Kinnell v Connelly & Anor

[2007] NSWCA 17

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › General principles
3. › Appellate intervention
4. › Credibility findings
5. › Whether errors in one part of judgment taint credibility findings on separate issue
6. › Whether mere presence of error sufficient to vitiate credibility-based finding
1. Appeal
2. › General principles
3. › Appellate restraint
4. › Findings based on demeanour
5. › Fox v Percy principles
6. › Whether trial judge required to expressly state reliance on demeanour
1. Evidence
2. › Credibility and weight
3. › Alleged admission
4. › Denial of admission
5. › Unchallenged sworn testimony
6. › Whether tribunal of fact bound to accept unchallenged testimony
1. Negligence
2. › Essentials of cause of action
3. › Breach of duty of care
4. › Slip and fall
5. › Adjustment of door closing mechanism
6. › Whether change to door mechanism without notice constituted negligence

Quick Take

A credibility-based finding is not vitiated by the mere presence of error in another part of the judgment, even where the error goes to the very matter at issue in the relevant part of the trial; the question is whether the error played a decisive part in the judge's assessment of credibility. A trial judge need not expressly state reliance on demeanour for the Fox v Percy principles of appellate restraint to apply; it suffices that demeanour assessment must have entered into the equation.