New South Wales Court of Appeal CITATION : Duggan v Ampelite Fibreglass Pty Ltd [2003] NSWCA 357 HEARING DATE(S) : 27 November 2003 JUDGMENT DATE : 27 November 2003 JUDGMENT OF : Giles JA at 1; Ipp JA at 17; Brownie AJA at 28 DECISION : (1) Appeal allowed and cross-appeal dismissed; (2) Set aside the verdict and judgment for the defendant; (3) Order that there be a new trial; (4) Respondent pay the appellant's costs of the appeal and cross-appeal; (5) Set aside the order for costs made by the judge; (6) Costs of the proceedings below to be as ordered by the judge conducting the new trial. CATCHWORDS : Damages for personal injury - plaintiff slipped on fibreglass sheeting - disputed evidence of how he came to fall and whether he was warned - judge made no findings - could not be satisfied that plaintiff fell as he said because of "discrepancies" between witnesses - failure in judicial function - failure to give reasons why was unable to decide how plaintiff came to fall - new trial - no question of principle. PARTIES : Garry Robert Duggan - Appellant Ampelite Fibreglass Pty Ltd - Respondent FILE NUMBER(S) : CA 41080/02 COUNSEL : J S Drummond - Appellant ACA Bridge SC & S E Torrington - Respondent SOLICITORS : McClellands - Appellant Phillips Fox - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT DC 6152/01 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41080/02 DC 6152/01 GILES JA IPP JA BROWNIE AJA Thursday 27 November 2003 DUGGAN v AMPELITE FIBREGLASS PTY LTD Judgment 1 GILES JA: This is an appeal from a decision of Gamble ADCJ in the District Court, in which her Honour found a verdict for the defendant in proceedings claiming damages for personal injury. 2 The plaintiff was the driver of a semi-trailer which he took to the defendant's premises on 8 June 2000. The semi-trailer was to be loaded with materials being taken from the defendant's premises to other premises in the course of moving to a new warehouse. The trailer was backed into the warehouse where it was either partially or fully loaded, there being dispute on that matter, and the plaintiff drove the prime mover away. 3 Early the next morning, 9 June 2000, the plaintiff returned, hooked up the prime mover and drove the trailer out of the warehouse into the yard. Whether he did so under the direction of Mr Thompson of the defendant or on his own account as he set out on a journey to the new warehouse was also in dispute. The semi-trailer was parked in the yard with stacks of fibreglass sheeting on each side, the defendant's business being the manufacture and sale of fibreglass sheeting. In consequence of the disputes I have earlier mentioned, whether the semi-trailer was parked by the plaintiff so that he could tie down the load or otherwise do something on his own account or whether it was parked for the loading of further materials was also a matter of dispute. 4 According to the plaintiff he got out of the driver's side of the prime mover by making his way down a fairly high stack of fibreglass sheeting. He went around to the passenger side of the semi-trailer, where space had been left for the loading of further materials by a forklift. He assisted the loading placing gluts, that is pieces of wood used to separate loads, in place. He had to move around the back of the forklift, and for that purpose he stepped onto some fibreglass sheeting lying in a low stack a little distance from the passenger's side of the semi-trailer. The fibreglass sheeting was slippery from water which at that time of the year had formed into ice, and the plaintiff said that he fell and was injured. 5 The disputes continued, because according to the evidence in chief of Mr Thompson he saw the plaintiff fall and the fall was not as the plaintiff had recounted. Mr Thompson said the plaintiff fell when he got out of the prime mover onto the stack of fibreglass sheeting close to the driver's side of the semi-trailer. Mr Thompson said that he warned the plaintiff as the plaintiff was getting out of the prime mover that the fibreglass sheeting was slippery. According to Mr Thompson the plaintiff nonetheless continued, and fell as he negotiated that stack of fibreglass sheeting. 6 This fundamental dispute was then complicated by evidence from Mr Murray. Mr Murray gave evidence that he saw the plaintiff sitting on a low stack of fibreglass sheeting off the passenger's side of the semi-trailer, the effect of the evidence leaving it open to be concluded that he saw the plaintiff recovering himself after a fall at that point. Mr Murray did not see the fall, and I have used the words 'open to be concluded' because there was other evidence from which such a conclusion was by no means a necessary one. For example, the plaintiff said that Mr Thompson came to him and spoke to him after his fall, but according to the evidence of Mr Murray Mr Thompson was not present when he saw the plaintiff on the fibreglass sheeting, so on one view what Mr Murray saw may have been at a later time and may not have indicated a fall at the place where he saw the plaintiff. 7 There were other disputes bearing upon which account of the plaintiff's fall was more likely to be correct. According to Mr Thompson a forklift was not being used to load the semi-trailer. The plaintiff said that the forklift being used was a side lift forklift and that Mr Thompson was driving it. The effect of Mr Thompson's evidence was that, while that he would on occasions drive highrise forklifts used in the warehouse, he had never driven the sidelift forklift and would not have done so. Mr Murray gave some rather inconclusive evidence supporting Mr Thompson's unfamiliarity with the use of forklifts, to the general effect that he did not think that Mr Thompson would drive them. Matters were even more confused when some evidence suggested that a highrise forklift was also a sidelift. 8 It was necessary for the judge to try to resolve all these disputes and their interaction so that she could decide how the plaintiff had fallen. Regrettably, she did not do so. Her Honour set out in summary form a deal of the evidence and in the end gave two reasons for finding a verdict for the defendant. 9 The second reason was her Honour's view of the application of the law in the event that she accepted the plaintiff's account of how he came to fall. It involved that the fibreglass sheeting was an obvious danger, even if not wet and icy, of which the plaintiff should have been aware, which her Honour considered meant that there was either no duty of care owed to him or no breach of the duty of care. Her Honour's judgment in this respect was not supported by the defendant on appeal, although there was no express concession that her Honour was incorrect. It seems to me that her Honour's view of the application of the law is highly dubious, but in any event it is undermined by her Honour's failure to take note of evidence which arguably established that the fibreglass sheeting was not dangerous when dry. I do not think that this aspect of her Honour's reasons can be upheld. 10 The more significant first reason was what her Honour said about how the plaintiff came to fall. The key passage was this - "First, there are too many discrepancies between the evidence of Mr Duggan and the other two witnesses for Mr Duggan's evidence to be accepted as reliable, and the discrepancies are not slight or in regard to matters of detail. There is contention about fundamental issues such as where he slipped, and if I accept Mr Duggan's evidence on this matter in preference to Mr Thompson's, there is the further fundamental issue of whether there was a forklift in the yard at all. Mr Murray said all the loading was done in the warehouse. Mr Thompson says he does not drive the high rise forklift and Mr Murray expressed surprise at the suggestion that he did. There are other issues as well on which there is no agreement about the events, including the loading of the truck on 9 June, whether Mr Duggan parked the truck at Mr Thompson's direction, the height of the side of the stack and whether ice had formed on the sheet. Because of these discrepancies I am unable to be satisfied on the balance of probabilities that the events occurred as Mr Duggan described them. I am therefore unable to return a verdict for him." 11 It may be that her Honour meant that, having considered all of the evidence, she was unable to decide one way or the other how the plaintiff's accident occurred, so that the plaintiff had not discharged his burden of proof. It would be a rare case in which a judge would dispose of a matter in that way, but if that is what her Honour did her reason for it was that there were discrepancies between the evidence of the plaintiff and the evidence of Mr Thompson and Mr Murray. Two things may be said as to that. 12 The first is that when we were taken to the evidence of Mr Thompson it by no means provided a convincing basis for a comparison with the evidence of the plaintiff. The judge herself recognised what she described as discrepancies between the evidence Mr Thompson gave in court and a statement he had made on 28 May 2001. She set out those discrepancies. She did not, however, advert to evidence in cross-examination in which Mr Thompson at times acknowledged that the plaintiff had fallen on a low pile of fibreglass sheeting on the passenger's side of the semi-trailer. A reading of Mr Thompson's evidence shows considerable to-ing and fro-ing, notwithstanding that he was at all times firm that he would not have driven the sidelift forklift and in re-examination affirmed that the accident occurred as he had related in his evidence in chief. 13 The second is that, particularly given those discrepancies within the evidence of Mr Thompson, it was incumbent on her Honour to explain in her reasons why what she called the discrepancies between the evidence of the plaintiff and the evidence of Mr Thompson and Mr Murray left her unable to decide one way or the other which account of the fall was correct. Her Honour simply said that because there were the discrepancies she could not be satisfied on the balance of probabilities that the events occurred as the plaintiff described them. It was, with respect, a failure of her judicial function not to explain why she could not come to a conclusion, by some form of analysis of the evidence and in particular by taking note of the discrepancies within the evidence of Mr Thompson. It was particularly incumbent upon her Honour to do so when, at a level perhaps other than that of legalism, a finding was very important to the persons concerned. It is difficult to see that there could have been mistake in the account the plaintiff gave of how he came to fall. Saying that her Honour was not satisfied that he came to fall as he recounted was very close to saying that he made up his account. That is not something which should be said or come close to without a proper analysis of the evidence. 14 It follows that in my opinion her Honour's reasons were insufficient, and that for that reason it is necessary that there be a new trial. We of course are not in a position to substitute any findings for the findings which her Honour should have made, or to provide an explanation for whatever view we might take as to satisfaction one way or the other as to the accounts of the fall. 15 There was a cross-appeal involving a matter of costs, but that I think will fall away with the order for a new trial as the costs order made by her Honour will have to go in any event. 16 I propose the following orders - 1. Appeal allowed and cross-appeal dismissed. 2. Set aside the verdict and judgment for the defendant. 3. Order that there be a new trial. 4. Respondent pay the appellant's costs of the appeal and cross-appeal. 5. Set aside the order for costs made by the judge. 6. Costs of the proceedings below to be as ordered by the judge conducting the new trial. 17 IPP JA: I agree with Giles JA and would add some short additional comments of my own. 18 In her reasons, Gamble ADCJ recounted the evidence that had been given by all the witnesses and detailed several inconsistencies and discrepancies in that evidence. Her Honour, however, despite her relatively lengthy judgment, made no factual findings whatever – save to say that she was unable to be satisfied on the balance of probabilities that the events occurred as the plaintiff described them. 19 This was a matter that was not without factual complexity and it was important to know what were the factors that led her Honour to find against the plaintiff. Senior counsel for the defendant submitted that, on a proper reading of her Honour's reasons, she intended to and did find that the plaintiff had failed to prove his case on a balance of probabilities. If that indeed was her Honour's view, it would have to have involved balancing the evidence of Mr Thompson and Mr Murray on the one hand against that of the plaintiff on the other. 20 It is not possible for me to conclude that that is what her Honour did, as she did not explain her decision in this way. Rather, she said that there were too many discrepancies between the evidence of the plaintiff and the other two witnesses for the plaintiff's evidence to be accepted as reliable. However, the mere fact that such discrepancies existed did not justify that conclusion. 21 The balancing exercise that a judge in these circumstances was duty bound to undertake required consideration of a number of important issues. 22 Firstly, as Giles JA has pointed out, there were serious internal inconsistencies in Mr Thompson's evidence. Regard had to be given to these. 23 Secondly, there was a need to consider his general credibility, particularly as, on my reading of the transcript of his evidence, Mr Thompson's evidence does not impress as being reliable; it is confused and variable in regard to several matters. 24 Thirdly, to the extent her Honour placed reliance on Mr Murray, regard had to be had to the fact that Mr Murray was not an eyewitness to the fall; therefore it was important for her Honour to set out with precision to what extent she had placed reliance on his evidence. 25 Fourthly, this is not a case where the differences between the witnesses could be ascribed to misunderstandings or differences in perception; the plaintiff's account of what occurred is fundamentally different to that of the defendant's witnesses. Where an issue of this kind arises the trial judge is required to examine the probabilities that support or detract from the opposing versions. At the relevant time, the defendant was moving its premises and had much material in the yard that it was intending to transport. This meant that the plaintiff's version was by no means improbable, as the use of a forklift to move the material in question was to be expected. On the other hand, there was some incentive on the part of Mr Thompson not to be truthful in regard to the forklift, as he was not licensed to drive the kind of forklift that the plaintiff said was used. 26 One searches in vain in her Honour's reasons for any examination of the matters I have identified. Each had to be examined with care and to be taken into account in the balancing exercise that was required. This was a necessary part of the inquiry into whether appropriate credibility decisions could be made. 27 The absence of any reasoning of the kind I have mentioned supports my agreement with the reasons given by Giles JA. I agree with the orders proposed by Giles JA. 28 BROWNIE AJA: I also agree and agree generally with the reasons of both my colleagues. I would add one footnote only, and that is that in a judgment dealing with costs given on 28 November 2002 her Honour observed that Mr Thompson's evidence was unpredictable and probably unreliable. 29 GILES JA: There will be the orders as I indicated. ********** Last Modified: 12/05/2003 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.