New South Wales Court of Appeal CITATION : State of New South Wales v Thomas [2000] NSWCA 339 revised - 26/04/2007 FILE NUMBER(S) : CA 40366/99 HEARING DATE(S) : 23/11/00 JUDGMENT DATE : 23 November 2000 PARTIES : State of New South Wales (Appellant) Vernon Thomas (Respondent) JUDGMENT OF : Mason P at 1; Powell JA at 2; Fitzgerald JA at 3 LOWER COURT JURISDICTION : District Court LOWER COURT 2458/98 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER : COUNSEL : P. R. Sternberg (Appellant) I. D. R. Duncan (Respondent) SOLICITORS : I. V Knight Crown Solicitor (Appellant) Harpers Solicitors (Respondent) DECISION : Appeal allowed with costs. Judgment in favour of the respondent set aside. Retrial ordered. Respondent awarded a certificate under the Suitors' Fund Act 1951 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40366/99 DC 2458/98 MASON P POWELL JA FITZGERALD JA THURSDAY 23 NOVEMBER 2000 STATE OF NEW SOUTH WALES v THOMAS JUDGMENT 1 MASON P: I agree with Fitzgerald JA. 2 POWELL JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: On 1 January 1993, the respondent was a prisoner at the Lithgow Correctional Centre. On that day, he was injured while alone in the cell which he alone had occupied for some months. Some years later, he sued the appellant in the District Court under s5 of the Crown Proceedings Act 1988, claiming damages for negligence and interest under s83A of the District Court Act 1973. 4 The appellant admitted that it "owned, operated, occupied and supervised" the prison and owed the respondent a duty to exercise reasonable care "to not expose him to a risk of injury in and about the prison." However, it denied that the respondent was injured by its breach of that duty and alleged that, if it was negligent, the respondent was contributorily negligent. 5 The respondent's action was heard on 4 and 5 February 1999. On 5 May 1999, a District Court judge awarded the respondent damages of $30,000 and interest of $1,875 and ordered the appellant to pay the respondent's costs. 6 Leave to appeal was granted to the appellant on 31 January 2000 by this Court, differently constituted. This appeal was instituted on 10 February. On 31 July, the respondent cross-appealed, claiming that the damages awarded to him are inadequate. 7 In summary, the respondent's evidence was that the toilet bowl in his cell was cracked and leaked water onto the floor of his cell after the toilet was flushed and that he had complained of this for a period of 6 to 7 months before he was injured but his complaints had been ignored. Water also leaked from the shower recess onto the floor of his cell. On the day in question, after lock-up at about 3.30pm, he had a shower and used and flushed the toilet twice. There was water on the floor of his cell. He mopped up most of the water with a towel. After placing his radio on an upper window ledge to obtain a program broadcast by a Sydney radio station, he rested on his bunk. A gust of wind threatened to dislodge the radio. He moved from his bunk and stood on a horizontal window bar to retrieve his radio. His feet were wet and, as a result, he lost his balance and fell backwards, striking and breaking the hand basin and then falling onto the toilet bowl which splintered, causing injuries to his legs and scrotum. Subsequently, he contracted hepatitis, which he attributed to contact between his injuries and water from the toilet. 8 The trial judge was "… satisfied on the balance of probabilities that the incident occurred as described by [the respondent] in his evidence-in-chief before me", and held that he had ".. made out his case on the balance of probabilities." The respondent did not seek judgment on any other basis. In particular, he did not allege that the appellant's negligence caused or contributed to his injuries if he slipped because his feet were wet while he was carrying out some different manoeuvre. Neither party has challenged the trial judge's conclusion that "… it is particularly material as to where the [respondent] was immediately before his fall". 9 The appellant did not dispute that it was liable if the respondent was injured in the circumstances which he described, although it contended that, in that event, he was contributorily negligent. However, the appellant's primary case is that the trial judge erred in accepting the respondent's evidence because of other evidence which her Honour neither rejected nor properly took into account. 10 The trial judge found that the respondent "… did not prove to be a particularly credible witness…", and "… was evasive in his answers throughout cross-examination about the identity of the prison officers and the fact that he never told anyone that he slipped off the bar across the window". Her Honour's reason for accepting the respondent's "version of events" was that it was "plausible". She said that "… at the end of the day …. his version of events is more probable than not. It is quite plausible that an inmate worried about his radio falling from a high sill would use the bars on the window as a ladder rather than stand on the toilet or the hand basin." 11 According to two prison officers and a nurse who attended the respondent's cell after he was injured, he gave a quite different "version of events" at that time. When he was asked what had happened, he stated that he had stepped onto the toilet and from there onto the hand basin, apparently intending to place his radio on a window ledge. The basin pulled away from the wall, causing him to fall and strike the toilet, which broke. On the following day, he gave a similar account to staff at Bathurst Hospital. Later, towards the end of January 1993, he gave a similar account to another prison officer. 12 In his evidence, the respondent initially said that he could not remember what he had stated to the prison officers and nurse. Later, he denied that he had made the statements which they attributed to him. He did not claim that he had made the statements attributed to him by the other witnesses but that what he had told them was incorrect. Although his counsel's cross-examination of the other witnesses suggested that the respondent had told them that he had slipped in the manner described in his evidence, the respondent agreed that he had not done so. 13 The trial judge appears to have accepted the evidence of the other witnesses. However, her Honour said: "I do not find it surprising that a prisoner who is severely injured, thinking he had been castrated, does not reveal to the prison officers nor the appropriate authorities at the time of the incident, the exact way in which the accident in fact happened. …. and does not seem to me that at the time of this incident he would have been in the slightest concern to inform those in authority exactly how the accident occurred. …. . It would not have been in his contemplation at that time the reason why this incident occurred." 14 In this Court, the respondent submitted that the trial judge found ".. by way of subtle reference of demeanour or direct demeanour, the Respondent was convincing enough notwithstanding the matters of criticism to satisfy Her Honour." Nothing in the judgment bears that out. On the contrary, the most favourable comment on the respondent's credibility which the trial judge made was that "… whilst it may be that the [respondent] has spent a considerable period of time in prison it does not necessarily follow that the important respects of this action he was not telling me the truth." The foundation of her Honour's acceptance of the respondent's evidence was not his credibility but that ".. at the end of the day…. his version of events is more probable than not." 15 The trial judge found that "… on the probabilities … the cell floor was wet." However, on the respondent's case that was immaterial unless he was injured in the manner which he described. Her Honour went on to say: "… . There was no adequate system in place to provide prisoners with mops and buckets after lock up to dry their cells other than to use their personal towels; those towels were wet following use. Common sense tells one that the likelihood of a prisoner's feet being wet causing him to slip is exactly the sort of thing that is reasonably foreseeable when prisoners are confined to their cells after lock up. It is foreseeable that a prisoner would use the bars on the window as a ladder. It is also foreseeable that wet feet would slip from the bars if they were climbed by a prisoner in bare feet. There was, in the ordinary course of events, a simple solution to the problem that is the provision of a mop and bucket to be placed in each cell. The consequences of failing to do so should have been foreseen; they not being far fetched or fanciful." 16 The respondent neither pleaded nor proved that a mop and bucket could reasonably have been placed in each cell. Further, her Honour's conclusion that the cell floor was probably wet was partially based on the respondent's evidence that the toilet bowl in his cell was broken which, once again, was inconsistent with a body of other evidence. 17 The trial judge noted that the respondent ".. denied that a plumber had ever been into his cell to check the toilet." Her Honour also noted evidence to the contrary from the senior overseer/plumber at the prison. She neither rejected the plumber's evidence nor, subject to a mistake which she made in relation to Exhibit A (which is discussed below) gave any reason which would justify its rejection of the plumbers' evidence. Part at least of the plumber's evidence, which was inconsistent with the respondent's evidence that the toilet bowl had been broken for months and that he had complained, appears to have been accepted. The trial judge stated: "On 12 December 1992 [less than a month before the respondent was injured] a full gaol check of every cell in the institution was made to ensure all of the plumbing was satisfactory. As part of that cell check basins were inspected, toilets were inspected to ensure they were working and intact and shower fittings were inspected. [The plumber] also gave regular maintenance checks to all the cells roughly every three months." 18 The plumber gave evidence that a system existed to record plumbing problems and that he had carried out a search but could find no request relating to the respondent's cell in the year prior to his injuries. The plumber personally carried out a check of the plumbing facilities including the toilet bowl in all cells in the wing in which the respondent's cell was located, including the respondent's cell, in the 2 days prior to and including 18 December 1992, i.e., less than a fortnight before the respondent was injured. The plumber found no faults within the respondent's cell between 1 January and 18 December 1992, and the respondent made no complaint to him during the course of his inspections. 19 The Assistant Superintendent of the prison and another prison officer, who was on permanent duty during the material period in the wing in which the respondent's cell was located, each gave evidence that he had daily contact with the respondent and likewise received no complaints from him in respect of the toilet or shower recess in his cell in the year prior to the respondent's injuries. 20 Reference has earlier been made to the trial judge's conclusion that the respondent's ".. version of events is more probable than not." The preceding paragraph was as follows: "Exhibit A is an interesting exhibit. A close examination reveals that the back of the toilet clearly needs maintenance. There is black plastic and some form of yellow material wrapped around the toilet. This does not present to me as a toilet that is regularly inspected and maintained. This flies in the face of the evidence presented by the [appellant]." 21 In this Court, the respondent conceded that Exhibit A "… may have been taken after the event and was a photograph which shows the lavatory bowl in [the respondent's] cell… after repair or replacement." However, he submitted that the trial judge "… was not seizing on Exhibit A as direct evidence of the condition of the toilet bowl at the time of the accident. She merely noted it as some evidence, which supported the likelihood that something could have been wrong with the bowl at that time." 22 Even if the respondent's submission on that point was correct - contrary to my opinion - the trial judge has relied on Exhibit A for a purpose for which it was unavailable. That compounded her Honour's basic error. The relative probabilities of the respondent's two "version[s] of events" was not an issue which the trial judge could properly assess independently of his credibility and the inconsistent evidence, including the admissions which are implicit in his original "version". 23 The respondent effectively submitted that the appellant's pleading entitled him to succeed. Paragraph 4(d) of the respondent's written submissions is as follows: "The Appellant pleaded in its Notice of Grounds of Defence, not in the alternative that if any damage were suffered the Respondent as alleged was caused or contributed to by the Respondent's own negligence… . As that matter was not put as an alternative claim by the Appellant, Her Honour was entitled to accepted the Respondent's allegation that he slipped on the horizontal bar across the window of his cell because of his wet feet." 24 I do not propose to discuss the pleadings in detail. It is sufficient to say that the respondent's submission is without substance. 25 Since the trial judge did not adequately carry out her fact-finding function, her Honour's conclusion that negligence by the appellant caused the respondent's injuries cannot stand. 26 The appellant raised other matters, including an alleged insufficiency of evidence to support the trial judge's conclusion that the respondent contracted hepatitis as a result of his accident and her Honour's failure to deal with its allegation of contributory negligence except in the following passage: "It was further submitted that the [respondent] was injured as a result of his own misdoing. There was certainly no question asked of any prison officer whether they knew it was usual for prisoners to get up on the windows to put their radios there or to climb onto the hand basin or anything like that." 27 It is unnecessary to discuss those matters. However, the trial judge's failure to decide the issue of contributory negligence confirms my opinion that her Honour failed to carry out her task satisfactorily. 28 In summary, I am of opinion that the appeal must be allowed. However, whatever my reservations about the respondent's claim, I do not think that this is a case in which it would be proper for this Court to give effect to its own conclusions based on the evidence. [1] There must therefore be a new trial. 29 Damages, as well as liability, will be in issue at the re-trial. In the circumstances, it is inappropriate for this Court to consider the remainder of the appeal or the cross-appeal in relation to the amount of the damages awarded by the trial judge on the evidence at the first trial. 30 I would allow the appeal with costs, set aside the judgment in favour of the respondent, order a re-trial and award the respondent a certificate under the Suitors'Fund Act 1951. ********** END NOTES [1] cf Bourke v McNeil [2000] NSWCA 144 para. 237 et cet. Revision Reasons Hyperlinked End Notes added - 26/04/07 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.