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; 3. A new trial should be ordered; judgment for the appellant could not be ordered because the respondent could justifiably complain that there had never been a proper trial of its case and further, the issues on contributory negligence could not be adequately assessed simply on the appeal papers. Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472; MacDougall v Curlevski (1996) 40 NSWLR 430 Najdanovic v Brown (unreported, Finlay J, 22 September 1992) Arbitration (Civil Actions) Act 1983 s18(3) Priestley JA The appellant in this appeal is Mrs Courtenay who was the unsuccessful plaintiff in an action tried in the District Court in August 1996. The trial arose from events of 27 May 1989, which resulted in the plaintiff suing Proprietors of Strata Plan 12125 (the defendant) for negligence. On that day while walking over common property of the defendant to visit two friends in one of the Strata units, the plaintiff fell and broke her leg. 2 UNREPORTED JUDGMENTS No-one saw the plaintiff fall. A number of people saw her soon afterwards. She was taken to hospital by ambulance. The first hospital record shows she arrived at 3pm and was first seen by a doctor at 4.15pm (AB 141). The same first hospital record notes: "Slipped down wet concrete driveway. Injured left lower leg. Heard a big crack. Unable to walk since." The same information is recorded in almost identical words on the following sheet of the hospital records (AB 142). The plaintiff's tibia and fibula were broken. She was operated on and was in hospital for some days. There are permanent after effects. While in hospital the plaintiff was seen by the Hospital's Physiotherapy Department on 29 May 1989. The treatment sheet records "slipped on wet concrete driveway" (AB 158). On 26 August 1992 a number of photographs were taken of the driveway, partly for the purpose of showing where the plaintiff fell (AB 50). In one, she is sitting (Ex 1, No 4A - No 12 is an enlargement - AB 233, 236) and in another standing (Ex 1, No 11, AB 236) at the place where she said her fall had happened. On 12 January 1993 Associate Professor Morton of the Department of Applied Physics at the University of New South Wales went to the home units together with the plaintiff in order to inspect the driveway (AB 171). In his Report dated 17 January 1993 he said that the purpose of the inspection was to measure the slipperiness of driveway surfaces and to enable him to provide "an opinion as to whether there were features which might have presented a danger to users in the circumstances understood to have prevailed" on 27 May 1989 (AB 174). While Professor Morton and the plaintiff were at the site she showed him the path she had taken across the driveway. Professor Morton marked this path in red on Figure 3, a photograph annexed to his Report (AB 187). The photograph and the red line marked by the Professor showed that, looking at the driveway from its top, the plaintiff had entered on it on its righthand side and had crossed it diagonally going downhill towards its bottom lefthand corner. There was not subsequently any argument about the general direction of the plaintiff's path. There was an issue about where it ended and she fell. Professor Morton had marked this on Figure 3 with a red X. He also put a red X marking the same spot on Figure 4 (AB 187) which was a closer up photograph of the bottom part of the drive. In evidence at the trial Professor Morton said that while they were at the site the plaintiff had told him where it was she had fallen and that he would have put the red line, arrow and cross on Figure 3, and the red cross on Figure 4, a few days afterwards, after he had had the photographs developed, based on his recollections of the plaintiff's instructions on site (AB 63 line 25, line 15). Figure | in Professor Morton's Report was a sketch (not to scale) of the general layout of and near the accident site (see below) (AB 186). The driveway the plaintiff walked down is the left one. The sketch helps in understanding the argument at the trial about the exact spot where the plaintiff had fallen. The roughly triangular patch between the driveway, the path and the footpath, the lowest point of which touches the circle labelled "Accident site" was a flower bed with a rockery border on its path side standing a little higher than the path. On the driveway side the garden bed was a little lower than the level of the driveway. The edge of the driveway formed one border of the garden. On the driveway parallel with its edge and a small but unmeasured number of Mrs Courtenay's Accident cies Driveway NE FIDDDO SCA OLOS, MVS REAESS AES ace, SAAS Yl: Unit bi NN URJ COURTENAY v PROPRIETORS STRATA PLAN 12125 (Priestley JA) 3 centimetres into the driveway from its edge was a narrow, shallow, dish drain (see also the Survey, part of Ex A, AB 223). Professor Morton's conclusions were, in summary paraphrase, that: the gradient of the driveway was excessively steep; it was dangerous for pedestrian purposes; and there were remedial measures readily available which would have been effective to guard against the dangers for pedestrians created by the driveway (AB 182-183). On April 6 1993 an investigator visited Mr and Mrs Logan who lived in a unit in the home unit block (AB 88-89). Mr Logan was then eighty-one and retired (AB 238). He had died by the time of the trial. Mrs Logan's memory at the trial was that the investigator had interviewed her husband and her together for a long time, "nearly all day I think" (AB 89). In Mr Logan's statement (AB 238) he said: his wife and he had visitors, all sitting at the dining room table when they heard a female scream; they all got up and went out to the balcony and saw a girl lying with her head on the driveway and her legs across the flower bed, parallel to the building alignment, her head at least two metres from the end of the driveway; when he looked over the balcony he saw a neighbour, Shirley Harris, attending to the girl; it was not raining at the time; he was not able to recall if it had been raining; he had never noticed any moss growing on the driveway; his wife had read the statement and agreed with everything he had said. Parall of the statement was as follows: "The investigator has indicated to me a patch on the driveway which is directly below the overflow drain pipe protruding from my balcony. The investigator has advised that this patch has been identified as moss and he further advised that the girl has told him that this is where she slipped and fell. This location is at least one metre away from where I saw her laying. I do not believe she slipped in the location she has identified." (AB 239) Later in 1993 the plaintiff commenced her action in the District Court against the defendant. In her particulars of claim she alleged that on 27 May 1989 she "was walking down [the] driveway... when she slipped on the said driveway". The particulars of negligence were, in summary, that the slope of the driveway made it dangerous and there was neither any sufficient warning of the danger nor other measures such as a hand railing, steps, adequate non slip coating, or other precaution taken to avoid foreseeable risk to users of the driveway. It seems that the action was referred for determination pursuant to the Arbitration (Civil Actions) Act 1983 (the ACAA), and, in 1996, determined by an arbitrator. It also appears that pursuant to the provisions of the ACAA an order for the rehearing of the action was made, thus bringing the proceedings before the District Court to be determined by a judge. $18(3) of the ACAA then provided that in those circumstances "the action... shall be heard and determined in the court as if it had never been referred to an arbitrator". The action came on for hearing before his Honour Judge Christie on 26 and 27 August 1996. It was decided by him on 13 September 1996, when he dismissed the plaintiff's claim. In her evidence in chief the plaintiff described how she had walked diagonally downwards across the driveway and was asked what happened next. She replied: "A. As I got to a point about half a metre or a metre out from the edge - the left hand edge of the driveway there's a garden there, and sort of that side and about a metre or two metres from the brick pillar at the bottom there - about a 4 UNREPORTED JUDGMENTS metre or two up above that my left foot - my left heel, as I was walking my left heel skidded out from underneath me and I fell backwards, onto my bottom and my back. Q. As you did so did you feel anything happening with your legs or either of them? A. Yes. As I fell my left heel caught in something which I think is a little drainage channel or something, a little tiny ditch at the side of the driveway, I think my foot caught in there and as it - it brought me to an abrupt stop and I think the pressure of my body bearing down my left leg broke, I heard a loud crack. Q. You head a loud crack, and did you feel anything at that point in time? A. I felt some pain and odd sensation I think." (AB 18) She was then asked to look at some of the photographs which had been taken in August 1992, (those numbered | to 4 became Ex D) and was asked whether she could indicate the point at which she recalled being when she slipped. She said "I can indicate an approximate spot" and was then asked to mark with a red cross approximately where she was when she fell. She then marked a red X on photograph 3 of Ex D. This red X does not appear to be as near to the bottom of the drive as the red X which Professor Morton had marked on the photograph annexed to his Report as Figure 3. Continuing her account in her evidence in chief, the plaintiff then described where she was lying after her fall: "A. I was lying diagonally with my head further up than my body, so I was lying sort of down the driveway. Probably just underneath the corner of the garden with maybe my legs - my feet just over onto the path. Q. Do you have an accurate recollection do you think about where your body was in relation to the driveway, the garden, the pillar and the pathway? A. I don't know how accurate it is." (AB 20) She then said that a man she had seen getting into his car just before she starting going down the driveway came to help her. She was not able to say how long it was after she had fallen that he came, but she said "probably before a minute was up" (AB 20). She asked him to get the two friends she had been going to visit. He left, the friends came, and then another woman, then an ambulance, and she was taken to hospital. In cross-examination the plaintiff was asked a number of questions about her exact position when she fell. She said she was not absolutely certain of the details. She was then closely questioned about whether she had attempted to move after she fell. She said she thought she probably rolled her left leg so that it came next to and perhaps partially resting on her right leg (AB 48). When asked whether that was the only movement she made after she fell she twice said she did not know. When it was suggested to her that when somebody came to attend to her she was lying on her right side she said she did not know (AB 48). A point counsel for the defendant appears to have been trying to establish in cross-examination was that where the plaintiff had fallen there was no moss on the driveway. He also seems to have been working on the basis that there was moss at about the point marked by Professor Morton with the red X on Figure 3, but that higher up the driveway there was none. Accordingly the cross-examiner was seeking to obtain admissions from the plaintiff that she had been higher up the driveway when she fell than she was saying in her evidence. Counsel, continuing to try to get the witness to pinpoint where it was she fell, then asked: URJ COURTENAY v PROPRIETORS STRATA PLAN 12125 (Priestley JA) 5 "Q. On photograph number 3 of exhibit D, you' ve marked with a red cross the point that which you say that you slipped, do we take it that the centre of that cross where the lines intersect is the point of which you say your foot was on the surface of the driveway when it shot out from under you? A. No it was somewhere in that vicinity." Further along in the cross-examination counsel came to what he claimed was the significant difference between the location of the red X in Professor Morton's Figure 3 and the red X the plaintiff had marked on photograph 3 of Ex D. She was shown a black and white photostat copy of Figure 3 and was asked: ".. that cross is the location of which you suggested to Mr Morton, was where you had slipped isn't it? A. No, I don't think so, I think it was further up, I didn't draw that line in. Q. Well when that report had been prepared for Mr Morton it was provided to your solicitors and stated in it that that was the indication that had been provided by you wasn't it? A. Probably, I think it was further up though I slipped on the driveway." (AB 54) The judge then asked a question which shows that at that stage he had not clearly separated in his mind the two separate occasions, August 1992 when the plaintiff herself took some photographs and January 1993 when Professor Morton took some photographs: "HIS HONOUR: Q. I don't think he's asking you whether it was further up, he's asking you whether that was the spot that you provided for Professor Morton, that is whatever you told Professor Morton as at August '92 as distinction that — A. I don't recall saying that spot, no." (AB 54) A little later, in cross-examination by counsel for the defendant, the following appears in the transcript: "Q. You gave evidence in an arbitration in relation to this matter didn't you? A. Yes. OBJECTION. QUESTION ALLOWED." In my opinion this question should have been disallowed, because of s18(3) of the ACAA. I will give further reasons later. The question having been allowed, the cross-examination continued: "FAGAN: The witness did answer yes. Q. You have never at any time suggested - you're aware now that two residents of the apartment block are Mrs Logan and a Mrs Harris say that you where you were observed to be lying after the fall was across the garden bed, the V shaped intersection of it, somewhere near the point where it intersects with the edge of the driveway, aren't you? A. Yes. Q. And I suggest to you that it is only since you learned that that's what those persons contend that you have asserted that you slipped at a point further up the hill? A. No. Q. Further up the hill than the point indicated by the cross at p17 of Mr Morton's report? A. The cross indicated on Professor Morton's report is further down the hill, yes. 6 UNREPORTED JUDGMENTS Q. And you have only suggested that your point of slipping was further up the hill towards the intersection of the garden bed with the edge of the driveway, since you learned that those residents of the apartment block say that that's where you were after the fall? A. No. Q. You' ve tried to reconstruct the location of your foot slipping to fit in with other evidence of whereabouts you were observed to be lying after the fall? A. No. Q. And you don't really have a recollection of whereabouts your foot slipped, do you? A. Yes I have a very good recollection." (AB 54-54) A little later it was suggested to the plaintiff that what had happened was that near the bottom point of the garden shown on the plan in Figure 1 of Professor Morton's Report (between the path and the driveway) the plaintiff had stepped over the garden bed and stumbled in some way on the uneven surface of the edge of the driveway in the vicinity of the rocks, the reference to rocks apparently being a reference to the rockery border of the path. The plaintiff said "No" to this suggestion. A little later she was asked this: "Shortly after the accident had occurred, did you ever suggest to either Miss Kerr or Miss Cunningham [the two friends the plaintiff had been going to visit - Miss Kerr later became Mrs Bradley] that you had stopped to step over the ridge at the edge of the driveway onto the pebblecrete path and that your foot had slipped, your left foot when you'd placed it down on a mossy area at the base of the rockery? A. No. Later she was asked whether she had suggested to either of her friends either within days or even weeks after the accident that she had slipped when she was stepping from the driveway down to the pebblecrete path. Her answer was no. In re-examination, counsel for the plaintiff, having failed in his objection to the questions in cross-examination referring to the arbitration, obtained from the plaintiff the information that the arbitration had been earlier in 1996 and that it was only at the arbitration that she had become aware that residents in the units had expressed views as to where she was lying after she had fallen. The next witness was Professor Morton. Some parts of his cross-examination are relevant to the appeal. The first such part is as follows: "Q. Well now going back to p1 of your first report you state that she, referring to Mrs Courtenay, says she slipped on what now seems to have been a patch of moss or other organic growth on the concrete surface. Does that mean that on the day that you went there with her she pointed to the area of what appeared to be moss or organic growth and said, this is where I slipped, or words to that effect? A. She pointed to an area of the drive as being the place at which she said that she slipped. It was my observation that at the time of my inspection there was moss present. She did not say to me, I slipped on the patch of moss, if that is what you're implying." And then a little later: "Q. Would you look at p5 of your report under the heading 4.2, the first paragraph, you've described the patch within which the accident site is located referring to figures 3 and 4 and you state, I am assured by Mrs Courtenay that she believes a similar patch was present at the time of her accident and was no URJ COURTENAY v PROPRIETORS STRATA PLAN 12125 (Priestley JA) 7 smaller or less well grown at the time. Now is that something that she conveyed to you in writing orally on the day when you were out there with her? A. It would have been orally on the day that we were there. Q. On the day when you were there there was only one moss patch that was evident on the surface of the driveway at about that location, wasn't there? A. In that corner, yes there were other moss patches on the drive, a distance of a couple of metres or so away. Q. Further across to the left as one looks up the drive? A. Yes that's right. Q. You decided to check the frictional properties of cleaner areas of the concrete? A. Yes I did. Q. You found an area where the slope of some apparently moss free concrete was conveniently the same as the mossy area that Mrs Courtenay had indicated as being the accident site? A. Yes it was in a position perhaps half a metre to the left of the mossy patch and where the surface was of a similar characteristic as well. Q. So it was a fairly rough concrete but without any moss evidently growing on it? A. Yes that's a fair description, yes. Q. And that rough concrete at that slope of 12.5 degrees you found to have a sufficient coefficient of friction such that when a person walked upon it with shoes such as Mrs Courtenay was wearing it would be safe against slipping? A. For those shoes, yes. Q. Wet or dry? A. Yes. Q. So that if there was any danger just in the steepness, the gradient of the driveway for areas of concrete wet or dry which had no moss on them, the danger was not a danger of slipping but a danger of tripping or stumbling by reason of steepness? A. Given that a person was wearing shoes of the high intrinsic grip that Mrs Courtenay was wearing, yes. FAGAN: Q. So far as you're concerned the steepness of the slope coupled with an area of moss on which there is a considerable change in coefficient to friction from the concrete unaffected by moss to the mossy area, that is the danger? A. When I made my measurements in fact the presence of the moss as such in fact did not produce a huge change in coefficient to friction. The difference was more between the clean concrete in the wet state and the mossy concrete in the wet state. It needed a combination, as I did it and at the time of my measurement it needed a combination both of the presence of moss and of moisture to create the extreme slipperiness." (AB56-57) In re-examination Professor Morton was shown photographs numbered 2 and 3 in Ex B (taken in 1996) and said that photograph 2 particularly "has the clear impression that the amount of aggregate exposed on the lefthand side is more than on the right, but I can't say that I recall that from personal observation." He was then asked: "Q. If it is so, if it were so in 1989 that is less aggregate in the area on the right hand side of photograph 3 can that have an impact upon the amount of slipperiness of the concrete? 8 UNREPORTED JUDGMENTS A. Yes it can. Q. Does it increase it? A. In the wet condition, yes. Q. Now do you also see that in photographs 2 and 3 there appear to be suggestions of striations at an angle across the photograph from top left to bottom right, do you see? A. Yes indeed. Q. Is that the sort of thing that occurs when concrete is exposed to running water over a period of time? A. In my experience, yes." (AB 68) After Professor Morton, another expert was called in the plaintiff's case. He was Dr Palmer, a consultant in biology and a Visiting Professor at the School of Biological Science at the University of New South Wales. He had been trained as a professional botanist with speciality in plant growth and had worked in that area of expertise for thirty years. He had prepared a report dated 3 June 1996 (part of Ex A, AB 206-222) in answer to a request to collect plant samples from sites on the driveway, to identify them and to comment. He had visited the site on 25 and 29 May 1996. He had collected samples from three areas in that part of the driveway near where it met the pebblecrete path at the bottom end of the rockery garden. The three areas were close together. (They are shown in the first attachment to his report, in a photograph and overlay) He found plant growth in each area. In the uppermost area the growth was predominantly lichen with some microscopic filamentous and unicellular green algae. The growth in the middle area was predominantly microscopic filamentous and unicellular green algae with small amounts of lichen. The growth in the lowest of the three areas was the same as in the middle area. Despite the difficulties later mentioned of drawing inferences with any confidence, merely from photographs, of the precise location of sites on the driveway specified by witnesses, I think it is reasonably safe to say the middle area in Dr Palmer's photograph and overlay is much the same area as the plaintiff is shown sitting in in photograph 4A in Ex 1, taken on 26 August 1992 to show where she fell. (The original photographs and overlay need to be looked at for this assessment.) Dr Palmer's report described the conditions favourable to the growth of lichen and green algae. In particular, periods of wet weather or frequent showers would promote the growth of both the lichen patch and the algal patches but the algal patches would respond much more quickly than the lichen (AB 212). Based on information that rainfall had been heavier in the months preceding the plaintiff's accident than it had been in the months preceding his inspection, Dr Palmer was of opinion that both the lichen patch and the algal sites would have been greater in density and thickness in May 1989. He also said that the thicker the algal mat, the more slippery it became underfoot. His oral evidence added little to what was contained in his report. One thing that emerged was that the use by most of the witnesses including Professor Morton of the term moss was probably incorrect, at least in botanical terms. Dr Palmer said there was no moss growth in the driveway; what was there was either lichen or algae. It seems likely that what the witnesses who said they had seen moss were describing was what Dr Palmer called algae, although it may be that some witnesses used the word moss to describe lichen also. These ambiguities were not cleared up at the hearing. URJ COURTENAY v PROPRIETORS STRATA PLAN 12125 (Priestley JA) 9 The next witness in the case for the plaintiff was Mrs Bradley (Miss Kerr at the time of the accident). She said she and Miss Cunningham went to help the plaintiff after hearing something over the intercom in her unit. When she saw the plaintiff she was lying at the end of the garden bed. She said the garden bed became a V where it finished and the plaintiff was lying just past the end of that. Her head and the top half of her body were on the driveway and the rest of her, legs and feet on the path (AB 75). Asked what she noticed about the area immediately beneath the plaintiff she said that around the pebblecrete (the footpath was pebblecrete) "in the corner was quite mossy sort of wet, damp there" (AB 76). She said she did not recall noticing anything on the driveway. In cross-examination Mrs Bradley was asked about a signed statement she had given to an investigator in April 1993. She had marked on photographs shown her by the investigator the position in which she had seen the plaintiff lying. Those photographs became Ex 2. She was then asked about what the plaintiff had said to her about how the accident had happened. She replied that on the day the plaintiff had not said anything other than that she had slipped (AB 79 line 15). She said that later she had had general discussions with the plaintiff and the other people who had been there to work out how the plaintiff might have slipped (AB79 para25-paraS 1). Eventually some parts of the statement she had given to the investigator were put to her, leading to the following evidence: "A. Like I say I can't remember exactly the conversations, it was a long time ago and I'm thinking that perhaps it's more you know after an accident you sort of get together and try and be amateur detectives and work out what happened. I can't say definitely. Q. Did she tell you that she placed her left foot down and her foot slipped on a mossy area at the base of the rockery where the rockery joins the pebblecrete path? A. I remember saying that in the statement, yes I think that that sounds right. Q. In other words you did say in the statement which you provided to Mr Wren that that is something Mrs Courtenay had said to you? A. Yes I did. Q. And that was the truth what you were telling the investigator? A. Yes. Q. Did Mrs Courtenay tell you anything else about how the accident had occurred as she recalled it? A. Not that I can recall, no." (AB 80) In re-examination counsel for the plaintiff obtained from Mrs Bradley what appears to have been the precise text of the statement on which the above cross-examination was based: "Q. Is what is recorded in the statement the following. In later discussions with Jennifer we worked out that she had walked down the driveway and stopped in order to step over the ridge onto the pebblecrete path? A. That's what's in the statement, yes. Q. Now do you presently have a recollection of having said that to Mr Wren? A. No." (AB 81) The first witness in the defendant's case was Mrs Logan. Her evidence, although generally to the same effect as that of her deceased husband in his statement, (which was tendered and became Ex 3 during her evidence in chief) varied from it in some respects. She said that when she first looked down from her balcony towards where the plaintiff was lying she was lying across the 10 UNREPORTED JUDGMENTS tapering end of the garden bed. Her head was on the other side and legs on the footpath (AB 86). Her husband had got to the balcony before her. When she looked down she did not think anybody was with the plaintiff. She said she had never seen any moss or any other sort of growth on the driveway up to the time of the accident. In cross-examination she agreed that she had observed the plaintiff from her balcony for a very short time and that from that time until the investigator took the statement from her husband in 1993 she had not turned her mind to the occasion (AB 90). As mentioned earlier, her recollection was that the investigator had been with her husband and her nearly all day. She also said she was not very interested because she was busy (AB 94). Also called in the defendant's case was Mrs Harris. She had lived in the units since they were first built. She remembered the accident to the plaintiff. She heard someone yelling out; at first she thought it was kids mucking around, then realised there was somebody down really yelling and screaming. She went to her balcony and saw the plaintiff lying diagonally across the V at the bottom of the garden (AB 95). She said she had never seen moss or fungus or any sort of growth on the driveway before or after the accident (A1396). In cross-examination she said that nobody had been with the plaintiff when she first looked over the balcony. She also agreed it was quite some time before she had to turn her mind to the event of the accident again (AB 98). An investigator then spent what could have been an hour or a couple of hours with her. She agreed that this was about five or six years after the event. The various photographs that were in evidence provided good examples of the difficulty of estimating distances from photographs, particularly in circumstances such as those in the present case relating to the driveway, because of the slope of the steep driveway and perspective problems generally. The survey earlier mentioned, the last of the documents in Ex A, which was a plan of part of the driveway, showed distances between various parts of the driveway and the unit building which the driveway went down to. Its accuracy was not questioned. One feature mentioned quite often in the evidence was a grating which ran across the foot of the driveway and extended across the end of the pebblecrete path. This grating was under balconies above the driveway's entrance to the garages shown to the left of the lobby in the sketch reproduced at p4 above. The grating is visible in a number of the photographs: see Ex B, PGs 1, 6, 11 and 13; Ex D, PGs 1, 2, 3 and 4; Figures 2, 3, 4, 6 and 7 annexed to Professor Morton's report; and Ex | (eight photographs taken by the plaintiff in August 1992 at the same time as those in Ex D) PGs 5, 6 and 8. How far out the balcony stretched above this grating is difficult to estimate from the photographs. In some photographs it looks as if the outward line of the balcony is almost directly above the grating and in others the grating seems to be some way back. Only PGs 11 and 13 in Ex B and Figure 6 in Professor Morton's report permit an immediate direct observation; in others it can be worked out, but not immediately seen, and in others, if looked at in isolation, the effect of perspective is misleading. Similarly, it is hard to see from the photographs how far distant from the grating, in a straight line, is the end of the rockery garden where the driveway and the pebblecrete footpath meet. The survey plan shows that the outward line of the grating (that is facing towards the driveway) is.95 metres back (downhill) from the outward line of the balcony. The outward line of the grating is 1.35 metres from the point where the driveway and the pathway meet. A drainage spout stretching out from the base of the balcony is shown as ending 1.22 metres from URJ COURTENAY v PROPRIETORS STRATA PLAN 12125 (Priestley JA) 11 the grating line. Professor Morton's Figure 6 shows there are actually two spouts and I think it is safe to infer, after taking into account the difficulty of estimating distances from these photographs, that both spouts stretch out from the balcony approximately the same distance. This means that the spouts stretched over the driveway 13 centimetres short of a line drawn parallel with the balcony from the bottom of the V formed by the rockery garden where the driveway met the pathway. (Incidentally, spouts on balconies above the balcony immediately above the driveway can also be seen on Figure 6.) This further means that the lowest point of the middle (and smallest) of Dr Palmer's three patches was about 13cms uphill of a line drawn on the driveway through and directly beneath the water spouts. This middle patch was one of the algal patches which Dr Palmer said would grow more quickly in wet conditions. I have already mentioned the approximate correspondence in location between the site of this patch and where the plaintiff was shown sitting in Ex 1 PG No 4A, taken on 26 August 1992. I am not treating the figures and locations I have mentioned in the preceding paragraph as having any precise accuracy. It seems to me however that anyone making proper use of the available materials would conclude they are roughly about right. The reasoning of the trial judge that led him to dismiss the plaintiff's case, included the following steps, (i) he thought that originally her case was that she had fallen in an area underneath the water outlets and within about half a metre or less from the bottom of the driveway, (ii) that she had accordingly told Professor Morton of (i), (iii) that she had learned at the arbitration that witnesses would say she was further up the driveway than she had told Professor Morton, (iv) and that on the evidence this distance was as much as four or five metres above the bottom of the drive, (v) that he was satisfied beyond reasonable doubt that she fell or slipped on or off the driveway somewhat higher up it than the bottom of the V end of the garden, (vi) that this was nowhere near any mossy growth of relevance, (vii) because only the highest of Dr Palmer's three areas (or patches) could be anywhere near the spot where the plaintiff fell, that was a lichen area, and not dangerous. (Step (v) is my interpretation of the first full paragraph on AB 247.) The trial judge considered that it followed from his views set out in the above steps that the plaintiff had not made out her case. The trial judge referred to a further submission for the plaintiff which was that the very existence of the driveway constituted an invitation to her to use it to enter the premises and that even if the trial judge found she fell higher up or while trying to cross the garden bed, the plaintiff should still succeed on the basis that those areas were part of the entrance through which the plaintiff was invited to gain access. Of this submission the trial judge said it would not be possible to find in favour of the plaintiff on the basis of a set of facts for which she did not contend and further that there was no evidence that would render the area in which he found the plaintiff came to grief as being dangerous. It seems to me that there is serious doubt about some of the numbered steps in his Honour's reasoning and that at least two of them can not be supported. As to step (i), the plaintiff in the photographs taken in August 1992, showed the spot which she said was where she had slipped in very much the same position she showed it at the trial. That is, before she learned of the evidence at the arbitration, she was saying substantially what she said at the trial. 12 UNREPORTED JUDGMENTS In regard to step (ii), the trial judge does not seem to have given any weight to the fact that Professor Morton put his red X's on the photographs he took in January 1993 some days after he had visited the site with the plaintiff and marked the photographs in accordance with his memory of what the plaintiff had told him, and, apparently, without then checking with her. Further, the trial judge did not mention the sketch which was Figure | in Professor Morton's report (see p4 above). The circle in that sketch marked "Accident site" is in very much the position the plaintiff had shown the accident site in the August 1992 photographs and as she herself described it in her evidence at the trial. No part of the circle has the accident site under the balcony, which is where the trial judge's step (i) would have the plaintiff telling Professor Morton was where she fell. The accident circle is inconsistent with the red X's that Professor Morton marked on his Figures 2 and 3, depending on first his interpretation of the relation between the balconies and the grating and then the reader's interpretation of the relation between the red X's, the balconies and the grating. The accident circle on the sketch is unequivocal. Failure by the judge to take that into account along with the significance of the plaintiff's August 92 photographs contributed to what seems to me to be a demonstrable misunderstanding mentioned later. Step (iii) appears to have been an important one in his Honour's reasoning. I earlier said that the questions which brought what the plaintiff had learned at the arbitration to the notice of the trial judge should not have been allowed because of the terms of s18(3) of the ACAA, and set out the relevant parts of that subsection as it then was (see p6 and p10 above). In Najdanovic v Brown, an unreported decision of Finlay J of 22 September 1992, he held that the words of s18(3) precluded either party in a re-hearing "using any of the material, including the transcript of evidence, before the arbitrator (unless, of course, by consent to facilitate the hearing)". In MacDougall v Curlevski (1996) 40 NSWLR 430 I mentioned Finlay J's opinion in Najdanovic and said, tentatively, without then expressing any concluded view, that I thought what he said was correct. I also said that it would appear that the course to be taken by judges on re-hearings was, before any question of costs came to be decided, "to determine the action as if it had never been referred to an arbitrator" and only after the action had been determined could any information from the hearing before the arbitrator be taken into account in deciding what costs orders should be made (at 435). In the present case it is necessary to reach a concluded opinion on the matters upon which previously my opinion was only tentative. Upon further consideration, my opinion remains the same. I do not think the questions concerning what the plaintiff had learned at the arbitration should have been allowed, and I do not think the trial judge should have allowed himself to be influenced by anything that happened at the arbitration. Step (iv) is simply a misunderstanding on the part of the judge, who seems to have relied for his estimate of distance on his own observation of the photographs without reference to the Survey, part of Ex A, AB 223. Had he made use of this document he would have seen that the four or five metres distance he spoke of was impossible, on any view of the facts before him. He would also have realised that the distance between the different sites spoken of by various witnesses as the site of the plaintiff's fall (more accurately, in the case of witnesses other than the URJ COURTENAY v PROPRIETORS STRATA PLAN 12125 (Priestley JA) 13 plaintiff, where she was lying at indeterminate times after her fall) was more in the order of a half a metre to a metre and not nearly so significant as counsel for the defendant had been contending. Step (v) is a finding that puts the spot at which the plaintiff fell quite close to her own account of it, contrary to the trial judge's assumption. Step (vi) seems to have overlooked the middle of Dr Palmer's three areas. Step (vii) also seems to me to misinterpret Dr Palmer's report evidence generally. Steps (vi) and (vii) led also to his Honour's statement that there was no evidence that the area in which the plaintiff came to grief was dangerous. On my reading of Dr Palmer's report and oral evidence his second area was dangerous and this was not put in issue. It may be that some of what, in my respectful opinion, were the trial judge's factual misunderstandings might, taken separately, fall within the Abalos/Devries tules, so that this court should not disagree with them!. Taken all together however, they seem to me to show (a) a failure by the trial judge to use the advantage a trial judge has and (b) an inaccurate use by him of the evidence which put some of his conclusions relevant to principal issues at the trial in conflict with facts which were, on the evidence, incontrovertibly established. Further, and equally clearly, there seems to me to be no doubt that the trial judge was heavily influenced in his non-acceptance of the plaintiff's evidence by his understanding of the effect upon that evidence of what she had learned at the arbitration. This consideration even if he used it accurately, which I do not think he did, was forbidden to him by s18(3) of the ACAA. To my mind the various matters I have mentioned show that, at the least, the trial miscarried and, again, at the least, the trial judge's decision should be set aside and a new trial ordered. This leaves for consideration the further question whether it is open to this court to say, on all the evidence, that, putting it broadly, the following case was established by the plaintiff: the driveway was undoubtedly unsafe; there was at least one patch of algae at or about the spot where the plaintiff fell which, on the probabilities and in light of the recent weather and the rain on the day, was slippery; that the plaintiff, wearing very reasonable footwear for the circumstances, nevertheless slipped and injured herself; and that, whether she fell in the position she herself described, or was lying at the time the defendant's witnesses saw her in the very slightly different position they described, the defendant should be held liable in any event. This after all would reflect only what the hospital records show the plaintiff must have said to them within hours of her fall: that, at a time when, in considerable discomfort if not worse from her injury, it would seem unlikely she was preparing a story for a case against the defendant, she had slipped on the wet driveway (which was also the first thing she said to her friend Mrs Bradley). To take this approach would be to restore to the case the simplicity it probably deserves: the visitor-plaintiff slipped and fell on a wet and dangerous driveway which the defendant invited visitors to use and which could have been made safe by relatively inexpensive measures. 1. Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472. 14 UNREPORTED JUDGMENTS However, there are two reasons which deflect me from the reasonableness of simply entering judgment for the plaintiff at this stage. One is that I think it would leave the defendant in the position that it could complain with justification that there had never been a proper trial of its case that the plaintiff suffered her fall when attempting to take a short cut across the bottom of the V of the rockery garden, thus departing from both the driveway and the footpath. Conceivably (although in my opinion barely so) the defendant could defeat liability altogether if it obtained suitable factual findings in support of this defence. The second consideration is a subsidiary of the first. If this court were to decide the whole matter on the papers in the appeal books, it would be necessary to form a view on the question of contributory negligence. I do not feel sufficiently confident of being able to do this fairly on the appeal papers to warrant suggesting that the court should take this course. It therefore seems to me that the proper outcome of the appeal is that a new trial should be ordered. In my opinion therefore, the appeal should be upheld, judgment below set aside and a new trial ordered, the costs of the first trial to abide the order of the judge hearing the new trial. The defendant should bear the plaintiff's costs of the appeal. Sheller JA I agree with Priestley JA. Beazley JA I agree with Priestley JA. 1. Appeal upheld, judgment below set aside and a new trial ordered. 2. Costs of the first trial to abide the order of the judge of the new trial. 3. Defendant/respondent to bear the plaintiff/appellant's costs of the appeal. Counsel for the appellant: J B Whittle/E Techera Solicitors for the appellant: Shaw McDonald Counsel for the respondent: D F Jackson QC/A D M Hewi Solicitors for the respondent: Curwood & Partners