KIAMA CITY COUNCIL v McMILLAN [2003] NSWCA 33

New South Wales Court of Appeal

CITATION : KIAMA CITY COUNCIL v McMILLAN [2003] NSWCA 33 HEARING DATE(S) : 13 February 2003 JUDGMENT DATE : 28 February 2003

JUDGMENT OF : Mason P at 1; Giles JA at 68; Cripps AJA at 69 DECISION : Appeal upheld. See further par 67

CATCHWORDS : District Court - District Court Rules Pt 26 r6A - dismissal on plaintiff's application on terms - costs normally to be borne by plaintiff in accorance with Pt 39 r1A - trial judge's discretion as to costs miscarried. (ND) PARTIES : KIAMA CITY COUNCIL v Alison McMILLAN FILE NUMBER(S) : CA 40927/01 COUNSEL : Appellant: M McCulloch Respondent: J Glissan QC/ M Cleary SOLICITORS : Appellant: Phillips Fox Respondent: Keddies Solicitors

LOWER COURT District Court JURISDICTION : LOWER COURT DC 4915/99 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40927 of 2001 DC 4915 of 1999

MASON P GILES JA CRIPPS AJA

Friday 28 February 2003

KIAMA CITY COUNCIL v Alison McMILLAN JUDGMENT

1 MASON P: A claim and a cross-claim for leave to appeal were heard concurrently and in circumstances where the Court heard full argument as on an appeal. (The cross claim was withdrawn during the course of argument.) I shall refer to the parties as the plaintiff and the Council. 2 Three sets of proceedings were instituted by the plaintiff against the Council on 30 June 1999. Each related to a different accident said to have occurred when she fell in the Black Head Reserve at Gerroa. 3 The claims based upon accidents occurring in July 1996 and September 1996 were resolved in May 2000 by consent, with the entry of judgment for the defendant. These accidents remain relevant because of the Council's assertion in the continued proceedings that the plaintiff's injuries stemmed from these earlier (non-tortious) incidents. 4 These appellate proceedings arise out of the third action, which involves an accident originally pleaded to have occurred "on and/or about January 1998". The plaintiff claimed that the Council was negligent in failing to maintain the Reserve, more particularly in creating or permitting a hole to be dug into which she fell, injuring her hand. The plaintiff's case, in essence, was that the hole was created during the reconstruction of the car park giving access to the Reserve. 5 Following arbitration proceedings in 2000 that failed to resolve the dispute, the trial opened on 28 June 2001 before Gamble ADCJ. The trial proceeded on June 28 and 29, August 15, 16 and 17 and September 17. 6 On August 17 the plaintiff made an unsuccessful application to vacate the trial. The refusal of such application was the subject matter of her foreshadowed cross appeal. 7 The proceedings were dismissed on the plaintiff's application on 12 October 2001 in circumstances set out below. In this Court the Council complains about the costs order made at that time. 8 At the trial, issues as to liability and damages were strongly contested. In short, the Council disputed that any accident occurred, disputed that it occurred on or about the date alleged, and contended that the main (if not sole) causes of the plaintiff's injuries were the earlier accidents where liability was no longer alleged against the Council. The plaintiff's credibility was strongly challenged, partly by confronting her with histories given to medical practitioners that were quite inconsistent with the case she was advancing at trial. 9 The plaintiff had walked around the Reserve many times since the mid-1980s. 10 In her evidence in chief the plaintiff recounted her earlier falls on Council controlled land in July 1996 and September 1996. Her evidence tended to suggest that these caused no significant injury to her hand. She then gave her account of the incident giving rise to her third action. She said that she fell down a fence post hole and that to the best of her memory the accident occurred "around January 1998" (Tr 28.8.2001, p32). The plaintiff described the hole into which she fell as "distinctively a fence post hole... It was a perfectly round, rounded hole with a small elongation where a fence post had been removed" (p 42). Her leg went about two feet into the hole. She said that she promptly complained to the Council and was told by an unidentified employee that the matter would be fixed up straightaway. Questioned about "the first external medical treatment" sought after the fall, she said that it was a visit to a physiotherapist named Karen Wunch on 11 February 1998 (p47). She also gave evidence relevant to economic loss occurring in the first part of 1998. 11 At the start of the second day of the trial, the plaintiff gave evidence that she had "last night" dug out an old diary. She referred to markings made by her on 23 July 1998. Her counsel foreshadowed an application to amend the statement of claim to change the date of the accident to July 1998. Counsel for the Council initially indicated that the application would be opposed. However, following an adjournment of apparently some hours he withdrew his opposition to the amendment on the basis that the trial was not going to be completed that day and would be going over part-heard to a convenient date in August. The amendment was accordingly allowed (p 69). 12 The plaintiff then completed her evidence in chief and her cross-examination began. She gave some specific evidence about the location of the hole and she said it was "most definitely" her case that her foot went into a hole that was "caused or left after the removal of a fence post" (p 88). 13 Cross-examination of the plaintiff continued when the trial resumed on 15 August. She agreed that it was "crystal clear" that her evidence on oath was that the accident had occurred in July 1998 (Tr 15.8.2001, pp3-4). 14 The cross-examination then proceeded to confront the plaintiff with an inconsistent medical history she had given to her hand surgeon, Associate Professor Connolly. This included statements suggesting that the two earlier accidents were of much greater significance than suggested by the case she was propounding at trial. 15 Matters took another twist when the cross-examiner put to the plaintiff that in January 1998 she had actually told another doctor (Dr Endrey-Walker) that she had had another accident when she fell into a metre deep hole in January 1998. It was put to her - and she agreed - that this was indeed the truth (p46). The existence of this further (apparently non-tortious) accident obviously created additional difficulties for the plaintiff's case, which was now more or less pinned to an accident in July 1998. 16 Professor Connolly was interposed. He was called by the plaintiff and gave evidence of her treatment. In cross-examination he agreed that he had been given a history that included a fall in January 1998 which was (in the plaintiff's words) "the major one" (pp53, 60). He expressed views about the relative importance of such injury, in light of the earlier injuries reported to him. 17 The cross-examination of the plaintiff resumed and continued on 16 August 2001. It culminated in the plaintiff agreeing that her case was most definitely one based upon falling into a fence post hole deliberately created by someone. It was put to her that she had not fallen into a hole of that shape at any time in 1998, a proposition with which she disagreed. It was also put to her that the Council had done no work in the area in 1998, something which she also denied. She also confirmed that her case was based on an accident occurring later than January 1998, in fact in July 1998 (pp39-41). 18 A couple of further witnesses were called, dealing mainly with damages issues. The plaintiff then closed her case (p58). 19 The Council called as its first witness Mr Whitaker, who had been the manager of works in the late 1990s and was previously the Council works engineer. He gave evidence about work on a pine log barrier fence in the car park area pursuant to plans prepared in July 1998 (Ex 2). A coloured version of this plan was later tendered as Exhibit 6. 20 Mr Whitaker said that the work was done in November 1998 and that it would have included the drilling of fence holes to receive treated pine logs. To his knowledge and based on his inspection, fence holes from relocated fence posts were backfilled and compacted manually. This evidence was incomplete at the close of proceedings on Thursday 16 August. 21 At the commencement of proceedings the following day (17 August 2001) counsel for the plaintiff sought to have the hearing "vacated", with the Council paying the plaintiff's costs. This was in effect an application to discontinue the trial so that it could commence afresh, presumably before a different judge. In this Court, the parties were agreed that the application invoked s126(2) of the District Court Act 1973, which provides that: The Court may, before judgment in an action and if no verdict in the action has been entered, order, on sufficient cause being shown, that the hearing of the action be discontinued and that a new trial be had.