HRONIS v KOGARAH MUNICIPAL COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, POWELL and COLE JJA 17 February 1995, 17 February 1995 [1995] NSWCA 201 Personal injury — no question of principle Clarke JA The Court is in a position to give judgment. I will ask Cole JA to give the first judgment. Cole JA. The appellant Peter Hronis suffered an injury on 27 August 1981. He did not commence proceedings until May 1988. The injury was said to have been suffered when Mr Hronis, accompanied by some friends, went to a park within the control of the Kogarah Municipal Council to play football. He fell and injured his elbow. The appellant's case was that he had injured it on a cut-off pipe which was embedded in the ground. The evidence accepted by the trial judge was that the pipe was of a jagged nature and its top-most surface was about two inches in diameter and was protruding from the ground not more than approximately five millimetres. The pipe at the time was covered by grass. Having suffered the injury, the appellant and his friends then sought to discover the cause of the injury and, apparently, they took some significant time before they found what was said to be the pipe which caused the injury. The claim brought by the appellant was based upon the circumstance that the park was in the care and control of the respondent Council. Negligence was sought to be established in circumstances where there was no direct evidence at all as to how long this pipe had been in the ground, who had put it there, or how it had come to be there. The fact, however, that it was covered by grass and thus was not visible to the naked eye meant that it had been there for some time, although that time was indeterminate. Absent direct evidence of how long the pipe had been there, or who put it there, the appellant was forced to rely upon the drawing of inferences in his favour to establish negligence. There was evidence before the trial judge that there had been regular weekly inspections of the park carried out by appropriate council officers. There was no evidence regarding the adequacy or inadequacy of those inspections and the appellant sought to draw the inference that because the injury occurred by contact with the pipe, the consequence was that those inspections must have been inadequate. That was not an inference which the trial judge drew. The proposition has some difficulties in the circumstance that the appellant and his friends took some considerable time to locate the pipe which was said to be the cause of the injury. The reality was that this pipe was not able to be detected without a detailed search by a number of people after its presence was suspected following the injury. The appellant sought to establish negligence by the respondent council by suggesting that the pipe may have been, first of all, put there to permit posts or pegs to be inserted into the pipe to mark the perimeter of the netball fields, his 2 UNREPORTED JUDGMENTS Honour having found the pipe was approximately on the boundary of the netball field, which field was marked out by paint marks on the grass. Secondly, it was suggested that the pipe may have been cut off at ground level by the respondent either as a deliberate act or in some other occasional fashion. Thirdly, it was suggested that the pipe may have been damaged and thus achieved its jagged edge by coming into contact with a turf spiking process carried out by the council from time to time in the park. Fourthly, it was said that the council should by its methods of inspection have found the pipe. There was no evidence at all of any of the first three circumstances. Indeed, the evidence suggests to the contrary, or at least does not support the drawing of any inference that council put the pipe there, or that it cut it off, or had damaged it. The reality is the circumstances in which it came to be there are simply unknown. In so far as it was contended that the inference should be drawn that it was placed there by council for the purpose of permitting net-ball court markings, the evidence is that the boundaries of the netball courts were marked by paint. The only evidence which may support such a proposition is some hearsay evidence of the plaintiff who said, "Well there was a steel pole there where I hit my elbow and which I heard were like markers. They used to put steel holes inserted into the ground and when they used to have a netball game they used to put the flags in to indicate the half way or boundary line." Mr Mikos speculated that the pipe which he saw was "much like" a netball court post cut off. He did not say that it was. There was no evidence that pipes were placed in the ground for the purpose of marking out the boundaries of netball courts and, indeed, Mr Miles gave evidence that in the preceding eleven and a half years he had been a supervisor, that had not occurred. Accordingly the submission that the pipe was one of a number presumably put there to mark out netball courts is, in my view, simply speculation. Regarding the proposition that the pipe had been cut off by council, there was simply no evidence of that at all. The only evidence is that to which I have referred of Mr Mikos who suggested it was much like a netball court post which had been cut off. There was no evidence of any other similar pipes to mark out the net-ball court and, indeed, the evidence was that the netball posts which were in this park were permanent. Regarding the contention that the jagged edge of the pipe could have been caused by coming into contact with the spiking process of aerating the park, that evidence in fact related to damage which might be caused to pipes buried some four to six inches into the ground which, in other parks, were put there for the installation of football posts during the winter-time. In any event speculation as between possible cause of the jagged end of the pipe said to have caused this accident does not permit or require any inference to be drawn either as to the time when the pipe had been put there, or that it should have been noticed by council officers who were conducting other maintenance inspections or were mowing the grass of the park. A further submission was put that there was an absence of proper inspection, or that an inference should be drawn that there was an absence of proper inspection. The evidence is clear that the grass at the time of the accident was above the pipe which, as I have said, simply protruded something less than five millimetres above ground level. The park was regularly mowed. The fact that the appellant and a number of his friends required to conduct a detailed search to find URJ HRONIS v KOGARAH MUNICIPAL COUNCIL (Powell JA) 3 this offending pipe is, in my view, indicative that it would be unlikely and indeed unreasonable to require any person, either mowing such area or inspecting it to perceive any likely dangers, to have found the offending pipe. In those circumstances it seems to me that the inference of negligence which the appellant sought to have drawn were not inferences which were necessary to be drawn by the trial judge and, in my view, the appellant should fail because the evidence as presented by him left the matter within the realm of speculation as to the circumstances in which the pipe came to be in the ground, in circumstances where it was not unreasonable that the council carrying out reasonable inspections would not become aware of the presence of this pipe. It was also alleged that the respondent council failed in a duty to warn the appellant of this unknown pipe. Absent any basis for a finding that the council knew, or ought reasonably to have known that there existed unobservable danger, no basis has been made out that the council should by notice have warned persons such as the plaintiff of such unknown and reasonably unforeseen dangers. For those reasons in my opinion the appeal should be dismissed. There was also agitated before this Court the proposition that the trial Judge erred in not permitting the appellant to reopen either to call further evidence in chief or by way of reply, in relation to the nature of council inspections. That was a topic which was addressed in the evidence in the main hearing. The main hearing concluded on 25 October 1990. The application to reopen was made on 20 November 1990. As the evidence sought to be led, had the application to reopen been granted, had been the subject matter of both examination and cross-examination, it was in my view clearly within the discretion of his Honour to reject the application if he thought that was appropriate. When the application to reopen was made almost a month later on 20 November 1990 it was made after the appellant had indicated to his Honour on 25 October 1990 that there was no case in reply, and after his Honour had heard counsel's addresses and reserved his judgment. The circumstance that leave was given to call brief additional evidence in relation to out of pocket expenses does not detract in my view from the discretion which is vested in his Honour to determine whether he should, in all the circumstances, grant leave to reopen. That is not a decision which in my view this Court should interfere with. In those circumstances I would propose that the appeal be dismissed with costs. Clarke JA I agree. Powell JA I also agree. Clarke JA: The order of the Court is the appeal is dismissed with costs. COUNSEL: Appellant: M Joseph SC Respondent: C K Stewart SOLICITORS: Appellant: Jordans Respondent: Michell Sillar