New South Wales
Court of Appeal
CITATION: Warren v Gittoes [2009] NSWCA 24 HEARING DATE(S): 12 February 2009
JUDGMENT DATE:
27 February 2009JUDGMENT OF: Hodgson JA at 1; Tobias JA at 7; Macfarlan JA at 67 DECISION: Appeal dismissed with costs CATCHWORDS: TORTS – negligence – essentials of action for negligence – damage – causation –appellant’s injury due to collision with fence – respondents failed to erect sign warning of fence – whether respondents’ breach of duty caused injury in circumstances where appellant saw the fence before he would have had an appropriate sign been erected - EVIDENCE – interpretation of photographs LEGISLATION CITED: N/A CATEGORY: Principal judgment CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Blacktown City Council v Hocking [2008] NSWCA 144
Flounders v Millar [2007] NSWCA 238
March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380PARTIES: Wayne Frederick Warren
Robert James Gittoes
Mary May GittoesFILE NUMBER(S): CA 40762/07 COUNSEL: A: H N Kelly SC / T McKenzie
R: A BlackSOLICITORS: A: Graham Jones Lawyers, Sydney
R: Garden & Montgomerie Solicitors, CowraLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 4/05 (Orange) LOWER COURT JUDICIAL OFFICER: Truss DCJ LOWER COURT DATE OF DECISION: 17 July 2007
CA40762/07
DC 4/05Friday 27 February 2009HODGSON JA
TOBIAS JA
MACFARLAN JA
WAYNE FREDERICK WARREN v ROBERT JAMES GITTOES & ANOR
Judgment
1 HODGSON JA: I agree with the orders proposed by Tobias JA and, subject to what I say below, I agree substantially with his reasons.
2 As regards the use that can be made of photographs, I agree with what Tobias JA said at [170] of his judgment in Blacktown City Council v Hocking [2008] NSWCA 144:
- “Thus in United States Shipping Board v The Ship St Albans [1931] AC 632 Lord Merrivale, in delivering the advice of the Judicial Committee of the Privy Council, observed (at 642) that the use of photographic evidence must be the subject of “ careful delineation ” particularly as a means of proof of matters of fact. This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken.”
3 In my opinion, there may be cases where photographs can be used to establish at least approximate distances, even in the absence of…
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Details
- AGLC
- Warren v Gittoes [2009] NSWCA 24
- Case
- [2009] NSWCA 24
- Decision Date
CaseChat Overview and Summary
The appellant, Mr Warren, brought proceedings against the respondents, Mr and Mrs Gittoes, alleging negligence. Mr Warren suffered injuries when he collided with a fence on the respondents' property. He contended that the respondents had failed to erect a sign warning of the fence's presence, and that this failure constituted a breach of their duty of care. The appeal was heard by the Court of Appeal of New South Wales.
The central legal issue before the Court of Appeal was whether the respondents' alleged breach of duty, namely the failure to erect a warning sign, caused Mr Warren's injury. This question arose in circumstances where Mr Warren had, in fact, seen the fence before the collision. The court was therefore required to consider the principles of causation in negligence, particularly in situations where a plaintiff is aware of the hazard but nonetheless sustains injury. The interpretation of photographs relevant to the visibility of the fence was also a component of the evidence considered.
The Court of Appeal ultimately dismissed the appeal. The reasoning of the court, though not detailed in the provided text, would have involved an assessment of whether the absence of a sign was a necessary condition for Mr Warren's injury, or whether his own actions and awareness of the fence were the operative causes. The legal principles applied would have concerned the test for causation in negligence, likely focusing on whether the breach of duty materially contributed to the damage suffered, or if the injury would have occurred irrespective of the breach.
The appeal was dismissed, and the appellant was ordered to pay the respondents' costs.
The central legal issue before the Court of Appeal was whether the respondents' alleged breach of duty, namely the failure to erect a warning sign, caused Mr Warren's injury. This question arose in circumstances where Mr Warren had, in fact, seen the fence before the collision. The court was therefore required to consider the principles of causation in negligence, particularly in situations where a plaintiff is aware of the hazard but nonetheless sustains injury. The interpretation of photographs relevant to the visibility of the fence was also a component of the evidence considered.
The Court of Appeal ultimately dismissed the appeal. The reasoning of the court, though not detailed in the provided text, would have involved an assessment of whether the absence of a sign was a necessary condition for Mr Warren's injury, or whether his own actions and awareness of the fence were the operative causes. The legal principles applied would have concerned the test for causation in negligence, likely focusing on whether the breach of duty materially contributed to the damage suffered, or if the injury would have occurred irrespective of the breach.
The appeal was dismissed, and the appellant was ordered to pay the respondents' 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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