New South Wales Court of Appeal CITATION : AVANES v CLUB MARCONI OF BOSSLEY PARK SOCIAL RECREATIONAL & SPORTING CENTRE LTD & ORS [2003] NSWCA 184 HEARING DATE(S) : 4 July 2003 JUDGMENT DATE : 11 July 2003 JUDGMENT OF : Sheller JA at 1; Ipp JA at 25; Tobias JA at 26 DECISION : 1 The appellant is granted leave to appeal and ordered to file a notice of appeal in terms of its draft notice of appeal within seven days of this order; 2 Appeal allowed; 3 Set aside the verdict and judgment for Club Marconi and the order for costs made by Judge Delaney on 3 October 2002; 4 In lieu thereof verdict and judgment for the plaintiff, Piloora Avanes, against the defendant, Club Marconi, for $21,000 to take effect from 26 April 2001; 5 The defendant, Club Marconi, to pay the costs of the plaintiff of the hearing before Judge Delaney and of this appeal but to have a certificate under the Suitors' Fund Act 1951, if so qualified; 6 Remit to the District Court all questions of costs in the proceedings between the plaintiff and Mr Del Duca and on Club Marconi's cross-claim against Mr Del Duca to be determined by that Court. CATCHWORDS : Appeal and New Trial - Appeal - Interference with judge' s findings of fact - Functions of appellate court - Where findings based upon credibility of witnesses - Preference of expert reports - Re-examination of facts - Negligence - Dangerous premises - Liability of Occupier - Obviousness of risk - Illumination of area LEGISLATION CITED : Supreme Court Act 1970 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council (2001) 206 CLR 512 Devries v Australian National Railways Commission (1993) 177 CLR 472 CASES CITED : Fox v Percy (2003) 77 ALJR 989 Hackshaw v Shaw (1984) 155 CLR 614 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Wyong Shire Council v Shirt (1980) 146 CLR 40 Piloora Avanes - Claimant/Appellant PARTIES : Club Marconi of Bossley Park Social Recreational & Sporting Centre Ltd - First Opponent/First Defendant Anthony Del Duca - Third Opponent/Third Defendant FILE NUMBER(S) : CA 40958/02 P Biggins - Claimant/Appellant COUNSEL : D R Russell - First Opponent/First Defendant N/A - Third Opponent/Third Defendant David Legal - Claimant/Appellant SOLICITORS : Moray & Agnew - First Opponent/First Defendant Lum Mow & Associates - Third Opponent/Third Defendant LOWER COURT District Court JURISDICTION : LOWER COURT 488/00 (Parramatta) FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40958/02 DC 488/00 (Parramatta) SHELLER JA IPP JA TOBIAS JA AVANES v CLUB MARCONI OF BOSSLEY PARK SOCIAL RECREATIONAL & SPORTING CENTRE LTD The claimant was injured when she fell whilst on the premises of the opponent. The fall occurred at night at a point on the pathway where the kerb height had been reduced to allow wheelchair or other loading access and where the pathway sloped away as a result. A specialist engineering consultant, who had visited the sight and attempted to take a measurement of the light, reported that there was no artificial illumination along the pathway and that levels of illumination at the point of fall were so low that it was impossible to obtain any reading. The consultant also reported that the design and construction of the set down point contravened all essential long-standing design requirements laid down in Australian Standards and that the failure to provide fixed illumination was an obvious and significant safety hazard that pedestrians would not expect. The consultant was not cross-examined. The opponent's manager at the time of the fall gave evidence that there was enough light from the foyer to see where you were going even though the area at the point of the fall was not lit. An architect who had been involved in a renovation at the Club gave evidence that the lighting between the foyer and the club entrance was "adequate". The trial Judge held that there was adequate lighting and that the set down point was a clear and obvious danger to any person walking along the walkway. Held (allowing the appeal) per Sheller JA, Ipp and Tobias JJA agreeing: 1. A risk that is obvious in the day may become an unexpected hazard for pedestrians after dark if it is not sufficiently illuminated, especially if dark and unmarked. 2. The experience of sitting on appeal from civil matters heard in the District Court is that as a matter of practice expert witnesses are rarely required in that court to give oral evidence and be subjected to cross-examination. Whatever may be the desirability of such a practice the consequences of not cross-examining a witness remain the same. 3. The evidence that the lighting was adequate, which his Honour accepted on its face, carried little weight. The unchallenged evidence of the expert, together with the evidence of the claimant, that there was no sufficient lighting was overwhelming. Legislation cited : Supreme Court Act 1970 Cases cited : Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council (2001) 206 CLR 512 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 77 ALJR 989 Hackshaw v Shaw (1984) 155 CLR 614 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Wyong Shire Council v Shirt (1980) 146 CLR 40 ORDERS 1. The appellant is granted leave to appeal and ordered to file a notice of appeal in terms of its draft notice of appeal within seven days of this order; 2. Appeal allowed; 3. Set aside the verdict and judgment for Club Marconi and the order for costs made by Judge Delaney on 3 October 2002; 4 In lieu thereof verdict and judgment for the plaintiff, Piloora Avanes, against the defendant, Club Marconi, for $21,000 to take effect from 26 April 2001; 5. The defendant, Club Marconi, to pay the costs of the plaintiff of the hearing before Judge Delaney and of this appeal but to have a certificate under the Suitors' Fund Act 1951, if so qualified; 6. Remit to the District Court all questions of costs in the proceedings between the plaintiff and Mr Del Duca and on Club Marconi's cross-claim against Mr Del Duca to be determined by that Court. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40958/02 DC 488/00 (Parramatta) SHELLER JA IPP JA TOBIAS JA Friday, 11 July 2003 AVANES v CLUB MARCONI OF BOSSLEY PARK SOCIAL RECREATIONAL & SPORTING CENTRE LTD Judgment 1 SHELLER JA: The claimant, Piloora Avanes, seeks leave to appeal from a decision of his Honour Judge Delaney given in the District Court at Parramatta on 3 October 2002. Mrs Avanes began proceedings in the District Court to recover damages for injuries she suffered as the result of a fall on a footpath on the premises of the opponent, Club Marconi of Bossley Park Social Recreational & Sporting Centre Limited (Club Marconi). Club Marconi cross-claimed. The cross-defendants were later joined by Mrs Avanes as defendants to the proceedings. The proceedings against one of these defendants were discontinued at the trial. The damages were agreed at $21,000, an amount assessed in an arbitration. Judge Delaney found against Mrs Avanes on liability and entered a verdict in favour of Club Marconi and the remaining defendant, Anthony del Duca, who was an opponent to this application but who did not appear. 2 On 11 August 1998 at about 8 pm Mrs Avanes was walking towards the clubhouse of the Club Marconi from an underground carpark. She was with her husband, who has since died, and two friends. The group had walked up the stairs from the carpark and was walking along the pathway towards the main entrance of the clubhouse. They came to a part of the pathway where a "set down" or ramp had been installed. The kerb height had been reduced to allow wheelchair or other loading access from the driveway onto the footpath and the kerb and footpath sloped to allow this. 3 Mrs Avanes was walking at the edge of the footpath. In her words she reached a point where "I felt that underneath my foot, the sole, was empty." She fell on her left side and hit her male friend who was next to her. She was wearing platform shoes. The footpath where Mrs Avanes fell was between the end of a covered walkway, which Mrs Avanes had walked along, and the entrance foyer, a distance estimated to be about fifteen metres. The place where she seems to have fallen was approximately where, as she approached it, the kerb began to slope down to make the ramp. In cross-examination she was asked whether if she had looked she would have seen the set down. She said, "I couldn't see it properly because it was dark." Mrs Avanes said that in this part of the footpath there was lighting, small lighting, but it did not reflect on to the footpath. There was some strip lighting within the overhead covering of the covered walkway but Mrs Avanes had walked beyond the covered walkway. 4 Joseph Di Pietrantonio, the then general manager of Club Marconi, gave evidence that at that time the club facilities were used by about 25,000 people a week. He was asked whether he was aware that there was no lighting adjacent to the area of the footpath that ran between the end of the covered walkway and the entrance foyer. 5 Mr Di Pietrantonio said that the foyer was well lit and it was only six metres away. Pressed about the footpath between the end of the covered walkway and the entrance foyer he said: "Perhaps not that particular section but there was enough lighting in the immediate area to see where you were walking clearly, yes." However, he had not gone out and measured it. 6 Mr Del Duca gave evidence, He was retained as an architect for a renovation project which the Club Marconi had been, and perhaps was engaging in, at the time of Mrs Avanes' fall. He referred to the lighting in the overhead awning of the foyer and said that the lighting between the awning and the club entrance was "adequate". The trial Judge said "Adequate for what, I've go no idea what adequate means." No further evidence was led to assist his Honour. 7 A report dated 18 October 1999 prepared by Hugh C Cowling, a principal of H & D Cowling Pty Ltd, Specialist Engineering Consultants, was tendered on behalf of Mrs Avanes (Exhibit A). Mr Cowling inspected the injury location on 15 June 1999. In his report he made the following comments: "During normal daylight dry-weather conditions, if there had not been any set down in the pathway, the pathway could not reasonably be classified as hazardous. However , once the sun has set, there is no artificial illumination provided along this pathway. … My inspection revealed that there was no reasonably adequate way of visually identifying the presence of the set down in conditions of darkness." 8 Referring to Australian Standard AS1158.1 – 1986 SAA Public Lighting Code, which has been adopted by public and other authorities throughout Australia and requires, in order to provide a lighting environment which is conducive to the safe and comfortable movement of pedestrian traffic at night that the lighting reveal necessary visual information such as footpaths and surface imperfections. In my opinion, that "visual information" would also include the set down in the footpath in the present case which involved a not insignificant and sudden change in the surface level of that footpath. Mr Cowling remarked that the illumination at the fall location was of such a low level that it was not possible to obtain any reading. He added that the design and construction of the set down contravened all essential long-standing design requirements laid down in Australian Standards. Relevantly he summarised his opinion as follows: "In my opinion, the arrangement whereby an essential access pathway was left without any form of fixed illumination was an obvious and significant safety hazard. … As such I believe that the existence of the said set down constitutes an entirely unexpected hazard for pedestrians at this particular location, especially after dark." 9 The evidence finished on 19 June 2002. His Honour reserved his decision which he gave on 3 October 2002. In his reasons for judgment, his Honour referred to the Cowling Report and observed that it was not subject to cross-examination. He said: "There was a significant challenge, however, to the evidence, or so called evidence, on which Mr Cowling has based his assumptions as to where there was any form of 'fixed illumination'. There was also a question of whether or not if there was lighting, was this something which would have enabled the plaintiff to see what was an obvious danger, accepting the views of Mr Cowling on that point, which could have been avoided by merely keeping a proper lookout as to where she was walking." 10 As was pointed out in the claimant's submissions, this paragraph misunderstands the Cowling Report. It is not clear what his Honour meant by "a significant challenge", since Mr Cowling was not required for cross-examination, nor by his "so called evidence" on which Mr Cowling had based his assumptions. Mr Cowling, according to the report, had visited the site and made a measurement of the light. Further, when Mr Cowling spoke of an obvious danger he was referring to the fact that the danger constituted by the unilluminated set down would have been obvious to any reasonable occupier of the area in question. Thus, whatever may have been the position during daylight hours, Mr Cowling expressly, in the passage which I have quoted, said that the set down constituted an entirely unexpected hazard for pedestrians at that location "especially after dark". The Cowling Report was evidence by a qualified expert witness based on observation and measurement about the illumination at the injury location and the dangers that lack of illumination posed. 11 Despite this, and despite the absence of any persuasive evidence from any other witness that the injury location was sufficiently illuminated on the night in question, his Honour made the following comments: "There was some evidence about the existence of lighting in the area. The plaintiff had no real recollection of the degree or positioning of lighting in the area. However, evidence about this was given by others and that evidence, that I accept, is that there was lighting and that it was adequate for the area at the time. Whoever's responsibility it was to provide that lighting - and there was great doubt about that issue in the evidence, was in my opinion the issue of whether lighting was adequate should be found against the plaintiff and therefore the views expressed by the expert in exhibit A on that point cannot be accepted as being a breach of duty on the part of any of the defendants not to have provided adequate lighting. In my opinion there was adequate lighting." 12 A little later his Honour said: "This ramp, which was shown in the photographs was, in my opinion, a clear and obvious danger to any person walking along the walkway." 13 Further on his Honour said: "As I said, I have found that there was, at the time, sufficient artificial illumination. Although, it was Mr Cowlings' view that there was no reasonably adequate way of visually identifying the presence of the set down in conditions of darkness, I find that it was not dark, and that it was lit." Grounds of appeal 14 The claimant sought leave to appeal on grounds set out in a draft notice of appeal as follows: 1. The trial judge erroneously concluded that there was sufficient artificial lighting in the area of the fall when the unchallenged expert report with photographs demonstrated that there was no lighting. 2. The trial judge wrongly took the expression 'obvious and significant safety hazard' completely out of context. 3. The trial judge in recognising the evidentiary value of the application of yellow marking paint after the fall as being evidence of something that could have been done before the fall, failed to take account of further evidence that subsequent to the application of yellow marking paint the ramp had in fact been filled in and no longer existed. 4. The trial judge was in error in attributing the plaintiff's expert a failure to state the manner in which the footpath was deficient other than by reference to gradient. 5. The transcript of judgment at page 11 has misquoted a section of the expert report and the trial judge appears to completely misunderstand the portion quoted. 15 In his reasons for judgment Judge Delaney quoted the well known passage from the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. The duty of care owed by an occupier to those persons who come upon the occupier's premises was authoritatively stated by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. At 488 the majority adopted the following statement of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662-3: "…it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk." 16 In the present case there could be no doubt that Club Marconi owed to Mrs Avanes, a person coming on to the Club's premises for the purposes of attending a function there, a duty to take reasonable care to avoid a foreseeable risk of injury to her. Again I would have thought quite clearly that there was a reasonable foreseeability of real risk of injury to somebody walking along the footpath, who did not see the slope of the set down, falling and injuring themselves when, unprepared, they stepped into the space resulting from the sudden change in the surface of the footpath which accommodated the set down. 17 In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 a young woman fell six and a half metres from the top of a cliff on to a beach in a nature reserve managed by the defendant Commission at night and while she was intoxicated. There was no fence or other barrier at the edge of the cliff. But the presence of the cliff was obvious. In their judgment at 455 Toohey and Gummow JJ quoted from the judgment of Mason J in Wyong Shire Council v Shirt at 48 "A risk which is not far fetched or fanciful is real and therefore foreseeable" and then said: "But in the present case the risk existed only in the case of someone ignoring the obvious." 18 In the present case, Judge Delaney picked up and, in doing so, as I have said, clearly misunderstood that part of Mr Cowling's report, where Mr Cowling said that the arrangement whereby an essential access pathway was left, at the location of the set down, without any form of fixed illumination was an obvious and significant safety hazard, to exculpate the Club. His Honour may have had in mind what was said by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 581: "As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia (1982) 56 ALJR 912), or the surrounding area (as in Buckle (1936) 57 CLR 259 at 266, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety." 19 Brodie and Ghantous were cases about public highways and footpaths. The present is a case about what Mr Cowling described as an essential access pathway on the Club Marconi's premises used by persons coming to attend a function being held by the Club. In the present case there was no doubt that Mrs Avanes fell after dark. The set down was, in the dark and unidentified in any way, an unexpected hazard for pedestrians. I have no doubt that Club Marconi, acting reasonably, owed a duty to ensure that the area was sufficiently illuminated to enable pedestrians, keeping a lookout for where they were going, to see the set down before they took a step into the space which accommodated it. The critical question therefore was whether or not Club Marconi had so illuminated the area of the set down. 20 Mr Russell of counsel, who put the case on behalf of Club Marconi, submitted that Judge Delaney had found that the lighting was adequate, that that finding of fact was open to him and that this Court, even though it might have come itself to a different finding of fact, could not intervene: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. In Fox v Percy (2003) 77 ALJR 989 at 993-4 Gleeson CJ, Gummow and Kirby JJ, after quoting s75A(5)-(10) of the Supreme Court Act 1970, said: "[22] The nature of the 'rehearing' provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the subsections quoted. The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal. [23] The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' Dearman v Dearman (1908) 7 CLR 549 at 561. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceedings wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. [24] Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the 19th century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons. [25] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect Dearman v Dearman at 564 citing The Glannibanta (1876) 1 PD 283 at 287. In Warren v Coombes (1979) 142 CLR 531 at 551, the majority of this Court reiterated the rule that: '[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.' As this Court there said, that approach was 'not only sound in law, but beneficial in …operation'." 21 Mr Cowling's report was admitted without objection. He was not cross-examined. The experience of sitting on appeal from civil matters heard in the District Court is that as a matter of practice expert witnesses are rarely required in that court to give oral evidence and be subjected to cross-examination. The opposing party is discouraged, apparently, from requiring their attendance. Whatever may be the desirability of such a practice the consequences of not cross-examining a witness remain the same. Mr Cowling was the only witness who had made a scientific attempt to measure the light thrown on that part of the footpath at night where Mrs Avanes fell. Mr Cowling said that the illumination at the location of her fall was of such a low level that it was not possible to obtain any reading. He said that an essential access pathway was left without any form of fixed illumination and was an obvious and significant safety hazard. He described that as an entirely unexpected hazard for pedestrians at this particular location especially after dark. Absent any cross-examination and absent any other attempt to measure the illumination at that location, there is nothing in the material which enabled the trial Judge to say that there was a significant challenge to Mr Cowling's evidence, other than rhetoric, or to dismiss or discount it as "so called evidence". That part of Mr Cowling's evidence, which Judge Delaney accepted, of "obvious danger" involved a failure by the trial Judge to appreciate Mr Cowling's point. 22 Counsel took us to each passage in the transcript of evidence where a witness gave evidence about the lighting. I have referred to what Mrs Avanes said about it, to the limitations of the manager's view and to the evidence of Mr Del Duca that the lighting was adequate, which, presumably, though the trial Judge did not say this was the basis for his acceptance and then opinion that there was adequate lighting in the area at the time. Like Mr Del Duca, his Honour did not explain what "adequate" meant in this context, particularly having regard to Mrs Avanes' statement that she could not see the ramp properly because it was dark and the measurements made by Mr Cowling which showed that the illumination was of such a low level it was not possible to obtain any reading. 23 In my opinion, Judge Delaney's reasons of judgment reveal serious mistakes in the comprehension and evaluation of the evidence, particularly the unchallenged evidence of Mr Cowling. The evidence that there was any sufficient lighting where Mrs Avanes fell on the night in question on its face carries little weight. The evidence that there was no sufficient lighting is overwhelming. In my opinion, leave to appeal should be granted and the appeal allowed. Orders 24 I propose the following orders: 1. The appellant is granted leave to appeal and ordered to file a notice of appeal in terms of its draft notice of appeal within seven days of this order; 2. Appeal allowed; 3. Set aside the verdict and judgment for Club Marconi and the order for costs made by Judge Delaney on 3 October 2002; 4 In lieu thereof verdict and judgment for the plaintiff, Piloora Avanes, against the defendant, Club Marconi, for $21,000 to take effect from 26 April 2001; 5. The defendant, Club Marconi, to pay the costs of the plaintiff of the hearing before Judge Delaney and of this appeal but to have a certificate under the Suitors' Fund Act 1951, if so qualified; 6. Remit to the District Court all questions of costs in the proceedings between the plaintiff and Mr Del Duca and on Club Marconi's cross-claim against Mr Del Duca to be determined by that Court. 25 IPP JA: I agree with Sheller JA. 26 TOBIAS JA: I agree with Sheller JA. ********** Last Modified: 07/11/2003 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.