Jackson v Furner

[2024] NSWCA 66

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jackson v Furner [2024] NSWCA 66

Hearing dates:

15 March 2024

Date of orders:

27 March 2024

Decision date:

27 March 2024

Before:

Payne JA at [1];
Mitchelmore JA at [66];
Griffiths AJA at [67]

Decision:

(1) Appeal dismissed.

(2) The appellants pay the respondent’s costs.

Catchwords:

NEGLIGENCE — Personal injuries — slip and fall during open for inspection — admission that driveway had recently been painted — whether non-slip paint was used — whether evidence was that driveway was slippery — whether primary judge erred in finding witness’ evidence unreliable

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D

Cases Cited:

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320

Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15

Category:

Principal judgment

Parties:

Allen James John Jackson (first appellant)
Linda Kondouras (second appellant)
CK1 Realty Pty Ltd (third appellant)
Kellie Furner (respondent)

Representation:

Counsel:

J Turnbull SC; M Hamdan; W Reynolds (appellants)
R Sheldon SC; E Anderson (respondent)

Solicitors:

Holman Webb Lawyers (appellants)
Brydens Lawyers Pty Ltd (respondent)

File Number(s):

2023/258319

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2023] NSWSC 914

Date of Decision:

3 August 2023

Before:

Harrison AsJ

File Number(s):

2020/227032

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 18 January 2020, the respondent, Ms Furner, slipped and fell on a sloping driveway of a residential property while it was open for inspection. The appellants are Mr Jackson (first appellant) and Ms Kondouras (second appellant), who were the owners of a property, and CK1 Realty (third appellant), a real estate agency.

On 3 August 2023, the primary judge, Harrison AsJ, made an award of damages to the respondent.

The appellants appealed the decision and contended that the primary judge had erred in rejecting the second appellant’s evidence that the driveway had been painted with non-slip paint recommended by experts.

The main issues on appeal were:

(i) Had the primary judge erred in rejecting the evidence of the second appellant on the basis that it was contradictory and unreliable?

(ii) Had the primary judge erred in failing to find that when the first appellant repainted the driveway, he used a non-slip paint recommended by experts?

(iii) Had the primary judge erred in finding that the appellants were aware or ought to have been aware of the risk of harm?

(iv) Was the availability of stairs to the property relevant to any ground of appeal?

The Court (Payne JA, Mitchelmore JA and Griffiths AJA) dismissed the appeal and…