Hunt v Knight Frank (NSW) Pty Ltd - [2005] NSWCA 139

CITATION:
Hunt v Knight Frank (NSW) Pty Ltd & 2 Ors [2005] NSWCA 139

HEARING DATE(S):
8 October 2004

JUDGMENT DATE:

3 May 2005

JUDGMENT OF:
Mason P at 1; Giles JA at 2; McColl JA at 3

DECISION:
(1) Appeal allowed (2) Judgment below set aside (3) Judgment for the appellant against the second respondents on liability. (4) Cross-appeals dismissed (5) Save as to the costs of preparation of the Red Appeal Book, second respondents to pay the appellant's costs of his appeal against the second respondent, the second respondents' cross appeal and the appellant's costs of trial insofar as they concerned his case against them (6) Appellant to pay the third respondent's costs of the appeal and of the third respondent's cross appeal (7) Matter remitted to the District Court for hearing on damages.

CATCHWORDS:
NEGLIGENCE - breach - whether reasonably foreseeable that a person exiting a lift would trip over a crate placed immediately in front of door - obligation on entrants to take reasonable care for own safety - EVIDENCE - inferences - whether evidence supported a reasonable and definite inference that someone for whose conduct the occupier was vicariously liable placed the crate in position - COSTS - whether a Bullock or Sanderson order appropriate (D)

LEGISLATION CITED:
Supreme Court Rules 1990

CASES CITED:
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155
Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215
Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367
Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141
Patrick Stevedores No 1 Pty Ltd v Kilkelly [2004] NSWCA 237
Phillis v Daly (1988) 15 NSWLR 65
Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268; (2003) 40 MVR 141
Roads and Traffic Authority v Snape [1999] NSWCA 47
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306

PARTIES:
Robin Keith Hunt (Appellant)
Knight Frank (NSW) Pty Ltd (First Respondent)
Anthony Scotford & Ors t/as Ebsworth & Ebsworth (Second Respondent)
Allcorp Cleaning Services Pty Limited (Third Respondent)

FILE NUMBER(S):
CA 41042/03

COUNSEL:
L King SC/ H J Halligan (Appellant)
First Respondent (No appearance)
M A Elkaim SC/ R D Cavanagh (Second Respondent)
G M Watson SC/ A C Casselden (Third Respondent)

SOLICITORS:
Beilby Poulden Costello (Appellant)
Curwood & Partners (First Respondent)
Henry Davis York (Second Respondent)
Wotton & Kearney (Third Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 1307/01

LOWER COURT JUDICIAL OFFICER:
Ainslie-Wallace DCJ

CA 41042/03
DC 1307/01

MASON P
GILES JA
McCOLL JA
Tuesday, 3 May 2005

Robin Keith HUNT v KNIGHT FRANK (NSW) PTY LTD & 2 ORS

Judgment

1 MASON…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 139
Decision Date: 3 May 2005

CaseChat Overview and Summary

The appellant, Mr. Hunt, brought proceedings against Knight Frank (NSW) Pty Ltd and others, alleging negligence. The dispute arose from injuries Mr. Hunt sustained when he tripped over a crate immediately in front of a lift door as he exited. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the occupier, Knight Frank, had breached its duty of care to Mr. Hunt by allowing the crate to be placed in such a position, and whether it was reasonably foreseeable that a person exiting the lift would trip over it. The court also considered whether the evidence supported a reasonable and definite inference that an employee or agent for whom Knight Frank was vicariously liable had placed the crate. Finally, the court was asked to determine the appropriateness of a Bullock or Sanderson order regarding costs.

The Court of Appeal found that it was reasonably foreseeable that a person exiting the lift would encounter the crate and that its placement constituted a breach of the occupier's duty of care. The court inferred from the evidence that the crate had been placed by someone for whose conduct Knight Frank was vicariously liable. The court allowed the appeal, setting aside the judgment below and entering judgment for the appellant against the second respondents on liability. The cross-appeals were dismissed. The second respondents were ordered to pay the appellant's costs of the appeal and the trial concerning their liability, while the appellant was ordered to pay the third respondent's costs of the appeal and their cross-appeal. The matter was remitted to the District Court for determination of damages.

Orders

Orders of the court

(1) Appeal allowed (2) Judgment below set aside (3) Judgment for the appellant against the second respondents on liability. (4) Cross-appeals dismissed (5) Save as to the costs of preparation of the Red Appeal Book, second respondents to pay the appellant's costs of his appeal against the second respondent, the second respondents' cross appeal and the appellant's costs of trial insofar as they concerned his case against them (6) Appellant to pay the third respondent's costs of the appeal and of the third respondent's cross appeal (7) Matter remitted to the District Court for hearing on damages.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hunt v Knight Frank (NSW) Pty Ltd & 2 Ors [2005] NSWCA 139
HEARING DATE(S):	8 October 2004
JUDGMENT DATE:	3 May 2005
JUDGMENT OF:	Mason P at 1; Giles JA at 2; McColl JA at 3
DECISION:	(1) Appeal allowed (2) Judgment below set aside (3) Judgment for the appellant against the second respondents on liability. (4) Cross-appeals dismissed (5) Save as to the costs of preparation of the Red Appeal Book, second respondents to pay the appellant's costs of his appeal against the second respondent, the second respondents' cross appeal and the appellant's costs of trial insofar as they concerned his case against them (6) Appellant to pay the third respondent's costs of the appeal and of the third respondent's cross appeal (7) Matter remitted to the District Court for hearing on damages.

CATCHWORDS:	NEGLIGENCE - breach - whether reasonably foreseeable that a person exiting a lift would trip over a crate placed immediately in front of door - obligation on entrants to take reasonable care for own safety - EVIDENCE - inferences - whether evidence supported a reasonable and definite inference that someone for whose conduct the occupier was vicariously liable placed the crate in position - COSTS - whether a Bullock or Sanderson order appropriate (D)
LEGISLATION CITED:	Supreme Court Rules 1990
CASES CITED:	Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215 Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141 Patrick Stevedores No 1 Pty Ltd v Kilkelly [2004] NSWCA 237 Phillis v Daly (1988) 15 NSWLR 65 Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268; (2003) 40 MVR 141 Roads and Traffic Authority v Snape [1999] NSWCA 47 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
PARTIES:	Robin Keith Hunt (Appellant) Knight Frank (NSW) Pty Ltd (First Respondent) Anthony Scotford & Ors t/as Ebsworth & Ebsworth (Second Respondent) Allcorp Cleaning Services Pty Limited (Third Respondent)
FILE NUMBER(S):	CA 41042/03
COUNSEL:	L King SC/ H J Halligan (Appellant) First Respondent (No appearance) M A Elkaim SC/ R D Cavanagh (Second Respondent) G M Watson SC/ A C Casselden (Third Respondent)
SOLICITORS:	Beilby Poulden Costello (Appellant) Curwood & Partners (First Respondent) Henry Davis York (Second Respondent) Wotton & Kearney (Third Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1307/01
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ