Kinnell v Connelly - [2007] NSWCA 17

NEW SOUTH WALES COURT OF APPEAL

CITATION: KINNELL v CONNELLY & ANOR [2007] NSWCA 17

FILE NUMBER(S):
40185/2006

HEARING DATE(S): 8 February 2007

JUDGMENT DATE: 8 February 2007
EX TEMPORE DATE: 8 February 2007

PARTIES:
Debbie KINNELL
Christopher CONNELLY
Dell CONNELLY

JUDGMENT OF: Mason P Bryson JA Gzell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1661/2005

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

LOWER COURT DATE OF DECISION: 8 March 2006

COUNSEL:
Appellant: S Norton SC/ M Fraser
Respondents: D P O'Donnell

SOLICITORS:
Appellant: Brydens Law Office
Respondents: Sparke Helmore

CATCHWORDS:
NEGLIGENCE – essentials of cause of action – breach of duty of care – slip and fall – entering house – adjustment of latch or spring device on door – where familiarity with door through extended use.
EVIDENCE – Credibility and weight – alleged admission – denial of admission.
APPEAL AND NEW TRIAL – general principles – when court will intervene – credibility finding – error going to matter at issue in trial – mere presence of error – process error – whether findings on mechanics of fall based on credibility taint finding of negligence.

LEGISLATION CITED:

CASES CITED:
Jones v Dunkell (1959) 101 CLR 298
Fox v Percy (2003) 214 CLR 118
Rosenberg v Percival (2001) 205 CLR 434

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40185/06
DC 1661/2005
MASON P
BRYSON JA
GZELL J
Thursday 8 February 2007

Debbie KINNELL v Christopher CONNELLY

JUDGMENT

MASON P: The appellant and the second respondent are twin sisters born in 1957. They are close friends and, since 2000, have lived next door to each other in Plume Close, Macquarie Fields.
The proceedings relate to injuries suffered by the appellant on 1 August 2004 when she injured her foot as she entered the house of her sister and brother-in-law (the respondents). The appellant had used an accustomed route through a gate in the back fence that gave access into the respondents' house through the laundry door. The doorway is approximately opposite the gate in the fence and up one step.
A screen door had been in place from the time when the respondents moved in, in 2000. It is hinged on the left side of the doorway as one faced from the outside. It consists mainly of wire mesh surrounded by what appears to be an aluminium frame. A spring device at the top of the door causes the door to close automatically. The mechanism can be adjusted to accelerate or retard the speed of closing.
The appellant alleged that the screen door closed unexpectedly quickly and trapped her trailing left foot thereby causing her to fall over and suffer injury. The bone of the fifth metatarsal in her left foot was fractured. That the appellant suffered serious injury is not in dispute, but the mechanics of the fall and negligence are.
This appeal is brought from a verdict for the defendant entered in the District Court…

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.

Continue reading Kinnell v Connelly

Details

AGLC: Kinnell v Connelly [2007] NSWCA 17
Case: [2007] NSWCA 17
Decision Date: 8 February 2007

CaseChat Overview and Summary

The Supreme Court of New South Wales Court of Appeal considered a negligence claim brought by the appellant, Mr. Kinnell, against the respondent, Mr. Connelly. Mr. Kinnell alleged that he sustained injuries when he slipped and fell while entering Mr. Connelly's house. The central dispute concerned whether Mr. Connelly had breached a duty of care owed to Mr. Kinnell, leading to the fall.

The Court was required to determine whether the trial judge erred in finding that Mr. Connelly had not breached his duty of care to Mr. Kinnell. Specifically, the appeal raised questions about the trial judge's assessment of the evidence, including the credibility of witnesses and the weight given to an alleged admission by Mr. Connelly. The Court also had to consider whether any perceived errors in the trial process, particularly concerning findings based on credibility, tainted the ultimate finding of negligence.

The Court of Appeal upheld the trial judge's findings. It reasoned that the trial judge was entitled to make findings of fact regarding the mechanics of the fall and the operation of the door, including the latch or spring device, based on the evidence presented and the credibility of the witnesses. The Court found no error in the trial judge's assessment of the evidence, including the denial of the alleged admission by Mr. Connelly. Consequently, the Court concluded that the trial judge's finding that Mr. Connelly had not breached his duty of care was sound.

The appeal was dismissed, and Mr. Kinnell was ordered to pay Mr. Connelly's costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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