New South Wales Court of Appeal CITATION : South Sydney Junior Rugby Leagues Club Limited v Gioia & Ors [2000] NSWCA 249 FILE NUMBER(S) : CA 40473/98; 40474/98; 40475/98; 40476/98; 40477/98 HEARING DATE(S) : 18 May 2000 JUDGMENT DATE : 6 September 2000 PARTIES : South Sydney Junior Rugby Leagues Club Limited v Francis Gioia; South Sydney Junior Rugby Leagues Club Limited v Pauline D'Albora; South Sydney Junior Rugby Leagues Club Limited v Angelo Dimento as the executor of the estate of the late Giuiseppina Crisafi; South Sydney Junior Rugby Leagues Club Limited v Joseph D'Albora by his tutor Peter D'Albora; South Sydney Junior Rugby Leagues Club Limited v Pauline Gioia. JUDGMENT OF : Meagher JA at 1; Powell JA at 8; Stein JA at 20 LOWER COURT JURISDICTION : District Court LOWER COURT 3128/95; 6427/95; 3129/95; 9461/95; 7472/96 FILE NUMBER(S) : LOWER COURT Quickenden ADCJ JUDICIAL OFFICER : COUNSEL : Appellant: I. Harrison SC Respondent: T. Hughes QC/T. Hughes SOLICITORS : Appellant: Riley Gray-Spencer Respondents: G H Healey & Co CATCHWORDS : Negligence, personal injury, damages, evidence. Fryer v Gathercole (1849) 13 Jur (Pt 1) 542 CASES CITED: Sydelman v Beckwith (1875) 43.Conn. 12 R v McKimmie [1957] VR 93, R v Whitby (1957) 74 WN(NSW) 441, Sherrard v Jacob [1965] NI 151 DECISION : Appeal dismissed with costs - 9 - SOUTH SYDNEY JUNIOR RUGBY LEAGUES CLUB Limited V Francis GIOIA & ORS NEGLIGENCE-PERSONAL INJURY-DAMAGES - EVIDENCE OF A LAY PERSON AS TO ESTIMATE OF SPEED Facts: The respondents were a family group celebrating a christening on the appellant's premises. An elderly member of the family need assistance in getting onto an escalator. Several family members cam to her assistance, however, she fell, other s fell and five of the group were injured. They sued the appellants in negligence for, amongst other things, failing to ensure the escalator was not travelling too quickly. The trial judge found the appellants breached their duty of care in this respect. The appeal against this decisions was argued on the basis that lay witnesses had given evidence as to whether the escalator was in fact travelling too fast. Held (the court): It is established law that lay witnesses may be called to give evidence on the estimate of speed. Cross on Evidence 6th Australian Edition pp 827 - 828; R v Whitby (1957) 74 WN(NSW) None of the lay witnesses who gave evidence were cross-examined on whether they felt the speed was excessive. In addition the appellant's maintenance manager was not called to give evidence, and there had been other complaints that the escalator moved too quickly. There was an expert investigation conducted some two years after the incident. Given the time lapse this evidence is not reliable. ORDERS 1. Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40473/98; 40474/98; 40475/98; 40476/98; 40477/98 MEAGHER JA POWELL JA STEIN JA Wednesday 6 September 2000. SOUTH SYDNEY JUNIOR RUGBY LEAGUES CLUB LIMITED v Francis GIOIA JUDGMENT 1 MEAGHER JA: On 21 March 1993 a family held a christening party at the defendant's (ie the appellant's) premises. The matriarch of the family was one Giuiseppina Crisafi, and the child being christened was her great-grand-daughter. There were preset a variety of children and grandchildren. The party started at about 12.30pm and finished about 4.30pm. On the way out, the family (who left as a group) used an escalator to go from the floor on which the party was held to the floor immediately beneath it. First on the escalator seemed to be Mrs Crisafi, who had difficulty in getting both feet onto it. This led to other members of the group trying to help her. She fell, and other fell one by one over their predecessors. Five of the group suffered injuries, and sued in respect of them. They sued the appellant in the District Court. The matters were heard (in a consolidated action) before Quickenden ADCJ, and the plaintiffs (the present respondents) all succeeded. The present appeal is limited to the question of liability. 2 Since the plaintiffs sue in negligence they must be able to point to breach of a duty of care. They pleaded five different duties of care which they alleged were breached. They were as follows: "*failure to ensure that the escalator was angled at a safe angle for the descent of pedestrians *failure to ensure that the escalator proceeded at a speed that made it safe for a pedestrian to walk on *failure to warn the Plaintiffs that the escalator was not safe to walk on *failure to have and maintain a proper system for inspection and/or maintenance of the escalator *failure to ensure that the mechanism to stop the escalator was accessible and not locked." 3 His Honour found that the second duty had been breached; ie that the appellant had failed to ensure that the escalator was not proceeding too quickly. 4 In this regard his Honour based himself fairly and squarely on the evidence of various of the plaintiffs that the escalator was operating too quickly, and in particular was operating more quickly than such machines usually do. Before his Honour the appellant argued strongly that such evidence had to be disregarded, as only a scientist could pronounce on the question of whether the escalator was travelling too fast. Indeed, it seems to have been almost its only submission. The submission was revived before us, but in a more muted form. It had, of course, to fail, as it is well established that a lay witness is entitled to draw on his experience to give an estimate of speed: see Cross on Evidence (6th edition) para 29090. 5 His Honour's finding in this regard is bolstered by the failure of the appellant's Maintenance Manager (who held that position both at the time of the accident and at the time of trial) to give evidence, thus suggesting that he was incapable of saying anything useful to rebut the finding of speed; by the fact that none of the witnesses who gave evidence of speed were cross-examined on that subject; and by the fact (found by his Honour) that the appellant "did fail to have a proper system for inspection and/or maintenance" of the escalator. Nor is the finding weakened by the further fact found by his Honour that there were other complaints that the escalator was going too quickly. 6 The obstacle to escaping his Honour's finding is the report of an expert, Mr Burfitt, who examined the escalator in detail, although two or three years later. At that time, Mr Burfitt concluded that the speed was within the limits set out in Australian Standard AS 1735.5 1986 escalators. But, bearing in mind the time which elapsed between the accident and Mr Burfitt's inspection, particularly as the Court was left in total ignorance as to what happened on the occasional inspection which might have taken place in this interval, I do not think any safe reliance can be placed on Mr Burfitt's conclusion. 7 I would recommend that the appeal be dismissed with costs. 8 POWELL JA: I have read in draft the Judgments which have been prepared by Meagher JA and Stein JA. 9 Had it not been for the way in which the trial was conducted on behalf of the Appellant, and the state in which the evidence was left at the end of the trial, I would have been disposed to think that the appeals should be upheld. I say this, first, since I am by no means satisfied that the range of cases in which non-expert opinion evidence, even if not objected to, is admissible is as extensive as their Honours suggest; and, second, since it seems to me that to say of an escalator no more than that "it went fast" (Black AB 44) or that "it was going quite fast" (Black AB 62) provides no foundation for a finding that there had been a negligent failure to ensure that the escalator proceeded at a pace which made it unsafe for a pedestrian to travel on. 10 The general rule is that a witness who is not an expert must only speak to facts within his, or her, own knowledge, and he, or she, will not be permitted - except under the circumstances referred to below, to express his or her own opinion (see, for example, Taylor on Evidence 11 Ed (1920) Vol 2 para 1414 p. 966; Phipson on Evidence 14 Ed (1990) paras. 32-53 p. 843). 11 Although the principle upon which what might be called non-expert opinion evidence, or evidence of belief, is admitted has been variously stated, it is probable that, ultimately, the basis for the admission of such evidence is one of necessity. 12 In Fryer v. Gathercole (1849) 13 Jur (Pt 1) 542, to which reference is made in Cross on Evidence 6 Aust Edn (2000) para. 29090 p. 828, in order to prove publication of a libellous pamphlet a witness said that she received from the defendant a copy of a pamphlet, of which she read some portions, and lent it to several persons in succession, who returned it to her, and although there was no mark upon it by which she could identify it she believed the copy which was produced was the same, but could not swear that it was. A rule for a new trial having been obtained on the ground that the pamphlet had not been sufficiently identified, Pollock C.B. said: "This when examined is merely a question of degree or weight, there is some evidence for the jury; and as has been truly argued there are many cases of identification when the law would be rendered ridiculous if positive certainty were required from witnesses. If there were some legal evidence to go to the jury in this case there can be no doubt which way they would find, for the moral evidence is such that they would be justified in finding as they have done. The evidence in this case was therefore properly received, and objection to it goes merely to its value, and this rule must be discharged." 13 A similar approach is revealed in the Judgment of Loomis J in Sydleman v. Beckwith (1875) 43 Conn. 12; extracted in Wigmore on Evidence 3 Ed (1940) Vol VII para 1919 p. 13 and referred to in Cross op cit para 29085 p. 827.: "These exceptions to the general rule are allowed on the grounds of necessity, where the subject of the inquiry is so indefinite and general as not to be susceptible of direct proof, or where the facts on which the witness bases his opinion are so numerous and so evanescent that they cannot be held in the memory and detailed to the jury precisely as they appeared to the witness at the time … The very basis upon which, as we have seen, this exception to the general rule rests is that the nature of the subject-matter is such that it cannot be reproduced or detailed to the jury precisely as it appeared to the witness at the time." 14 To a similar effect are the following passages in Taylor op cit paras. 1415-1416 pp. 967-968: "1415. But, though a witness, in general, must depose to such facts only as are within his own knowledge, the law does not require him to speak with such expression of certainty as to exclude all doubt. For whatever may be the nature of the subject, if the witness has any personal recollection of the fact under examination, he may state what he remembers concerning it and leave the jury to judge of the weight of his testimony. But if the impression on his mind be so slight as to justify the belief that it may have been derived from others, or may be some unwarrantable deduction of his own dull understanding or lively imagination, it will be rejected. 1416. On some particular subjects, positive and direct testimony may often be unobtainable; and, in such cases, a witness may be allowed to testify as to his belief or opinion, or even to draw inferences respecting the fact in question from other facts, provided these last facts be within his personal knowledge. ……… In conformity with this rule, which admits evidence of opinion on the grounds of necessity, witnesses are constantly permitted to express their belief respecting the identity of persons and things, as also respecting the genuineness of disputed handwriting." 15 Finally, there might be noted the following passage from the 17th Report of the English Law Reform Committee, para. 3 extracted in Cross op cit para. 29085 p. 827: "Unless opinions, estimates and inferences which men in their daily lives reach without conscious ratiocination as a result of what they have perceived with their physical senses were treated in the law of evidence as if they were mere statements of fact, witnesses would find themselves unable to communicate to the judge an accurate impression of the events they were seeking to describe." 16 However, even in those cases in which, in general terms, such opinion, or belief, evidence has been held to be admissible, it must still appear that the witness whose evidence, in the particular case, is tendered has qualifications, in the sense of intelligence and powers of observation according to the witness's experience of life and affairs (see Cross op cit para. 29090 p. 828) and, if the evidence be objected to, it may be appropriate that, before his evidence be admitted, the witness be examined on the voir dire (see, for example, R v. McKimmie [1957] VR 93). 17 In the present case: a. the evidence as to speed given by the various witnesses called on behalf of the Respondents was not objected to; b. although, as I have earlier (see para. 2 (above)) noted, some of that evidence was vague and general in the extreme, some of it (see, for example, Black AB 63, 65) was to the effect that the escalator was moving at a speed greater than that which the witnesses had encountered in shopping centres in which they worked or which they were accustomed to patronise; c. none of those witnesses was cross-examined in an endeavour to weaken or destroy the evidence which had been given as to speed; d. although available to give evidence, the Appellant's Maintenance Manager was not called to give evidence. e. quite apart from the fact that the inspection by the Respondent's expert did not take place until 3½ years after the accident, it would seem that the escalator - No. 2 (Blue AB 72) - which he inspected was not that - No. 3 (Blue AB 126, Black AB 228) - involved in the incident. 18 In the circumstances, the evidence - such as it was - as to the escalator's speed not having been objected to; there not having been any relevant cross-examination on the subject of speed; the evidence - such as it was - not being inherently improbable; it was open to the trial judge, if - as he clearly was - he were so minded, to accept, and to act on, it with a greater degree of assurance than might otherwise have been the case (see, for example, Poricanin v. Australian Consolidated Industries Limited [1977] 2 NSWLR 419; Allied Pastoral Holdings Pty. Limited v. Commissioner of Taxation [1983] 1 NSWLR 1; Paric v. John Holland Constructions Pty. Limited [1984] 2 NSWLR 505). The fact that I am disposed to think that, if I had been the trial judge, I would have done otherwise is irrelevant. 19 I agree that the appeals should be dismissed with costs. 20 STEIN JA: I agree with Meagher JA. The evidence of the witnesses as to the speed of the escalator was admitted without objection. The lack of objection to this non-expert opinion is understandable since it has long been accepted that a suitably experienced lay person may give evidence of the speed of a motor vehicle. For a discussion of the admissibility of similar evidence see R v Whitby (1957) 74 WN (NSW) 441 and Sherrard v Jacob [1965] NI 151. The list of circumstances where non-expert opinion is admissible is lengthy and not closed, see Cross on Evidence, 6th Australian edition at pp 827 - 828. It is but a small step to extend it to the speed of escalators. 21 The nub of the complaint of the appellant is that the non-expert evidence of opinion as to the speed of the escalator went nowhere because it had no frame of reference. I do not agree. The lay evidence of speed had at least two reference points. The first reference was to the speed which would allow an elderly woman to safely board the escalator obtaining a secure footing. Second, two witnesses who gave non-expert opinion evidence on the speed of the escalator in the club compared it to the speed of escalators in shopping malls with which they were familiar. This appears to be a relevant and valid comparison. 22 His Honour was entitled to give the non-expert evidence some weight. This was particularly so bearing in mind the absence of cross-examination of the witnesses as to the speed of the escalator and the failure of the club to call its maintenance manager. As against the non-expert opinion there was the evidence of an expert, Mr Burfitt. He found that the speed of the escalator complied with the Australian Standard. However, bearing in mind the delay in his inspection, which was undertaken some years after the event, his Honour was not obliged to give it determinative weight on the issue. I agree with the orders proposed by Meagher JA. 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. 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