Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201 Hearing dates: 20 June 2016 Date of orders: 15 August 2016 Decision date: 15 August 2016 Before: Macfarlan JA at [1] Sackville AJA at [2] Garling J at [3] Decision: (1) Notice of Motion filed 29 February 2016 dismissed. (2) Appeal dismissed. (3) Appellant to pay the respondents' costs. Catchwords: TORTS – negligence – personal injury – where appellant collided with glass sliding door – where CCTV footage of the collision was tendered at trial – where expert witness gave conflicting evidence regarding the CCTV footage – whether the primary Judge erred in rejecting the appellant's factual account of the collision – whether the primary Judge erred in giving weight to the CCTV footage – whether the primary Judge erred in his assessment of damages APPEAL – civil – Notice of Motion seeking leave to adduce further evidence on appeal – whether there are grounds for adducing the further evidence Legislation Cited: Supreme Court Act 1970 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Principal judgment Parties: Vangu Kitoko (Appellant) Mirvac Real Estate Pty Ltd (1st Respondent) Access Group Solutions (Australia) Pty Ltd (2nd Respondent) Representation: Counsel: In person (Appellant) D Benson (1st Respondent) S Glascott (2nd Respondent) Solicitors: In person (Appellant) Thompson Cooper Lawyers (1st Respondent) DLA Piper Australia (2nd Respondent) File Number(s): 2015/234404 Publication restriction: Not Applicable Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 7 August 2015 Before: Elkaim SC DCJ File Number(s): 2015/234404 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. MACFARLAN JA: I agree with Garling J. 2. SACKVILLE AJA: I agree with Garling J. 3. GARLING J: On 5 October 2010, Mr Vangu Kitoko (the appellant) was walking through the Broadway Shopping Centre ("the Centre") in Sydney from the area of the shops on Level 1 to the carpark area. As he went to cross from the shops into the carpark, he collided with a glass exit door panel. The detail and circumstances of the collision were in contest. 4. The appellant claimed that his collision with the door panel was the consequence of the negligence of the defendants, who are the respondents to this appeal. The respondents are, respectively, the managers of the Centre and the cleaning company responsible for cleaning the Centre. 5. The respondents denied that they were liable in negligence for the injuries, loss and damage which the appellant claimed to have suffered. 6. The appellant's claim was heard in the District Court of NSW between 4 and 6 August 2015. On 7 August 2015, Elkaim SC DCJ dismissed Mr Kitoko's claim for the reasons which he then delivered. 7. On 14 September 2015, the appellant filed a Notice of Appeal in this Court. The appellant sought to have this Court set aside the judgment of the primary Judge, and substitute a verdict or judgment in his favour. 8. Although the Statement of Claim was originally filed by solicitors acting for the appellant, the appellant represented himself both in the District Court and in this Court. Proceedings in the District Court 1. In the District Court, the appellant gave evidence. With the agreement of counsel for the two respondents, the primary Judge asked the appellant a series of formal questions about his background and personal circumstances. He was asked to describe the events upon which his claim was based. He told the Court that the exit from the shops on Level 1 to the carpark was through glass sliding doors which opened according to a movement sensor. He told the Court that the accident happened between 6pm and 8pm on a Tuesday evening. He said that the floor was made of shiny tiles and described the accident in this way: "A. I was very close to the door, because – I can't remember because I was not going for the purpose of something, I was just going normal … Just normal walk … what I can realise, the door is here. I was going in normally, the idea is to go like that. I was very close to the door when I moved to go to the door. I was close to the door. … It means by the time I was getting close it [the door] was already open. … Q. Then what happened? A. Then before I go to the door like that, I straight away I found that I am in front of the window. Q. So what [did] you hit? Was it the door or was it … A. The window. The door is this one - Q. Alright so there was a door straight in front? A. Yes, and people coming this way, anywhere you can come … Q. So you have got windows on each side of the door? A. Yes. … Q. Are they windows that go from the bottom all the way to the top? A. From the bottom to the top, and they have been clearly write on there MIRVAC, MIRVAC, MIRVAC, so when you are coming you can see the writing. … Q. So you come close to the door and what do you feel happened? A. I did feel I'm already in front of the window with my head, frontal, hit very strongly the window." 1. He told the primary Judge that he hit his head on the right hand side on the window, and that before he fell he was walking normally. He then gave this evidence: "Q. Did you feel anything to make you hit the window? A. After hitting the window, then I found that, I went to look there, so I went back and stand to look now what did happen. Q. Yes, and … A. Then I look I see that it was some material, slippery material on the ground." 1. He then gave a description of where that material was on the floor. He described the slippery material as transparent, covering a small area where he placed his foot. 2. He was asked if he remembered "slipping"; he said that he remembered "moving quickly". He said that when he returned after the accident, he saw that the glass was broken. He said it had shattered like a car windscreen shatters, but that it had not broken like a glass bottle when dropped. 3. He described his injuries and disabilities. He said that his top lip was bleeding a small amount on the inside. It was a small cut under his top lip. Otherwise, he did not notice any injuries. The appellant went on to describe the consequences of his accident. 4. In cross-examination, the appellant was shown CCTV footage taken from inside the Centre looking towards the glass window into which he collided and the carpark outside the exit doors. The appellant agreed that he was the person shown in the CCTV footage dressed in a red jacket and grey pants. He agreed that the CCTV footage recorded the events concerning his accident. It was suggested to him that what the CCTV footage showed was that he had walked into the fixed glass pane without in any way slipping as he walked. He maintained, in substance, that he had slipped. His evidence was imprecise. He said, in answer to a direct question about slipping, this: "I say one of my foot put in the top of material, then you move more quickly to the window." Ultimately, it became clear that the appellant was disagreeing with the proposition that he had simply walked into the fixed glass pane. 1. The CCTV footage was tendered and admitted into evidence without objection from the appellant. 2. After the appellant concluded his evidence, the second defendant obtained leave to interpose Dr Blum, a specialist neurosurgeon who had seen the appellant at the request of the second defendant for the purpose of assessing his injuries and disabilities. In the course of Dr Blum's evidence, some remarks in his initial and subsequent reports about what he observed on the CCTV footage were drawn to his attention because it was clear that his remarks in the second report differed considerably from those in the first report. He was asked to explain how such a change in his observations had occurred. The effect of Dr Blum's evidence was that the video footage which he had watched was not particularly clear, and that when it was played on the second occasion, it was much improved footage. In particular, Dr Blum noted that he did not have two different views of what occurred. 3. After Dr Blum's evidence, the first defendant was granted leave to interpose Dr Francis Harvey, a specialist orthopaedic surgeon. Dr Harvey's evidence related entirely to the appellant's claimed injuries and disabilities. 4. On the following day of the hearing, a number of documents, including medical reports, were tendered by the appellant. The appellant did not call any further oral evidence. In response, the second defendant tendered some further medical evidence, and the form of contract between the second and the first defendant with respect to the cleaning of the Centre. 5. Because of the issue which had arisen with respect to the descriptions given by Dr Blum about the CCTV footage, the second defendant called a solicitor, Mr Julian Conti, who had set out his account of events dealing with the CCTV footage in an affidavit. He was cross-examined upon that affidavit. The effect of his evidence was that he had only ever been provided with a single disc of the CCTV footage, which was obtained under subpoena from the first defendant, and that he had only ever sent one version of that CCTV footage to Dr Blum, which was the version which had been played in Court, and tendered in evidence. District Court Judgment 1. The primary Judge, having described the appellant's background, considered what occurred in the accident. He referred, thoroughly, to the appellant's account of how he had come to hit the glass panel. His Honour noted that the appellant's evidence was that but for the slipping, he would have turned left to go through the open door. His Honour noted that the appellant denied simply walking into the glass panel. 2. His Honour summarised the case on liability for the respondents. In so doing, he noted that it was not part of the appellant's case that the window into which he collided did not have any stickers or markers indicating its presence. This conclusion was consistent with the appellant's evidence extracted at [9] above. His Honour then went on to describe his observations of the CCTV footage, which had been played in Court. 3. His Honour said: "25. I think what can be deduced with clarity from the CCTV is that, contrary to the plaintiff's version, he simply walked into the pane of glass. The use of photographs and other like material, including film, must be treated with a great deal of caution. Applying every measure of caution, however, I cannot reach any conclusion other than that I have just stated." 1. His Honour went on to note that he was satisfied that there was only one disc of CCTV footage, and that Dr Blum was confused when describing what had occurred in his reports. He did not accept the appellant's submission that he should find that the disc of the CCTV footage was in some way a fake. 2. His Honour went on to make these remarks with respect to the appellant: "28. The plaintiff in giving his evidence did not strike me as an overtly dishonest person. I would be very reluctant to regard him as having made up his story. Notwithstanding this, his version cannot overcome the CCTV footage. I can only conclude, giving him the benefit of the doubt, that his version is a rationalisation on his part of what had occurred following him walking into the glass pane and then reacting with shock and surprise, and searching for a plausible reconstruction of what may have happened." 1. His Honour concluded that, accordingly, there should be a judgment for the respondents. 2. Against the possibility that his Honour's conclusion on liability was erroneous, he, very properly, went on to assess damages. His total assessment of damages was $121,750. This was in a context where the appellant's schedule of damages, which had been provided to the Court, exceeded $4M. It is appropriate to note that his Honour had been careful to ensure that the appellant understood that the District Court was a court of limited jurisdiction, and that any judgment obtained could not exceed $750,000. The appellant understood this and elected to continue in the District Court. Appeal 1. The appellant relied on four grounds of appeal. They were as follows: "1 the primary Judge erred in giving reasons for decision having regard to respondents inconsistent evidence as to CCTV footage, and medical reports and conceded statements; 2 the primary Judge erred in failing to consider the appellant's injuries, losses and damages sustained were caused by negligence and/or breach of duty of respondents; 3 the primary Judge's assessment (in relation to non-economic loss, past economic loss, future economic loss, past medical expenses and future medical expenses) was a manifestly less and wholly erroneous estimate of the appellant's damages; 4 the primary Judge erred in failing to consider domestic assistant as claimed by the appellant." (sic) Notice of Motion 1. On 29 February 2016, the appellant filed a Notice of Motion seeking leave, in substance, to adduce further evidence on the appeal. There were three pieces of evidence which the appellant sought to adduce. The first was a letter written by the appellant to the General Manager of the first respondent on 13 January 2011, in which the appellant described his accident and informed the General Manager of the first respondent that the accident had caused him personal injury and significant ongoing disability. 2. In cross-examination at the trial, the fact of the complaint was mentioned in a peripheral respect. One of the challenges to the appellant's credit was mounted upon a change in his first and second names. It was established in cross-examination that, at the time he made the complaint, he was using the name "Eddy Mourad", which was different from the name in which he had commenced this litigation. The appellant agreed that he had used a different name, and went on to give an explanation for the change in name. On appeal, but not at the trial, the appellant sought to tender the letter of complaint saying, in effect, that the contents of it were made relevant by the cross-examination. 3. I would reject the tender of this evidence. First, the evidence was known, and available, to the appellant to tender at the hearing of the proceedings if there was a proper basis to do so. He did not do so. Whilst this failure may be attributed to the fact that he appeared for himself, and was perhaps unfamiliar with proper practice, in the circumstances here where the appellant was provided with considerable, and more than the usual, assistance by the primary Judge, that is not a sufficient justification for the document to now be tendered on appeal. 4. The second and more important basis, however, is that the content of the letter was simply irrelevant to any issue between the parties at the trial and was not properly admissible. The letter contained an account, according to the appellant, as to what had occurred. It was sent about three months after the events. It was not a truly contemporaneous statement given at or about the time of the incident giving rise to the claim. 5. There was no suggestion in the cross-examination of the appellant that the account of his accident which he gave to the District Court was a recent invention which would have allowed the appellant to adduce earlier accounts consistent with that which he gave in the District Court. He was certainly cross-examined to suggest that his account in the District Court was in error by reference to the CCTV footage. 6. The letter was simply not admissible at trial, and there is no basis for it to be admitted now. 7. The other material which the appellant seeks to tender consists of medical reports obtained since the hearing before the primary Judge, together with material downloaded from the internet dealing with descriptions of various medical conditions which the appellant says were caused by his accident. 8. The material downloaded from the internet describing various medical conditions is not admissible. The source of the material is undisclosed. The material is not properly proved, and there is no reason to think that material of that kind could not, if it were thought to be relevant to the hearing, have been obtained prior to the hearing before the primary Judge. The appellant has not established that special grounds exist for the admission of it: s 75A(8) Supreme Court Act 1970. 9. The medical reports which are now sought to be admitted into evidence relate to ongoing observation and recommendations for treatment. They also include a number of estimates of the costs involved in future treatment. Whilst they may be relevant in circumstances where the Court, having been persuaded that the primary Judge's decision was in error, sets about reassessing the appellant's damages, they are not relevant to the argument that the primary Judge erred in his conclusions about the damages sustained by the appellant, and his assessment of those damages. 10. For these reasons I would dismiss the Notice of Motion, and would not allow the appellant to adduce further evidence. 11. It is necessary now to consider the appeal on the basis of the evidence that was before the primary Judge. Grounds 1 and 2 – Liability 1. It is convenient to deal with grounds 1 and 2 together. They address the question of liability. 2. In substance, these grounds complain that the primary Judge erred in rejecting the appellant's factual account as to what occurred, namely that he had slipped and thereby collided with the glass pane and injured himself, and that the trial Judge should have preferred the appellant's factual version and found that the appellant's injuries were caused by the negligence and breach of duty of the respondents. 3. In his submissions, the appellant substantially repeats his factual account of the accident and urges on the Court that his factual account is not contradicted by the CCTV footage. This reflected the submission which had been put to the primary Judge. 4. The appellant submitted that the primary Judge was not correct to rely upon and give weight to the CCTV footage, particularly in light of the apparent confusion in Dr Blum's reports about what he had seen. 5. The respondents submitted that the primary Judge was correct as to how the accident occurred, that the appellant simply had not demonstrated that the accident had occurred as he outlined in his evidence, and that in the actual circumstances of the accident, there was no evidence of a breach of duty by the respondents. The respondents submitted that the CCTV footage was wholly inconsistent with the appellant's account of how the accident occurred, and that it demonstrated two things: first, that the appellant had not slipped before colliding with the glass pane; and secondly, that the accident was entirely the appellant's own fault. 6. In the course of submissions, the Court was invited to, and did in the presence of the parties, view the CCTV footage. 7. The CCTV footage showed the area where the appellant had his accident for a period of just under eight minutes prior to the appellant's accident, and a period of a minute or so after the accident. 8. From my viewing of the CCTV footage, the following can be easily seen in the period leading up to the appellant colliding with the glass pane: 1. the exit from the Centre to the carpark consists of two glass sliding doors, and a single fixed glass pane on either side of the those doors; 2. the two glass sliding doors, when activated by the sensor, slide to the left and right side respectively so that each is positioned across the fixed glass pane, temporarily, to enable people to exit through the doors. After a fixed period, and so long as the sensor beam is not activated, the doors then close; 3. as one approaches the exit to leave the Centre, there are two additional exits to the right hand side along what appears to be corridors. People using those exits are not visible on the CCTV footage, except at the point that they leave the camera's view; 4. in the six minutes prior to the appellant colliding with the glass pane, 21 people are seen to leave the Centre. Fifteen of these people walked directly through the glass sliding doors to the carpark. Another five walked up to a point close to the glass sliding doors and then turned to the right to exit through the corridor leading away from the glass sliding doors; 5. two of the people leaving the Centre through the glass sliding doors are pushing a pram. In the same six minute period, 10 people enter the Centre from the carpark. One of the entrants is carrying a large suitcase; 6. all of those entering or leaving the centre walked in the same general area as the appellant without apparent difficulty. A number, particularly those leaving the Centre by taking a right-hand corridor, walked almost as close to the fixed glass pane as the appellant did. No one leaving the Centre collided with the fixed glass pane, but all were able to leave through the glass sliding doors when they were opened, again without difficulty. 1. The appellant can be seen in the CCTV footage walking towards the glass sliding doors at 19.47.02. He is looking around as he walks. He is not carrying anything. As he approaches the exit, he is walking straight towards the fixed glass pane on the right-hand side of the glass sliding doors. As he comes closer towards that panel, he appears to look to his right-hand side, along the second of the two corridors which leads to an exit from the Centre. He then turns his head to look forward and as he does he collides with the fixed glass pane, which he had been approaching whilst looking to his right. His collision with the fixed glass pane seems to be with his knee and his head. As the collision occurs, he steps to the left and slightly backwards, breaking the sensor beam and causing the glass sliding doors to open. 2. Although it is a little difficult to see, there is nothing obvious in the CCTV footage to suggest that the fixed glass panel shattered or broke in the way described by the appellant in his evidence. The central sliding doors continued to operate. 3. Immediately after the appellant collided with the door, a woman pushing a supermarket trolley walked past him and left the Centre via the sliding glass doors to the carpark without any difficulty. There does not appear to have been any conversation between the appellant and that person. 4. The CCTV footage does not appear to be distorted. There is no reason to think that the view which the Court obtains from viewing the CCTV footage is in any way inaccurate, or liable to be misinterpreted. 5. Having seen the footage, the primary Judge concluded that the appellant "… simply walked into the pane of glass". He was plainly correct. The CCTV footage admits of no other conclusion. The appellant did not slip, he did not fall to the ground, the fixed glass pane did not appear to shatter or break, and there is no reason to conclude that there was any explanation for the appellant's collision with the fixed glass pane other than his own inattention. 6. In those circumstances, it was open to the primary Judge to reject the appellant's account of the facts, and he did not err in so doing. I am of the same opinion as the primary Judge. I should add that it was never the appellant's case that the fixed pane was insufficiently marked or otherwise presented a hazard. Indeed, the appellant in his evidence accepted that the fixed pane was clearly marked. 7. There was simply no basis for any conclusion that such injuries as were sustained were occasioned by any negligence or breach of duty on the part of either of the respondents. 8. The primary Judge's conclusion that the respondents were entitled to judgment was the correct one and the appellant has not shown any error in that conclusion. 9. It follows that neither of these grounds relating to liability succeed. Grounds 3 and 4 1. These grounds are directed to aspects of the claim for damages which the appellant makes. As indicated earlier, the primary Judge, notwithstanding that he had rejected the appellant's claim, nevertheless went on to carefully assess the injuries and disabilities which the appellant claimed resulted from his accident. 2. In light of the conclusion which I have reached with respect to liability, it is strictly unnecessary for this Court to consider these grounds of appeal. 3. However, in deference to the primary Judge's careful analysis, it needs to be said that there is nothing in the appellant's submissions which would cause me to conclude that the primary Judge's assessment of damages was, in any way, erroneous. Conclusion 1. The appellant has not demonstrated any error in the primary Judge's conclusion that there was no negligence on the part of either of the respondents. Accordingly, it follows that the appeal ought to be dismissed. 2. There is no reason provided as to why costs should not follow the event in accordance with this Court's usual approach. Orders 1. I propose the following orders: 1. Notice of Motion filed 29 February 2016 dismissed. 2. Appeal dismissed. 3. Appellant to pay the respondents' costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2016