Middleton v Parramatta City Council [1999] NSWCA 448

New South Wales Court of Appeal CITATION : Middleton v Parramatta City Council [1999] NSWCA 448 FILE NUMBER(S) : CA 40373/98 HEARING DATE(S) : 22 September 1999 JUDGMENT DATE : 8 December 1999

Jack Middleton (Appellant) PARTIES : v Parramatta City Council (Respondent) JUDGMENT OF : Priestley JA at 1; Stein JA at 9; Fitzgerald JA at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 3388/94 LOWER COURT JUDICIAL OFFICER : Twigg DCJ

COUNSEL : A: Mr J L Sharpe R: Mr M McCulloch SOLICITORS : A: Steve Masselos & Co R: Phillips Fox CATCHWORDS : Personal injury; fall at swimming pool; per majority: (Priestley JA dissenting) no arguable case of negligence and no justification for a new trial. CASES CITED: Freeman v G J Coles & Co Ltd (1967) 1 NSWLR 297 at 300 DECISION : Appeal dismissed.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40373/98 DC 3388/94

PRIESTLEY JA STEIN JA FITZGERALD JA

WEDNESDAY 8 DECEMBER 1999 Jack MIDDLETON v PARRAMATTA CITY COUNCIL

JUDGMENT

1 PRIESTLEY JA: The facts are sufficiently stated in the reasons of Fitzgerald JA for me to state my opinion by reference to, and without enlargement, of them. 2 I agree generally with what Fitzgerald JA says in his reasons, with one exception, which leads me to a different conclusion. 3 The point of difference between us is his view that Mrs Denton's case was devoid of persuasive evidence which could reasonably support a conclusion that the respondent was negligent to leave the lane divider in the gutter. The lane divider case was the second of the alternative cases put forward by Mrs Denton at the trial. The first was the one evidently firmly based on her own belief that she had been bumped by a school pupil. The alternative one, which was contrary to her belief, was that she had slipped on the lane divider. It may be that on the evidence in her own case, there could have been no finding for her on her alternative, lane divider, case. However, there was other evidence before the court beyond that in her own case. Once the trial judge rejected Mrs Denton's primary case, it became necessary for him to consider whether, on the whole of the evidence, the alternative case of negligence was made out. What he said about this was as follows: "There is, on my findings, nothing to suggest that the Plaintiff caused her injury by stepping onto a plastic lane divider and then falling. The suggestion by the Second Defendant that the Plaintiff fell in close proximity to the lane divider, placed there by the First Defendant, is wholly contrary to the whole of the evidence." 4 Unfortunately this conclusion overlooks direct evidence from at least one witness that Mrs Denton slipped on the lane divider and from others tending to support the directly observing witness. 5 Due to this oversight, the trial judge did not give any real consideration to the alternative case. This would not have any consequences if that case was in any event, on the whole of the evidence before the court, bound to fail. In my opinion however it was not bound to fail, it was not a strong case but it was not, in my opinion, a hopeless case either. 6 What the trial judge should have considered was whether, upon his rejection of Mrs Denton's account, the other evidence satisfied him that she slipped on the lane divider, and if so, that it was in such a location at the poolside as to be foreseeably a cause of harm. On the facts of the case as I understand them, it would have been open to the trial judge to make both those findings although, I should make it clear, I also recognise that it would be open to him or any tribunal of fact, not to make those findings. 7 I think however that Mrs Denton was entitled to have her alternative case properly considered, and I think her estate is entitled to a new trial in which it can be considered. I would therefore propose that the court set aside the trial judge's judgment in favour of the respondent and order a new trial of the estate's case against the Council. 8 The appellant should have the costs of the appeal. The costs of the appellant's case against the Council at the first trial should be in the discretion of the judge who hears the new trial. 9 STEIN JA: I have had the benefit of reading the draft judgments of Priestley JA and Fitzgerald JA. It is therefore unnecessary for me to repeat any of the facts. 10 The court should not order a new trial unless there has been some substantial wrong or miscarriage occasioned by the error of the trial judge. This is a recognition of the desirability of the finality of litigation and an acknowledgment of the hardships that a re-trial may cause. The court is entitled to look to the reality and substance of the error to see whether it can confidently be said that it would have affected the ultimate result, Freeman v G.J. Coles & Co Ltd (1967) 1 NSWLR 297 at 300. 11 One student (Rahme) gave evidence which could support the allegation that the plaintiff slipped on the lane divider. However, much of his evidence on the actual incident was at odds with the evidence of other school students. Mr El Hage's evidence of the slip was equivocal and it is difficult to know, from a reading of his evidence, what he actually observed. The only other witness who gave any evidence supportive of the slipping case was Mr Neme, whose evidence his Honour allowed to be withdrawn. No other witness to the accident supported the plaintiff's case on slipping on the lane divider. Indeed, Mrs Denton herself denied it and her case was essentially run on the basis of being bumped or pushed by a student. The trial judge did not accept her evidence. I am not satisfied that there was an arguable case of negligence by the Council in relation to the lane divider. 12 Accordingly, I am unpersuaded that any substantial wrong or injustice has been occasioned to justify an order for a new trial. I do not think that a new trial would make any difference to the result. 13 Further, taking into account the size of the damages assessed ($20,000) and the fact that the plaintiff passed away in August 1997, a new trial is not justified. 14 I agree with Fitzgerald JA and with the orders which he proposes. 15 FITZGERALD JA: The late Dorothy Irene Denton was injured when she fell at the respondent's Granville Swimming Pool on 2 March 1994. She was then aged 68. She sued the respondent and the authority responsible for a school, pupils from which were present at the pool when she was injured. Her damages were assessed at $20,000, but her claim was dismissed with costs. 16 A differently constituted Court granted leave to appeal against the respondent only. 17 The appellant is the executor of Mrs Denton, who died on 24 August 1997, after the trial of her action, at which she gave evidence. 18 The appellant seeks a new trial on the issue of liability. Damages are no longer in issue. 19 The trial judge rejected Mrs Denton's evidence, which was that she was knocked down by one of the school pupils. His Honour said: "I further find that the Plaintiff has not satisfied the Court that her fall was caused by being bumped by a student or indeed any person. She was concentrating on the bag strung over her shoulder. She may have not successfully negotiated the step. She may not have taken sufficient care for her own safety as she stepped down onto the lower landing. She may not have stepped carefully onto the lower level. She has, on my finding, reconstructed what she says caused her to fall, namely that a boy bumped her, because there were a number of boys about and hence, in her mind, that must have been the cause of her fall. I found the Plaintiff to be an unsatisfactory witness. She was vague and uncertain as to her movements that day. I made sufficient allowance for her age, and perhaps a lack of understanding of what was required of her to answer questions as to the circumstances of her injury. Nonetheless, she was not convincing as to the cause she attributed to her fall." 20 The foundation of the appeal is another passage in the judgment, which relates to an alternative allegation of negligence. The trial judge said: "There is, on my findings, nothing to suggest that the Plaintiff caused her injury by stepping onto a plastic lane divider and then falling. The suggestion by the Second Defendant that the Plaintiff fell in close proximity to the lane divider, placed there by the First Defendant, is wholly contrary to the whole of the evidence." 21 The respondent submitted that that passage must be read in the context of an earlier passage, together with an exchange between the respondent's counsel and the trial judge during the course of evidence. I do not consider that the contents of that exchange, in which the trial judge expressed a tentative view concerning the evidence of some witnesses, is of present significance. The passage relied upon by the respondent is as follows: "I have recourse to the demeanour of the Plaintiff and the other witnesses, bearing in mind their age, attention to detail and ability to observe, particularly in a situation where events occurred quickly, and perhaps witnesses were concentrating on other matters than the incident to the Plaintiff." 22 In substance, the respondent's submission was that when the two passages last quoted are taken together, the former passage should be read as meaning that the suggestion that Mrs Denton "fell in close proximity to the lane divider" was wholly contrary to the whole of the reliable evidence. 23 Even were that so, I am of opinion that the trial judge's statement of his reasons was unsatisfactory. 24 The appellant drew attention to brief passages of the evidence given by some of the school pupils which, if accepted, could have supported a conclusion that Mrs Denton fell after standing on a lane divider which the respondent's employee had placed in a gutter forming part of the pool wall near a riser to the second level of steps into the pool. That evidence arose in the context of denials by the school pupils that one of them had bumped Mrs Denton. 25 Mrs Denton denied that she fell because of the lane divider, which was brightly coloured and 50 metres long before it was rolled up. No attempt was made in her case to prove that the lane divider was not plainly visible or that Mrs Denton did not see it. Her case was devoid of persuasive evidence which could reasonably support a conclusion that the respondent was negligent to leave the lane divider in the gutter. That is not surprising. 26 Mrs Denton's consistent evidence, from a few minutes after her fall up to and including trial, was that she fell because she was bumped or pushed. Because of this, she gave no evidence about the visibility of the lane divider. As stated, her case was that she did not fall because of the lane divider. It is not easy to understand why the trial judge did not find that she fell because she was bumped or pushed. There was a substantial body of evidence to support such a finding. 27 Despite my misgivings of the trial judge's reasons, I am of opinion that the appellant has failed to show that there was an arguable case of negligence, which was not properly considered, upon which Mrs Denton could have succeeded at trial. 28 I would dismiss the appeal. **********