COURTENAY v PROPRIETORS STRATA PLAN 12125 [1998] NSWCA 64

COURTENAY v PROPRIETORS STRATA PLAN 12125 SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and BEAZLEY JJA 23 September 1998, 30 October 1998

[1998] NSWCA 64

NEGLIGENCE — TRIAL IN DISTRICT COURT FOLLOWING ARBITRATION — REFERENCE TO WHAT HAPPENED AT ARBITRATION

NEGLIGENCE — TRIAL IN DISTRICT COURT FOLLOWING ARBITRATION — REFERENCE TO WHAT HAPPENED AT ARBITRATION — The appellant, when walking on the respondent's driveway, fell and broke her leg — she commenced proceedings — for damages arising out of the respondent's negligence — issues arose as to where exactly she fell and the slippery nature of sections of the driveway — the trial judge, in dismissing the appellant's case, found that the appellant fell on a higher, non dangerous area of the drive and that she had changed her case because of evidence given by the respondent's witnesses at an arbitration hearing prior to the trial.

In her appeal it was submitted that the trial judge had misunderstood some basic factual matters, and that this had been contributed to by his impermissibly taking into account matters that had occurred at the arbitration.

Held:

1. The submissions concerning the trial judge's factual misunderstandings should be accepted. These, when taken all together show:

(a) a failure to use the advantage a trial judge has; and

(b) an inaccurate use of the evidence resulting in conclusions on principal issues that conflicted with facts which, on the evidence, had been incontrovertibly established;

Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472;

2. Pursuant to the Arbitration (Civil Actions) Act 1983 s18(3), the trial judge should not have allowed questions concerning what the plaintiff had heard at the arbitration hearing; Najdanovic v Brown (unreported, Finlay J, 22 September 1992), MacDougall v Curlevski (1996) 40 NSWLR 430;