New South Wales Court of Appeal CITATION : Nambucca Shire Council v Connor [2003] NSWCA 394 HEARING DATE(S) : 3 February 2004 JUDGMENT DATE : 4 February 2004 JUDGMENT OF : Handley JA at 1; Beazley JA at 2; Tobias JA at 3 DECISION : a) Appeal allowed; b) Verdict, judgment and orders made by Coolahan DCJ on 14 February 2003 set aside and in lieu thereof enter judgment for the appellant with costs; c) Order that the respondent pay the appellant's costs of the appeal but to have in respect thereof a certificate under the Suitors' Fund Act 1951 CATCHWORDS : NEGLIGENCE - respondent tripped on nail protruding from boardwalk while walking - Primary judge found appellant negligent for failing to warn - Insufficient evidence of causal connection between breach of duty and damage suffered - Findings of breach set aside due to lack of consideration of causation - PROCEDURAL FAIRNESS - particularised grounds of liability not raised during proceedings - Ability of trial judge to find for party regarding assertion of negligence which did not form part of conducted case - Need to look at proceedings to determine if it was open to decide case on particular basis of liablity - Denial of procedural fairness to decide case upon basis of liability which was foreign to manner in which proceedings were conducted - Primary judge erred by deciding case solely upon issue not pursued by the respondent LEGISLATION CITED : Suitors' Fund Act 1951 Chappel v Hart (1998) 195 CLR 232 CASES CITED : Commonwealth Securities Ltd v South Pacific Securities Pty Ltd [2003] NSWCA 199 Whisprun Pty Ltd v Dickson (2003) 200 ALR 447 PARTIES : Nambucca Shire Council Thora Sue Connor FILE NUMBER(S) : CA 40170/03 COUNSEL : A: D Campbell SC / T Meakes R: Not applicable SOLICITORS : A: Phillips Fox R: Finlaysons (Nambucca Heads) LOWER COURT District Court JURISDICTION : LOWER COURT DC 12/99 FILE NUMBER(S) : LOWER COURT Coolahan DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40170/03 DC 12/99 HANDLEY JA BEAZLEY JA TOBIAS JA 4 February 2004 NAMBUCCA SHIRE COUNCIL v THORA SUE CONNOR Judgment 1 HANDLEY JA: I agree with Tobias JA. 2 BEAZLEY JA: I agree with Tobias JA. 3 TOBIAS JA: In or about 1996, Nambucca Shire Council (the council) caused to be constructed three boardwalks along the harbour front of Nambucca Heads. The boardwalks were of timber construction with an effective width of approximately 1400mm. The decking comprised slats of treated pine set side-by-side and nailed to each of four supporting timber crossbeams. 4 On 24 July 1998 Thora Sue Connor (the respondent) was, for the first time, walking along one of the boardwalks when she allegedly tripped on one of the nails securing the decking to the cross-beams which had lifted and stood proud of the surface of the decking by approximately ½". As a consequence she fell and sustained significant injuries. 5 The respondent sued the council for damages alleging in her amended Statement of Claim that it had been negligent in the following respects: a) failing to maintain the boardwalk in a safe condition for pedestrians; b) failing to ensure that all nails on the boardwalk were properly hammered in; c) failing to ensure that all wooden planks on the boardwalk were properly secured; d) failing to ensure that the walking surface of the boardwalk was even; e) failing to warn the plaintiff of the dangers of walking on the boardwalk. 6 The proceedings were heard by his Honour Judge Coolahan in the District Court at Newcastle who, on 14 February 2003, entered a verdict and judgment for the respondent in the sum of $161,084. It is against that judgment that the council appeals to this Court. 7 It is to be noted that this appeal has been heard without the benefit of submissions from the respondent. 8 There was no dispute that the council had the care, control and management of the boardwalk at all relevant times. According to the primary judge, the respondent's case was conducted upon the basis that the council's negligence fell into two broad categories, one being described by him as the "construction point" and the other as the "maintenance/warning point". At the hearing the respondent tendered a report of Mr Trevor Jones dated 4 February 2000 which, ultimately, his Honour rejected on the basis that it was inadmissible. As a consequence, the respondent specifically abandoned what his Honour referred to as the construction point. As he then noted, the issues between the parties were thus confined to the council's inspection and maintenance of the boardwalk and the nature of any warning that should have been given. Furthermore, as the primary judge specifically observed, "causation was also a very live issue". 9 The respondent's evidence was that she did not see what it was that caused her to fall before she fell although in her evidence-in-chief she said that she tripped on a nail. According to the primary judge's findings, the respondent said that after she fell she did not look around to see what had caused her to fall but his Honour accepted her evidence that she tripped because she felt as if she had stubbed her toe, that is, that she had caught it on something causing her to fall. 10 However, the respondent's husband gave evidence that he was lagging behind the respondent but was told that she had fallen and immediately observed that she was lying on the boardwalk. He said that when he arrived at the point on the boardwalk where the respondent had fallen he found a flat-headed nail protruding ½" above the level of the decking to the side of the boardwalk. The primary judge accepted the evidence of the husband and found that it was probable that the nail which he described was the one on which the respondent had tripped. 11 Mr Bruce Redman was called to give evidence for the respondent. At the material times he was Director of Operations and Technical Services of the council. He said that there would have been inspections of the boardwalk from time to time and that he was aware, prior to July 1998, that there were problems with the boardwalks, the main one being vandalism. However, he went on to say that: "Certainly, there were times when there were nails" 12 He was asked what he meant by this and responded: "There were nails lifted nearly almost the majority of the times on the outer edge". 13 A plan of the boardwalk was tendered and admitted which revealed that the decking slats overlapped to a small degree on each side of the handrail of the boardwalks and that the slats were nailed in four places across the width of the deck. Two of these were in the middle and one was at each end adjacent to the handrail. The crossbeams to which the slats were nailed were at 450mm intervals. 14 In light of this evidence the primary judge reached the following conclusion (Red 19G-N): "The conclusion I have drawn, therefore, in relation to this evidence from Mr Redman is that prior to July 1998 the defendant was aware of problems which, from time to time, arose with boardwalks. These, in the main, related to vandalism. However, there were occasions when nails lifted. While accepting Mr Redman's evidence as I do that the majority of these occasions related to nails lifting on the very outer edges of the boardwalk adjacent to the rails, the inference from this evidence is that it was not on all occasions that nails lifted from the ends. The inference I draw is that, from time to time, nails also lifted from the position of the middle two joists." 15 Mr Redman also gave evidence, which the primary judge accepted, as to the nature of the undertakings and responsibilities of the council within the very limited resources allocated to the work of maintenance of structures such as the boardwalks. Suffice it to say that, in the light of Mr Redman's evidence, his Honour held that the respondent failed on what he had referred to as the maintenance and inspection point. It is unnecessary to consider this aspect further as the respondent has not, obviously, sought to contest this finding by way of notice of contention. 16 However, the primary judge found in favour of the respondent on what he referred to as the warning point. His reasons were as follows (Red 20V-21N): "However, it seems to me that the issue of what warning, if any, the defendant should have given to the plaintiff is a different matter. Whilst there is no specific evidence of any lack of warning of the possibility of raised nails on the board walk, I think I am entitled to say that it is implicit from the way in which the case was conducted on behalf of the defendant that no such warning existed. Whilst the issue of lack of warning was not argued, it seems to me that it is relevant and is an issue upon which the plaintiff is entitled to succeed. I think I can take judicial notice of the fact that a nail protruding half an inch or so above the level of a board walk is not something that would necessarily be discernible to someone walking along the board walk, even if they were keeping a proper lookout. I think I can also take judicial notice of the fact that the cost of appropriate signage warning of this possible danger would have been minimal and certainly within the defendant's budget. By it's failure to so warn the defendant was negligent and it follows that there will be a verdict for the plaintiff." 17 The council submitted that his Honour erred in making this finding for a number of reasons. In particular, and as the primary judge acknowledged, it was submitted that the warning point was not ventilated at the trial and evidence that warning signs would have been complied with was not before the primary judge. Thus, the respondent gave no evidence as to whether she would have read any warning sign or what her reaction would have been to one. Further, there was no evidence as to how such a sign warning of the possible danger of raised nails would have been presented: whether in words or with a diagram. There was no evidence to determine the number, location and content of signs that would be required to guard against the various risks associated with the use of the boardwalks to which Mr Redman referred in his evidence or whether such signs would have been practicable in all the circumstances. Again, given the meagre resources of the council, there was no evidence as to whether signs could have been afforded within the council's budgetary restraints. When Mr Redman was called in the respondent's case, the fact that he was not asked any questions relating to the warning issue reinforced for those conducting the case on behalf of the council that the "warning point", as it has been referred to, was not being pursued. 18 The primary judge noted that causation was a "very live issue" and yet it played no part in his reasoning. If it was otherwise appropriate for his Honour to have decided the case on the warning point, the onus lay upon the respondent to establish that her injuries would have been prevented had the council erected the sign to which his Honour referred. The question of causation was to be determined subjectively: Chappel v Hart (1998) 195 CLR 232 at [32]. Normally evidence is led from a plaintiff that he or she would have avoided the particular conduct that led to his or her injuries had he or she been warned of the risk in question. Thus, in Chappel, Guadron J at ([9]) said: "Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided." See also McHugh J at [34] and Kirby J at p272. 19 It may be true that such evidence is not required in every case involving a failure to warn. Thus, as Kirby J said in Chappel at 273, "Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection would have been established. It is then for the defendant to show, by evidence and argument, that the patient should not recover damages." 20 However, in the context of the relevant legal rule applicable to the present case, the evidence must be such that there is a sufficient closeness between the breach of duty and the damage suffered to raise a prima facie case of causal connection. That would not, in my opinion, occur in many cases involving a failure to warn (of which, in my view, the present is one) absent some evidence from the plaintiff as to his or her response to the warning. There are too many unanswered questions. Thus, for instance, had there been a warning sign which the respondent was capable of observing before she entered the boardwalk, would she have proceeded along the boardwalk at all? Alternatively, would she still have proceeded upon the boardwalk but kept a better lookout for raised nails? If she had kept such a lookout would she have seen the nail in any event in time to avoid it? The answers to these questions are not self evident and there was no evidence in relation to any of them. 21 In essence, the problem in the present case is that there was no evidence led from the respondent as to what her reaction would have been had a warning sign of the nature of that contemplated by the primary judge been erected at the commencement of the relevant walkway. In the absence of such evidence no basis exists for any finding that had the council erected an appropriate warning sign, the respondent would have avoided the injuries she sustained. As I have said, the primary judge considered that the council was negligent in its failure to warn the respondent of the risks associated with nails protruding from the walkway decking. He gave no consideration to the issue of causation which, as he said, was "live" but which neither he nor the respondent addressed. In failing to do so, he clearly erred. 22 I have already referred to the fact that the failure to warn was a particular of negligence in the Amended Statement of Claim. In his opening address to the primary judge, counsel for the respondent said: "The nature of the plaintiff's pleading is that it is an amended pleading" 23 Apart from a reference to the allegation in the pleading that the council had the care, control and management of the boardwalk, counsel for the respondent asserted that there was no need for him to open further, an observation to which the primary judge acceded. 24 Counsel for the council then opened to his Honour during the course of which he said this: "The council will say your Honour that any – the claim as pleaded your Honour appears to be a claim focussing on maintenance and elliptically the construction process of the boardwalk." 25 No mention was made of the allegation in the particulars of a failure to warn and counsel for the respondent did not suggest to his Honour that the council had misunderstood the basis upon which the respondent's case was to be conducted. 26 The respondent then sought to tender, inter alia, the report of Mr Trevor Jones referred to above. Although the tender was ultimately rejected, the report was reproduced in the appeal papers and is relevant to the issue I am now addressing. It is clear from its contents that it only addressed matters going to the design and construction of the boardwalk and makes no reference to any requirement for warning signs given the alleged defects in the boardwalk's design and construction. It was thus consistent with the manner in which counsel for the council understood that the respondent's case would be conducted. 27 When it came to final addresses, the following exchange took place on what was referred to as the "construction point" (Black 62T-63D): "LOOMES: Sorry, Your Honour I think, whatever way this matter unfolds, the nature of the plaintiff's claim is delimited by the particulars of negligence we've pleaded against the defendant and they really relate to maintenance not to construction. HIS HONOUR: Well there's no evidence of any – there's no evidence, now, that there was anything wrong with the construction of this boardwalk which might've caused or contributed materially to the plaintiff's fall, even assuming we get that far. LOOMES: Yes. HIS HONOUR: So doesn't that mean effectively there is no construction issue. LOOMES: Yes. I think that is the case your Honour, either on the pleadings or on the evidence." 28 The primary judge than asked counsel for the respondent what his submission was on negligence and breach of duty. Counsel then referred to the decision of the High Court in Brodie v Singleton Shire Council. There then followed submissions which were clearly confined to the question of the inspection and maintenance of the particular boardwalk. There was no submission asserting a failure to erect warning signs. At Black 64W, counsel for the respondent indicated that he wished to make some brief submissions on the evidence to which his Honour acceded and the transcript then continues: "Counsel addressed". I assume from this that counsel for the respondent addressed on the evidence in which there was no suggestion that the respondent was basing her case upon a failure to warn. 29 Senior counsel for the council, who also appeared at the trial, has assured us that the case for the respondent was conducted solely on the basis of negligent construction and/or negligent inspection and maintenance and was never conducted on the basis of a failure to warn. That assertion is consistent with the analysis of the trial transcript which I have attempted. In these circumstances, it was not open to the primary judge to decide the case upon a basis of liability which outside the case the respondent conducted before him. To have so decided the matter involved a denial to the appellant of procedural fairness: cf Commonwealth Securities Ltd v South Pacific Securities Pty Ltd [2003] NSWCA 199 [39]-[41]; Whisprun Pty Ltd v Dickson (2003) 200 ALR 447 [52]-[53]. 30 The foregoing authorities make clear that although the basis upon which a case may be decided by a trial judge may be within the pleadings and particulars, it is still necessary to look at the actual conduct of the proceedings to determine whether it was open to the trial judge to decide the case upon a particular basis. If that basis was not pursued, no proper foundation exists for the trial judge to find in favour of a party on a basis which was never part of the case advanced by that party. But that was what the primary judge did in the present case and he erred in so doing. 31 In my opinion, therefore, the primary judge erred in entering a verdict for the respondent without considering the issue of causation. He further erred by deciding the case upon an issue which was not pursued by the respondent in the conduct of her case before him. 32 In these circumstances, I propose the following orders: a) Appeal allowed. b) Verdict, judgment and orders made by Coolahan DCJ on 14 February 2003 set aside and in lieu thereof enter judgment for the appellant with costs. c) Order that the respondent pay the appellant's costs of the appeal but to have in respect thereof a certificate under the Suitors' Fund Act 1951. Last Modified: 11/28/2007 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.