Gaskell v Denkas Building Services Pty Limited

In Gaskell v Denkas Building Services Pty Limited, the appellant, Mr Gaskell, a tenant of an office suite, appealed to the Court of Appeal of New South Wales against a decision of the trial judge. Mr Gaskell had suffered injury in a slip and fall incident in a common area toilet within the office building owned by the respondent, Denkas Building Services Pty Limited. The central dispute concerned whether Mr Gaskell had previously informed a director of the building owner about repeated pooling of water in the toilet area.

The legal issues before the Court of Appeal included whether the trial judge erred in failing to draw an adverse inference against the respondent for not calling its director to give evidence, given Mr Gaskell's assertion that he had complained to this director. Additionally, the court considered whether the trial judge's delay in delivering judgment, reserved for approximately eleven months, indicated a loss of grasp of the evidence or led to hurried or poorly considered conclusions.

The Court of Appeal upheld the trial judge's findings. The trial judge had considered the availability of an adverse inference but declined to draw it, finding Mr Gaskell's evidence regarding prior complaints to be unreliable. This conclusion was based on the absence of any contemporaneous written complaint by Mr Gaskell, despite his history of raising issues concerning the premises in writing. The trial judge also noted inconsistencies in Mr Gaskell's evidence and contrasted his readiness to complain in writing on other occasions with the lack of any written record of the alleged complaint about water pooling. The court found no error in the trial judge's assessment of the evidence, including the rejection of the adverse inference. Furthermore, the court found no grounds to fear that the delay in judgment had compromised the judge's understanding or consideration of the evidence.

The appeal was dismissed, and Mr Gaskell was ordered to pay the costs of the appeal.