Condos v Clycut Pty Ltd

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.