Kitoko v Mirvac Real Estate Pty Ltd

The appellant, Kitoko, brought proceedings against the respondent, Mirvac Real Estate Pty Ltd, alleging negligence that resulted in personal injury. The dispute concerned a collision between the appellant and a glass sliding door. The primary judge had rejected the appellant's factual account of the collision, giving significant weight to CCTV footage of the incident, and subsequently made an assessment of damages. The appellant appealed these findings to the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the primary judge erred in rejecting the appellant's version of events, particularly in light of conflicting expert evidence regarding the CCTV footage. Furthermore, the court had to consider whether the primary judge's assessment of damages was flawed. A preliminary issue also arose concerning the appellant's application for leave to adduce further evidence on appeal.

The Court of Appeal dismissed the appellant's Notice of Motion seeking to adduce further evidence, finding no grounds to permit its introduction at the appellate stage. In relation to the substantive appeal, the court found no error in the primary judge's assessment of the evidence. The primary judge's reliance on the CCTV footage and rejection of the appellant's account was upheld, as was the subsequent assessment of damages.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs.