Kirkland v Moore - [1999] NSWCA 305

CITATION: Kirkland v Moore & Anor [1999] NSWCA 305

FILE NUMBER(S): CA 40524/97

HEARING DATE(S): 13 August 1999

JUDGMENT DATE:
25 August 1999

PARTIES :

Wayne Kirkland v Joseph Gilferd Moore and David Crowther

JUDGMENT OF: Spigelman CJ at 1; Priestley JA at 2; Giles JA at 28

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 3408/96

LOWER COURT JUDICIAL OFFICER: Her Honour Judge Gibb

COUNSEL: Appellant - E. Petersen
Respondent - Ms S. Norton

SOLICITORS: Appellant - In person
Respondent (1) - Brydens Law Office

CATCHWORDS: Action for negligence for not taking due care with defective equipment

CASES CITED:
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

DECISION: Appeal upheld

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40524/97
DC 3408/96

SPIGELMAN CJ
PRIESTLEY JA
GILES JA

Wednesday, 25 August 1999

KIRKLAND v MOORE & ANOR

ACTION FOR NEGLIGENCE FOR NOT TAKING DUE CARE WITH DEFECTIVE EQUIPMENT - first defendant, a tradesman, experienced with angle grinders, gives angle grinder to second defendant, also a tradesman experienced with angle grinders - angle grinder has obvious defects including a missing guard - second defendant leaves angle grinder in garage of plaintiff, with whom he is staying and who is also a tradesman experienced with angle grinders - plaintiff decides to see whether motor of angle grinder is working before deciding whether to have it repaired - switches it on - is struck in eye by piece of disk from angle grinder - loses sight in that eye - brings negligence action against both defendants - trial judge holds first defendant liable, second defendant not liable and awards plaintiff $86,750 damages - first defendant appeals.

On appeal - judgment against first defendant set aside and judgment given in his favour - in all circumstances, and assuming first defendant owed duty, no causal relationship between any breach of duty and damage.

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

ORDERS

1. Appeal upheld.
2. Judgment below against first defendant set aside.

3. Judgment for first defendant against plaintiff .
4. Plaintiff to pay first defendant’s costs of trial and appeal.

5. Plaintiff to have certificate under Suitors Fund Act.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40524/97
DC 3408/96

SPIGELMAN CJ
PRIESTLEY JA
GILES JA

Wednesday, 25 August 1999

KIRKLAND v MOORE & ANOR

1 SPIGELMAN CJ: I agree with Priestley JA. 2 PRIESTLEY JA: On 7 March 1995 Mr Joseph Moore switched on an angle grinder in the garage at his house. Immediately a piece of a disk on the angle grinder flew off it and struck him in the right eye, blinding it. 3 Mr Moore as plaintiff subsequently brought an action in the District Court against Mr Wayne Kirkland as first defendant and Mr David Crowther as second defendant, alleging that the negligence of each of them had caused the accident, and claiming damages from them. 4 At the trial,…

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 Kirkland v Moore

Details

AGLC: Kirkland v Moore [1999] NSWCA 305
Case: [1999] NSWCA 305
Decision Date: 25 August 1999

CaseChat Overview and Summary

The Supreme Court of New South Wales, Court of Appeal, heard an appeal in a negligence action brought by the plaintiff, Kirkland, against the defendant, Moore. The dispute concerned allegations that the defendant failed to exercise due care in relation to defective equipment, leading to the plaintiff's injury.

The central legal issue before the Court of Appeal was whether the defendant had breached their duty of care to the plaintiff by failing to take adequate precautions concerning the defective equipment. This involved an assessment of the foreseeability of the risk of harm and the reasonableness of the defendant's actions or omissions in light of that risk.

The Court of Appeal considered the evidence presented regarding the nature of the defect, the defendant's knowledge or constructive knowledge of the defect, and the steps taken, or not taken, to mitigate the potential danger. The Court applied established principles of negligence, focusing on the standard of care expected of a reasonable person in the defendant's position and the causal connection between any breach and the plaintiff's loss. The appeal was upheld.

Orders

Orders of the court

Appeal upheld

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kirkland v Moore & Anor [1999] NSWCA 305
FILE NUMBER(S):	CA 40524/97
HEARING DATE(S):	13 August 1999
JUDGMENT DATE:	25 August 1999
PARTIES :	Wayne Kirkland v Joseph Gilferd Moore and David Crowther
JUDGMENT OF:	Spigelman CJ at 1; Priestley JA at 2; Giles JA at 28

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 3408/96
LOWER COURT JUDICIAL OFFICER:	Her Honour Judge Gibb

COUNSEL:	Appellant - E. Petersen Respondent - Ms S. Norton
SOLICITORS:	Appellant - In person Respondent (1) - Brydens Law Office
CATCHWORDS:	Action for negligence for not taking due care with defective equipment
CASES CITED:	March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
DECISION:	Appeal upheld