Kirkland v Moore & Anor [1999] NSWCA 305

New South Wales Court of Appeal 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.