SMITH V. MEPC AUSTRALIA LIMITED [2001] NSWCA 438

New South Wales Court of Appeal

CITATION : SMITH V. MEPC AUSTRALIA LIMITED [2001] NSWCA 438 FILE NUMBER(S) : CA 40592/00 HEARING DATE(S) : 5 November 2001 JUDGMENT DATE : 28 November 2001

PARTIES : Elizabeth Smith - appellant MEPC Australia Limited - respondent JUDGMENT OF : Giles JA at 1; Hodgson JA at 13; Ipp AJA at 45

LOWER COURT JURISDICTION : District Court LOWER COURT 2523/98 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER :

COUNSEL : Mr. W.P. Kearns SC with Mr. D. O'Dowd for appellant Mr. G. Grant for respondent SOLICITORS : Keddies, Redfern for appellant Connery & Partners, Sydney for respondent CATCHWORDS : JUDGMENTS AND ORDERS - Reasons for - On finding of fact - Primary judge says unable to make findings on certain matters - Whether appealable error. ND. DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40592/00 DC 2523/98 GILES JA HODGSON JA IPP AJA Wednesday 28th November 2001 SMITH V. MEPC AUSTRALIA LIMITED Judgment

1 GILES JA: I have had the advantage of reading the judgments of Hodgson JA and Ipp AJA in draft. I will not repeat the facts appearing from those judgments. 2 The appellant's principal challenge to the decision of Naughton DCJ was that his Honour had not provided adequate reasons for his decision, see Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 and cases there considered. That called for analysis of his Honour's reasons in order to see whether the reasoning process and the basis for the material findings of fact were disclosed. 3 The respondent as occupier owed to the appellant as entrant a duty to take reasonable care for her safety in using the lifts. To escape the contention that the duty was satisfied by the engagement of the Otis company to service and maintain the lifts (see for example Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313), the appellant's case was relevantly that the respondent failed to take reasonable care because levelling problems with the lifts were reported to it, but it did not tell Otis of the problems so that attention could be given to them. If this were accepted, a causation question would remain. But his Honour did not accept it. 4 On the appellant's case (a) the appellant and Mrs Morgante told Mr Botros of levelling problems with the lifts before the appellant's accident; (b) the Otis record was a complete record of problems with the lifts of which Otis was told and did not include any levelling problems; (c) therefore Mr Botros had not told Otis of the levelling problems. To this was added that Mrs Hamilton-Barrett observed levelling problems with the lifts after the appellant's accident and reported them to Mr Botros, apparently relied on together with (b) in order to bolster (c). 5 The respondent contested (a), at least initially agreed with (b), and because of the contest over (a) contested (c). It did not independently contest (c), because the evidence in chief of Mr Botros (whom it called) was that prior to the appellant's accident he had not been told of levelling problems with the lifts. The waters were muddied when in cross-examination Mr Botros appeared to agree that there had been complaints about levelling problems with the lifts both before and after the appellant's accident. Since he at all times maintained that he told Otis of whatever complaints he received, if it were found that complaints of levelling problems with the lifts had been made to Mr Botros the respondent would lose the contest over (a). If the respondent were to continue to contest (c), it would have to contest (b). It is not clear that the respondent did contest (b). 6 Naughton DCJ accepted Mr Botros' evidence that he told Otis of whatever complaints were made to him. That evidence could not stand with finding that Mr Botros had been told of levelling problems with the lifts before the appellant's accident unless it was also found that the Otis record was not a complete record of problems with the lifts of which Otis was told. Conversely, that evidence could not stand with finding that the Otis record was a complete record of problems with the lifts of which Otis was told unless it was also found that Mr Botros had not been told of levelling problems with the lifts before the appellant's accident. The three were integrally related. 7 It was therefore important to find whether or not complaints of levelling problems with the lifts, as distinct from complaints of other matters, had been made to Mr Botros; and if it were in contest, to find whether the Otis record was a complete record of problems with the lifts of which Otis was told. His Honour did not specifically address complaints of levelling problems with the lifts. But he said that it was not possible on the evidence for him to make any finding as to whether, and if so to what extent, any of the three lifts failed to stop level with any floor prior to 18 April 1995. Implicit in this was that it was not possible to make a finding on whether Mr Botros had been told of levelling problems with the lifts. His Honour also said that he was unable to make any finding on whether the Otis record was a complete record of problems with the lifts of which Otis was told. 8 As a basic reasoning process, it can be seen why his Honour did not accept the appellant's case. With a finding that Mr Botros told Otis of whatever complaints were made to him, and without favourable findings of fact on the other two matters, the case was not made out. But how could his Honour make the first finding without considering the significance to it of the other two matters? And why was his Honour unable to make findings as to the other two matters? 9 Sometimes acceptance or rejection of the evidence of a witness is susceptible of little explanation. But generally findings of fact should be explained in a manner appropriate to the circumstances. In the present case explanation called for regard to the significance to Mr Botros' evidence of the evidence of complaints made to him of levelling problems with the lifts and, from the Otis record of the levelling problems with the lifts of which Otis was told, of evidence to the effect that he did not tell Otis of any levelling problems with the lifts. It was not appropriate to the circumstances simply to assert acceptance of the evidence of Mr Botros. 10 As to the complaints to Mr Botros, his Honour had the unexceptional task of deciding whether he should accept the evidence of the appellant and Mrs Morgante, and for the support it provided the evidence of Mrs Hamilton-Barrett, or the evidence of Mr Botros. In relation to the evidence of Mr Botros, he had to assess how the apparent acknowledgment in cross-examination affected his evidence in chief. No analysis of his Honour's reasons discloses why it was "not possible on the evidence for [his Honour] to make any findings as to" levelling problems with the lifts. The words are direct: not that a finding in the respondent's favour could not be made because she had failed to discharge the burden of proof she bore, but that no finding at all was possible. 11 As to the Otis record, it was amongst the documents tendered by the respondent and it appears to have been common ground, subject to any consequence of Mr Botros' acknowledgment, that it was a complete record of problems with the lifts of which Otis was told. The report of Mr Campbell clearly treated it as a complete record. His Honour did not indicate that Mr Botros' acknowledgment was an impediment to treating it in that way, and the only reason given was that no oral evidence was called on behalf of Otis. The report of Mr Campbell made such evidence unnecessary. Save for that unsatisfactory reason, no analysis of his Honour's reasons discloses why his Honour was "unable to make any finding as to" the Otis record. Again the words are not those of failure by the respondent to discharge the onus of proof. 12 I do not think the reasons for the decision were adequate to inform the parties why the decision was as it was, or to enable appellate review. Regrettably, a new trial is necessary. I agree with the orders proposed by Ipp AJA. 13 HODGSON JA:: On 4th July 2000, Naughton DCJ gave a verdict for MEPC Australia Limited in proceedings brought against it by Elizabeth Smith, and ordered Ms. Smith to pay MEPC's costs of the proceedings. Ms. Smith has appealed by leave from that decision.