Reported Decision : (2000) Aust Torts Reports 81-576 New South Wales Court of Appeal CITATION : South Sydney Council v Morris [2000] NSWCA 158 FILE NUMBER(S) : CA 40263/99 HEARING DATE(S) : 30 May 2000 JUDGMENT DATE : 28 June 2000 PARTIES : South Sydney Council (Appellant) Teresa Morris (Respondent) JUDGMENT OF : Meagher JA at 1; Fitzgerald JA at 2; Heydon JA at 9 LOWER COURT JURISDICTION : District Court LOWER COURT DC 5713/96 FILE NUMBER(S) : LOWER COURT Moore DCJ JUDICIAL OFFICER : COUNSEL : S Rares SC/V M Heath (Appellant) C Evatt/J Henness (Respondent) SOLICITORS : Phillips Fox Lawyers (Appellant) Newman & Associates (Respondent) CATCHWORDS : NEGLIGENCE - 'trip and fall' - appeal against finding by trial judge that the defendant constructed and laid footpath pavers which the plaintiff contended were defective and caused her injuries when she tripped against a grate held by the pavers - whether defendant constructed the pavers and had control over the land where the plaintiff fell - whether the condition of the pavers at the time the plaintiff's cause of action arose was caused by an intervening event rather than the negligence of the defendant - defendant omitted to call any evidence to prove who laid the pavers or whether there had been any third party interference with the pavers. - Held on appeal that it was open to the trial judge to find on the evidence that it was the defendant who laid the pavers. D LEGISLATION CITED : Arbitration (Civil Actions) Act 1983 Agbaba v Witter (1977) 51 ALJR 503 CASES CITED: Courtenay v Proprietors Strata Plan 12125 (unreported, 30 October 1998) MacDougall v Curlevski (1996) 40 NSWLR 430 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 DECISION : Appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40263/99 DC 5713/96 MEAGHER JA FITZGERALD JA HEYDON JA Wednesday, 28 June 2000 SOUTH SYDNEY COUNCIL v Teresa MORRIS JUDGMENT 1 MEAGHER JA: I agree with Heydon JA. 2 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the judgment of Heydon JA. I agree with the order proposed and, subject only to what follows, with his Honour's reasons. 3 The respondent's case was that the appellant had laid the material pavers negligently, resulting in the unevenness which caused her to trip and fall. The appellant's primary case was a denial that it had laid the pavers. For the reasons given by Heydon JA, it was open to the trial judge to find, as his Honour did, that the appellant laid the pavers. 4 Nonetheless, the unsafe condition of the pavers at the time when the respondent tripped might not have been caused by the manner in which they were laid but by the effluxion of time or some intervening event. The pavers could have become unsafe notwithstanding that they were properly laid, or a person for whose activities the appellant is not liable could have interfered with the pavers. 5 There was a close temporal connection between the laying of the pavers and the respondent's fall, perhaps as little as a year, and sufficient evidence to establish that, as the trial judge found, pavers which had been laid without negligence would not have reached the condition of the pavers on which the respondent tripped in that period. 6 Theoretically, the possibility remained that the condition of the pavers when the respondent tripped was not due to the manner in which they were laid but to some legitimate interference with the pavers by a third party during the relevant period, for example, in the installation of the manhole adjacent to the material pavers, or even to the illegitimate interference of a mischievous third party. 7 In the absence of any evidence, or indeed any pleaded allegation, that there had been any third party interference, it was open to the trial judge to conclude from the evidence of what had occurred, and the lack of evidence that anything else had occurred, that the condition of the pavers was probably due to the manner in which they were laid. Cf The "presumption of continuance": Cross on Evidence (Australian ed.) 1996, Vol. 1 para 7255. While a plaintiff must prove negligence on the balance of probabilities, that does not necessitate evidence to exclude every possibility which is inconsistent with a defendant's liability. The conclusion that the pavers were negligently laid was even more readily available because of the combination of the appellant's denial that it laid the pavers and its omission to call any evidence to prove either who laid the pavers or installed the manhole. 8 Leave to amend its notice of appeal would not avail the appellant. But, in any event, it should not be permitted to amend to put forward in this Court a point which, even if technically covered by a denial in its pleading, involves a departure from the manner in which the dispute was actually litigated at trial and might have been met by additional evidence with or without an alternative reformulation of the respondent's claim. Cf Webb v South Australia (1982) 43 ALR 465; Australian Capital Territory v Baldock (2000) 169 ALR 585. 9 HEYDON JA: Background This is an appeal by the defendant against a verdict and judgment for the plaintiff in the sum of $152,550.00 given by Moore DCJ after a four day trial. 10 The plaintiff alleged she suffered injuries by falling while walking along a footpath, Surrey Lane, Waterloo. She said she fell when she tripped against a grate by reason that the pavers next to it had sunk. 11 The defendant in its Defence put every allegation of the plaintiff in issue, and it maintained that attitude to a substantial degree during the trial, in the course of which it propounded a large number of defences, most not pleaded. Rather more common ground emerges by comparing the trial judge's reasons for judgment and the defendant's written submissions to this Court. 12 It now appears to be common ground that on 2 October 1993 the plaintiff, then aged twenty, while walking on the footpath, suffered some injury at the northern end of it by reason of the defective pavers. The extent of her injuries remains controversial. And whether the defendant constructed the pavers is also controversial. The written submissions themselves did not contest the location of the injury, though one ground of appeal sought a new trial with a view to doing so. The approach of the trial judge 13 The trial judge reasoned as follows. 14 First, he found that on 2 October 1993 the plaintiff, whose credibility impressed him, was tripped in Surrey Lane, Waterloo, by the projecting metal surround of a manhole cover and a dip in the surface immediately beside it: Red 13P-Q and 14A-15X. This feature was conveniently referred to by the trial judge as "the defect". Surrey Lane runs north from and at right angles to Raglan Street. At its commencement it passes between two houses. It continues in a straight line, north, emerging from the houses and traversing an open park. It concludes by meeting Surrey Street at right angles. The manhole cover was in the area bordered by park. In making these findings the trial judge rejected attacks on the credibility of the plaintiff on the question whether she had not in truth fallen in an area of Surrey Lane between the houses as distinct from the area bordered by park and accepted evidence corroborating her from her companion, Mr Carroll, who was not cross-examined to suggest he was wrong. The defendant now appears to embrace that aspect of the plaintiff's evidence at least for the purposes of what it called "the Control Issue" and "the Works Issue". He also rejected evidence from two witnesses for the defendant (Mr Deveril and Mr McColough) that Surrey Lane was not defective in either 1996 or 1997, and accepted evidence from two witnesses called by the plaintiff (Mr Hazel, an expert engineer, and Mr Thomas, a local resident) that it had been defective for some time before that and was defective in 1993. 15 Secondly, the trial judge found that the paving which became defective was laid by workmen employed by the defendant: Red 16A-21D. He did so in part because he accepted the plaintiff's evidence that she saw men wearing South Sydney Council uniforms laying the pavers about a year before her fall. The trial judge made that finding despite the plaintiff's evidence that they were wearing yellow uniforms, when in fact the uniform at that time was blue. He made that finding, not only because he found the plaintiff to be a witness of truth, but also because Mr Thomas recollected that the persons who laid the pavers wore blue jumpers, and because the plaintiff recollected that pedestrians were kept off the work in progress by barricades bearing the name "South Sydney Council". The plaintiff was not cross-examined on that latter evidence, nor was evidence called to contradict or qualify it. The trial judge also made this finding despite evidence from Mr Deveril that so far as he knew the defendant had never laid pavers in Surrey Lane in the ten years during which he had been supervisor of the defendant's stone yard. He did not regard that evidence as supporting the defendant's case, partly because of Mr Deveril's tendency to advocacy and partly because he preferred the plaintiff. He said that had he had reservations about the plaintiff's case, the defendant's failure to call witnesses from within its own ranks or those of other governmental entities, or to produce documents, would have lessened or dispelled those reservations. 16 Thirdly, the trial judge declined to find that the part of Surrey Lane in which the plaintiff fell had been vested in the Department of Housing, and declined to find that the Department of Housing and the defendant had agreed that the Department would pave it: Red 19V-21C. 17 Fourthly, the trial judge declined to find that the defendant was a highway authority which had a duty to maintain Surrey Lane free from obstruction such as the man hole cover: Red 21E-T. 18 Fifthly, the trial judge found that the defect was due to poor construction practice, was dangerous, and was the result of the defendant's negligence: Red 21U-22M. 19 Sixthly, the trial judge found that the plaintiff was not guilty of contributory negligence: Red 22N-T. 20 Seventhly, after discussing conflicting medical evidence, the trial judge arrived at a figure for damages of which the principal ingredients were $80,000 for general damages, $50,000 for lost earning capacity and $16,000 for future surgery: Red 22V-26U. The defendant's arguments on appeal 21 The defendant's written argument, prepared and presented by counsel who did not appear at the trial, raised four issues, which it described as follows: "1.1 whether the plaintiff proved that Surrey Lane was vested in or controlled by the appellant ('the Council') on 2 October 1993 ('the Control Issue'); 1.2 whether the plaintiff proved that the Council did the work of paving Surrey Lane and subsequent work around the area in which the plaintiff alleged at the trial that she slipped ('the Works Issue'); 1.3 whether Moore DCJ erred in rejecting the use of evidence at the arbitration seeking to establish a prior inconsistent statement by the plaintiff as to the locus of where she fell ('the Admissibility Issue'); 1.4 whether the damages were excessive ('the Quantum Issue'). 22 None of these arguments were directed to any support for Grounds 3 and 4.1-4.5. Thus these grounds appear to have been abandoned. Some of these abandoned grounds attack the trial judge's acceptance of the plaintiff's evidence on the location of her fall. The reason why these were not pressed was no doubt that the plaintiff's argument on the Control Issue and the Works Issue depended on accepting the plaintiff's evidence and the trial judge's finding that she fell on land under the control of the Department of Housing rather than the Council, i.e. in the northern part of Surrey Lane, not the southern part. It is not clear why the other grounds not supported by written argument were not so supported, but they were not. To some extent that subject matter was traversed in the course of contentions by the defendant not advanced in writing and only advanced at the very end of its oral argument to the effect that it should be allowed to amend its Notice of Appeal by adding a ground, never formulated in precise terms, to the effect that since there was no evidence who placed the manhole cover at the spot where the plaintiff fell or when it was placed there, it had not been proved, assuming that the defendant laid the pavers, that they had not been interfered with by some person other than the defendant after the pavers were laid. 23 It followed from the structure of the written argument that some matters hotly contested at the trial were no longer contested. One was that the plaintiff fell where she said she fell. Another was that she was not contributorily negligent. Another was that the defect existed in 1993, and that it was the product of negligent construction. The abandonment of attacks upon the plaintiff which these tactics necessarily entail has a bolstering effect upon her credibility. This is significant in view of the fact that one central attack on her credibility remains. Grounds 1 and 2 of the Notice of Appeal 24 The Control Issue and the Works Issue go to Grounds 1 and 2 of the Notice of Appeal, which are as follows: "1. His Honour erred in concluding that the Appellant constructed the paved footpath at Surrey Lane. His Honour should have held that the Appellant did not construct the footpath. 2. In coming to the conclusion appealed from in ground 1, His Honour erred in: 2.1 rejecting the evidence of the Appellant's paving-works supervisor Mr Deveril that the Appellant's workmen did not construct the footpath at Surrey Lane. 2.2 accepting the identification evidence of the Respondent as to the workmen laying the pavers when His Honour correctly found that her evidence describing their uniform was clearly wrong. 2.3 treating the evidence of Mr Thomas as corroborating the identification evidence of the Respondent when Mr Thomas' evidence differed significantly from the Respondent's and was itself equivocal. 2.4 accepting evidence of the Respondent that the work in progress was secured by barricades bearing the name of the Appellant. His Honour should have found that this evidence (i) was tailored by the Respondent to meet cross- examination; (ii) was not supported by any other evidence, including the evidence of Mr Thomas; and (iii) should not be believed. 2.5 giving no or insufficient weight to the documentary evidence that the paving work was done by the Department of Housing as part of its redevelopment of Surrey Lane." The Control Issue 25 The defendant argued that the Department of Housing resumed the northern part of Surrey Lane, in which the fall occurred. Its argument was as follows: "10. The Judge found that the Department of Housing ('the Department') received a development consent ('the Consent') under the Environmental Planning and Assessment Act ('the EPA Act'). ' … to construct a park and landscape (named properties which include Surrey Lane - letter 19 June 1989)'. 11. That finding was both critical and correct. Its consequence is that the Department was the body which applied to do the work of landscaping Surrey Lane. 12. The Department had lodged a development application dated 26 September 1988 ('the DA') with the Council (then the Sydney City Council) referring to its letter of 26 September 1988. The DA proposed the creation of Vescey Park ('the Park') in an area of land that the Department either owned or was to resume from the Council pursuant to its powers under the Housing Act 1976 including the northern part of Surrey Lane. 13. The DA went on to say: 'It is proposed that the area will be developed at the Department's cost and dedicated to the Council as public open space.' 14. A plan ('the Plan') of the proposed development showing the areas of roadway and laneway to be resumed was created and was numbered S6-280/141. The Plan was expressly referred to in the letter dated 10 November 1988 from the Council to the Department in which the Council noted its approval of the proposed dedication. The northern part of Surrey Lane was shown on the Plan as proposed for resumption. 15. On 24 February 1989 the Council wrote to the Department proposing conditions for incorporation into a development consent under the EPA Act , including: '2. The Department of Housing shall accept responsibility for the cost of any consequential works in the nature of kerbing, paving, guttering, drainage facilities etc. adjacent to the streets proposed to be resumed, and the cost of paving Vescey Street , Nelson Lane and the remainder of Surrey Lane for use as access pathways to the proposed park.' That condition relates to adjacent streets and land not the subject of the DA. In particular, the northern part of Surrey Lane was the subject of the DA while ' the remainder ' referred to in the condition was not. 16. On 2 March 1989 the Department responded noting that it agreed to that condition provided that the reference to Vescey Street was deleted. 17. On 2 March 1989, the Department, pursuant to s 10(2) of the Housing Act 1976, caused the northern part of Surrey Lane to be resumed and vested in it. While the deposited plan referred to in the notification was not in evidence, the other documentary material especially the Plan and later documents proposing the re-dedication of the Park to the Council, makes clear what was vested. (His Honour's finding that this evidence was unsatisfactory eschewed analysing the evidence.) 18. On 10 May 1989 the Council granted its consent to the DA and subsequently on 19 June 1989 in response to the Department's letter of 19 May 1989 varied the conditions so as to delete Vescey Street from condition 2 ('the Consent'). 19. On 18 February 1992 the Department wrote to the Council concerning the work done or being done under the Consent noting of the Park: 'This park was developed by the Department of Housing and handed over to the … [Council] for care, and maintenance control prior to dedication as public open space.' 20. On 25 August 1993 the Council resolved to approve in principle acceptance of the dedication by the Department of a new access road. 21. From the above objective and documentary evidence, the only conclusion open to His Honour was that the northern part of Surrey Lane where the judge found that the plaintiff fell, namely in the Park, was under the control of the Department and or vested in it as at 25 August 1993 and there was no evidence to suggest that that position had changed by the date of the alleged fall, 2 October 1993 (footnotes omitted)." 26 This reasoning did not attack any positive finding of the trial judge. It was directed to paragraph 31 of the trial judge's reasons for judgment: "There is unsatisfactory evidence from the Defendant that the relevant part of Surrey Lane was vested in the New South Wales Land and Housing Corporation on 2 March 1989. Exhibit 12 is a copy of a New South Wales Government Gazette notifying the vesting of 'part of Surrey Lane .. Waterloo' in the Corporation, although the Schedule describing the land describes it by reference to a Deposited Plan which is not in evidence. Mr Sweet, in final submission, stated that Surrey Lane was dedicated back to the Council on 25 August 1993. For that he relies on Exhibit 16 which does not seem to do that. Even if those events did take place, which the evidence does not establish, they do not really bear on the question of who laid the pavers. They might in some circumstances provide weight to tip the scales; that is not so here." The point being made by the trial judge was that the issue of who actually owned the land was irrelevant, in view of his conclusion that the defendant did the work of laying the pavers. That conclusion was the subject of attack by the defendant in arguments directed to the Works Issue. Those arguments in part, however, relied on the arguments directed to the Control Issue. The Works Issue 27 The defendant argued that it had not laid the paving. For this conclusion it advanced three grounds. First, Exhibit 15 said of Surrey Lane: "The streetscaping was done by the Dept. of Housing in conjunction with the Housing Development". Secondly, the defendant submitted, "the Department applied for and received development consent and then developed the Park, having resumed, inter alia, the northern part of Surrey Lane." Thirdly, the defendant submitted, "the Council called its own officers to say that it had not done the work of laying the paving, which was consistent with the documentary evidence." The defendant also argued that the contrary evidence of the plaintiff should have been disbelieved, and that Mr Thomas' evidence in partial support of the plaintiff was equivocal. The Works Issue: Exhibit 15 28 The first argument was based on Exhibit 15: CAB 211. Exhibit 15 was prepared by the defendant's Chief Surveyor, Mr Livingstone, was addressed to Mr McColough, and was dated 25 July 1997. Its subject was described as "Surrey Lane, Waterloo - ownership". It stated: "I refer to your memo of 18 July 1997 and advise that the Section of Surrey Lane shown highlighted yellow is under Council ownership and control and is a public road. The streetscaping was done by the Dept. of Housing in conjunction with the Housing Development. The lane was closed to vehicular traffic under section 269A of the LGA 1919 by Resolution of Council 13 September 198?. The park known as Vescey Park was dedicated to Council as a Public Reserve by the Dept. of Housing. This was accepted by Council by Resolution dated 25 August 1993. You should contact Parks Dept. about the control of the park." 29 The defendant submitted, if it matters, that Exhibit 15 was tendered without objection. That is what CAB 130B-C records, but just before that point CAB 129N-X records the following: "DOCUMENT TENDERED. OBJECTION TO TENDER. LEGAL ARGUMENT. Q. That handwritten memorandum, did that come from Mr Livingstone? A. Yeah, that came from Greg Livingstone, he's a surveyor. Q. Where did that document go when you got it? OBJECTION. LEGAL ARGUMENT. Q. Who is Mr Livingstone? A. He's the chief surveyor. Q. Did that document come to you from him? A. Yes it did. Q. When it came to you, it had that plan attached to it, is that right? A. That's right. Q. Where was the document then kept with the plan? A. It was placed on a council file. OBJECTION. LEGAL ARGUMENT. TENDER REJECTED." 30 Not only is it not clear what "that plan attached to it" was, but the memorandum of 18 July 1997 is not in evidence. The first two sentences of Exhibit 15 state general conclusions which, whether or not admissible, have little intrinsic weight. The next three sentences appear to be based on other documents. Mr McColough made no inquiries to check the accuracy of what Mr Livingstone said (CAB 134N). Mr McColough prepared an "Insurance Investigation Report" on 17 July 1997 being then employed "as the acting maintenance investigation engineer". The Statement of Claim was dated 1 October 1996 and the Defence was filed on 17 June 1997. Mr Livingstone was not called to explain why he created the document, what researches he conducted before doing so, to what extent it was based on his personal knowledge, and what connection its creation had with the legal proceedings. Exhibit 15 as a whole, and in particular the sentence relied on, would appear to have been obtained for or in contemplation of or in connection with the current proceedings. There is no Notice of Contention or Cross Appeal or argument challenging the reception of the evidence by reason of s 69(3) of the Evidence Act 1995 (NSW), but little weight is to be attributed to the assertion that the streetscaping was done by the Department of Housing in view of its apparent genesis. As the trial judge pointed out: "No source or authority is given" for the statement that the streetscaping was done by the Department of Housing: Red 18B. Further, the document does not make it clear what "streetscaping" means or when it was done. It does not actually say that the Department installed the pavers. In any event, the assertion that the streetscaping was done by the Department of Housing is not necessarily inconsistent with the plaintiff's evidence that the defendant's workmen installed the pavers: the defendant could have done it by arrangement with the Department. The Works Issue: the development consent documents 31 In relation to the second argument of the defendant, no doubt the documents show that the Department of Housing applied for and received development consent, and developed the Park. Though, as the trial judge indicated, the evidence is incomplete, they may also prove resumption of the northern part of Surrey Lane. The defendant relies on this to support an attack on the following passage in the trial judge's reasons for judgment: "29. Exhibit 16 is plan S6-280/141A. That shows the part of Surrey Lane within the park, that is, including where the Plaintiff fell, as stippled. In Exhibit 14, a bundle of documents, is a Minute paper dated on page one '1st March 1989'. On page 3 at point 6 in paragraph 1(b) is a reference to 'part of Surrey Lane … as shown stippled on Plan No. S6-280/141..'. When read with all the other documents in Exhibit 14, it is possible that the references throughout Exhibit 14, to 'the remainder of Surrey Lane' mean the part within the park. Other parts of Exhibit 14 tend to show that the Council and the Department agreed (see Minute dated 23rd June 1989) that - 'The Department of Housing shall accept responsibility for the cost of any consequential works in the nature of kerbing, paving, guttering, drainage facilities etc. adjacent to the streets proposed to be resumed, and the cost of paving Nelson Lane and the remainder of Surrey Lane for use as access pathway; to the proposed park (my italics).' This was incorporated as a condition of Council's consent (under the Environmental Planing [sic] and Assessment Act 1979) to the Department's application to construct a park and landscape (named properties which include Surrey Lane - letter 19 June 1989). 30. The condition quoted in paragraph 29 does not mean that the Department of Housing (a) agreed to, or (b) in fact did, perform the activity of laying the pavers: (a) It is notable that the expression 'responsibility for the cost' is used. There is no explanation from any other source what this means, and it could well mean that the Department will pay, for the Council to do the work. The Council had a large staff and facilities constantly engaged on this very work. (b) The only evidence, by way of observation, as to when the paving was done, is in the Plaintiff's case, where it is said to be no earlier than about October 1992. All the Defendant's documents in Exhibit 14 are dated between July 1987 and 23 June 1989. Only Mr. McColough's less-than-satisfactory evidence affords any affirmative proof that nothing happened in that three year interim. Any presumption of continuance is displaced by the Plaintiff's affirmative evidence that Council-uniform-clad workers performed the work." The condition quoted in paragraph 29 is condition 2 in the Council's consent. The defendant submitted: "27.2 …his Honour embarked on a construction of the above documents which had the applicant for the Consent, the Department, somehow not doing work within the Park even though the DA sought approval for it to do so, and his Honour had the Council doing that work; 27.3 thus, the judge erroneously construed condition 2 in the Consent in referring to ' the remainder of Surrey Lane ' to mean - somehow, despite the clear and obvious non sequitur in this reasoning - ' the part within the Park '." The latter submission is a misreading of the reasons for judgment. The trial judge did not in fact adopt that construction of condition 2, though he did say "it is possible". 32 The defendant then submitted: "Then his Honour reasoned that condition 2 did not mean that the Department laid or agreed to lay any of the pavers. While that may have been true as to the southern - unresumed - part of Surrey Lane, there did not need to be any agreement at all about the work that the Department performed or was proposing in the DA to perform on its own land under the Consent." All the trial judge was saying was that neither Exhibit 14 nor any other document unequivocally shows that the Department of Housing laid the pavers; that the plaintiff's evidence that the defendant's workmen did is not directly contradicted by any documentary evidence; and that if the plaintiff's evidence is inherently credible, it can support the conclusion that the defendant laid the defective pavers. In oral argument the defendant was not able to point to any contemporary document that rose above ambiguity on the question of whether the Housing Department or the Council laid the pavers. There was material indicating that the Department of Housing was to accept responsibility for the cost of paving, but if anything this points to the view that the Council was to do the paving and be reimbursed by the Department. 33 It is necessary, however, to examine in detail the evidence referred to by the defendant, and convenient to do so, in the order in which it referred to it in argument. It is not easy to do so in view of the fact that, as tendered, that evidence is an ungodly jumble. 34 The evidence which the defendant agreed was "as high as it gets" was that appearing in the Department of Housing's letter of 18 February 1992 to the defendant (CAB 168-169). The letter confirmed matters discussed at a meeting between representatives of the defendant and the Department. The letter was organised under four headings. Material under the first two was relied on by the defendant. The passage relied on under the first heading was as follows (CAB 168N-X): "The matters discussed were as follows: 1. ROADS AND LANDSCAPE WORKS ASSOCIATED WITH SURREY, UNION & VESCEY STREETS, WATERLOO These are considered by the Department as all works outstanding and in satisfaction of South Sydney City Council and the previous City of Sydney Council's development application and building application conditions of approval associated with these site areas as follows:- · SURREY STREET (central and northern part to Phillip Street) · VESCEY STREET (northern side) · UNION STREET (proposed road closure) Also included in the works are (i) replacement boundary fencing to Department properties in the Vescey & Union Street, and (ii) works on land currently owned by the Department which serves as a laneway for access to the rear of Department properties at 85-99A (inclusive) Phillip Street and over which Council had required and the Department had agreed to provide public right of access between Surrey Street and Vescey Street Park. This park was developed by the Department of Housing and handed over to the City of South Sydney Council for care, and maintenance prior to dedication control as public open space. Minor works will be carried out to the rear boundaries of 85-99A Phillip Street to control stormwater run-off from the park and laneway." This passage does not mention Surrey Lane, except to the extent that the northern part of it could be regarded as part of the park. The land mentioned in sub-paragraph (ii) was a strip of land running parallel to and just to the north of Surrey Street, which ran in an east-west direction (as well as a north-south direction at its easterly end); its westerly end terminated in the park, but it was not part of Surrey Lane: CAB 136G-137D. 35 The other passage relied on was as follows (CAB 169L-P): "2. PROPOSAL FOR DEDICATION OF LANEWAY (FORMERLY 'SURREY ST' TO COUNCIL FOR PUBLIC ROAD The Lane (as discussed in 1 above) is essentially an access road with public right of way for Vescey Street Park. This Department is not required to manage a public roadway. When the development is complete dedication of the laneway to the City of South Sydney Council will be sought. The laneway is a local traffic road without through access. It services 3 Pensioner Housing garages 7 dwellings and Vescey Street Park (refer attached sketch plan)." No sketch plan was attached to the Exhibit. This passage does not refer to Surrey Lane. Contrary to what the defendant submitted more than once, the "Lane" was not Surrey Lane; rather it was the "laneway for access to the rear of Department properties at 85-99A (inclusive) Phillip Street" mentioned in paragraph 1(ii). That is further made plain by the heading: a laneway which is formerly Surrey Street is not Surrey Lane. 36 But even if it is assumed in the defendant's favour that Surrey Lane was included within the meaning of the word "park" in the sentence "This park was developed by the Department of Housing", the document does not establish that the Department did, or that the Council did not, install the paving. 37 The next item of evidence on which the defendant placed strong reliance was CAB 212, which was part of Exhibit 16. This recorded a resolution of the defendant on 25 August 1993 in the following terms: " SURREY STREET, WATERLOO - EAST-WEST SECTION, WEST OF NORTH-SOUTH SECTION - PROPOSED RE-DEDICATION AS 'PUBLIC RESERVE' IN ASSOCIATION WITH ROADS AND LANDSCAPE WORKS IN SURREY, UNION AND VESCEY STREETS (SO6-00764, S06-00001) That arising from consideration of a report by the Director of Public Works and Services dated 2 August 1993, approval be given in principle to:- (a) the acceptance by Council of the dedication by the Department of Housing of the proposed new access road as 'Public Reserve' with limited private use solely for vehicles and pedestrians access to the properties which abut the area, as shown on plan No S6-280/141A, accompanying the report of the Director of Public Works and Services; (b) the Department of Housing being responsible for all costs relating to the construction and signposting for the proposed 'Public Reserve' and the reconstruction of Surrey Street north-south section, details of design and signs shall be in consultation with Council's representatives." The argument was that since the Department of Housing was to be responsible for all costs, it must have done all the work. The argument assumed that the "costs" were costs of work on Surrey Lane. On analysis, that is not so. Comprehension of this document is not assisted by the fact that the report of 2 August 1993 is not in evidence, though Plan No S6-280/141A and S06-00764 are (CAB 225). Part of Exhibit 16 is part of Plan No S6-280/141A (CAB 213). Plan S06-00001 appears not to be in evidence. Page 213 is in the following form. The area described in the legend as the "PROPOSED NEW ACCESS ROAD TO BE DEDICATED AS PART OF PARK", i.e. the area which on the plan itself is called "PROP. NEW ACCESS ROAD", is the same area as the "laneway for access to the rear of Department properties at 85-99A (inclusive) Phillip Street" to the north of Surrey Street in its east-west location, which was described in the 18 February 1992 letter as "essentially an access road with public right of way for Vescey Street Park". That is the piece of land which the 25 August 1993 resolution referred to as "SURREY STREET, WATERLOO - EAST-WEST SECTION, WEST OF NORTH-SOUTH SECTION". It was that which was to be "the proposed new access road" - not Surrey Lane. Its "PROPOSED RE-DEDICATION AS 'PUBLIC RESERVE'" was to occur "IN ASSOCIATION WITH ROADS AND LANDSCAPE WORKS IN SURREY, UNION AND VESCEY STREETS" - not in association with anything done to Surrey Lane. The Department of Housing was to be "responsible for all costs relating to the construction and signposting for the proposed 'Public Reserve' and the reconstruction of Surrey Street north-south section". None of these areas is Surrey Lane. The trial judge said that the defendant, "in final submission, stated that Surrey Lane was dedicated back to the Council on 25 August 1993. For that he relies on Exhibit 16 which does not seem to do that" (Red 20Y-21B). This passage was part of the passage criticised in paragraph 17 of the defendant's written submissions with the words: "His Honour's finding that this evidence was unsatisfactory eschewed analysing the evidence". Paragraph 17 of the defendant's written submissions, as indicated above, contended that the resumption and vesting of the northern part of Surrey Lane in the Department was made clear by "documents proposing the re-dedication of the Park to the Council". Exhibit 16 says nothing about either the Park in general or the northern part of Surrey Lane in particular. In this respect, at least, the trial judge's view appears to rest on a sounder analysis of the evidence than that which underlies the defendant's submission criticising him. This is a peculiar error on the part of the defendant, since paragraphs 19-20 and notes 29 and 31 state the correct position. 38 The essential point is that the statement in the 25 August 1993 resolution about "the Department of Housing being responsible for all costs" does not concern the costs of any work to the northern part of Surrey Lane. Even if it did, it would be no better than ambiguous on the question of who actually did the work. 39 The defendant also relied on the following passages in a letter from the Department of Housing to the defendant dated 26 September 1988(CAB 202P and 203H-J): "The site area for this development (approximately 1271m2) includes part of Surrey Street and Surrey Lane which are proposed to be resumed from your Council. … It is proposed that the area will be developed at the Department's cost and dedicated to Council as public open space. Council by letter dated 18th July, 1988 (copy attached), has agreed to accept the care, control and management of the park area. Vehicle access for Council's maintenance vehicles will be provided from Vescey Street, Surrey Lane, and a new accessway constructed at the rear of 85-95 Phillip Street. The construction of this new accessway in addition to road widening works in Surrey Street are to be carried out in conjunction with the construction of the park." The 18 July 1988 letter is not attached to the Exhibit and does not appear to be in evidence. The defendant's submission was that if the area was to be developed at the Department's cost, it followed that the Council did not do the work. Again, the language is too ambiguous to permit that conclusion. 40 The defendant also relied on a letter of 24 February 1989 from the Council to the Department proposing the following as a condition for the development application (CAB 194T-V): "The Department of Housing shall accept responsibility for the cost of any consequential works in the nature of kerbing, paving, guttering, drainage facilities etc. adjacent to the streets proposed to be resumed, and the cost of paving Vescey Street, Nelson Lane and the remainder of Surrey Lane for use as access pathways to the proposed park." It also relied on the following passage in the Department's reply on 2 March 1989 (CAB 192S-X): " Department to Accept Costs for Road Drainage and Landscaping Works Agreed: This condition can be agreed to provided the reference to the paving of Vescey Street is deleted. Revised landscaping plans to Vescey Street currently being prepared for submission to Council restrict works in Vescey Street to boundary fencing, footpaths, kerbing and guttering (copy of draft plans attached for information)." The argument was that if the Department was accepting responsibility for the costs of paving land not the subject of the development application (i.e. "the remainder of Surrey Lane" - the southern part), this pointed to the conclusion that the Council had not paved the northern part. Again, the language is too ambiguous for this conclusion to be drawn. 41 The defendant also referred to a resolution of 8 November 1988 (CAB 188P-T) approving: "(1) (a) the acceptance by Council of the dedication by the Department of Housing of the proposed park adjacent to Vescey Street, Waterloo, as 'public reserve' as shown on Plan No. S6-280/141 accompanying the report of the City Engineer; (b) the Department of Housing being advised that Council will raise no objection to and will waive the claim for compensation for the resumption by the Department of part of Surrey Lane, Waterloo, and part of the east-west section of Surrey Street, Waterloo, as shown stippled on Plan No. S6 280/141 accompanying the report of the City Engineer, but Council will not accept the dedication of the proposed 6 m wide access road at the rear of Nos. 85-99A Phillip Street, Waterloo." This does not point against the Council having paved the northern part of Surrey Lane. 42 On the face of the documentary evidence, at best from the defendant's point of view, Surrey Lane was to be treated as falling into two parts: the northern end owned by the Department of Housing, the southern end owned by the defendant. Mr Deveril, superviser of the defendant's stone yard, said that the defendant's responsibility was for the southern part, i.e. from the bollards in Raglan Street to the boundary of Housing Commission houses (CAB 120V-121C and 121W-122W). Without the permission of the defendant, the Department could not have carried out work on the southern part. The entire laneway was constructed at the same time. Mr McColough, the defendant's special project engineer, who investigated the accident, said so (CAB 141D-J), Mr Hazel (an engineer called by the plaintiff) appeared to assume so (CAB 155S) and that assumption underlay questions addressed to him in cross-examination on behalf of the defendant (CAB 98R-W; see also 93H-J, 94B-D, 95J-96H, 96S-X and 98I-J). And the appearance of the laneway in photographs suggests it was constructed at the same time, using the same materials, to a single design: Exhibit A4 (CAB 143), Exhibit 1 (CAB 171) and Exhibit 5 (CAB 175). The defendant's written submissions, paragraph 29, accept that the Department of Housing may well not have agreed to lay pavers on the southern part of Surrey Lane. If so, that points to the defendant having done all the work. Since there is no evidence that the Department of Housing received any permission to carry out work on the southern part of Surrey Lane, it is either likely or at least a real possibility that the Council did the work on both parts, being reimbursed for the cost by the Department. That likelihood or possibility is either supportive of or not damaging to the trial judge's acceptance of the plaintiff's evidence about the Council workmen. The Works Issue: the Council officers' evidence 43 The third argument of the defendant in support of the suggestion that it did not lay the paving was that it "called its own officers to say that it had not done the work of laying the paving, which was consistent with the documentary evidence." 44 The first point to be made about this submission is that it was only "consistent" with the documentary evidence in the sense that that evidence was at best from the defendant's point of view entirely equivocal. 45 Secondly, in truth only one Council officer gave evidence to the effect suggested: Mr Deveril. Mr McColough was a special project engineer who investigated the accident in 1997 but had no role contemporary with the laying down of the pavers. The only other officer of the defendant who was called was Mr Hannon, supervisor of the Purchasing Section, who was responsible for the purchase and distribution of outdoor staff uniforms. 46 Thirdly, Mr Deveril's evidence on the present topic was that to the best of his knowledge the fourteen employees whom he supervised had not laid any pavers in Surrey Lane in the previous ten years: CAB 113L-115C. This evidence was admitted on an undertaking by the defendant that there would be other witnesses called "who will cover the field": CAB 114G-P. The trial judge said that if that evidence were not called, then Mr Deveril's evidence would not be admissible. The other evidence was not called. The trial judge did not make any point about this in his reasons for judgment, but the failure to call anyone but Mr Deveril must at least affect weight. 47 The defendant, in the course of its oral argument on the appeal, accepted that it was open to the trial judge to disbelieve Mr Deveril. The trial judge made the following comments on Mr Deveril. In relation to Mr Deveril's evidence on the different question of whether the footpath revealed signs of damage on 1 July 1996, to which his answer was that it did not, the trial judge said (Red 15K-N): "Mr Deveril was not [a convincing] witness. Mr Deveril had the supervision of all paving for the Council. The question which soon arose in assessing his evidence was whether he was adamant about matters he clearly and truthfully recalled, or an advocate who was not prepared to concede that any work of his could be faulty. As his evidence progressed the latter alternative prevailed. This detracted from acceptance of his evidence of factual matters." A reading of Mr Deveril's cross-examination indicates why the trial judge formed that impression. On the Works Issue, the trial judge said the following about Mr Deveril (Red 17E-H): "He is the supervisor of the Defendant's stoneyard and has held that position for 10 years. He supervises, amongst many other things, all paving done by the Council. He said that, to his knowledge, the Council had never laid pavers in Surrey Lane while he has been supervisor of the stoneyard. I have already commented on his demeanour. His evidence on this topic seemed to be that the defect was poor workmanship, that he would not permit poor workmanship and that therefore his men had not laid the offending pavers. When compared with the Plaintiff's evidence, Mr Deveril's would not be preferred." The defendant did not seek to demonstrate that these credibility-based conclusions (as distinct from the trial judge's conclusions about the plaintiff's observation of Council workers) were open to appellate review and indeed accepted in oral argument that it was open to the trial judge to reject Mr Deveril. In any event, Mr Deveril may have been unaware of the defendant having done the paving because someone else authorised it; or he may have forgotten it, being responsible for enormous numbers of jobs over ten years. The possibility of someone else being authorised to do the work could have been excluded or limited by calling Mr Deveril's superior, Mr Donnelly, the defendant's manager of public works and services: CAB 120A-H. He was not called. Mr McColough said a number of Council officers, including any supervising engineer, would know what work on public streets and footpaths would have been carried out under Council supervision in accordance with specifications: CAB 136A-F. None were called. The deficiencies of human memory can be overcome, where a large organisation such as the defendant, which must carry out very great quantities of engineering work, is concerned, by having recourse to its records. In particular, the most reliable way of establishing in a trial in 1998 what happened in the early 1990's would be to examine its records of what work it did and what work it gave permission to others to do on its land. No witness was called to prove a system of keeping such records and to prove the absence of any such record in relation to the southern part of Surrey Lane pursuant to s 69(4) of the Evidence Act 1995 (NSW). Yet the photographs of Surrey Lane suggest that paving it would have been a substantial job, based on a design, calling for the generation of estimates and quotations and the ordering of materials by means of documents. Quite apart from the trial judge's opinions on Mr Deveril formed after observing him in the witness box, it is rational not to give his views much weight in view of the subject matter and the general circumstances. The Works Issue: Was the trial judge entitled to accept the plaintiff's evidence? 48 The plaintiff said that the workmen she saw had yellow shirts. South Sydney Council workmen did have yellow shirts at the time of the trial, but not in 1993, when they wore blue attire. To be mistaken about colours is common. The plaintiff was familiar with the modern attire of the defendant's workmen: CAB 38V-39G. The plaintiff's recollection transferred into the past her frequent observation of the modern attire of the Council workmen. The trial judge treated the mistake as innocent. If it was not innocent, the question is where that mistake leads. Does it lead to the conclusion that she was lying about the existence of any workmen at all? Does it lead to the conclusion that she saw workmen, but that they were Department of Housing workmen? It is not clear what the defendant's answers to these questions are. 49 Mr Thomas was a witness called by the plaintiff to rebut a suggestion, propounded by the defendant for some time with some vigour, but the relevance of which is obscure, that there was some connection between a cut under his eye and a cut on the plaintiff's forehead caused by a fight between them. The defendant put the following leading questions to him (CAB 104T-105A): "Q. And you're aware aren't you, having been a resident of Raglan Street that in the early '90's the Housing Commission redeveloped the area? A. Yeah. Q. They built some buildings, didn't they? A. Yeah, at the back of my house they built like -yes. Q. And not only did they build some buildings could I suggest to you, but they laid the pavers along Surrey Lane? A. Yes." The weight of the last answer is radically affected by reason of its having been given in answer to an objectionable double question. Further, the defendant did not obtain from Mr Thomas any evidence as to why Mr Thomas had formed that conclusion. The next day Mr Thomas was recalled and said the people building the pathway were wearing blue jumpers: CAB 130M-U. He was not cross-examined about that evidence. To a limited extent that supports the view that they were the defendant's workmen, who in the early 1990's wore blue. There was no evidence as to what the colour of the clothing which workmen from or engaged by the Housing Commission other than the defendant's workmen wore in those days. 50 Further, and very powerful, support for the view that there were workmen there, and that they were Council workmen, stems from the plaintiff's evidence that she saw Council barricades keeping people off Surrey Lane while work was in progress. This evidence emerged in the following way. A friend of the plaintiff's, Mr Carroll, who was nearby at the time of the accident and came to her aid, had worked for the defendant from 1994, and by the time of the trial wore a yellow shirt. At CAB 39G-Q the following cross-examination appears: "Q. Can I suggest to you that your recollection or [sic] what these people were wearing that were working prior to you falling is not based on what you saw but based upon your knowledge of what Mr Carroll wears? A. No, because they also had barricades where they were doing work and stuff and they nominated South Sydney Council so I wasn't just taking notice of people. Q. Where were these barricades? A. They were around to stop people from walking into the laneway and things. Q. Why did you go up the laneway if there were barricades at the front? A. I wasn't up the laneway. I was in my backyard. Q. When? HIS HONOUR: I think you are [sic] cross-purposes. I think -- " Counsel for the plaintiff then pointed out, and counsel for the defendant accepted, that the plaintiff was talking about when the workmen laid the stones, while the cross-examiner was talking about the day of the accident. The defendant on appeal criticised this barricade evidence as "volunteered". It said: "She just pops that one out": appeal transcript page 9 line 30 and page 11 line 34. The evidence was not beyond the scope of a legitimate answer to the question. If it was, it was not objected to at the time by the defendant. And the defendant never mounted any challenge to this evidence about the barricades in the next 28 pages. Thus the first opportunity to do this passed. Other witnesses were interposed on that day and the next day. When the plaintiff re-entered the witness box, no challenge to the barricades evidence was given over the next two pages of cross-examination. Thus a second opportunity for challenge passed. In re-examination the following evidence was given (CAB 109L-U): "Q. During your evidence, you said something about barricades? A. Yes, that's correct. Q. What did you mean by that? A. Well to stop people from using the park basically, because there was actually people living in the units. They've barricaded it off to walk access because -- Q. Is when the work was being done, putting down the paving? A. Yes. Q. When the work, putting down the paving was done you say there were barricades? A. Yes. Q. Was there anything on the barricades? A. Yes, they nominated South Sydney Council, Sydney City Council. Q. On the barricades? A. Yes." Leave for further cross-examination was then given but over the next two and half pages no cross-examination on the barricades evidence took place, and thus a further opportunity was not taken. 51 The trial judge made the following finding about the barricades evidence: "The Plaintiff also said that pedestrians were kept off the work in progress, by barricades on which was the name South Sydney Council": Red 17C. Ground 2.4 of the Notice of Appeal treats this passage as indicating acceptance by the trial judge of the evidence. This was a sound approach, because the trial judge did not indicate any disagreement with that evidence. He must be taken to have accepted it in view of his generally favourable conclusions about the plaintiff's credibility. Given that three opportunities to cross-examine on the plaintiff's evidence were not taken in a case where the plaintiff was cross-examined on every other conceivable controversial point, together with other disparaging topics presumably thought to matter in some way, the trial judge's acceptance of the barricade evidence appears not only open to him, but entirely sound. Further, not only was there no cross-examination about the barricade evidence, there was no cross-examination to support the serious charge made in paragraph 2.4(i) of the Notice of Appeal, namely that the evidence "was tailored by the respondent to meet cross-examination". This expression appears to be a euphemism for lying. This Court could not possibly reach that conclusion for itself in this case without appropriate cross-examination below. 52 The defendant put the following submission in paragraph 36 of its written submissions about the barricade evidence: "She also asserted, as the judge found that she saw Council barricades keeping people off the work area. That is a remarkable feat of memory about a detail which had no then relevance when she saw it allegedly and from a witness who had made, on a benign view, two mistakes about what the workmen wore. However, according to his Honour she was reliable in her assertion that she ' saw ' the barricades naming the Council from her backyard notwithstanding her own evidence that she had very poor eyesight (footnotes omitted)." The reference to the two mistakes was put thus in a footnote: "She ascribed a radically different colour, bright yellow not blue; and she asserted the Council's name was on the shirts." The points made in this submission are points that might have had force had they been put to the plaintiff, depending on her answers. They can have no force in this appeal given that they were not. 53 The trial judge's acceptance of the plaintiff's barricade evidence is rendered even more understandable by the fact that the defendant called no evidence to suggest that its barricades did not bear its name, or that barricades bearing its name could be used even where persons other than the defendant were carrying out work. 54 The defendant submitted that the trial judge, in accepting the plaintiff's identification of the workmen as the defendant's workmen, had misused his advantage and had left it open to the Court of Appeal to intervene. The defendant referred to State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at para 4 where Gaudron, Gummow and Hayne JJ referred approvingly to a statement of Jacobs J in Agbaba v Witter (1977) 51 ALJR 503 at 508. Jacobs J gave, as an example of when primary findings based on the credibility of witnesses might be displaced, a case: "where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal." That submission fails, because in the present case the "incontrovertible evidence" relied on, namely the documents relating to the development application, does not point against the conclusion that the defendant's workmen laid the paving. At best that evidence is not incontrovertible but ambiguous. The documents can be fitted into the pattern, without rejecting the trial judge's view of the plaintiff's credibility. 55 The defendant also submitted in paragraph 45 of its written submissions: "As Gaudron, Gummow and Hayne JJ noted a court on appeal can find that in light of the other evidence, a trial judge's credibility finding has too fragile a base to support it -, indeed, in this case, it has no base at all." The reference is to 73 ALJR 306 at 321 para 63. What that paragraph actually says is: "It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable. The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Peak and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the allegations made by Mrs Page." The point is that what Gaudron, Gummow and Hayne JJ were dealing with was a case where a trial judge had formed an adverse opinion of a witness based on his impression of the witness while giving oral evidence, and they reasoned that an appellate court was entitled to upset a finding of unreliability if the other evidence pointed strongly towards reliability. The present circumstances are the reverse. Here the trial judge accepted the plaintiff in part by reason of his impression of her while giving oral evidence, and it was open to him to do so. A further point of distinction is that there was no documentary evidence radically inconsistent with the conclusion at which the trial judge arrived. Further, it is significant that the defendant has abandoned almost all of the many attacks it made on the plaintiff at the trial in its written argument in support of those parts of the Notice of Appeal which it wishes to pursue. The trial judge's credibility findings are supported not only by the abandonment of many grounds of attack on the plaintiff on appeal but also by the manifest failure of some at the trial (such as the suggestion that the cuts on the faces of the plaintiff and Mr Thomas were connected), and by the abandonment of others (for example, Mr Carroll's corroboration by his answers in cross-examination on where the plaintiff fell (CAB 80G-J, 81W-83G and 84A-F) and the absence of cross-examination of him to suggest the contrary). All these considerations are reasons for treating the trial judge's conclusions as to credibility as immune from attack in this appeal. 56 I would dismiss the appeal so far as it relies on paragraphs 1 and 2 of the Grounds of Appeal. Ground 4.6: admissibility of arbitration evidence 57 This related to Ground 3. Ground 3 was: "His Honour erred in concluding that the Respondent's fall was caused by tripping on the edge of the manhole cover depicted in Exhibits A1-2 due to the subsidence of adjacent pavers. His Honour should have concluded that the Respondent did not trip and fall at the location identified in Exhibits A1-2." Ground 4.6 was: "In coming to the conclusion appealed from in ground 3, his Honour erred in …: 4.6 ruling that evidence of the Respondent's prior inconsistent evidence given on arbitration of the matter was inadmissible and disallowing cross-examination on that evidence. Leave will be sought to re-argue the correctness of the decision of the Court in Courtenay v Proprietors Strata Plan 12125 decided 30 October 1998 (unreported) to the extent that decision determined that a trial judge should not permit questions in respect of evidence given by a witness at arbitration under the Arbitration (Civil Actions) Act 1983 and the proper interpretation of the former section 18(3) of that Act (now section 18B(1))." 58 An initial difficulty is that the defendant addressed neither written nor oral argument in support of Ground 3. Indeed, it was vital for the defendant's argument on Grounds 1-2 that the plaintiff fell near the manhole cover, yet Ground 3 is not expressed as an alternative to Grounds 1-2. 59 The background to Ground 4.6 is as follows. While the plaintiff was being cross-examined about her recollection that the shirts of the persons she said were the defendant's workmen were fluorescent yellow, the following is recorded as taking place (CAB14G-N): "Q. Could I suggest to you that you have previously given evidence in another place, that it was some 12 to 15 months before your accident that you saw someone with a yellow shirt or people - OBJECTION. FORM. PRESSED. LEGAL ARGUMENT. HIS HONOUR: Unless you can show me that there has been authority overruling Justice Finley's [sic] decision, I would apply that decision. FURTHER LEGAL ARGUMENT. QUESTION REJECTED." Counsel for the defendant then said: "I take it that your Honour's ruling is that I am precluded from putting to the plaintiff anything that she said at the arbitration about this matter or any other matter presumably? HIS HONOUR: Yes, that's right." 60 When the plaintiff was cross-examined about Exhibit 2, a photograph containing a marking as to the site of the fall, the transcript records the following application by counsel for the defendant (CAB 22Q-23G): "Your Honour, it would be my application, notwithstanding your Honour's earlier ruling on the evidence as to one portion of the arbitration that I be permitted to suggest to the plaintiff that the photograph that is the subject of the last exhibit was shown to her at the arbitration. OBJECTION. PRESSED. LEGAL ARGUMENT. HIS HONOUR: Yes, a document that was produced at the arbitration I suppose can be produced, but no reference can be made to the fact that it comes from the arbitration. If you are only asking that a document be shown to her then that is another matter, but if it is with reference in any way to the arbitration then - - " Counsel for the defendant then asked the witness: "Q. That photograph that I have just drawn your attention to, have you ever seen that before? OBJECTION. HIS HONOUR: If you are in some way attempting to establish that this was produced at the arbitration then we are wasting our time, aren't we?" Counsel responded: "I wouldn't dare do that with respect your Honour. What I am asking the witness is has she ever seen the photograph. HIS HONOUR: Yes, well on your understanding that that is not where you are going, then I will permit the question." Counsel then said: "I am merely trying to find out whether she has seen it before. I am not attempting to elicit evidence that 'Yes, I saw it at the arbitration'. It may well [sic] she has seen it on other occasions." These rulings of the trial judge were based on Finlay J's decision in Najdanovic v Brown (unreported, 22 September 1992). Priestley JA uttered obiter dicta approving Finlay J's approach in MacDougall v Curlevski (1996) 40 NSWLR 430 at 435. The Court of Appeal approved it in Courtenay v Proprietors Strata Plan 12125 (unreported, 30 October 1998, Priestley JA, Sheller and Beazley JJA concurring). 61 The defendant sought leave to reargue the correctness of the last case. In essence the case holds that s 18(3)(b) of the Arbitration (Civil Actions) Act 1983 in the form in which it existed at the time of the trial in the present case prevents the use of evidence tendered before the arbitrator appointed by the District Court under that Act in any re-hearing, save by consent, though s 18(4) permits it to be used on a question of the costs of the arbitration. Section 18(3)(b) provides that where an order is made after an arbitration for a rehearing, subject to subsection (4), "the action to which the order relates shall be heard and determined in the court as if it had never been referred to an arbitrator." 62 I would refuse leave for the following reasons. 63 First, though constructions of s 18(3) different from that favoured in the existing authorities may be arguable, it cannot be said that the favoured construction is plainly wrong. Indeed, it is powerfully supported by the nature of the arbitration process which the Act contemplates. An arbitrator under the Act is to endeavour to bring the parties to a settlement: s 9(1). The intent of Parliament was to seek to reduce District Court litigation by giving parties an opportunity for a speedy and relatively cheap hearing. Though any dissatisfied party could prevent the arbitrator's award from being enforced by applying for a re-hearing (s 18(2)), it was hoped that after the arbitration most parties would accept the outcome as resolving their dispute. A construction which permitted the evidence at the arbitration to be used before a District Court judge would obstruct these legislative goals. Many defendants (and perhaps some plaintiffs) would use the arbitration as an opportunity for a dummy run or dress rehearsal - an opportunity to administer oral interrogatories or conduct a wide-ranging cross-examination in the hope of setting up contradictions in testimony to be used in the District Court trial. That in turn would tend to reduce the popularity of the procedure amongst litigants against whom it was likely to be used in that way. 64 Secondly, the defendant did not apparently inform the trial judge of what lines of cross-examination it proposed to undertake and what inconsistent statements it proposed to tender in the event that the plaintiff failed to admit them. If earlier decisions of this Court are to be re-argued, the cases in which re-argument is to occur must be satisfactory vehicles for that process to take place. The defendant did not demonstrate to the trial judge, and it could not demonstrate to this Court on the material before the trial judge, how the forbidden cross-examination would be otherwise admissible or useful. In effect, this Court was asked for a hypothetical or advisory opinion. Further, the defendant's written submissions hinted at a contention that the existing cases were distinguishable; that argument should have been run before the trial judge; it could not be run there, and cannot be run to this Court, without there being precision as to what evidence the defendant desired to elicit. 65 Three working days before the day on which this appeal was heard, the defendant assembled a "Supplementary Combined Appeal Book". In numerous respects this was in breach of the Supreme Court Rules. The bulk of it consisted of material about what happened in an arbitration between the plaintiff and the defendant conducted on 22 October 1997. Quite apart from affidavit material, there were 46 pages of transcript of the hearing of applications by both parties for the costs of the trial which were spread over three hearing days, namely 23 April 1999, 15 June 1999 and 29 July 1999. The junior counsel and the solicitor appearing for the defendant at the arbitration gave evidence, as did the plaintiff. Filleting out from these materials statements of the plaintiff which were arguably inconsistent with her evidence at the trial and evaluating whether in fact she made them would be a very substantial task. That in itself demonstrates the practical utility of the construction of s 18(3) adopted in the cases. Grounds 5-6: damages: $16,000 for surgery 66 The defendant's written submissions on this point were as follows: "63. The judge awarded $16,000 being 50% of the present estimated cost of possible surgery based on Dr Mahony's evidence. But contrary to that evidence the judge thought surgery would be required sooner rather than later. Dr Mahony described such surgery as a last resort which he thought she could avoid. 64. That award, and certainly the quantum, was not warranted by the evidence (footnotes omitted)." 67 What Dr Mahony said was "I certainly wouldn't just jump into spinal surgery" (CAB 70Q); it would not be unforeseeable that surgery could be avoided (CAB 77F-H); "hopefully" a double laminectomy would not happen (CAB 77R); and he would do everything in his power to avoid it (CAB 77U). He did say "she could avoid spinal surgery" (CAB 77T), but Dr Mahony plainly thought there was a real chance she might not. The conclusion of the trial judge that the plaintiff should receive about half the cost of that spinal surgery does not seem an appellably wrong reflection of that chance. Grounds 5-6: damages: loss of earning capacity 68 The defendant's written submissions argued: "65. Next, his Honour awarded $50,000 for loss of earning capacity. The judge found that the plaintiff ' has been less than exuberant in her search' for employment. There was no evidence, and no finding, that her earning capacity was altered at all. 66. At the time of her fall the judge found she earned $100 to $130 per week. His Honour found that she could expect to earn (at the time of judgment) $150 to $200 per week - i.e. after inflation no less than before the accident. 67. No award was justified, save perhaps for the 15 months between October 1993 and February 1995 where the judge found she could not work (footnotes omitted)." 69 The trial judge made findings as follows: "44. Dr Burgess found the Plaintiff to be in considerable pain, walking with a bent over posture and unable to straighten her back. She has left thigh pain and spasm. The radiating pain became more extensive on the lower left, with spasm. Dr Burgess saw the Plaintiff four times during October 1993. Because of her concern to exclude a disc lesion, Dr Burgess referred the Plaintiff for a CT scan. Although this showed a bulge at L 4/5 disc, this was not considered significant. At this time the Plaintiff also was treated by Dr Andrew Small. He found her very distressed by radicular pain in the left leg. He queried whether there should be further study of the L 5 left nerve root. … 46. In view of those matters, I accept the Plaintiff's assertion that her back symptoms continued throughout the intervening period. Her assertion was in any event convincing. The same is the case for a period after 14 March 1996, when the Service's notes show consultations when no complaint of back pain is recorded. 47. … I quote from Dr Mahony's report of 10 July 1997 - 'Ms Morris has developed symptoms referable to a low lumbar disc lesion in association with a Grade 1 spondylolysthesis at the lumbosacral level with nerve root irritation affecting the left lower limb. It is consistent that the fall she described could have produced such lesions and aggravate a potentially irritable spine.' On balance, I accept that the fall did produce those lesions and aggravate her potentially irritable spine, which had not been symptomatic before then. 48. The Plaintiff has considerable incapacity, restrictions and pain because of her injury. She is prevented from doing heavier forms of activity with her back. She can perform many moderate forms of activity only for limited periods, following which she will suffer pain. Many of these she does perform with that knowledge, but as they are essential she does them; for example stresses with caring for her young child, who was born 19 September 1996. She can mostly walk without difficulty for some distance. On occasions however she find [sic] that the radiating pain down her left leg causes her to walk with a limp and she notices that her back tilts at times. She has low back pain which is worse on coughing. There is radiation of various symptoms down her left leg - pain, pins and needles, numbness and tingling. Her symptoms tend to be worse in cold weather ….(Red 23R-25N)". 70 At para 49 of his reasons for judgment the trial judge said (Red 26H): "Her condition is gradually getting worse. Both Dr Mahony and Dr Seaton have in contemplation that she could require surgery - a double laminectomy and perhaps, after exploration, a L 4/5 discectomy, according to Dr Seaton." 71 At paragraph 50 of his reasons for judgment the trial judge said (Red 26H): "If she does have her operation that might restore her work capacity. It might not, or it might only be partially successful." Contrary to the defendant's submission, that is a finding of reduced earning capacity. The findings, based on evidence, of the pain suffered by the plaintiff - not challenged in the Notice of Appeal - pointed to the correctness of the view that there was reduced earning capacity. At the time of the trial the plaintiff was 24. A figure of $50,000 for reduced earning capacity for the next 41 years is a low award. The award of $50,000 is not appellably high. Grounds 5-6: damages: general damages 72 The defendant's written submissions argued: "68. Then his Honour awarded $80,000 for general damages. The judge found that she had considerable incapacity, restrictions and pain and was prevented from engaging in heavier forms of activity with her back. 69. However, Dr Mahony said that with proper orthopaedic management and an appropriate exercise regime, her symptoms would be minimized. 70. The award of $80,000 appears very large for this kind of injury. Indeed, Dr Edwards' report was tendered by the Council and surprisingly, perhaps, he was not cross examined. Dr Edwards' report provides no support for any significant award. He says the plaintiff has no ongoing disability or need for treatment causally related to her claim (footnotes omitted)." 73 The trial judge's findings as to the pain the plaintiff has suffered and is likely to suffer were not in terms attacked. They were made because of credit-based acceptance of the plaintiff: Red 22V. The trial judge said of the doctors (Red 22X-23E): "The defendant tendered a report of an examination by Dr Edwards. Dr Edwards recounts a continuing history of quite serious continuing symptoms and he notes significant radiological findings. He then goes on to say that the Plaintiff's incident 'should have had effect for a period varying from a few days to perhaps three or four months'. He gives no reason for that. The Plaintiff's two qualified orthopaedic specialists, Dr Mahony and Dr Seaton, were called to give evidence, and supported their opinions impressively. I accept their evidence in preference to Dr Edwards'. Dr Seaton uses the expression 'back cripple' which, taken out of context, puts it too highly, but Dr Seaton clarifies his meaning in the details of his report." The trial judge was entitled to prefer the evidence of doctors whom he heard give oral evidence over the evidence of a doctor whom he did not. The award of $80,000 does not appear to be based on any error of fact or principle and is not on its face appellably excessive. 74 Grounds 5.2 and 5.4 were not supported by argument and need not be dealt with. Application to amend Notice of Appeal: issues at the trial 75 Before turning to the application for leave to amend the Notice of Appeal, it is convenient to consider what the issues were at the trial. 76 The Statement of Claim (one's admiration for which is not increased by its opening words: "The Plaintiff pleads his cause of action as follows" and some irrelevant boiler plate) relevantly alleged that the defendant was negligent in relation to Surrey Lane in that "Bricks on footpath laid in unsafe condition in that same were uneven". It was dated 1 October 1996. On 7 May 1997 the plaintiff responded to a request for particulars by the defendant and made it plain that the plaintiff was alleging that the bricks were faultily laid by the defendant: CAB 222M. On 1 August 1997 the plaintiff's then solicitors sent "a copy of the photograph which shows where our client fell": CAB 172-173. The spot indicated was in the southern part of Surrey Lane, not the part near the manhole. The trial judge found that the solicitors had misunderstood their instructions: Red 14N-P. No argument on the appeal was directed to show error in that finding. The plaintiff in her evidence in chief located the fall as being near the manhole: CAB 4H-K and 5J-K. 77 The defendant in its Defence, filed on 17 June 1997, denied every allegation in the Statement of Claim. Apart from pleading contributory negligence, its only contribution to sharpening the issues for trial was to plead (Red 11C-G): "if at all material times the Defendant had the care, control and maintenance of Surrey Lane, Waterloo, it was in the capacity of a road or highway authority and not otherwise and was under no obligation to maintain the road or highway." 78 At the trial the defendant appeared to run the following lines of defence. 79 Some endeavoured to negate the existence of an accident or of significant consequences from it. (a) It was suggested that there was no fall; and that even if there had been a fall, the plaintiff would not have been injured, or seriously injured; to this end she was filmed and cross-examined on the film; and was cross-examined on alleged lack of complaint to her treating general practitioner. (b) It was suggested that any fall occurred in the southern part of the lane, and that defect in the pavers near the manhole had nothing to do with it: CAB 20W-24E. This position appears to have been abandoned by the time the plaintiff's companion, Mr Carroll, entered the witness box, since his corroboration of her evidence was elicited by the defendant's cross-examination of him and was not challenged in that cross-examination. (c) It was suggested that the manner in which she said the fall occurred was improbable: CAB 24L-X and 28B-P. 80 Other lines of defence went to absolving the defendant of blame for any accident. (a) It was suggested that the paving was in good condition with no irregularity before 27 June 1997 (CAB 96D-N, 97Q-S, 111W-112H, 119U-W, 126M-127A and 133A-K), and that someone other than the defendant had interfered with the manhole and its pavers between 27 June 1997 and the date Mr Hazel inspected the pavement at the end of March 1998: CAB 96L-98B. (b) It was suggested that the construction work on Surrey Lane was completed two years before the accident, or as early as the late 1980's or early 1990's: CAB 13K-O, 100Q-U and 109H-I. (c) It was suggested that the pavers in Surrey Lane were not uneven before the accident: CAB 38M-N. (d) It was suggested that liquid escaping from a nearby pipe had caused the subsidence: CAB 99D-L, 99U-100C. (e) It was suggested that the subsidence had not been caused by poor construction practices: CAB 95K-Q and 99L-O. (f) It was suggested that the paving of Surrey Lane was not carried out by the defendant but by the Department of Housing: CAB 12R-13E, 16Q-R, 17B-C, 114V-W and 135K-M. (g) It was suggested that the ownership of the areas surrounding the northern part of Surrey Lane, and the northern part of Surrey Lane itself, had been vested in the Department of Housing and that it followed that the defendant would not have constructed the laneway in that area. 81 In addition, the defendant found it necessary to conduct the trial in a manner which had the effect, though doubtless not the purpose, of disparaging the plaintiff as a human being. For example, there was investigation of whether an injury suffered on the second morning of the trial when her back gave way whilst she bathed her baby, thereby causing a gash in her forehead, was in truth the result of a fight with Mr Thomas: CAB 26E-J, 27K-X, 56P-57J and 103J-104A. The intensity of the contest on this point is illustrated by the fact that counsel for the plaintiff was not permitted to lead: CAB 27Q. 82 There were no openings. Most of the issues described above simply emerged as the case proceeded. Application for leave to amend Notice of Appeal 83 The essence of the point which the defendant is seeking to raise is to contend that because there is no evidence as to when the manhole cover was placed at the site of the accident, and who did so, even if the defendant laid the pavers, the plaintiff has not excluded the possibility that the defect was caused by an unknown person who placed the manhole cover in the pavers after the defendant completed the work. 84 At one stage the defendant contended that the point it wished to advance was raised by the existing grounds in the Notice of Appeal, but after due consideration none were identified. The defendant also contended that leave should be granted because the point had been taken in its written submissions. Paragraphs 46, 4 and 7-8 were identified. Paragraph 46 stated: "There was no evidence that: 46.1 the Council laid any pavers apart from the plaintiff's inherently unreliable evidence that she saw its workmen doing this more than 1 year before the event of that work and the identity of who performed it could have had any significance to her; 46.2 the Council had anything to do with the defective paving around the Cover." This appeared in the part of the defendant's written submissions dealing with the Works Issue and the question of whether it was the Council, or the Housing Department, or someone else, who laid the pavers. It was not directed to the issue in respect of which leave to amend is sought. 85 Paragraph 4 of the defendant's written submissions, which was placed under the heading "Background", stated: "Equally fundamental to the plaintiff's case as run at the trial was proof that the Council was legally responsible for: 4.1 the condition of Surrey Lane generally; 4.2 the work of installing a manhole cover ('the Cover') on which the plaintiff alleged at the trial she tripped - she having abandoned the pleaded and particularized case of slipping on moss at a different point in Surrey Lane." 86 There are three mistakes in paragraph 4.2. First, the plaintiff's case did not turn on who installed the manhole cover, but on who laid the paving defectively. Secondly, though the Statement of Claim referred to slipping on moss, it also alleged: "Bricks on footpath laid in unsafe condition in that same were uneven …". Thirdly, the plaintiff did not plead or particularise any particular location. It is true that her then solicitors sent a photograph on 1 August 1997 indicating a different location from that she gave evidence in chief about, but the trial judge found that this was without instructions, and the ground of appeal in relation to that finding (paragraph 4.1) was not supported in written or oral argument and not pressed. But whatever the merits of paragraph 4, it makes no contention that the trial judge erred in any respect, let alone the respect which is now raised. 87 Paragraphs 7 and 8 of the defendant's written submissions, which were also placed under the heading "Background", state: "7. Critically the judge found: '… the Defendant laid the pavers and were [sic] negligent in the way they abutted them to the manhole cover. There is no evidence who placed the manhole cover there; I would assume there is a manhole structure under it; there is no evidence who placed the manhole structure. There would be Jones v Dunkel inferences operating against the Defendant. It is not necessary to show who owned the manhole cover, or who placed it there, as the gravamen of this decision is that the council laid the pavers around it.' 8. As Moore DCJ there said, there was no evidence as to who placed the Cover there. Nor was there any evidence about when or how it came to be there originally or in the condition depicted in photographs of it taken in 1998 (footnotes omitted)." This, too, makes no complaint about the trial judge's reasoning. 88 The point which the defendant wishes to raise is that the defect in the pavers may have been caused by work done to the manhole cover by a person other than the defendant after the defendant had finished the pavers. What is the utility of the point which the defendant wishes to raise? As the case was conducted, there was a suggestion that the pavers around the manhole deteriorated between 1 July 1996 (when Mr Deveril found no defect: CAB 119U-W) or 27 June 1997 (when Mr McColough found no defect: CAB 126V-127) and late March 1998 when Mr Hazel found them to be in a defective condition: CAB 155R. The trial judge rejected that (Red 15F-X); no written or oral argument was advanced in criticism of his conclusion; and to contend for such a criticism would appear to be futile. So far as the ground for which leave is sought relates to a contention that such a criticism is sound, I would refuse leave. 89 However, the ground for which leave is sought could be utilised in another way, namely that even if the defendant constructed the pavers a year or two before 2 October 1993, the plaintiff has failed to exclude the possibility that someone other than the defendant erected the manhole cover after the pavers were constructed but before 2 October 1993. 90 Mr Hazel, an engineer called by the plaintiff, said in his statement, speaking of a photograph of the manhole cover at CAB 154: "The pavers around the manhole cover can be seen in the photograph to be uneven and subsided. This subsidence is more than likely due to poor construction practices at the time of construction. Subsidence of this type will occur if the area around an excavation is not properly compacted when backfilling is undertaken. It is this writer's opinion that this is probably the cause in this case": CAB 154R-T. That suggested that Mr Hazel's opinion was that the pavers were constructed either after, or simultaneously with, the manhole. That impression of Mr Hazel's opinion is confirmed by the following evidence in cross-examination (CAB 94F-K): "Q. Would your conclusion that the rest of the laneway apart from the area surrounding the manhole had pavers that did not have any undulations in them cause you to consider why it was that the undulations were restricted to the immediate area of the manhole? A. It's not uncommon, you have to be quite careful when you are near other structures when you are compacting soil, particularly in major structures like bridges. The compaction right up against the abutments and the compaction around other structures must be done very meticulously or you do get subsidence close to them. So this would be the sort of place if compaction wasn't done properly that would be the most likely place because it is right up against a structure that goes fairly deep." He said that just after stating: "The majority of the pavers, there are a couple of other pavers that are very slight subsidence but the rest of the pavers in that whole lane are perfectly level": CAB 94C-D. Some assumptions were then put to Mr Hazel as follows which were to the contrary of the proposition that the pavers were constructed after or simultaneously with the manhole (CAB 94L-W): "Q. Can I ask you to assume firstly that this is in fact, what you see in that photograph is in fact a Telstra facility? A. Yes I assume that. Q. And that in order to install that Telstra facility the paving had to be opened up in order to insert the manhole? A. Okay yes. Q. Would that be reasonable? A. Well you are asking me to assume that yes I'll assume that yes. Q. You assume those two things, it would follow would it not that the paving would have to be lifted up in order to dig the manhole? A. That's correct. Q. The paving then replaced after the manhole had been installed, that would follow would it not? A. Yes go ahead. Q. If you were to assume those things together with the fact that when the manhole was put in the sand under the pavers was not properly compacted would not one expect in that situation to find undulations restricted to the immediate vicinity of the manhole? A. That's correct yes." At CAB 94X-95B Mr Hazel was asked: "Q. And does not the absence of undulations in Surrey Lane in its entirety apart from the immediate vicinity of the manhole tend to suggest to you that something along the lines of the assumptions I have put to you was what in fact happened?" The question was objected to and the following is then recorded (CAB 95D-J: "HIS HONOUR: No it assumes that there weren't and that's the very thing that the witness has said, he volunteered that there were no other undulations. WITNESS: I said there were some minor other. HIS HONOUR: I understood you to say nothing substantial. A. There is other minor undulations though. Q. I'd allow that question I think it's fair? A. Would you repeat that question again please? Q. If you disagree with what is put to you of course then you disagree? A. Well he's asked me to assume it and after it's finished I can." 91 The cross-examiner then asked (CAB 95K-N): "Q. What I am suggesting to you Mr Hazel is that the assumptions that I have asked you to make, bearing in mind shall we say the reasonably good conditions of the balance of the laneway, would tend to suggest that it was not poor construction practices that caused this subsidence to occur in the vicinity and restricted to the area of the manhole? A. No I disagree with that. What you have put to me is that someone else did the construction but it was still poor construction." 92 To this point Mr Hazel was simply dealing with assumptions. The question suggesting that the absence of undulations supported the truth of those assumptions was not repeated after it was objected to. 93 At CAB 98F-W the transcript records the following: "Q. Mr Hazel it would be fair to say that your investigations reveal that the poor construction practice was restricted to the area in the immediate vicinity of the manhole? A. That would be in general terms yes. Q. Well in specific terms? A. Well there was just that one other small area but in general the construction of the path I would say was good yes. Q. Except apart from that area in the vicinity of the manhole? A. Yes. Q. In the immediate vicinity of the manhole? A. I think you'll find it spreads out a couple of feet. There's a couple of other if we say within a radius of say .6 to .75 [of] a metre around the manhole as being in the vicinity yes. Q. Well your enquiries were such that if one were to assume that your conclusion is correct in relation to the poor construction in the area of the manhole that you've mentioned that you are unable to pinpoint who it was that was responsible for such poor construction? A. No I didn't. Q. You couldn't tell? A. I couldn't tell. Q. What I am suggesting to you was it's more likely than not, bearing [in] mind that the undulations are limited to the immediately vicinity of the manhole that there was probably some work done in the vicinity of the manhole after the construction had been completed of the entire paving in the lane? A. I wouldn't be able to say that. Q. But that would commend itself to you would it not as a reasonable explanation as to why it was that the undulations were restricted to the immediate vicinity of the manhole? A. No no more so than the original construction in my view." Here Mr Hazel was refusing to accept on the probabilities that work was done on the manhole after the pavers were completed. 94 At CAB 99M-100H the following evidence was given: "Q. What I am suggesting to you is not having any knowledge as to when the pavers were laid you can't draw the conclusion that the subsidence in the vicinity of the manhole was due to poor construction practice? A. Yes I can it is due to some poor construction practice. Q. Either at the time that the pavers were originally laid? A. Yes. Q. Or alternatively at a time when some work may have been done in the vicinity of the manhole? A. That's correct. Q. Did you make any enquiries as to the time at which the manhole cover had been put in? A. No I didn't. Q. Or who had put it in? A. No I didn't. Q. Or whether it was a Telstra facility? A. No I didn't. Q. Or a metropolitan water and sewerage drainage board facility? A. I think it's more likely it belongs to the Water Board. Q. Which would tend to suggest that there could well be a pipe flowing towards the manhole? A. That's correct. Q. Do you agree with that? A. Yes I do. Q. And there are a number of explanations for this subsidence apart from something that was done or not done at the time that the pavers were originally made [laid]? A. That's the most probable. There are other reasons that the subsidence could have happened. Q. But you couldn't say could you what's probable or not probable, bearing in mind that you had no knowledge as to firstly the date that the pavers were laid? A. I didn't address that. I inspected the paving and came to a conclusion as to why they would have subsided and that was due to as I've said in my report to poor construction practices but I did not address who actually did the construction that's correct." 95 Mr Hazel's evidence concluded with two questions from the trial judge (CAB 103D-H): "Q. Mr Hazel, on your inspection or on your recollection from looking at the photographs, was there anything there at the time of your inspection to indicate that the pavement had been laid and [then] taken up whilst the manhole was put in? A. No. Q. Is that something that you're capable of giving an opinion about first of all or doesn't the statement of things permit you to even give an opinion in the first place? A. It's very difficult to tell anyway. But there was nothing there that would indicate it." 96 The defendant's cross-examination of Mr Hazel appears to have commenced with an inquiry into the quality of the workmanship put into laying the pavers. That was in issue at the trial, being the subject of evidence from Mr Deveril and Mr McColough as well. That inquiry veered, almost accidentally, into questions about the timing of work on the manhole. The questioning does not clearly demonstrate that the issue on which leave is now sought was an issue squarely appreciated by both parties at the trial. 97 The defendant appears to be conveying the impression that its approach is that various things should have been done in the period 1993-1998 by a person in the position of the plaintiff. As found by the trial judge, she was an unmarried Aboriginal woman, 20 years old in 1993, who became a mother in 1996, whose education had ceased at 15 or 16 (CAB 28R), whose economic position was weak, who had witnessed the defendant's workmen laying down the pavers, which were poorly constructed and on which she had in consequence fallen, who as a result would for the rest of her life suffer, as she had already suffered, considerable pain, and whose capacity to work was reduced. It seems that she should have inquired who constructed the manhole cover and when, and sued that person. This was not an inquiry which the defendant itself made so as to produce any result which emerged in the evidence. The defendant in cross-examination of Mr Hazel suggested that the manhole cover had been put in by Telstra or the "metropolitan water and sewerage drainage board". She should presumably also have sued the Department of Housing. The plaintiff would probably have failed against three of these parties even if she had succeeded against one, a circumstance which would have caused her to be subject to costs orders which would have wiped out her damages, unless Bullock orders were made in her favour against the loser, which is never an outcome that is easy to predict. The law of negligence in relation to the recovery of damages for personal injury has had many critics. However, it is questionable whether it has reached the stage where a person who has suffered a simple fall on poorly constructed pavers, who identified the governmental organisation which laid them and who then sued that organisation is to be deterred from seeking recovery for her injuries by reason of an argument raising a doubt - only an argument, unsupported by any evidence, and indeed contradicted by the available evidence - about whether the defect was caused, not by the organisation which she saw laying them but by some other arm of government. It must be kept in mind that so far as the proposition now being raised was put to Mr Hazel, he negated it. 98 In short, a question arises: "In the circumstances of these proceedings, could the defendant have succeeded on the issue now raised without calling some evidence on the point?" If the answer to that question is "No", that would be conclusive against the grant of leave, because the defendant did not call any evidence on the point. I would prefer not to decide that question, but would refuse leave on other grounds. They are as follows. 99 First, the point on which leave is sought is not advanced in the defendant's written submissions and was not raised until the very end of the defendant's oral argument in chief on the appeal. That circumstance causes it to have an air of desperation, but more importantly, it meant that the plaintiff had no opportunity to deal with the matter in a considered way on the appeal. 100 Secondly, there are serious grounds for thinking that the point was not run at the trial. One ground for thinking that is its very omission from the Notice of Appeal. Another is that the trial judge did not appear to think it was an issue. 101 The trial judge said (Red 21M-P): "… the Defendant laid the pavers and were negligent in the way they abutted them to the manhole cover. There is no evidence who placed the manhole cover there; I would assume there is a manhole structure under it; there is no evidence who placed the manhole structure. There would be Jones v Dunkel inferences operating against the Defendant. It is not necessary to show who owned the manhole cover, or who placed it there, as the gravamen of this decision is that the council laid the pavers around it." If the trial judge thought it unnecessary to show who owned the manhole cover or who placed it where it was, he must also have thought it unnecessary to decide when it was placed there. That suggests that neither party raised that issue for his consideration. Yet another ground for thinking that the point was not run at the trial is that the point was not pleaded, notified to the plaintiff, or notified to the trial judge. 102 In my opinion the point ought to have been pleaded below, or brought to the plaintiff's attention in correspondence before the trial, or brought to the plaintiff's attention by evidence served in advance of the trial, or brought to the plaintiff's attention in opening. It is a point which would have been likely to take the plaintiff by surprise: see District Court Rules Pt 9 r 9(2)(b). The plaintiff, who saw the defendant's workmen laying the pavers, who saw barricades around the site being worked on bearing the defendant's name, and who called evidence from an expert engineer that the site was affected by poor workmanship at the time the pavers were laid, would have been surprised by a contention proceeding from the defendant that the poor workmanship was the result of some third party having worked on the manhole without the defendant's knowledge. Yet the point was not pleaded. There is no evidence that it was referred to in correspondence. No evidence at all was called to support the point, let alone evidence served in advance. And nothing was said about it in opening. When the case was called on, counsel for the plaintiff said that all he needed to tell the trial judge was that the plaintiff had slipped on "a semi footpath road": Red 1G. The trial judge said he felt he could not hear the case if it involved finding that as a matter of law the defendant could be liable for nonfeasance. Counsel for the plaintiff then said (CAB 1R-S): "If you believe the plaintiff's case it would have to be misfeasance because she said the bricks were - she saw the roadway being laid and it wasn't laid properly. So if you believe her you find proof, if you don't believe her you don't find really. I don't think it is going to involve much point of law your Honour." Counsel for the defendant then said (CAB 1T-2C): "Just before the plaintiff does your Honour, if I may say this. This is a case your Honour where the central issue from the defendant's point of view is whether what the council has done amounts to misfeasance. And I thought I heard your Honour say something earlier if I heard it correctly about a personal interest, but I consider it appropriate in my respectful submission to draw your Honour's attention to the fact that there is a question in this case as to whether or not the action or the reaction of the council, preferably the latter amounted to misfeasance or nonfeasance. It is the defendant's case that it is nonfeasance. It is the plaintiff's case it is misfeasance and it would fail in my respectful submission that your Honour faced with a factual situation if your Honour proceeds to hear the case is then going to consider that point." Counsel for both parties then confirmed that no point of law as to whether a council could be liable for nonfeasance would arise. 103 If the defendant had been raising an issue at the trial that the cause of the injury was the misfeasance, not of the defendant, but of some third party, and if the defendant had considered it to have been essential for the trial judge to determine, in relation to the manhole, "when or how it came to be there", that would have been, to use the words of counsel for the defendant, a "central issue" to be mentioned to the trial judge. The fact that counsel for the defendant did not mention it indicates that it was not an issue at the trial, and indicates that it is not open to the defendant to raise it now since it could have been met by evidence which might have been called by the plaintiff at the trial had she realised it was an issue, or an issue as significant as the defendant very belatedly seeks to make it. The plaintiff could not have thought it was an issue. She could not have thought that the defendant was contending that the defects in the paving in 1993 were caused by a third party working on the manhole before that date, but after the paving was installed, in view of the defendant's reliance on evidence that there had never been any defects, because their witnesses said there were no defects in 1996 and 1997. If there were no defects in 1996 and 1997, according to the defendant's argument, there cannot have been any in 1993. If the defendant intended to run at the trial two lines of defence as contradictory as these two, it would have had to have made its position very clear. Was leave to appeal necessary? 104 In the course of the argument a question was raised as to whether the orders of the trial judge were not final orders, since he had not yet decided what order as to costs should be made. In view of the fact that in my opinion the appeal, even if competent without leave, should be dismissed, it is not necessary to decide that question. Orders 105 In my opinion the appeal should be dismissed with costs. ********** 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.