New South Wales Court of Appeal CITATION : NCS Australasia Pty. Limited v Hindi & Ors [2003] NSWCA 233 HEARING DATE(S) : 27/05/03 JUDGMENT DATE : 21 August 2003 JUDGMENT OF : Meagher JA at 1; Beazley JA at 2; Santow J at 62 DECISION : 1. Appeal allowed; 2. Set aside the orders of Judge Delaney made on 14 June 2002 and 20 June 2002; 3. Order that there be a new trial; 4. Cross appeal dismissed, no order as to costs; 5. The respondents to pay the costs of the appeals and to have certificates under the Suitors Fund Act if applicable; 6. The costs of the trial to be determined by the trial judge hearing the new trial. CATCHWORDS : Negligence - breach of duty - foreseeability of injury Factual error - Inconsistency of verdict NCS Australasia Pty. Limited (Appellant) Marilyn Hindi (First Respondent) PARTIES : Winten (No. 2) Pty. Limited (Second Respondent) Jones Lang La Salle (NSW) Pty. Limited (Third Respondent) Walter Constructions Pty. Limited (Fourth Respondent) FILE NUMBER(S) : CA 40615/02 G. Little SC/G. Maddocks (Appellant) B. Donovan QC/ R. McCloghry (First Respondent) COUNSEL : M.L. Williams SC/R. Cavanagh (Second Respondent) I. Harrison SC (Third Respondent) G. Parker (Fourth Respondent) Church & Grace (Appellant) Eugene Lepore & Associates (First Respondent) SOLICITORS : Curwood & Partners (Second Respondent) Lee & Lyons (Third Respondent) Bartier Perry (Fourth Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 1310/00 FILE NUMBER(S) : LOWER COURT Delaney J JUDICIAL OFFICER : - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40615/02 DC 1310/00 MEAGHER JA BEAZLEY JA SANTOW JA 21 August 2003 NSC AUSTRALIA PTY. LIMITED v. HINDI & ORS FACTS The first respondent was injured when she slipped on some sand on a ramp when leaving her place of work. The first respondent brought an action in negligence against her employer, the appellant, and the building owner, the second respondent. Various cross-claims were brought. The other parties to the proceedings were the manager of the building, a construction company and a paving company. The trial judge found the appellant was negligent. He also upheld the appellant's cross claim against the building manager and ordered it to contribute 25% to the verdict sum. The appellant appeals from the verdict against it, and against the various verdicts entered on the cross-claims. The first respondent cross-appeals against the verdict in favour of the building owner. HELD per Beazley JA (Meagher and Santow JJA agreeing) (i) Foreseeability of injury is not sufficient of itself to found negligence: Sullivan v Moody (2001) 183 ALR 404. (ii) The trial judge erred by eliding the difference between an injury having occurred on the ramp and the ramp being dangerous. (iii) The trial judge made a number of errors in his factual findings, which appear to have caused confusion in his reasons. (iv) His Honour's verdict against the appellant is internally inconsistent and also based on inconsistent findings when compared with his verdict in favour of the building owner. Accordingly neither verdict should stand. (v) The verdicts on the cross appeal were affected by the same inconsistent findings and therefore should also be set aside. ORDERS 1) Appeal allowed; 2) Set aside the orders of Judge Delaney made on 14 June 2002 and 20 June 2002; 3) Order that there be a new trial; 4) Cross appeal dismissed, no order as to costs; 5) The respondents to pay the costs of the appeals and to have certificates under the Suitors Fund Act if applicable; 6) The costs of the trial to be determined by the trial judge hearing the new trial. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40615/02 DC 1310/00 MEAGHER JA BEAZLEY JA SANTOW JA 21 August 2003 NCS AUSTRALASIA PTY. LIMITED v. HINDI & ORS Judgment 1 MEAGHER JA: In this appeal, the judgment of the trial judge consists of such a mélange of error and inconsistency (which is carefully documented in the analysis of the judgment of Beazley JA) that no orders are possible except orders for a new trial of all issues. I therefore agree with her Honour's reasons and proposed orders. 2 BEAZLEY JA: The appellant appeals against the Judgment of Delaney DCJ in which his Honour held that it had breached its duty of care as employer to the plaintiff/first respondent. The appellant also appeals against his Honour's verdicts on the various cross-claims brought in the proceedings. The other parties to the proceedings were the Building Owner (the second respondent), the manager of the building (the third respondent), and a construction company (the fourth respondent), which was carrying out work near the premises from which the appellant conducted its business. I will refer to the second to fourth respondents as the Building Owner, the Building Manager and the Construction Company respectively. The plaintiff/first respondent has also brought a cross appeal against the verdict entered against her in favour of the Building Owner. 3 The appellant's essential challenge to the verdict against it is that his Honour's decision was based upon a number of factual errors so that it is not possible to determine whether he had appropriately determined the issue of liability against each respondent. The Accident 4 The circumstances of the accident were not complex. As indicated above, the second respondent was the owner of the building. The injury occurred when the plaintiff/first respondent was using the car park basement to exit from the building at lunchtime. In exiting she walked down a concrete ramp in the basement which took her out on to the street. There was sand on the ramp. The plaintiff/first respondent slipped and fell injuring her back and her elbow. She was wearing track shoes at the time. The plaintiff/first respondent had noticed sand on the ramp and in the basement generally over a two week period prior to the accident. She had walked on the ramp on many occasions during this period and had done so without slipping. 5 The basement area was not the principal means of pedestrian ingress to or egress from the building. However, it was frequently used for this purpose to the knowledge of the appellant. In addition, the appellant had directed its employees to use the basement if they intended to smoke, as it was not conducive to the appellant's public image to have employees smoking in front of the building. The plaintiff/first respondent said that she used the basement about five times a day to go outside for a cigarette, although on the occasion of the accident she was intending to exit from the building at lunch time. 6 For some time prior to the accident, the Construction Company was carrying out building works on a site near the business premises. The building works, on a site known as the Forum, were extensive and included road works and paving. The paving work was carried out by a sub-contractor, MDS Commercial Contractors Pty. Limited. 7 It is convenient at this stage, before turning to his Honour's factual findings, to refer to the claim and cross-claims made by the various parties and to consider the evidence called by each. In dealing with the claim and cross-claims it is sufficient to refer in broad terms to the allegations made. The Claim 8 The plaintiff/first respondent brought her claim against the appellant and the Building Owner. As against the appellant, she claimed that it had breached its duty of care to her as employer by failing to provide her with a safe place of work. As against the Building Owner, the plaintiff/first respondent alleged that as occupier and owner, it had the care and control of the premises and thereby had a duty of care to her which it breached. The allegations of breach included a failure to remove sand from the basement, failure to provide a surface that was safe to walk on and failure to warn the plaintiff/first respondent of the presence of the sand in the basement. 9 The appellant denied negligence but admitted that the Building Owner was both occupier and owner and had the care and control of the business premises. The Building Owner did not admit that it was the owner and occupier and denied negligence. Both parties alleged contributory negligence. The First Cross-Claim 10 The appellant cross-claimed against the Building Owner as occupier and owner of the premises (the first notice of cross-claim) alleging negligence in failing to keep the ramp free of sand and in failing to warn of the dangerous condition of the ramp. The Second Cross-Claim 11 The Building Owner, by a second notice of cross-claim cross-claimed against the appellant, the Building Manager and the Construction Company. It cross-claimed against the appellant on the basis that, pursuant to a lease between it and the appellant, the appellant was required to indemnify the Building Owner "in respect of claims arising from any cause whatsoever within or without the building occasioned by or contributed to by any act, omission, neglect or breach" on the part of the appellant and that it would effect a public risk insurance policy which would cover the building owner in the circumstances of the plaintiff/first respondent's claim. It also relied upon an implied term in the lease that the appellant would take reasonable steps to ensure the safety of its employees when using the building. The allegations were not admitted and the lease was not in evidence. 12 As against the Building Manager, the Building Owner alleged that pursuant to an agreement made between them in July 1999, the Building Manager agreed to manage the building on behalf of the Building Owner. It claimed that the Building Manager breached the agreement in various respects, including by failing to ensure that the premises were maintained and kept in a condition safe for users of the building. The Building Owner also alleged negligence in the manner in which it managed the building. 13 The Building Manager denied that there was any such agreement as alleged. It also denied negligence. No written agreement was tendered in evidence, although it must be said that it is not apparent on the face of the pleadings whether a written agreement was alleged. But in any event, there was no evidence called as to the making of, or the terms of any such agreement, whether in writing or made orally. However, on the appeal, senior counsel for the Building Manager conceded that it did have a management function in respect of the building but did not concede that those functions were co-extensive with those of the Building Owner's obligations as owner and occupier. 14 As against the Building Contractor, the Building Owner alleged that in the period prior to the date of the accident, the Building Contractor had arranged for sand to be delivered which, with the knowledge and consent of the Building Owner, was deposited on part of the driveway of its building. It alleged that sand was blown, driven and walked through the car park, basement area and in the area where the plaintiff/first respondent fell. It alleged negligence against the Building Contractor for allowing this to occur and for failing to remove sand from the driveway or to heed its complaints to remove the sand. The Third Cross-Claim 15 The appellant brought a further cross-claim (the third notice of cross-claim) against the Building Manager and the Construction Company. It alleged against the Building Manager that it was negligent in failing properly to manage and control the building, and for failing to ensure sand was not brought into the basement area or to ensure it was quickly removed. It also alleged a failure to warn. As against the Construction Company, the appellant alleged it was negligent in allowing the sand to be deposited on part of the driveway of the building and then in failing to remove it, including after requests had been made that it do so. It also alleged that by depositing sand on the driveway of the building, it created a nuisance by allowing that sand to escape into the basement. The Fourth Cross-Claim 16 The Construction Company in turn brought a cross-claim (the fourth cross-claim) against MDS Commercial Contractors which carried out the paving works relating to the construction of the Forum. The Construction Company alleged against MDS Commercial Contractors that it was responsible for having the sand delivered; failed to ensure that it was delivered to a suitable place; failed to ensure that the sand did not spread into the basement area of the premises; and failed to take appropriate steps to prevent the sand spreading during wet weather. The Fifth Cross-Claim 17 Finally, the Building Manager cross-claimed against all other parties (except the plaintiff/first respondent) (the fifth notice of cross claim). It alleged against the appellant that it had failed to warn its employees that the ramp in the basement was unsafe for pedestrian use and failed to direct them not to use the ramp. As against the Building Owner, it alleged that it was negligent, inter alia, for failing to ensure the ramp was clear and free of sand. It claimed against the Construction Company that it was negligent in allowing the sand to be deposited in such a way that it could spread into the basement area. Its cross-claim against the paving company involved similar allegations. 18 The matter proceeded to trial on the basis that all essential allegations of the various claims, such as the lease agreement between the appellant and the Building Owner; the management agreement between the Building Owner and the Building Manager; and issues such as whether the Building Owner was also an occupier of the premises were either not admitted or were denied. All allegations of negligence were denied. Evidence called by each of the parties 19 The essential evidence called by each of the parties was as follows. The plaintiff/first respondent gave evidence of her fall. I have already referred to this briefly. She said there was "much sand" in the area where she fell. She said that she observed on this occasion "a pile of sand right in the corner of the basement". This answer was gradually refined so that it appears that the sand was "right on the front door" of the basement. She said it was about a metre to a metre and a half high. This evidence was supported by the evidence of both Peter Snow and John Laker to which I refer below. She said that she had seen people carrying out paving work in the vicinity where the sand was piled. To her observation, the sand had never been covered. 20 Both the manager of the building and a person whom she "assumed (was) the supervisor of the construction place" were in the basement at the time of her fall. She said that immediately after her fall the person whom she assumed was the construction supervisor spoke to someone on his walkie-talkie and she observed a workman come and clean up the sand immediately. She reported the accident to her work supervisor, who told her that they had been complaining about the sand for a couple of weeks. The plaintiff/first respondent said that she personally had never complained to anyone about the presence of sand on the ramp. She also said that before she fell she had not turned her attention to whether the sand on the ramp made it hazardous but agreed that, until that point, it was "fair to say that she didn't think it was unsafe". 21 The appellant called Peter Snow, who was its New South Wales Complaints Manager. He, too, had observed sand in the basement over about a two week period. A complaint had also been made about it by one of the appellant's employees (not the plaintiff/respondent). He said that he spoke on at least two or three occasions to John Laker, the supervisor employed by the Building Manager. He said that he told Mr. Laker that he wanted the sand cleaned-up. He was also asked whether he had found the sand on the ramp to be hazardous, to which he replied "Not if I didn't step on the sand". He was asked: "Did you avoid the sand because you thought it was dangerous? To which he replied: "I guess so, yes. I might have slipped on it." He said, however, that in relation to the mess that was caused by the sand in the driveway, as well as mud being brought in, it "was not so much my concern about the staff in terms of people walking up and down there, it was actually vehicle access". 22 Mr. Snow was aware that people who worked in the building used the basement as a place where they smoked cigarettes. He also knew that they regularly used the basement to go in and out of the building. He gave no direction or warning to people about using the basement, not withstanding "this problem with the sand". Mr. Snow also said that the sand was piled at the top of the driveway. He could not recall whether sand was being swept up at least on a daily basis nor could he recall that it had been swept "at least twice on the day (of the accident) before [the first respondent] fell". He said that he just assumed that, because the sand was there over a two week period, it was "always the same sand". He had no recollection of when it was that the paving work was done. 23 The Building Owner called John Laker, who, as I have already said, was the building supervisor employed by the Building Manager at the business premises. He said that, he too, became concerned about the sand affecting the entrance to the building and he spoke about it to Chris Woellner, whom he understood was engaged by the Construction Company. He said that the sand got carried into the driveway by wind and traffic. He said that, because of the problem, he made sure that his own cleaner swept the area every morning between about 8 a.m. and 9 a.m. and he said that he had on occasions requested Chris Woellner to arrange to send somebody over to sweep the area. 24 Mr. Laker said that he could not particularly remember any sand on the ramp when he commenced work on the morning of the accident and he assumed that it would have been cleaned as usual between about 8 a.m. and 9 a.m. He said however that later in the day he had cause to ring Chris Woellner to have somebody sweep up the sand because there was "quite a bit" of sand that had blown in. Later in his evidence he described there being "a light sprinkling of sand on the ramp". Mr. Laker also described the sand as being piled near the entrance of the building and said it was blowing into the basement area. He had no recollection of Mr. Snow complaining to him about the state of the basement. He also said that the ramp in the basement was used frequently during the day with "at least fifty [pedestrians] coming and going" or "possibly more". 25 The Building Manager did not call any witnesses in its case. 26 The Construction Company called Chris Woellner, the project engineer in charge of the civil works for the Forum building site. He said that the paving work was carried out by MDS Contracting over the 8th and 9th November. Mr. Woellner recalled having conversations with Mr. Laker, in relation to dust and debris being trafficked into the building. He said that as a result of this he arranged to have the building swept by a mechanical sweeper and on other occasions to have it swept by hand. His diary revealed that he had the mechanical sweeper booked for the 9th November. However, Mr. Woellner had no recollection of Mr. Laker contacting him about sand on the ramp leading down into the car park. 27 There was no expert evidence on liability. The plaintiff/first respondent had obtained a report from a Dr. Wyatt. However, his Honour rejected the tender of that report on the basis that it did not qualify as an expert report. His Honour's ruling is not challenged on the appeal. Trial Judge's findings 28 The trial judge remarked at an early point in his findings that the Building Owner was not an insurer, and was not aware of anyone having fallen, nor that the sand "was necessarily slippery in any particular part of the premises". 29 His Honour found that the appellant's non-delegable duty of care as employer extended to providing a safe place of work, including access to the work place, even though this area was used in common with other tenants of the building. A challenge to this finding was not pursued on the appeal. 30 His Honour also found that the appellant knew or should have known of the presence of the sand and have taken positive steps for its removal, but did nothing, leaving it to the Building Owner to remove the sand. His Honour then said: "This was a case in which the sand had been in the car park in one form or another for at least two weeks and although there had been no complaint of any fall it should have been removed . This was made clear by the views expressed by the [Building Owner's] (sic) main witness, … who says that he avoided the area of the sand when he walked in that area. Can the court assume in the absence of expert evidence (which would not have been provided by Dr. Wyatt had her report been admitted) that the presence of loose sand on a concrete surface renders that surface less adhesive when persons walk on it ?" [emphasis added] 31 His Honour concluded: "[T]his is a matter that requires some sort of expert evidence". He then noted that he knew nothing of the concrete surface or of the type of sand. He commented: "[O]n some surfaces normal experience would tell one that sand can be dangerous but the [plaintiff/first respondent] had walked on the sand regularly and had not fallen, so had a representative of the [Building Owner]". This last statement was not accurate. It was Mr. Snow, the appellant's Complaints Manager who said he had walked on the ramp but avoided the sand as he might have slipped. His Honour then asked "What then was the response required of the [appellant and the Building Owner]?". 32 His Honour first answered this question as it related to the Building Owner. Earlier in his reasons, his Honour had recorded that, there being no expert evidence, the plaintiff/first respondent "relied upon the evidence of an employee of [the Building Owner]". This cannot be correct as the Building Owner did not call evidence from its own employees. His Honour could only have meant to make a reference to Mr. Snow, the appellant's Complaints Manager, or to Mr. Laker, who was called by the Building Owner but who was an employee of the Building Manager. Part of his Honour's judgment reflects the evidence given by Mr. Snow. Other parts reflect the evidence of Mr. Laker. There is nothing which subsequently clarifies to which witness's evidence he was referring. 33 His Honour held that it was sufficient, for the Building Owner to satisfy its duty of care to the plaintiff/first respondent, to require the Building Manager to remove the sand. He said that, as occupier, it was entitled to discharge its duty by delegation and that it had in fact done so. As there had been no complaints of previous falls in the area his Honour considered that, by complaining to the Building Manager and requesting it to clean up the site, it had appropriately discharged its duty of care to the plaintiff/first respondent. He thus entered a verdict for the Building Owner against the plaintiff/first respondent. 34 His Honour also appears to have based his finding in favour of the Building Owner on another basis, namely, that because it was not aware of "any significant issue of previous problems, falls or injuries and without there being evidence before to the nature of the sand on the specific area where the plaintiff fell and therefore what [the Building Owner] should have foreseen was likely to occur" it did not breach its duty of care to the first respondent. 35 It is difficult to be sure what his Honour was saying in this portion of his Judgment. It may be that he was making a finding that the accident was not foreseeable. Alternatively, and I think the better view is, that his Honour was finding that the Building Owner did not know and there was no basis upon which it ought to have known that there was a danger which it had a duty to prevent. If that was his Honour's reasoning, then it seems to me that it suffers from two flaws. In the first place, there was simply no evidence of any previous falls, so that his Honour's reference to not being aware of "any significant issue of previous problems" is not accurate. That inaccuracy of itself may not be very important. However, the entire premise upon which his Honour's conclusion is based in this portion of his judgment is that there was a danger, and yet, only two paragraphs previously, his Honour had said that there was no evidence that the ramp was dangerous. It appears that his Honour thereby elided the significant difference between an injury having occurred and there being a danger that the Building Owner had a duty to prevent. The former is not predicated upon the existence of the latter. His Honour appears to replicate this mistake in dealing with the claim against the appellant, to which I refer shortly. 36 His Honour's finding in favour of the Building Owner on the plaintiff/first respondent's claim, also disposed of the first notice of cross-claim, which he subsequently dismissed. 37 His Honour then dealt with the plaintiff/first respondent's claim against the appellant. In doing so he observed that the appellant had called no witnesses. This was wrong. The appellant called its Complaints Manager, Mr. Snow. He next recorded that the plaintiff/first respondent "complained to [the appellant] about the sand and was not cross-examined to suggest the contrary". This was also wrong. The plaintiff/first respondent did not give any such evidence. Nonetheless, his Honour identified the complaint in terms that "it was not in the context of the safety aspect as it related to potential slipping but from a general occupational health and safety basis". This was the evidence of Mr. Snow, the appellant's "Complaints Manager", not that of the plaintiff/first respondent. 38 His Honour then said: "… it is not necessary that the specific damage be foreseen, only that a damage in a kind consistent with the presence of sand be foreseen. Clearly there was a concern about the sand that required its removal. It was not removed and the plaintiff slipped on it whereby she was injured. This injury was in those circumstances caused in my view by the breach of the non-delegable duty of [the appellant] to ensure the safety of the exit and entrances. I am satisfied that the injury suffered by the plaintiff was caused by the breach of duty on behalf of [the appellant] to ensure that there was a safe place of work." 39 His Honour then entered a verdict and judgment for the first respondent/plaintiff against the appellant. 40 It is not readily apparent upon what basis his Honour concluded that the appellant had breached its non-delegable duty of care. It seems however that having found that the injury was foreseeable his Honour assumed that the place where she slipped was unsafe. The conclusion is curious in itself given that his Honour had earlier said that he could not find that the condition of the ramp, with sand on it, was dangerous, in the absence of expert evidence. But leaving that to one side for the moment, foreseeability of injury is not sufficient of itself to found negligence: see Sullivan v Moody (2001) 183 ALR 404. In Tame v. NSW (2002) 191 ALR 449 Hayne J at 512 re-emphasised the point: "As five members of the court have recently held [in Sullivan v. Moody ] foresight of harm does not suffice to establish the existence of a duty of care" Not only is foreseeability of itself not sufficient, this is not a case of strict liability. As Gaudron J said in NSW v Lepore [2003] 195 ALR 412 at 439: "To say that, where there in a non-delegable duty of care, there is, in effect, a strict liability is not to say that liability is established simply by proof of injury. … there must first be a duty of care on the part of the person against whom liability is asserted. And, obviously, there must also have been a breach of that duty and resulting injury ." 41 It is difficult to see how his Honour could have found against the appellant given his finding that it was necessary for there to be expert evidence to establish that the sand on the ramp was dangerous. If there was no evidence that it was dangerous, there was no basis upon which it was open to his Honour to find that the appellant had breached its duty of care for failing to provide a safe place of work. Likewise, if it was not dangerous, there was no reason, apart from appearance reasons, to clean the sand off the ramp. 42 There is another difficulty with his Honour's finding of breach of duty by the appellant as it gives rise to an inconsistency in the verdict between the appellant and the Building Owner. As against the appellant his Honour said "there was a concern about the sand that required its removal". This finding is in direct conflict with his earlier finding that there needed to be expert evidence as to whether sand on the ramp was dangerous. As against the Building Owner his Honour found that it was sufficient for it to satisfy its duty of care to the plaintiff/first respondent by engaging the services of the Building Manager. Whilst this may be correct, if there was no evidence that the surface was dangerous, it was unnecessary to consider the question of delegation upon which his Honour based his decision. 43 I consider that this inconsistency in his Honour's judgment in relation to the condition of the ramp and the liability which was consequent upon it is so fundamental that the judgment cannot stand. 44 The appellant also challenged his Honour's finding in favour of the Building Owner. It contended that there was no evidence before the Court that the Building Manager was in fact the manager nor that the Building Owner had delegated the cleaning tasks to it. In relation to the former, there was the partial concession made by senior counsel on the appeal to which I have already referred. As to the latter, it is correct to say that there was no evidence that the Building Manager had been given any direction to clean up the sand. However, that is not decisive. If in fact, it was open to his Honour to find that the Building Owner had delegated the task of keeping the building clean to the Building Manager, it may not have been necessary for the Building Owner to prove that it had given directions in respect of any particular task. The extent of particularity required would depend upon what the evidence was as to the nature and extent of the delegation. In that regard Mr. Laker gave evidence that he was the "building supervisor" and that in the course of that work, having noticed that "sand became a problem", he arranged for the area to be swept regularly. In my opinion that evidence was a sufficient basis for his Honour to infer that the Building Owner delegated the task of keeping the building clean. Given that finding, I do not consider it was necessary for the Building Owner to prove a particular direction to clean up the sand. Findings on the Cross claims 45 As I have already noted, his Honour's finding that the Building Owner was not negligent meant that the appellant's cross-claim against it (the first notice of cross-claim) had to be dismissed. 46 His Honour then dealt separately with the other cross-claims, commencing with the fourth notice of cross-claim, brought by the Construction Company against MDS Commercial Contractors, the paving company. His Honour held, having stated that he accepted the evidence of Mr. Elesaway, the director of MDS Commercial Contracts, that: "[T]here was nothing that he did or could have done to contribute to the presence of sand in the area at or about the time [of the accident] and that therefore there was no breach of any duty that Mr. Elesaway or his company owed to the [plaintiff/first respondent] to take reasonable care to avoid foreseeable risk of injury …." 47 Accordingly, on the fourth cross-claim, his Honour entered a verdict in favour of MDS Commercial Contracts. 48 His Honour, later in his judgment, dismissed all cross-claims brought by MDS Constructions. That was an error as MDS did not bring any cross-claims. The Construction Company brought a cross-claim against it – the fourth notice of cross-claim with which I have just been dealing, as did the Building Manager, as part of the fifth notice of cross-claim. However, nothing turns on what I would consider to be a technical error. 49 Having dealt with the fourth notice of cross-claim his Honour next considered what he identified as "a cross claim …made against the [Construction Company]". Again that appears to be a technical error. In fact, the Construction Company was a cross defendant in the second notice of cross-claim, brought by the Building Owner, the third cross-claim brought by the appellant and the fifth notice of cross-claim brought by the Building Manager. I assume that his Honour was intending to deal with those claims. His Honour embarked upon this part of his consideration by reference to the evidence of Mr Woellner and that of Mr Laker. However, before coming to a conclusion on the "cross-claim against the Construction Company" he moved to a consideration of the obligations of the Building Manager. He concluded that the Building Manager "had an obligation to clean up the sand… [and] had not done so in an effective fashion and the fact of the presence of the sand on the ramp was, … the cause of the injury suffered by the [plaintiff/first respondent]" He considered therefore that the Building Manager was liable to contribute to the verdict found against the appellant. He assessed the contribution at 25 per cent. This determined that part of the third notice of cross-claim, brought by the appellant against the Building Manager. 50 His Honour then without further consideration of the claims proposed the following orders: · Verdict and judgment for the plaintiff/first respondent against the appellant and against the plaintiff/first respondent in favour of the second respondent. I have already dealt with the findings whereby those verdicts were reached. · Verdict and judgment for the Building Owner on the first notice of cross claim. Likewise I have dealt with that and pause only to observe that his Honour thereby dealt with the entirety of that claim. · Verdict and judgment for the appellant against the Building Manager on the third notice of cross-claim brought by the appellant with contribution assessed at 25 %. This dealt with part of the third notice of cross-claim. · Verdict and judgment for the Construction Company on the third notice of cross-claim. This finalised the orders on the third notice of cross-claim. · Verdict and judgment for MDS Constructions on the cross-claim brought by the appellant. The appellant did not bring such a cross-claim so that Order was in error. · Dismiss all cross-claims by the Building Owner. This order involved dismissing the second notice of cross claim. · Dismiss all cross-claims by MDS Constructions. There were none, although this Order should be considered a technical error from which nothing flows. § Dismiss all cross-claims by the Construction Company. There was only one cross-claim made by the Construction Company - the fourth notice of cross claim. Presumably it was to this that his Honour referred. The dismissal of this cross-claim followed from the fact that his Honour did not find that the Construction Company was liable to any party on the cross-claims brought against it. § Dismiss the cross-claims by the Building Manager against the Construction Company and MDS Construction. This involved dismissing part of the fifth notice of cross-claim. It would seem that this Order was based upon a finding, that neither was negligent. His Honour did not expressly deal with those claims brought in the fifth notice of cross-claim against the appellant and the Building Owner. Presumably his Honour did not consider that it was necessary to do so as he had made orders against the Building Manager on the cross-claim brought by the appellant and had dismissed the second notice of cross-claim brought by the Building Owner, which included a claim against the Building Manager. However, as he made an order in terms that there would be a verdict on this cross-claim for the cross-defendants, it appears that his Honour, in that way, disposed of the fifth notice of cross-claim. Resolution of the Appeal 51 The question now arises as to how this appeal should be resolved. I have already expressed the view that the verdict against the appellant cannot stand. Nor, in my opinion can the verdict in favour of the Building Owner. The verdicts are inconsistent with each other and I consider the verdict in favour of the Building Owner to be internally inconsistent. It follows that the verdict on the first notice of cross-claim cannot stand. 52 Although his Honour did not give reasons for dismissing the second notice of cross-claim it followed from his Honour's verdict in the Building Owner's favour on the plaintiff/first respondent's claim in respect of which he had found that the Building Owner was not negligent. There was therefore nothing in respect of which it required contribution or indemnity. However, the dismissal of this cross-claim against all cross-defendants only followed as a matter of course if his Honour's dismissal of the claim against the Building Owner is supportable. Given the inconsistent bases upon which his Honour reached his verdict against the appellant and in favour of the Building Owner, the fate of the Building Owner's cross claim is tethered to the question whether his Honour's Judgment on the plaintiff's claim against the appellant and the Building Owner can stand. I have found those verdicts cannot be maintained on his Honour's reasoning. 53 Nor can his Honour's Orders on the third notice of cross-claim stand. His findings that the Building Manager failed in its obligations to clean up the sand will only result in a relevant liability (in this case his Honour's finding that it should contribute 25% of the verdict against the appellant) if his Honour found the ramp was dangerous because of the sand. The internal inconsistencies in his Honour's reasons on this issue affect his determination on this part of the third notice of cross-claim and it cannot stand. 54 His Honour gave no reasons as to why that part of the third notice of cross-claim brought against the Construction Company was dismissed. It may have been because his Honour was confused as to the witnesses called by the various parties. Or it may have been because his Honour considered that Mr Woellner took all reasonable steps to clean up any sand. In this regard, it is relevant that his Honour preferred the evidence of Mr. Woellner over that of Mr. Laker. There may have been some other reason. The position is simply not apparent on the face of the reasons. 55 The appellant also complained that his Honour "was in error in finding the Construction Company's failure to enclose the sand was not in any way contributorily connected to the [plaintiff/first respondent's] fall…" That finding is implicit in his Honour's dismissal of this part of the cross-claim. However, the fact is, his Honour simply did not deal with that matter, which is sufficiently raised both on the pleadings (although not in those precise terms) and on the evidence. 56 Although the appellant did not raise as a ground of appeal the inadequacy of his Honour's reasons, it seems to me that as there is no reasoning to support the order, it ought not stand given the degree of error affecting the judgment generally. If the orders on the third notice of cross-claim are set aside, those of the fourth notice of cross-claim, which followed, should also be set aside. 57 Likewise, I consider that the verdict on the fifth notice of cross-claim should be set aside. Those claims were also linked to, and the verdict was dependent upon, the findings against the various parties in other parts of the claims. The Cross-Appeal 58 The plaintiff/first respondent brought a notice of cross-appeal challenging the verdict on her claim in favour of the Building Owner. It seems to me however that the fate of the cross-appeal is determined by the Appeal. 59 The plaintiff/first respondent also submitted that although his Honour's findings in relation to the appellant and the Building Owner appear to be inconsistent, she was still entitled to a verdict because there was evidence upon which his Honour could find that the ramp was dangerous, as Mr. Snow said that he had not walked on the sand on the ramp because he "guess[ed]" that it might be dangerous and that he "might have slipped on it". 60 This evidence however only highlights the inconsistency in the judgment. In my opinion it is not in the circumstances sufficient to salvage the verdict against either the appellant or the Building Owner. I would not order any costs on the cross-appeal as the issues raised by it were mostly subsumed in the argument of the appeal. 61 Accordingly I propose the following orders: 1) Appeal allowed; 2) Set aside the orders of Judge Delaney made on 14 June 2002 and 20 June 2002; 3) Order that there be a new trial; 4) Cross appeal dismissed, no order as to costs. 5) The respondents to pay the costs of the appeal and to have certificates under the Suitors Fund Act if applicable; 6) The costs of the trial to be determined by the trial judge hearing the new trial. 62 SANTOW JA: I agree with Beazley JA. ********** Last Modified: 08/28/2003 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. 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