GRASSO v STATE RAIL AUTHORITY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, POWELL and COLE JJA 26 April 1996, 26 April 1996 [1996] NSWCA 228 DISCLOSURE of trial judge's reasons — adequate — finding of absence of negligence upheld. Cole JA The appellant contends that McCredie DCJ erred in his judgment delivered on 18 December 1992 in three respects. First, his Honour erred in failing to state his reasons adequately or at all and that error justifies the intervention of this Court. Second, that his Honour erred in finding the verdict for the respondent when such a finding was against the evidence established by the respondent's case and apparently accepted and adopted by his Honour. Third, that his Honour's findings of fact were contrary to the weight of the evidence to the extent to which they were based upon the Judge's assessment of credit of the appellant's witnesses. The trial Judge's findings are said to fall within the exceptions to the rule laid down in Devries v The Australian National Railways Commission!. In my opinion the first aspect of the appeal has not been made out. The appropriate principles regarding the obligation upon a Judge to disclose his reasons are found in Soulemezis v Dudley (Holdings) Pty Ltd?. McCredie DCJ did in my opinion adequately disclose his reasons. The appellant contended that the respondent was negligent, breaching a duty of care owed to him. The appellant, at the time of the accident a 17 year old school boy, tripped and fell on an escalator owned and operated by the respondent. McCredie DCJ noted that the plaintiff's case was pressed on two bases, first, that the escalator was inherently dangerous in that the gap between the tread and the comb plate was sufficiently wide for the plaintiff's finger to be trapped between the comb plate and the tread; second, steps should have been taken to minimise the gap by welding teeth to the bottom of the comb plate to reduce the gap, by providing an emergency stop switch or by carrying out better maintenance to prevent the allegedly dangerous gap. His Honour noted that the defendant's case denied breach of duty upon the basis, first, that the clearance between the comb plate and the tread was 9.5 millimetres, which accorded with the manufacturer's specifications, and that that gap was both set and maintained by the defendant. Second, that inspection occurred on a frequent basis by competent maintenance engineers and adjustments as necessary were promptly made. Third, that the escalators complied with all statutory requirements. Fourth, accepted evidence showed that thousands used the subject escalators daily over a lengthy period of years and none had their finger caught or otherwise suffered personal hurt in the same or similar manner to the plaintiff. Fifth, that the proposal advanced by the plaintiffs that the lift be replaced would cost three million dollars. 1. (1993) 177 CLR 472 at 479. 2. (1987) 10 NSWLR 247 per Mahoney J at 268 to 274. 2 UNREPORTED JUDGMENTS The trial Judge accepted the evidence establishing the defendant's contentions. Upon the basis of those findings, his Honour rejected the plaintiffs claim in liability, obviously rejecting the contention that a gap of 9.5 millimetres in the circumstances referred to was a breach of the duty owed. His Honour additionally rejected the appellant's witnesses' evidence of alternative measures to reduce that gap. In my opinion in those circumstances it cannot be said that the trial Judge did not adequately disclose his reasons for finding as he did. The first matter argued on appeal thus fails. For similar reasons to those I've stated, the second and third matters argued also fail. It was open to the trial Judge to find that in the circumstances of extensive usage over a lengthy period of time without accident of the type which occurred it was not negligent to retain a gap between the comb plate and the tread of the dimension found. There may have been evidence before his Honour which might have permitted a different finding. However, the question of fact was one for the trial Judge and involved an assessment, not only of empirical evidence but of witnesses. McCredie DCJ rejected the witnesses called on behalf of the plaintiff appellant in relation to negligence. Accordingly the trial Judge's finding of fact must stand for it has not been demonstrated that the trial Judge either failed to use or misused his advantage or acted upon evidence which was inconsistent with facts incontrovertibly established by the evidence or which were glaringly improbable. Quite apart from the trial Judge's rejection of the appellant's technical witnesses, properly understood his Honour accepted the evidence of the respondent's witnesses as a separate aspect and that was sufficient to ground his decision. The finding that the gap of 9.5 millimetres was properly maintained in accordance with the manufacturer's specification and without hurt to thousands of users over many years in my opinion negates success to any challenge based upon the ground that the finding was against the weight of the evidence. Accordingly each of the second and third matters argued fails. I would add this. There had to be a gap for the escalator to operate. The question of the extent of the gas involves a question of judgment. There was evidence to establish that reducing the gap could injure children. It was clearly open to the trial Judge to accept evidence that not reducing the gap, bearing in mind the experience of thirty years, was a reasonable response to the slight risk of injury to an adult which may have been reduced by reducing the gap. In my opinion the appeal should be dismissed with costs. Priestley JA I agree generally with what has been said by Mr Justice Cole. Additionally, the appellant's case seems to me to raise the question of the reasonableness of the respondent's installation and continued use of the escalator in question, of the respondent's methods of servicing the escalator and of the safety standards maintained by the respondent. On the basis that the trial Judge did not accept the evidence of the appellant's expert witnesses for reasons which seem to me to have been perfectly justifiable and progressing then to the evidence given by the expert witnesses and other witnesses for the respondent, it seems to me that even on the most favourable view to the appellant of that evidence of the respondent, the respondent's overall performance in relation to the escalator as appears from the evidence was one reasonable in the circumstances and reasonable in a way that to my mind fully URJ GRASSO v STATE RAIL AUTHORITY (Powell JA) 3 justified the trial Judge's conclusion that the appellant had not established on the material at the trial any breach of duty on the part of the respondent. I therefore agree that the appeal should be dismissed with costs. Powell JA For the reasons given by Mr Justice Cole and Mr Justice Priestley in their respective judgments, I agree that the appeal should be dismissed with costs. PRIESTLEY JA: The order of the Court therefore is that the appeal is dismissed with costs. Counsel for the Appellant: DA Wheelahan QC/E Romaniuk Solicitors for the Appellant: Lyons and Lyons Counsel for the Respondent: B Morris Solicitors for the Respondent: Dexter Healey and Co