Kone Elevators Pty Ltd v Shipton

Case [2021] ACTCA 33


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Kone Elevators Pty Ltd v Shipton

Kone Elevators Pty Ltd v Massouras

Kone Elevators Pty Ltd v Pattinson

Kone Elevators Pty Ltd v Soesman

Citation:

[2021] ACTCA 33

Hearing Date:

8–9 February 2021

DecisionDate:

5 November 2021

Before:

Murrell CJ, Loukas-Karlsson and Stewart JJ

Decision:

See [312]–[316]

Catchwords:

CIVIL LAW – NEGLIGENCE – Personal injury – appeal from Supreme Court – where persons injured by reason of intermittency of power to lift – where intermittency of power caused by broken wire – whether sufficient evidence to establish that cause of broken wire was a casual act of negligence by appellant’s employee – appeal dismissed

Legislation Cited:

Administrative Appeals Tribunal Act 1975 (Cth) s 33

Civil Law (Wrongs) Act 2002 (ACT) s 100
Civil Procedures Act 2004 (ACT) s 5A
Civil Procedures Rules 2006 (ACT) r 1010, 1705, 1721
Evidence Act 2011 (ACT) ss 69, 136
Limitation Act 1985 (ACT) ss 16A, 16B, 36
Motor Accidents Compensation Act 1999 (NSW)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62, 64, 66, 72

WorkersCompensation Act 1951 (ACT)

Cases Cited:

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Bale v Mills [2011] NSWCA 226; 81 NSWLR 498
Bradshaw v McEwans Pty Ltd (1951) 217 ALR
Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227
Browne v Dunn (1893) 6 R 67 (HL)
Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305
Fox v Percy [2003] HCA 22; 214 CLR 118
Holloway v McFeeters (1956) 94 CLR 470
House v The King (1936) 55 CLR 499
Jackson v Lithgow City Council [2008] NSWCA 312
Jones v Dunkel (1959) 101 CLR 298
Kennedy Cleaning Services v Petkoska [2000] HCA 45; 200 CLR 286
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363
Lardis v Lakis [2018] NSWCA 113
Lewis v Chief Executive Department of Justice and Community Safety (No 2) [2014] ACTSC 196
Luxton v Vines (1952) 85 CLR 352
Massouras v Kone Elevators Pty Ltd [2020] ACTSC 66
Massouras v Kone Elevators Pty Ltd (No 2) [2020] ACTSC 181
MastersHome Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; 372 ALR 440
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Oliver v Roberts (No 2) [2018] ACTCA 44
Palmer v Dolman [2005] NSWCA 361
Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948
Sanderson v Blyth Theatre Co [1903] 2 KB 533 (CA)
Seeley International Pty Ltd v Jeffrey [2013] VSCA 288
Shepherd v The Queen (1990) 170 CLR 573
Shipton v Kone Elevators Pty Ltd [2020] ACTSC 129
Smith v Alone [2017] NSWCA 287; 82 MVR 309
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182

Zickar v MGH Plastic Industries Pty…

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AGLC
Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33
Case
[2021] ACTCA 33
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Murrell CJ, Loukas-Karlsson and Stewart JJ, heard appeals from a decision of the Supreme Court concerning personal injury claims. The respondents, who were injured due to the intermittent power supply of a lift, alleged negligence against the appellant, Kone Elevators Pty Ltd. The core of the dispute revolved around whether the appellant's employee had caused a broken wire, which in turn led to the lift's malfunction and the respondents' injuries, through a casual act of negligence.

The Court was required to determine whether there was sufficient evidence to establish that the cause of the broken wire was a casual act of negligence by an employee of Kone Elevators Pty Ltd. This involved assessing the evidence presented at trial regarding the maintenance and operation of the lift, and whether the circumstances pointed to a specific negligent act or omission by the appellant's staff that directly resulted in the wire breaking. The appeals also touched upon the adequacy of damages awarded in some of the related matters.

The Court dismissed the appeals, finding that the primary judge had not erred in concluding that there was sufficient evidence to establish negligence. The reasoning focused on the inference that could be drawn from the evidence, particularly concerning the maintenance history of the lift and the nature of the failure. The Court applied principles of negligence, including the burden of proof and the assessment of causation, to determine that the appellant was liable for the injuries sustained by the respondents. The Court found that the evidence supported the conclusion that the broken wire was a result of a negligent act or omission by the appellant's employee.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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