NOE v HAWKESBURY SHIRE COUNCIL AND ANOR [1998] NSWCA 160

NOE v HAWKESBURY SHIRE COUNCIL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and POWELL JJA and FITZGERALD AJA 6 October 1998, 15 October 1998

[1998] NSWCA 160

NEGLIGENCE — personal injury — new trial on all issues ordered in circumstances where trial judge took impermissible approach to evidence — mis-stated standard of proof to be applied and was mistaken as to date of photographic evidence.

Priestley JA I agree with Fitzgerald AJA. Powell JA I agree with Fitzgerald AJA.

Fitzgerald AJA An unsuccessful plaintiff has appealed against the dismissal of her District Court action alleging that she was injured by the negligence one or other or both of the respondents, the Hawkesbury Shire Council (the "Council") and the Australian Telecommunications Commission ("Telecom"). A new trial is sought on both liability and damages.

The appellant's case was that, as she and a friend were walking along a grass footpath, she stepped into a lower section of the footpath, fell and was injured. At the material point on the footpath, the cover of a Telecom pit was about 80 mm lower than the surrounding grass. The trial judge correctly held that "... there is no evidence... that Council workers carried out any repair or other work to the area of the footpath". The evidence was strongly to the contrary. In these circumstances, the appeal against the Council must fail.

It is necessary to refer briefly to three fundamental errors in the trial judge's reasons in considering the appellant's claim against Telecom.

1. His Honour was critical of the accuracy and truthfulness of the appellant and the friend with whom she was walking when she was injured, who gave evidence supporting the appellant's case. That caused him to reject the appellant's claim that she was injured "at the site of the Telecom Pit or at the edge, or nearby". However, that matter was not in dispute. The appellant and her friend had not. been cross-examined on the point, and, in his submissions, counsel for Telecom expressly stated that he did not contend that the appellant had not fallen as and where she claimed. It was plainly impermissible for the trial judge to disbelieve both the appellant and her friend on the issue in those circumstances, implicitly suggesting that they had lied and conspired to defraud the Council and Telecom and pervert the course of justice.