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. 2. Although there are passages, in the trial judge's reasons which indicate that his Honour understood that the standard of proof required of the appellant was proof on the balance of probabilities, there is a passage at a critical point in the judgment immediately before the statement dismissing the appellant's claim in which his Honour appears to consider that proof to a higher standard was required. 3. His Honour mistook photographs taken about 8 years after the appellant fell to be photographs taken within a few days of her fall. 2 UNREPORTED JUDGMENTS Counsel for Telecom attempted to persuade the Court that the judgment in its favour should stand notwithstanding these obvious errors. In Telecom's submission, even if the evidence of the appellant and her friend was accepted, on the whole of the evidence, including the evidence favourable to Telecom, the appellant's claim must fail. I do not agree. The appellant has quite a strong case that the surface of the ground in' the vicinity of the Telecom pit had been disturbed in the period shortly prior to her fall, and that, as a result, the level of the lid of the Telecom pit was lower than the surrounding ground. The trial judge said: "The disturbed grass within an area surrounding the pit and the state of the grassed area could well have been caused by other things." However, on the evidence, there was no suggestion that work was done by some person or agency other than Telecom, the Council, or the Sydney Water Board. It was accepted by Telecom that the Water Board had not done the work and the evidence established that the Council had not done any work in the area. There was also evidence against the appellant's allegation that work had been done by Telecom. Nonetheless, what evidence there is against Telecom must for present purposes be considered on the footing that it is improbable that any other person or agency carried out work in or near the Telecom pit. Although her case against Telecom is not strong, the appellant is entitled to have her case considered on the basis that, as she submitted below: "Tt is more probable than not that... work was carried out on the pit by Telecom employees." Because of the errors made by the trial judge, that case has not yet been properly considered. In my opinion, the appeal against the Council should be dismissed with costs and the appeal against Telecom allowed with costs. The District Court judgment in favour of Telecom should be set aside and the appellant's claim against Telecom remitted to the District Court for a new trial on all issues. The costs of the first trial should be reserved to the trial judge on the new trial. The appeal against the Council should be dismissed with costs and the appeal against Telecom allowed with costs. The District Court judgment in favour of Telecom should be set aside and the appellant's claim against Telecom be remitted to the District Court for a new trial on all issues. The costs of the first trial should be reserved to the trial judge on the new trial. Counsel for the appellant: B J Gross QC/M Spartaris Solicitors for the appellant: Coode & Corry Counsel for the first respondent: I G Harrison SC Solicitors for the first respondent: Phillips Fox Counsel for the second respondent: P Webb QC/N Floreani Solicitors for the second respondent: Sparke & Helmore