its falling were related to the negligence of either respondent. The meteorological evidence of strong winds was acknowledged, but it was insufficient on its own to establish negligence.

The appeal was dismissed, and the appellant was ordered to pay the costs of the respondents.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The 8 February 2006 file note recorded a telephone conversation between Ms Kain and “Donny”, referred to as the manager of Wokmaster. It stated that Donny at first could not remember the incident, but when Ms Kain called back “with details of ‘broken window’”, his memory was triggered. It then stated that although Donny was not on duty the night of the “incident”, he “remembered the window concerned was the front of the shop on Anzac Parade”. The file note further states: “Barricades used were builders/road barricades”. It recorded that, according to Donny, Lawrence (Hee) was on duty and he suggested Ms Kain speak to him. The primary judgment The primary judge delivered an ex tempore judgment. He found that Clycut occupied the Centre, but entrusted its management to Jones Lang. He also found that independent contractors dealt with the cleaning and security, with security “delegated” to Reflections. His Honour noted the provisions of the Security Services Agreement I have set out above (at [31] – [32]). There is no challenge to these findings. His Honour noted that the appellant’s description of the events was that:“… as he was walking along what can best be described as an arcade, something happened. He was thrown to the ground and the next thing he knew he had pain in his shoulders and right leg … He does not remember anything about the incident.” The primary judge next observed, accurately, that there was no evidence that there was any eyewitness to the incident. In relation to the failure of either party to call Mr Hasan, his Honour found that the only inference that he could draw was that his evidence would not have assisted any of the parties who did not call him. His Honour set out the text of Mr Hasan’s Incident Report. He also referred to other Jones Lang records which in his view confirmed, but did not add to the Incident Report. His Honour referred to Mr Hee’s recollection that the window of the shopfront on Anzac Parade was shaking on the day of the incident, but that he had no recollection of a barricade or a broken window. He noted the suggestion in one of Ms Kain’s notes that a barricade had been erected in front of the Wokmaster shop after it had been broken into to stop people coming into contact with the broken glass. Next, the primary judge referred to the meteorological records. He accepted that they showed that on the day in question “it was wet and there were extremely strong southerly winds of about 50 kilometres per hour with gusts of up to 90 kilometres per hour”. He referred to the appellant’s submission that the wind could be only reason that the barricade fell over and injured him. However, he stated:“If I could be satisfied on the balance of probabilities that that were the case, and that is by no means certain, Mr Condos would still have to show that the existence of the barricade and the fact that it fell over was in some way related to the negligence of one of the defendants”

Ratio Decidendi

Legal Principle Established

Finally, Mr Hourigan submitted that the appellant did not establish sufficient facts to enable the primary judge, or this Court on appeal, to draw any inferences capable of establishing liability against Reflections.Consideration It is difficult to understand why the primary judge concluded that neither respondent owed the appellant a duty of care. Clycut was the owner and, as the primary judge found, the occupier of the Centre. As I observed recently, with Tobias and Young JJA’s concurrence, in Wynn Tresidder Management v Barkho [2009] NSWCA 149:“59 As I have said, it was common ground that the appellant was the occupier of the Centre. This status arose from its care, control and management of the premises. By virtue of its power of control, it owed the respondent, as a lawful entrant to the Centre, a duty to take reasonable care to avoid a foreseeable risk of injury. The measure of the discharge of its duty was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 487 - 488) per Mason, Wilson, Deane and Dawson JJ, approving the observations of Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 662 – 663); see also Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 (at [17] – [18]) per Gleeson CJ (Gaudron J agreeing (at [42])); (at [60]) per Kirby J; (at [112]) per Hayne J (Gaudron J agreeing (at [42])); (at [138]) per Callinan J; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) per Gummow J (Heydon J agreeing).” However, as Hodgson JA (Gyles AJA and Nicholas J agreeing) said in Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 (at [53]): “53 There is no doubt also that this occupier’s duty of care is ‘delegable’, in the sense that it may be discharged in whole or in part by the occupier’s exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier’s duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability.” Clycut delegated its responsibility to operate and manage the Centre to Jones Lang. There was no suggestion that it had not selected those agents with the care and skill to which Hodgson JA referred. The question of the extent to which, accordingly, Clycut had delegated its duties as occupier does not appear to have been debated at trial. The primary judge found that Clycut had entrusted the management of the building to Jones Lang, but did not discuss the significance of that. He also found Clycut had delegated its security obligations to Reflections and that the latter was an independent contractor, again without discussing the significance of these matters.