New South Wales Court of Appeal CITATION: Transfield Construction v Peers [2008] NSWCA 215 HEARING DATE(S): 16 July 2008 JUDGMENT DATE: 5 September 2008 JUDGMENT OF: McColl JA at 1; Campbell JA at 2; Barr J at 175 (1) Appeal allowed. (2) Set aside the judgment in the court below. DECISION: (3) Remit the matter to the District Court for re-trial. (4) Respondent to pay costs of the Appellant of the appeal. Respondent to have a certificate under the Suitors Fund Act 1951 if entitled. (5) Costs of the hearing in the court below reserved to the judge who hears the new trial. CATCHWORDS: TORTS – Breach of statutory duty – availability of defence of contributory negligence to cause of action that accrued before Civil Liability (Personal Responsibility) Act 2002 took effect - PROCEDURE – Courts and judges generally – criteria for appeal against discretionary judgment – where trial judge permitted evidence by telephone – r 31.3 Uniform Civil Procedure Rules 2005 – where counsel for appellant did not object to reception of evidence by telephone in proceedings below - PROCEDURE – Courts and judges generally – whether reasons of trial judge inadequate – where significant conflicts in evidence – whether relevant evidence set out – whether reasons given for concluding plaintiff's account of events correct – whether question of how conflict in evidence should be dealt with addressed – whether consideration given to weight to be accorded to evidence of expert witness – where serious error in report of that witness – whether consideration given to effect of erroneous statement in expert's report on reliability of views expressed by other experts proceeding on basis that statement correct - NEW TRIAL – Particular grounds – whether conflicts in evidence and questions of credit can be decided on the transcript – whether any alternative to having a new trial Civil Liability Act 2002 Civil Liability Amendment (Personal Responsibility) Act 2002 Construction Safety Regulations 1950 LEGISLATION CITED: Interpretation Act 1987 Law Reform (Miscellaneous Provisions) Act 1965 Statutory Duties (Contributory Negligence) Act 1945 Suitors Fund Act 1951 CATEGORY: Principal judgment Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Reports 81-830 CASES CITED: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 House v R [1936] HCA 40; (1936) 55 CLR 499 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Piro v W Foster & Co Ltd [1943] HCA 32; (1943) 68 CLR 313 TEXTS CITED: Ritchie's Uniform Civil Procedure PARTIES: Transfield Construction Pty Ltd (Appellant) Matthew Mark Peers (Respondent) FILE NUMBER(S): CA 40485/07 COUNSEL: L King SC; N Polin (Appellant) S Norton SC; TM Fraser (Respondent) SOLICITORS: DLA Phillips Fox, Sydney (Appellant) Koffels, Sydney (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 4099/03 LOWER COURT JUDICIAL OFFICER: Garling DCJ LOWER COURT DATE OF DECISION: 15/6/07; 5/7/07 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40485/07 DC 4099/03 McCOLL JA CAMPBELL JA BARR J 5 SEPTEMBER 2008 TRANSFIELD CONSTRUCTION PTY LTD v MATTHEW MARK PEERS Judgment 1 McCOLL JA: I agree with Campbell JA. 2 CAMPBELL JA: In September 2000 the Respondent, Mr Matthew Peers, was working on a construction site where the Mittagong sewerage treatment works were in the course of construction. The Appellant was the head contractor for the carrying out of that construction project. On 4 September 2000 the Respondent suffered a fall while at work, in consequence of which he was injured. He sued the Appellant for damages, basing his claim on both the tort of negligence, and breach of statutory duty. His claim was that he had fallen into a hole 1.8m-2m deep, that was not fenced or in any other way guarded, and concerning which there was no warning of its existence. It was common ground at the trial that if the plaintiff's injury was sustained in the way he said, both the tort of negligence and the tort of breach of statutory duty would be made out. The real contest concerned whether the plaintiff's account of how his injury was sustained should be accepted. 3 The trial judge, his Honour Judge Garling, accepted the plaintiff's case, and in consequence made an award of damages. This appeal is from the judgment that made those findings. 4 The issues argued on the appeal relate to: (i) Whether the trial judge should have allowed a witness, Mr Brendan Galbraith, to give evidence by telephone from Western Australia. (ii) Whether the judge gave adequate reasons for his conclusions. (iii) Whether the judge ought to have found the Appellant not liable. (iv) (On a Notice of Contention) whether, even if the judge was wrong in finding the Respondent fell into a hole 1.8-2 metres deep, he ought to have found that the Respondent fell into a hole that was 800mm-1.5 metres deep. 5 The conclusions I have reached are that: (i) There was no error in allowing Mr Galbraith to give evidence by telephone. (ii) The reasons are not adequate. (iii) The inadequacies are such that this Court cannot decide the third and fourth issues on the transcript, and there must be a new trial. Explaining why those conclusions have been reached involves detailed consideration of the evidence, to which I now turn. Physical Features of the Construction Site 6 The sewerage treatment works included several rectangular ponds or dams, intended ultimately to contain sewerage at various stages of being processed. Each pond was formed from earthen material. Each was flat-based, with a sloping or battered bank on each side that rose from the base of the pond, then became flat at a level above that to which the pond was intended to be filled. 7 Each pond was intended to be lined, with two separate layers of material. Immediately in contact with the structural material of the dams, was to be laid a layer of geotextile. It was a material, somewhat like underfelt, that was laid in strips or pieces, and welded together in position. Over the geotextile was to be placed a high-density polyethylene liner, intended to make the ponds completely waterproof. 8 The two layers of liner were intended to be secured by having them continue from the top of the battered portion of the pond wall, then across the flat section of the pond wall, and into an anchor trench that was 300mm wide and 500mm deep. The anchor trench was dug in the flat section of the pond bank, and ran parallel to the top of the battered section of each bank. It was dug around the whole of the perimeter of each pond, about 600mm or 700mm back from the top of the battered part of the wall. The lining was intended to be placed into that anchor trench, and then secured there by the anchor trench being backfilled. 9 The plaintiff suffered his fall while walking along the flat section at the top of the eastern bank of pond number 6. Some additional structures, that are relevant to understanding the factual dispute in this case, occur there in the works as they have ultimately been completed. 10 Running along the length of the flat section at the top of the eastern bank of both ponds 5 and 6 is a concrete service culvert. It is constructed of concrete sections in the shape of a square "U". Its internal depth is approximately 1.2m. It lies to the east of the filled anchor trench that runs along the top of the eastern bank. It is designed to contain various pipes and other services relevant to the operation of the sewerage works. Its top is covered by a series of concrete blocks that lie immediately adjacent to each other, and can be removed to give access to the services running in the trench. 11 Around the middle of the top of the eastern bank of pond number 6, and immediately to the west of the concrete service culvert, is a concrete slab that has been referred to in the evidence as the services slab. Mr Colin Henstock, an engineer who gave evidence, measured that slab as being 1200mm wide (in the east-west direction), and 2.47m long (in the north-south direction). In the works as they have been completed, some of the pipes that run along the service culvert turn, pass through the western wall of the service culvert, then turn again beneath the slab, to rise vertically through the services slab. 12 The services slab intersects the line of the anchor trench that runs along the top of the eastern wall. Where the slab intersects the anchor trench, the liner material does not come as far to the east as it does on other parts of the eastern wall. Instead, it is secured along the western edge of the slab. The Respondent's Account of the Injury 13 Under this heading in the judgment all statements made are taken from the Respondent's evidence, unless I make clear otherwise. 14 The Respondent was employed by Beltreco Pty Ltd ("Beltreco"). It was a subcontractor to the Appellant, for the installation of the lining of the dams. He was Beltreco's supervisor on the site. He worked there from 13 July 2000 until 15 September 2000. During the time he was working there, the flat area at the top of the eastern bank of pond six was "all compacted clay", very hard and very flat. 15 At a time before he was injured he had observed, on the eastern bank of pond number 3, an excavation that he described (as I understand his evidence) as being 2m long, 1m wide, and 2m deep. Mr Ian Smith from Transfield explained to him that the purpose of that excavation was that "[e]ventually that the pipe culvert that they were going to put in, that was going to have pipes coming out from underneath it, a bend going up the wall and back into the ponds." 16 Ultimately, similar excavations were made in the flat area of the top of the eastern bank of ponds 4, 5 and 6, roughly halfway along each of those banks. The excavation at the top of the eastern wall of either pond 3 or 4 was dug by an engineering contractor called Select Civil: "… when they got to that area they dug a very deep hole, which is the one we're just talking about, which was deeper than the pipe trenches, the culvert trenches, and I said 'we've got to work there, I don't want those holes excavated until we're finished'. They complained that they had to dig them now, so they could put their trench in and I disagreed, I said they could be done any time when we're out of the way." 17 It appears to be common ground on the evidence that Select Civil was the engineering contractor that had responsibility for forming the ponds on the site, and bringing them to a condition where they were ready to be lined. The evidence did not go into whether Select Civil also had other tasks. 18 The Respondent also raised the making of that excavation with Eddie Bianco and Ian Smith from Transfield. Mr Bianco was the Transfield Safety Officer on site. Nothing happened concerning his complaint, so the Respondent filled the excavation in with a front-end loader, as a result of which "I wasn't the most popular person on site with that, Transfield and Select Civil". 19 The Respondent actually saw a fellow worker, Mr Brendan Galbraith, fall into a hole in a corresponding position on the eastern bank of pond 5. The Respondent took a self-help remedy concerning that hole too, by filling it in with the front-end loader. He had backfilled holes at a similar spot on each of ponds 3, 4 and 5. When he backfilled the holes, he did not fill them right up, but left them at a depth of about 800mm, because the anchor trench went straight through the place where the holes had been created. 20 His own accident happened on a day when he returned to the site after an absence of some days. Beltreco's work had got to the stage of installing lining in pond 6. Around 11:00am he was walking in a northerly direction on the flat area at the top of the eastern bank of pond 6. At the time it was covered in geotextile in some areas, but not others. He was talking to another workman, Peter Shepherd, who was on the floor of the pond with Brendan Galbraith. As he did so, "I just fell in a hole, slipped in a hole somehow and just don't know how it happened, to be honest." "I was talking to another person at the time, looking around where I was walking and just didn't see it." 21 The geotextile material had been laid "fairly close up to the pit, but not to the pit." He landed on his side in the hole. As he stood at the base of the hole, the top was above his head. He was able to get himself out by going to the edge of the excavation, where it was a bit shallower and he was able to pull himself out. 22 His evidence was that he was 185cm tall, or 6'2". (In fact, 185cm is a little less than 6'1", but the difference is immaterial. In any event a more reliable measure of his height is 186cm, the figure given by a neurosurgeon, Professor Atkinson.) 23 He told Eddy Bianco and Ian Smith about his fall on the same day it happened. He filled in that hole on the same day. He continued working, feeling "just slightly sore", but was struck with sharp pain on waking the next morning. 24 By the time of the trial he was aware that a hole 1.5m or more in depth needed to be barricaded, to comply with a legislative requirement. 25 The edge of the hole into which he fell was "a couple of hundred" millimetres from the apex of the pond wall. He accepted that if there was such a hole in existence it was a possibility that the bank of the pond could have collapsed into it, but whether it would collapse would depend on compaction. Documentary Records Concerning the Accident 26 The first documentary record relating to the accident is Exhibit 2, a Transfield Record of Injury Treatments form. It identifies the date of the injury as 4 September 2000, and says: "Reported to Edy Bianco 11-9-00. Walking along batter of No 4 Sludge Lagoon on top of geotextile membrane and slipped and his left hip hit the ground. Did not hurt at first. Noted some pain later. Got better during the day, but got worse when sat down. After one week, the pain was still present. Advised that he was going to see Dr McKenzie of Bowral." 27 Even though this entry refers to "No 4 Sludge Lagoon", that is the same pond as was referred to as pond no 6 in the evidence in this case. 28 Exhibit 3 is a form entitled Beltreco Incident Report. It records the date and time of incident as being 11:00am on 4 September 2000, and the date and time report received as 1:00pm 4 September 2000. It does not identify who gave that report, who received it, or what its terms were. The form describes the nature of injury, disease or damage as "grazed thigh". 29 Another part of Exhibit 3 is a claim form that the Respondent filled out in his own handwriting on 20 September 2000 for a claim on WorkCover Queensland. In it he described the incident as: "Walking on crest of bank on geotextile. Walked on loose soil underneath slipped and landed on right buttock and thigh." 30 In the claim form he identified Mr Shepherd as a witness. In response to a question "were you, or was any person or any object, responsible for your injury?" the Respondent answered "no". The form identified the injury as having been reported to the Respondent's employer at 10:00am on Monday, 11 September 2000, when the matter was reported to Mr Frank Eppe, Project Manager. The evidence does not establish whether Mr Eppe works for Beltreco, the Appellant, or someone else. 31 The Respondent attended Dr Grant Lewis, of the Bowral Street Medical Practice on 11 September 2000. Dr Lewis' notes are Exhibit 4. The history recorded in his notes of that day is: "Fell over R hip 4/9/00 - slipped on textile on edge of bank & fell on hard clay." 32 On 11 September 2000 Dr Lewis wrote a referral, Exhibit 5, that recorded "slipped on textile on bank of sewerage works & landed on right hip area. 1 week ago." 33 Though the Respondent had been working at Mittagong when the accident occured, his home was in Queensland. By 20 September 2000 he had returned there. On 20 September 2000 the Respondent attended the Foote Street Surgery in Acacia Ridge, Queensland. So far as the notes of that visit (Exhibit 6) record a history, it is: "2 wks ago at work in Sydney slipped and landed on right hip. Hurt right hip and lateral thigh. Did nothing for wk. Went to dr and told corked muscle and given NSAID and stretches. Getting worse." 34 Part of Exhibit E is a report from Dr Moon of the Foote Street Surgery dated 5 May 2004. It records that the Respondent first attended that surgery on 20 September 2000. It states: "On the initial assessment your client was seen by my locum Dr Sue Gray. The history he related was that, 2 weeks prior, while working in Sydney he slipped and landed on his right hip hurting right hip and lateral aspect of his right thigh. He described the pain as a dull ache radiating into the calf, at times it was sharpe [sic] in character with particular movements. He was having difficulty getting from his bed and simple tasks like putting on shoes and tying them up. He was seen previously by GP in Sydney with a Provisional diagnosis of 'corked thigh' and was recommended stretches and given NSAID." 35 I say immediately that there are some manifestly inaccurate aspects of this history – the accident did not happen while the Respondent was working in Sydney, and the doctor he saw was in Bowral, not in Sydney. 36 Dr Wayne Crawford gave a medical certificate on 5 December 2000 that identified the cause as "fall into hole". 37 After that, medical reports frequently (though not invariably) record a history of falling into a "hole" or a "trench", though they are not consistent about the stated depth of the hole. 38 Professor Terry Coyne, neurosurgeon, reported to WorkCover Queensland on 22 March 2001. His report stated: "Mr Peers gave a history of slipping and falling to the ground in a trench in his work in September 2000." 39 On 26 July 2001 Professor Leigh Atkinson, a neurosurgeon reported to WorkCover Queensland on his consultation with the Respondent on 25 July 2001. His report is part of Exhibit E. The history he records is: "He said at about 12 midday, while working in Mittagong, he fell a distance of about one metre. He said he did not suffer any pain at the time, but the following morning, he was very distressed with pain …." 40 Another report of Professor Atkinson to WorkCover Queensland, dated 21 February 2002 and relating to a consultation with the Respondent on 20 February 2002 records: "He suffered an injury while working at Mittagong when he fell a distance of about one metre into a hole injuring his spine on 4th September, 2000." 41 One cannot tell whether that reporting is based on the Respondent having repeated that account on 20 February 2002, or whether Professor Atkinson is simply repeating the substance of his own previous report. 42 Various WorkCover medical certificates give histories as follows: Date Doctor History 20/9/00 Dr Gray Fall at work on 4/9/00 6/1/01 Dr Grace Fall into hole 1/2/01 Dr Moon Fall down hole 23/3/01 Dr Moon Fall down at work 4/5/01 Dr Moon Fall at work 12/7/01 Dr Moon Fell in hole at work 24/9/01 Dr Moon Fall at work 43 Other medical reports records histories as follows: Date of Report Consultant History 2/11/01 Gregory Terrace Rehabilitation Falling at work on 04 September 2000 and developing leg pain the following day. 4/12/03 Prof Michael Weidmann (neurosurgeon) On 04/09/2000 he unexpectedly fell into a hole in the ground while working. He said this was about 1.8 metres deep and he landed mainly on his right buttock. 17/6/04 Dr James Bodel (orthopaedic surgeon) He inadvertently fell into a six foot deep hole, adjacent to one of the excavations for one of the ponds. He was on the top of the dam wall at the time and landed heavily on his right hand side. He managed to get out of the hole without assistance. He was not too sore initially but the following day he was very stiff and sore. 17/10/04 Dr Searle (orthopaedic surgeon) While he was at work on 4/9/00 he fell into a trench, a drop of nearly two metres, landing on the right buttock. He did not hit his head or lose consciousness and at that moment he was not aware of pain. He climbed out of the trench and continued work. 10/10/05 Dr Brian Stephenson (orthopaedic surgeon) Mr Peers said that in September 2000 he hurt his back. He was working at Mittagong. He said that he fell in a hole. He said that he got out and thought it was alright. He woke up with soreness in the right leg subsequently. He tried to return to work the next day but he got progressively worse with lumbar pain. 16/5/06 Lesley Stephenson (occupational therapist) On 4 September 2000 Mr Peers was working as a construction supervisor/plastic welder when he had an accident at work as a result of falling in a hole on an excavation site. Cross Examination of the Respondent 44 At the trial Mr Frame appeared as counsel for the Respondent, and Mr Polin as counsel for the Appellant. Mr Polin cross-examined the Respondent about some of the medical histories he gave. Before the words of the record relating to his visit to Bowral Medical Centre on 11 September 2000 were put to him specifically, the evidence was: "Q. You didn't tell anyone at the Bowral Medical Centre that you had fallen in a hole that was 2 metres deep, did you? A. I can't remember exactly what I told them, but I told them that I'd fallen down on my hip into the hole." 45 After the words of that record had been put to him, and he had agreed that there was no mention in them of a hole, he said: "Q. You wouldn't have had any trouble telling him that there was a hole involved and indeed a 2 metre hole, would you? A. I more than likely did tell him that. Q. Well I want to suggest-- A. For the severity of my – my injuries at that time I would've had to have told him these things. He's asking me a question about what happened." 46 The notes relating to his visit to Foote Street Surgery on 20 September 2000 were put to him. The following evidence was given. "Q. Again I want to suggest you made no complaint to that doctor of falling in a hole, let alone a 2 metre deep hole? A. Well I would have told him I fell in a hole. I don't know why you're saying that really to be honest. Q. So you can't explain why his notes wouldn't record a history of falling into a hole, because you think you would have told him that? A. His notes. Q. Yes? A. No, I can't explain that." 47 In the cross-examination just quoted concerning that visit to Foote Street Surgery it was the Respondent who (incorrectly) first identified the doctor concerned as being male. 48 Mr Polin put to the Respondent the terms of the account he had given in the workers compensation claim form on 20 September 2000. The evidence continued: "Q. Nowhere in that complaint to your employer about this incident did you say anything at all about falling in a hole, did you? A. No. Q. Can you explain why you would not at that stage two weeks after the accident, completing an incident report form and a claim form in relation to the accident, why you would not be telling your employer that you fell in not only a hole? A. Mm. Q. But a 2 metre deep hole? A. Well I just wrote down that I fell. I can't explain why I didn't write the whole thing." 49 The cross-examination on that topic continued: "Q. You slipped as a combination of the geotextile material you were walking on the loose soil underneath you. That's the reason why you said you slipped? A. I'd say the reason I wrote that is because it would have been loose soil at the – at the hole as I went down maybe, so it's – it is what I wrote at the time. Q. Sir, far from there being loose soil, your evidence so far has been this area was hard packed? A. It was. Q. Well where does the loose soil come into it? A. Well there's always loose soil on the edge of an excavation. Q. So it was hard packed but covered generally with loose soil? A. When – when you cut, if you put an excavation unless it's concrete, it's got loose soil on the edge, it's just a given, right on the edge like the very, very edge. … Q. Tell me how did the incident occur? Did you actually slip on the material on loose soil into a hole or did you actually just step into a hole that you hadn't seen? A. Best of my recollection I just slipped into the hole. Say slipped, fell into a hole. Q. Well what do you mean? A. The – the last thing I remember was I dropped and all I felt is soil all over the place. So that's reason loose, so I always mention probably. It's just something I remember in my head about the fall is the sound of dirt chff like just falling around me sort of thing." 50 The Respondent agreed that the manner in which the work was performed was that after Select Civil had completed its work on part of the site, there would be a walk-through where Claudio Garrido, Ian Smith, an officer of Select Civil, and the Respondent would walk through the area to check that the subgrade was in a condition where it was smooth enough to line. This walk-through did not necessarily relate to an entire pond, but could relate to a section of a pond such as a wall. The cross-examination continued: "Q. There was not a single part of any of those dams that you had to take over and do your work where prior to that occurring you hadn't had a chance to walk over the area with someone from Transfield and Select Civil to make sure it was in order? A. That's correct. Q. The area you say you fell was an area where Beltreco was already in doing the work? A. Yeah. Q. In fact the geotextile liner was already down? A. In parts of the job, yeah. Q. It was therefore an area that you, with Claudio Garrido and someone from Select Civil had in fact walked over to make sure it was in order? A. Not necessarily, no." 51 When challenged about that last answer, the Respondent accepted that Beltreco had already laid the liner on the wall where he fell, and that he would not have allowed the liner to be laid over an area that he had not checked. The cross-examination continued: "Q. So, then it's clear, the liner having been laid, you had walked over this area to make sure it was in order? A. Which area? Q. The area where you fell? A. There wasn't liner in the hole from my recollection, so it's possible. It's – I can't – I can't guarantee – I can't give you a straight answer because I'm not sure. Q. You say the liner was laid right up to the edge of the hole but didn't go over or into the hole? A. Yeah, there was – can I just explain one more thing; they were digging these holes sometimes while we were working on the pond. These were outside of our scope of works, on the edge of our scope of works. However, but sometimes – that – like, I said, with the culverts, they were putting them in at certain times of the job when we weren't there. We actually dug trenches for the liner, and then they're come and dug trenches and the outside of our trenches had fallen away because they're – they're putting a new culvert in on the edge of our work. So we had to get an excavator in there to actually do it before they put some of these things in." 52 The Respondent accepted that the underlay generally went up the side of the pond, along the edge of the pond, and across through the anchor trench. The evidence continued: "Q. And that's all the area that you're supposed to check? A. That's correct. Q. And that is the area where you say you fell? A. In the same area as the hole, yes. Q. And when you checked it just prior to laying the underlay, there was no 2 metre deep hole, was there? A. I don't see – I can't remember seeing the hole, no. I would've – if I knew it was there I wouldn't have walked into it. Q. Well, having complained three times already about holes you say in precisely the same location, it's something you would have been looking for? A. I was away at the time. We just started that day again. So I can't remember if that morning that I accepted the surface or not. It might have been earlier the week before, and the hole could have been dug during that time that – the last hole, because they were still putting anchor-- Q. You just don't know? A. No, I honestly can't remember. Q. Well, of course, if someone had gone in and done further work after you'd accepted the surface, you'd have to check it again, wouldn't you? A. No, not necessarily because they weren't working in the dams, they were working outside the dams. So once I've accepted the surface, it's – no, I wouldn't have checked that again." 53 Having been presented with the Respondent's evidence that the hole might have been constructed after the Respondent had inspected and accepted the area where he eventually fell, Mr Polin then turned to a different topic. It concerned the manner in which the hole into which the Respondent said he fell could have been constructed in the time between when the Respondent inspected the area and when he fell: "Q. Assuming the underlay was in fact laid, it would be very difficult to get a machine down to dig a hole the size that we're talking about when you have the underlay there, wouldn't it? A. No, not at all because they were pulling culverts out and digging it from the other side. Q. Now, when you say they were pulling culverts out, running parallel to the eastern wall of dam number six, was in fact a concrete culvert, wasn't it? A. Yeah." 54 The Respondent accepted that the culvert was 1.2m deep, but said that the excavation for the culvert would need to be deeper than that. If the excavation had started from the present ground level that would be manifestly correct, to cater for the thickness of the bottom of the culvert itself, and the thickness of bedding material that was laid underneath it. 55 The Respondent gave further detail of his immediate surroundings once he had fallen: "Q. The hole you fell into do you say it was immediately adjacent to the culvert? A. Yeah, see, the back wall of the trench that I fell into – pit – whatever you want to call it was – part of the culvert was there, and underneath the culvert there was sand – well, "crusher dust" as we called it – there was a – underneath that was falling out into the trench that I was in. I do recall that because there was a sand bedding underneath it and it'd fallen back further deeper into the trench that I fell into. Q. So you say that as you stood in the hole following your fall, one of the sides of the hole was in fact the concrete culvert wall? A. Yeah. … Q. And you say someone's come and excavated all the way down past the depth of the culvert, another 800, in essence? A. Yes, it was done before the culverts were put in place. It had to have been done before the culverts were put in place. Q. Why do you say that? A. Well, there wouldn't – like you said before, there wouldn't be a way of excavating these trenches, these pits, without – with a big digger like that unless someone did it by hand, obviously. They couldn't get in there to do it without the culvert being pulled out." 56 He accepted that, as constructed, the pipes that went from the culvert into the space below the service slab passed through the side of the culvert wall, about two thirds of the way down that wall. The cross-examination continued: "Q. That being the correct configuration of the pipes, the way they were designed and the way they were in fact constructed, there would be no need to have a 2 metre deep hole in the area where you say there was one? A. There still would need to be a hole underneath that to get people in there to work on them to join the pipes, et cetera. So you can't just have the excavation at that level, it's got to be deeper than that." 57 Mr Polin suggested that the Respondent would not have injured himself if the hole had been only 800mm deep. The response was: "… it's hard to answer that question because you can hurt yourself from slipping down a stair, one stair, so I can't comment on that." Respondent's Re-Examination 58 In re-examination, Mr Frame turned to the topic of at what stage of the work had the hole into which the Respondent said he fell been dug: "Q. … Did I understand your evidence that the holes in the crest of the dam walls at the eastern aspect must have been dug at the same time that the hole for the culvert was done? A. Yeah. Q. At the time of your accident, the culvert had certainly been dug? A. Ah, not necessarily, they were moving – pulling them in and out all the time for – for what reason I don't know. Q. When you say they were pulling them in and out, what are you talking about? What were they pulling in and out? A. The – the culvert's in sections. … A. For some reason, I didn't ask why at the time, but every now and then they'd be pulling – moving them. Maybe they had settlement, or they didn't have the right level or whatever, so there – there was sections they might work down somewhere else and pull out the whole corner because they were putting a pipe in or underneath the ground or whatever, I don't really know." 59 He was also asked about the circumstances of the medical histories that had been recorded: "Q. Have you got now a precise recollection of exactly what you said, what doctors asked and what you said? A. No, no, I can't recall exactly. Q. Back at that time, so far as you were concerned, I mean you were going along to tell the doctor something, what did you allow as important at that stage? A. That I fell on my right side and was in pain." Mr Shepherd 60 Mr Peter Shepherd was called to give evidence. He said that at the time Beltreco's work moved to ponds 5 and 6 the concrete culvert was already in place. 61 He was also a witness to the incident in which Brendan Galbraith fell into a hole on another pond. At that time Mr Galbraith "was walking backwards and he went into it". Mr Shepherd went to help him out of the hole. Mr Galbraith's head was below ground level. Mr Galbraith is the same height as Mr Shepherd, 185 cm. 62 At the time of the Respondent's accident Mr Shepherd was on the floor of pond number 6 with Brendan Galbraith, ten to fifteen metres to the west of the toe of the eastern wall. He saw the Respondent walking along the eastern crest, then disappear out of sight. Mr Shepherd did not assist the Respondent out of the hole, and did not immediately go to inspect the place where the Respondent had disappeared. 63 Mr Shepherd was asked how much of the Respondent he could see, from his position on the floor of the pond: "A. Everything except for his boots, I suppose. Q. Were you standing up? A. Yes. Q. Is it possible that he fell just onto the ground, that is prone on the ground on that area and you would not be able to see him because of the projected elevation of the top of the wall? A. No, no, not at all." 64 He said he did not actually inspect the other excavations in corresponding positions on ponds 5 and 6, and so could not give direct evidence of how deep they were. 65 Later, while work on the Mittagong site was still continuing, the Respondent told Mr Shepherd: "That he was walking along the crest of the batter and he'd fallen in a hole there that he didn't see." 66 In cross-examination, Mr Shepherd denied that any hole into which Mr Galbraith fell was no greater than about 800mm in depth. 67 In cross-examination, Mr Shepherd said that the trench into which Mr Galbraith fell was "a couple of metres long" and that it extended "from the culvert in past the crest … of the dam". He denied a suggestion that he was mistaken in that evidence. The evidence continued: "Q. Because of course if the trench extended past the edge of the dam, it would take out the top of the dam wall? A. Correct. Q. So you say, do you, your recollection is that at this particular point midway between the most southern point and northern point on the eastern side of dam 3? A. Yes. Q. The dam wall was missing for a length of about 2 metres? A. Yeah, the trench had been dug there to undermine the crest of the batter, it actually had fallen away. Q. So the dam wall had in fact collapsed for the distance of the 2 metre trench? A. Yeah, we'd lost a bit of the top of it where Brendan had fell in." Mr Galbraith's Evidence 68 Brendan Galbraith gave evidence by telephone from Western Australia. He gave evidence about his own fall – that he fell into a trench and "needed to be pulled out", and the trench would have been "a metre and a half wide and maybe three metres long" and its depth was "definitely over six foot". 69 He was unsure whether he had actually seen the Respondent's accident, but the Respondent "told us he'd had a fall". He went to have a look at the hole "directly after it". His evidence continued: "Q. Was the hole the same or different in dimensions to the hole into which you'd fallen? A. Was yeah, very close, exactly .. (not transcribable) .. The dams would have held the same culverts in those holes eventually, so would have been the same dimensions. Q. That's an assumption. Rather than assuming, when you looked at it, did it appear to you to be of similar dimensions to the hole that you'd fallen into? A. Yes." 70 In cross-examination, he thought that the liners went into the trench of the culvert (not the separate anchor trench). He continued: "Q. Yes and there's certainly trenches, culvert, possibly trenches for anchoring but you're not sure exactly what was there. This is at the end of-- A. I'm positive there was trenches for culverts there. I – I absolutely remember that because they were putting culverts in and they were moving them out. I know there was culvert trenches there. Q. And your best recollection is that once you had got to dam 6 the concrete culvert wasn't in place, there was just a trench there? That's where the culvert should go? A. Yeah. Q. See I want to suggest to you that any hole that Mr Peers may have fallen in was no deeper than about 800 ml as well? A. 800 ml. Q. Yes? A. No. Those trenches were – those – those culverts were deeper than 800 ml. I'm sure the – I mean I'm sure they were at least 1 to 1.5 metre culverts. Q. So do you think the trench we are talking about that Mr Peers may have fallen in was the trench that was created to place the culvert in? A. Yeah." 71 In re-examination he was asked about the location of the excavation he had fallen into: "Q. Now do I take it that the excavation that you fell into was part of a culvert or not? A. It – it wasn't part of the culvert it was an extension of the culvert trench in the middle of the eastern wall of those dams. There was another deep pit as – as I recall, a deep hole dug in the middle of the eastern top of the – top of the batter." 72 He was also asked about the hole into which the Respondent fell: "Q. In relation to Mr Peers' fall, did you understand that it was that extension of the culvert that he fell into, ie similar to where you fell or actually into the culvert pit itself? A. It was exactly the same hole that I fell into, different dam." Mrs Peers 73 The Respondent's wife gave evidence that on the night of the accident the Respondent told her about his fall: "Q. What did he tell you? A. Just said that he fell in a hole when he was at work." Mr Garrido 74 Mr Claudio Garrido is a civil engineer who was employed by the Appellant in 2000. He was the construction manager responsible for the sewerage treatment plant. He said that the culvert at pond 6 would have been complete before Beltreco started its work there. He said there was an excavation in the eastern wall about half way up the side of the dam. His evidence was: "Q. When was that done? A. That was left after the culverts were installed. We left a – it's a depression basically beside the culvert to allow pipes to run in the culvert to penetrate through the wall. Q. Now I described it as an excavation? A. Yeah. Q. You've just described it as a depression. Why do you describe it as an depression? A. Because we were left a hole there for the concrete slab, the concrete slab would have been 150 ml thick. At the centre of that we had, toward the centre of that rectangle we would have gone probably 800, left an 800 excavation there beside the culvert to allow the pipes to penetrate through the wall and so from an earthworks point of view that's, we don't regard as an – an excavation but a minor excavation." 75 He continued: "Q. You said the excavation or depression was created at the time that the culvert was put in place? A. Yeah. Q. Did it remain that way for a period of time? A. It remained that way until, yeah, till after Beltreco had finished their works." 76 It was part of his job to walk over the site daily. He observed the excavations or depressions that were at the end of ponds 3 through to 6. He said: "A. … the length was 2 metres, 1.5 wide, no 1 metre wide by – the depth varied from 300 to 800, 300 on the end and 800 in the centre of that excavation. Q. Would there have been any reason why the excavation would have needed to be at that point anything in the order of 2 metres deep? A. No you can't have an excavation 2 metres deep at that point." 77 He said that the purpose of the excavation was to accommodate the pipe or pipes that penetrated the side wall of the culvert, and that there was no need to excavate below those pipes. The Expert Engineering Evidence The Significance of the Depth Exceeding 1.5 Metres 78 The evidence at the trial was taken in two tranches. The first was on 26 to 28 February 2007, the second on 4 and 5 June 2007. The reason for the break in the proceedings was that the Appellant sought to rely upon a report of Mr Garrido that included material of an expert nature, that the Respondent needed additional time to deal with. 79 In the expert evidence relating to construction one of the topics concentrated on was the size of excavation it was possible to have at the location where the plaintiff said he fell. There was particular concentration on whether its depth exceeded 1.5m. 80 There was a good forensic reason for concentrating on that topic. It will be recalled that the Respondent had relied on causes of action in both negligence and breach of statutory duty. The breaches of statutory duty upon which he relied included an alleged breach of regulation 73(8) of the Construction Safety Regulations 1950. It required any person carrying out construction work to effectively fence all openings into which persons could accidentally walk, and all excavations and holes more than 1.5m deep. The Appellant had pleaded a defence of contributory negligence in relation to both causes of action. 81 However, it will be recalled that the accident happened on 4 September 2000. A defence of contributory negligence was not available concerning a cause of action for breach of statutory duty that arose prior to 6 December 2002. 82 The reason why that is so is as follows. The High Court in Piro v W Foster & Co Ltd [1943] HCA 32; (1943) 68 CLR 313 had held that contributory negligence was available as a defence to an action for breach of statutory duty. At that time in New South Wales contributory negligence was a complete defence to those torts in relation to which it could be pleaded. To overcome the effect of Piro v Foster, the New South Wales Parliament passed the Statutory Duties (Contributory Negligence) Act 1945, which made contributory negligence unavailable as a defence to an action for breach of statutory duty. That 1945 Act was itself repealed by the Civil Liability Amendment (Personal Responsibility) Act 2002. That repeal had the effect of reinstating the availability of contributory negligence as a defence to an action for the tort of breach of statutory duty. However, by that time the Law Reform (Miscellaneous Provisions) Act 1965 had altered the law, so that contributory negligence was no longer a total defence, but led to apportionment of damages. The transitional provisions of the Civil Liability Act 2002 had the effect (by virtue of clause 6 of Part 3 of Schedule 1) of making the amendments made by the Civil Liability Amendment (Personal Responsibility) Act retrospective (unless proceedings had been commenced in a court before that commencement). However, this Court has held that that retrospectivity does not apply to the repeal of the 1945 Act: Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Reports 81-830 at [172]-[173]. Thus, the provision in the 2002 Amendment Act that effected the repeal of the 1945 Act should be interpreted having regard to sections 30(1)(c) and 30(1)(e) Interpretation Act 1987. As so construed, contributory negligence is only available as a defence to causes of action for breach of statutory duty that accrued after the Civil Liability Amendment (Personal Responsibility) Act took effect on 6 December 2002. 83 Booksan v Wehbe had been decided by the time of the trial in this action. Though it was not mentioned by name, Mr Frame on two separate occasions made a submission to the judge to the effect that contributory negligence would not be a defence to the statutory count, and the transcript does not disclose anyone expressing the slightest surprise at that submission. Mr Garrido's Report 84 Part of Mr Garrido's report related to the depth of the culverts adjacent to the crests of dams 5 and 6: "The depth of the culverts adjacent to Dams 5 and 6 were 1200 mm with 125 mm thick concrete base. The culverts were placed on a 100 mm thick sand layer and a 15 mm thick mortar layer. Accordingly, the depth required to install the culverts was 1440 mm." 85 The "as built" drawings of Select Civil showed the distance from the crest of the dam to the western edge of the culvert as 1200mm. There was a 300mm flat area between the western edge of the culvert and the eastern end of the anchor trench, then a 300mm anchor trench, then 600mm of flat surface to the crest of the wall. 86 In response to a question about whether it was physically possible for there to have been a hole measuring 1.8-2 metres deep times 1-1.5 metres wide times 2 metres long, Mr Garrido's report said: "13 It was not physically possible for there to have been a hole of the dimensions alleged by the Plaintiff in that location. 14 Dam No 6 was approximately 6 metres deep. The top 4 metres of the dam had previously been constructed above the existing ground level, using crushed sandstone. The bottom 2 metres of the dam was then excavated in the existing ground, which consisted of sandstone rock. 15 Crushed sandstone is only stable up to 1.5 metres in depth. Beyond 1.5 metres in depth, crushed sandstone must be battered so that it has a slope of 45 degrees, or the sides of the excavation are to be supported to prevent them from collapse. Dam 6 had batters of 30 degrees. 16 A hole of the dimensions alleged by the Plaintiff would have been excavated in crushed sandstone. Crushed sandstone is not stable enough to allow a hole of 1.8 - 2.0 metres in depth to be excavated. 17 Further, a hole of this alleged depth would have been more than 0.5 metres below the bottom of the adjacent concrete culvert and caused the culvert to collapse into the alleged hole. 18 Accordingly, a hole of 1.8 - 2 metres in depth could not have physically been excavated and left in this location, without causing the collapse of the Dam wall and/or the culvert. Furthermore, there was no reason for a hole of 1.8 - 2 metres in depth to be excavated in this location. 19 If there had been a hole to the dimensions alleged by the Plaintiff, the Eastern wall of Dam 6 would have a gap in the centre of the wall approximately 1.0 m deep. The sketch below illustrates the size of the hole alleged, relative to the culvert and Dam. The Plaintiff's photo taken during the works undertaken by Beltreco show that the top of the Eastern wall of Dam 6 did not have any gap and that the Eastern wall was complete." 87 Another question and answer in his report was: " Given your findings in relation to questions above in relation to the depth of the excavation for the concrete culvert, what depth would any excavation for the lagoon services slab have been? The depth of the excavation for the lagoon services slab was approximately 800 mm. The sketch below illustrates the location of services inside the culvert and how they are located below the services slab. Therefore the excavation for the services slab was only a little bit deeper and wider than the anchor trench installed by Beltreco." 88 The sketch in question shows pipes penetrating the wall of the culvert in two separate places, one higher than the other. The lowest location where the pipe penetrates is only marginally more than 800mm from the top of the culvert. The report says nothing about what lies below the service slab in its completed state, in particular whether it is a void through which the pipes pass, (and if so how constructed and configured) or backfilled earth. However later evidence clarified that matter. Dr Redman 89 The Appellant also tendered a report from Dr Peter Redman, a geotechnical consultant. One of the assumptions he was asked to make was that the method of dam construction was "by excavation and compaction of excavated weathered sandstone". 90 He expressed the view that the depth of excavation needed to construct the culvert would be about 1.575m below the finished surface level. It appears that he had no information about how the finished surface level related to the surface level there had been at the time the excavation was made. He said: "If pavement layers or other fill was placed at the Dam crest subsequent to the culvert installation, the depth excavated for the culvert would be reduced by the thickness of such layers below the top of the culvert leg." 91 The level he identified as the "finished surface level" was the surface level of a road constructed on the eastern side of the culvert. He noted that the surface level of the land on the western side of the culvert appeared to be lower than that: "The photographs supplied of the Dam crest following completion of the works show that the surface of the lagoon services slab is at about the same elevation as the top of the culvert legs. The photographs also show that the ground surface adjacent to the lagoon services slab is lower than the level of the top of the slab. That is, on the western side of the culvert the level at the Dam crest was below the top of the culvert leg. From the photographs I assess that the difference in level is of the order of 0.15m. The depth below ground surface at the western edge of the culvert trench would therefore be reduced to about 1.4 to 1.5m." 92 As it was on the western side of the culvert that the Respondent said he had fallen, it is the extent of excavation at the western edge of the culvert trench that is the more relevant figure. Thus, Dr Redman put the depth of the excavation as being likely to be not more than 1.5m, and thus not one that Regulation 73(8) would apply to. 93 Concerning the pipe work that emerged through the service slab Dr Redman expressed the view that: "… practical limits would have existed on the extent of excavation for the pipe work. They were: (a) To not undercut or otherwise disturb the Dam slope with the partly laid lining and; (b) To not disturb the sand bedding below the base of the adjacent concrete culvert." 94 On the basis of the results of testing for compaction in the surrounds of dam number 6 (not identified, I note, as being from the eastern wall) he concluded that the fill had been well compacted, and that therefore the embankment "would not be expected to undergo significant post-placement settlement such that cracks or voids would develop". When the dam had not been put into operation at the time of the accident, neither was there any potential for any piping erosion to have occurred within the dam embankment. Therefore he was of the view that "the probable source of a hole in the vicinity of the lagoon services slab would be excavation for pipe work to be installed at that location." 95 The data available to Dr Redman included that the services slab had a specified width of one metre, and some photographs of the finished box culvert, services slab, and immediate surrounds. From that data, he estimated the edge beam running on the western side of the concrete culvert as having a width of about 0.3m. The photograph showed where the plastic liner went underground to the west of this edge beam. This was clearly the western edge of the anchor trench. He estimated, from the photographs, the distance from the western end of the culvert to the western end of the anchor trench as being 0.5m. He had been asked to assume an anchor trench width of 0.3m. From that, he concluded that the eastern end of the anchor trench was 0.2m from the western edge of the culvert. He had also been asked to assume that the western edge of the anchor trench was 0.6m from the dam crest. From these figures he deduced that the distance between the western edge of the concrete culvert and the crest of the dam was 0.6m + 0.3m + 0.2m = 1.1m. 96 The Respondent had estimated the width of the hole into which he fell as somewhere between 1m and 1.5m. Dr Redman concluded that if it was 1.5m wide, it would breach the eastern wall of the dam. If it was only 1m wide, it would fall within the flat section of the dam wall. He concluded: "… it would be unlikely that a near vertical face could be excavated such that the Dam slope is undercut as shown in Figure 5 without leading to some disturbance and/or collapse of the wedge of material formed by the excavated face and the Dam slope at the western edge of the excavation." 97 On a cross-sectional diagram of the wall, he showed the outer limit of the excavation that could be carried out to limit undercutting of the dam wall. That showed a depth of hole of 1.15m. 98 Dr Redman was not required for cross-examination. Mr Henstock's Report 99 The Respondent relied upon a report from Mr Colin Henstock, a civil and structural engineer. Unlike Dr Redman, Mr Henstock had visited the site and been able to take various measurements there, rather than rely on estimation from photographs as Dr Redman had done. Mr Henstock expressed the view that, as the thickness of the base of the box culverts was 125mm, and a minimum of 150mm of bedding material would need to be placed underneath the culvert, the depth of excavation required for the concrete box culvert would have been at least 1.5m. On the basis of a review of available council drawings, he expressed the view that the depth of the culvert excavation would have been of the order of 1.5m to 1.8m, and that "it would be reasonable to expect the excavation at the side of the culvert trench to permit the pipe installation would be at least the depth of the culvert excavation." 100 In response to Dr Redman's reasoning about the depth of excavation on the western side of the culvert trench (reasoning that had been based on Dr Redman's estimation, from photographs, of the difference in ground level) Mr Henstock stated that he had actually measured the distance that Dr Redman had estimated as being 150mm. Mr Henstock had found that difference in level to be only 70mm. Thus, he concluded that, using the same methodology as Dr Redman, the depth of the excavation of the culvert trench (on its western side) would have been a minimum of 1.5m. 101 Mr Henstock prepared a second report that commented on the reports of both Dr Redman and Mr Garrido. He had actually measured the lagoon services slab as being 1.2m wide. On that basis, the minimum distance between the western edge of the concrete culvert and the crest of the dam was 1.2m. Concerning Mr Redman's suggested practical limits on the extent of excavation for the pipe work, that I have set out at para [93] above, Mr Henstock noted: "Mr Redman's comments appear to be based upon the assumption that the excavation for the pipework would have been carried out after lining was partially placed on the dam slope and after the culverts had been placed in the culvert trench. No consideration has been given to the possibility that the excavation for the pipework was carried out concurrent with the culvert trench excavation. No documentation has been provided to C.W.Henstock & Associates Pty Ltd to suggest the excavation for the pipework was not carried out at the same time as the excavation for the culvert trench. On the basis the pipework excavation was carried out prior to the placement of the culverts, it is highly likely in my (C. Henstock) opinion, that the depth of the excavation for the pipework would have been similar to that of the culvert trench." 102 If that hypothesis were correct, the excavation below the services slab would have the same depth as the excavation for the culvert. The reader will recall the Mr Henstock had come to the view that that was a minimum of 1.5m. 103 While Mr Henstock agreed with the view of Dr Redman that I have quoted at para [96] above, he said that nothing in the documents provided to him suggested that the sides of the excavation into which the Respondent fell were vertical. 104 Mr Garrido had referred to the "as built" drawings which nominated the distance from the crest of the dam to the edge of the culvert as 1200mm. Mr Henstock's comment on that postulated that there may have been a departure from that general state of affairs in the immediate vicinity of the lagoon services slab: "The 1200mm distance from the crest of the dam to the edge of the culvert referred to by Mr Garrido is consistent with the 1200mm width of the lagoon services slab, and would appear the applicable distance for the major length of the dam crest either side of the lagoon services slab. However, as is shown on the attached photo taken from Mr Garrido's Report, and labelled "Garrido – 2" , for the purpose of the Report, the turn down of the dam liner can be seen on the dam side of the 1200mm wide lagoon services slab, for the length of the slab. This would indicate the anchor trench was deviated locally to pass on the dam side of the lagoon services slab. Given the width of the anchor trench is 300mm and the anchor trench was set back 600mm from the crest of Dam 6, it would appear the distance between the crest of Dam 6 and the culvert was increased locally (over the length of the lagoon services slab) from 1200mm to the order of (1200mm slab + 300 trench + 600 to crest) 2100mm if the setback of the anchor trench from the dam crest was maintained." 105 Concerning para 13 of Mr Garrido's report, that I have quoted at para [86] above, Mr Henstock said: "It is not physically possible for there to have been a hole of the dimensions referred to by Mr Matthew Peers in the 300mm nominal width between the western side of the concrete culvert and the general line of the anchor trench. However, at the location of the lagoon services slab, it would appear, as referred to in my (C. Henstock) response to Paragraph 9 above, the anchor trench was located up to 1200mm away from the concrete culvert. At this location, with the apparent locally widening for the lagoon and services slab, it would be physically possible to have an excavation approaching the dimensions reported by Mr Matthew Peers." 106 Mr Henstock's comment on paras 15, 16 and 17 of Mr Garrido's report was that he agreed in principle. However, he noted that one would need to know the cohesive properties of the compacted materials to know the limiting height of the vertical excavation. He observed that the compacted material was sufficiently stable for a vertical excavation of at least 1.6m below the finished surface level, according to Mr Redman. He also noted (again) that he had not been provided with any information about whether or not the sides of the excavation into which the Respondent fell were vertical. As well, he noted that there was no record of whether the excavation for the culvert trench was the minimum required, or whether it had been over-excavated. Mr Garrido's Further Oral Evidence 107 When Mr Garrido resumed giving evidence at the resumed hearing on 4 June 2007 he had had the opportunity to read Mr Henstock's second report. Mr Garrido said that there was no dogleg in the eastern wall of dam number 6 near the service slab – rather, all the walls were straight. If that were correct, Mr Henstock's hypothesis about a local widening of the top of the dam wall near the services slab (leaving room for the hole into which the Respondent fell to be 1.5m wide yet not breach the dam wall) could not be correct. And if there was no local widening of the top of the dam wall, that meant that Mr Henstock's explanation of how a hole of the dimensions the Respondent claimed could exist, without the dam wall collapsing, could not be correct. 108 Mr Garrido said that while he was managing the job he had not received any complaint that there was a hole about 2m deep in the area of the services slab at the eastern end of dam 6. He said he would walk around the whole plant once a day, including in the area of that service slab, and he never saw a hole in the area that was 2m deep. He reiterated that there was no need for a hole that deep. 109 Mr Garrido, in cross-examination, estimated the depth of dam number 6 as being 5-6m. When shown a plan, he agreed it was actually 3.6m or 3.7m deep. That plan showed both the existing ground level (one assumes, before construction started), and the finished ground profile. He gave evidence about the extent of excavation that had been required to construct dam number 6: "Q. And we can see that the existing ground level drops away from the east towards the west, is that correct? A. That's correct, yes. Q. At the west ground level is almost at the very base of the dam, is that correct? A. That's correct, yes. Q. But to the east, and that's the area we're talking about where the pipe pit was constructed you'll see that ground level is virtually at the level of the crest of the dam? A. It's actually about half a metre below isn't it. Q. It's about 100 mils below isn't it? A. No that's correct 100 mil below the top, yep. Q. So the area that we're discretely talking about where the culvert was dug and where the pipe pit was dug, contained fill of about 100 or maybe a little deeper because there would have been a little scraping of the surface before they start, yes? A. Yeah we generally scrape 300. Q. Then taken it up to the level required, is that correct? A. That's correct, yes. Q. And below that you're into virgin ground? A. That's correct, yes." 110 It will be recalled that the basis of Mr Garrido's view that it was impossible to have a hole of the depth the Respondent said it was, was that the bank was constructed, to a depth of 4m, from crushed sandstone, a material insufficiently stable to permit a hole of the size the Respondent alleged. The cross-examination just quoted involved Mr Garrido accepting that the basis upon which his theory was postulated simply did not exist. 111 Mr Garrido agreed that the culvert trench had been constructed using a mechanical excavator that made a trench the sides of which were "more or less straight up and down". Mr Garrido agreed that the excavation below the service slab was cut out at the same time that the culvert was dug. However he did not agree that the excavator in fact dug the excavation to about the same depth as he had dug for the culvert. The cross-examination continued: "Q. How do you know that? A. Because my, when I walked through the site with the foreman at the time we would discuss – what has to be excavated, what doesn't have to be excavated. Q. We will, we would. I want to talk about what you actually remember? A. Well we did walk around the site. We did discuss excavation, and we did discuss what had to go through the wall of that culvert. Q. You see three people have given sworn testimony before this court that those were excavations were so deep that if a man stood in them it would come up to above his eyes as it were, so that standing in the base they are unable to see out? A. I disagree with that." 112 Mr Garrido reiterated that if there had been a hole more than 1.5m deep the dam crest would have collapsed. He gave a different reason to the one he had given in his report. He explained that a layer of sand covered the whole depth of the lagoon to a thickness of 100mm. That layer of sand was there to provide extra protection of the plastic liner from puncturing. The layer of sand had to be compacted before the geotextile was laid on it. Placement of the sand layer was the final activity before the lining began. If one dug to within 100mm or 200mm of the crest of the dam, that would disturb the 100mm layer of sand. He said: "… as the sand layer was placed at the very last activity, if you had placed that sand layer with that excavation behind it, that area – to place the sand you need a compacter. If you compact it you pack (?) a load, you need something to withstand that load. Q. I see, so you're saying that if the hole was dug and then you try to compact the material, you'd have a collapse? A. That's right." 113 Having received the answer that compaction of the sand with the hole already in the place where the Respondent said it was was not possible, Mr Frame tried a different tack, of suggesting that maybe there had been no compaction at all. That suggestion was also rejected: "Q. Let's say that there was no attempt to compact after the hole was dug there because, as night follows day, you might cause damage? A. Well that's what I'm saying that we couldn't have the hole there, it had to be compacted. It was a condition of – part of Beltreco that the area had to be well compacted and inspected beforehand." 114 After an inconclusive attempt to explore whether there were any contemporaneous records of the sand being placed, Mr Frame continued: "Q. Sir can I put it to you that there was no 100 mil of sand placed anywhere, that it was not part of the specifications and that sand was only used to even the surface where there were depressions and irregularities before the geotextile material was put down? A. I don't agree because there was a rain event which washed out the sand and we had to incur additional costs to replace that sand material at the request of Beltreco." 115 Having established that the collapse problem would arise from trying to compact the narrow strip between the edge of the hole and the dam wall, Mr Frame tried another hypothesis: "Q. Let's say the excavation actually was out so close to the edge of the dam, or virtually at the crest, you wouldn't try to do any compaction there would you? A. No that's correct." 116 Mr Garrido accepted that if one did not need to compact, it would be possible to excavate down to a depth of 1.5m and beyond. 117 When Mr Garrido was asked whether the excavation beneath the concrete service slab was created straight up or at an angle, Mr Garrido replied that it was sloped. His evidence was: "Q. Now I assume that what would have happened is the bucket would have been used to sort of dig out and pull back, so it would have to be scalloped as it were, the wall would be scalloped? A. It was notched out. Q. Notched out? A. The corner was notched out because the depth of that was 800 mils deep. Q. So deeper in some places than in others? A. It was deeper towards the culvert, shallow towards the lagoon." 118 It will be recalled that the Respondent gave evidence, quoted at paras [55] and [58] above about the culvert being taken out in sections, thus creating the open space through which an excavator working from the eastern side of the line of the culvert could have dug out the hole into which the Respondent fell. As he was obliged to, Mr Frame put that to Mr Garrido: "Q. No, the actual concrete sections were taken out from time to time? A. No they can't be taken out. Q. Why's that? A. Because they lock in together. If you take one out you won't put it back in. Q. They butt up against each other, do they not? A. They butt up against each other yep. Q. And then there's some sort of material that's used to seal? A. Exactly." Those answers were not challenged. 119 Mr Garrido was asked about the Beltreco incident report that I have referred to at para [28] above. He said he inspected the excavation "the same day we were notified of the incident". He found "it was the depth of the anchor trench which was 500mm to 600mm". The cross-examination continued: "Q. You understand that the plaintiff's evidence is that after this fall, because he'd made complaints previously, he actually filled the hole and put material in it to a depth of something between 500 and 800? A. My recollection of the incident is that he fell into the anchor trench so he would have filled in the anchor trench as part of his work requirements. Q. Why do you say he fell into the anchor trench sir? A. Because that's what, at the time of the incident, that's – we were notified that's where he fell." 120 When it was suggested to him that there was no anchor trench where the excavation was undertaken, he said: "A. No that hole was the same depth as the anchor trench, it was just wider in nature." Mr Smith 121 Mr Ian Smith was called to give evidence. He was a supervisor working on construction of the sewerage treatment plant. 122 He said that in September 2000 he would have cause to go over the area where the services slab was constructed "probably six to eight times in the day, if not more". He continued: "Q. In September 2000, maybe even the couple of weeks back into the second two weeks of August, or the last two weeks of August 2000, at any time when you walked over that area did you see a hole which measured anything like 1.8 to 2 metres in depth in the vicinity of what we've described as the concrete services slab? A. No, there was never anything down there. Q. If there was a hole of that depth at that time, is that something that you would have seen? A. If there was a hole there down that depth I would have been there to supervise it, to check the depth of the hole. There was never a hole that deep." 123 He said he never received a report of any such hole existing. He gave evidence of being present when the trench was dug for the concrete culvert. He also saw an excavation being made in the vicinity of the concrete services slab. That excavation was: "Roughly one and a half metres in length, approximately 600 wide, 6 to 800 wide and around 6 to 800 depth." 124 The excavation for the culvert was no more than 1m in depth. The explanation for its present depth below the finished surface level was that "the rest was built up after the box culvert was put in position". If that evidence was right, and (as Mr Henstock hypothesised, and Mr Smith asserted) the excavation under the services slab was made at the same time as the excavation for the culvert, it would provide a reason why excavation need not occur to a depth any greater than 1m at the site of the services slab. 125 Mr Smith gave evidence of being on the site six days a week. During that time he did not become aware of anyone, other than Transfield, having filled in holes that had been created by Transfield. Nor did he ever hear a suggestion that someone had fallen into a hole that measured approximately 2m in depth. He could not recall the Respondent telling him that there was an excavation 2m deep. 126 He said the excavation for the trench for the culvert was carried out with the assistance of either a dumpy level or a laser level, both devices for reading depth. He said "the excavation was done to within 100 millimetres", that he was there at the time the excavations for the culvert took place, and that he was satisfied that they were excavated to the correct level. 127 He also said that the culvert was put in before Beltreco got on site. 128 His evidence differed from that of Mr Garrido in one respect. Mr Garrido had said that sand was used over the excavation, once formed, to create a level surface for the geotextile to go onto, while Mr Smith said that the material that performed that function was "a clay type material". 129 He said he was not aware of an employee of Beltreco called Galbraith suffering a fall into a hole or excavation of a depth over a metre and a half, at the spot where the services slab was later constructed. He said there was never a hole there that deep. He said that the pipes would have been protruding through the wall of the culvert before Beltreco got into the area, so "if there was a hole that deep and a person fell into the hole he would have broke the pipes". In cross-examination Mr Smith gave evidence: "Q. It appears that through the middle of that concrete structure, when this was all completed, were pipes – I think the pipes would have been in place first and then there would have been filling and then the concrete laid last, would that be right? A. The concrete would've been laid last yes." 130 That appears to involve an acceptance of a proposition that, in the finished work, there was no void beneath the services slab, and that the pipes that emerged vertically from the services slab passed through earthen material that had been backfilled immediately below the slab. 131 On a photograph that showed where the lining material went underground in the completed work, it was apparent that it went underground at the western end of the services slab. Mr Smith gave evidence: "Q. It was ultimately put into a trench and welded around that concreted area? A. As I said to you these pipes in here had to be in and backfilled before the liner was put in. Q. Why do you say that? A. Because that was the sequent [sic – semble, sequence] to the construction." 132 He could point to no document that confirmed that the sequence of construction was as he had said. However, if he was right in saying that pipes were already laid in the culvert before the lining of the dam occurred, the presence of the pipes would create difficulties for parts of the culvert being pulled out. 133 Mr Frame put to Mr Smith that, at the time of the Respondent's accident, the lining work had only got to the stage where the "felt underlay" had been partly put down. Mr Smith's evidence was: "Q. The felt underlay that goes underneath the plastic? A. Felt underlay. If the felt underlay was put down there, the pipes would've still been finished. Q. And the felt underlay was up to an area and not throughout the whole area? A. The pipe would've been finished. Q. I have sir a man who fell into the excavation and there's no suggestion that there were any pipes there? A. If you had fallen into that excavation it would have broke the pipes. Q. Not if there are no pipes there? You don't know when the pipes actually went in, do you? A. I do know when the pipes went in. Q. Well how do you know? A. Because I was there supervising on the site. Q. Well give me a date then? A. That I can't tell you. Q. Just as you were wrong about the number of drying beds sir, and just as you were wrong about the dimensions of the concrete slab, I suggest you're also wrong about the depth of the excavation that was necessary for the pipe pit, or undertaken for the pipe pit? A. I don't think so. Q. I suggest to you that there was indeed an excavation done at exactly the same time as the excavation for the culvert, and the excavation was done at the same time for what was ultimately to be the pipe pit and done to about the same depth in dimensions a little over two metres by one metre? A. Not that depth." 134 There was no re-examination of Mr Smith. Respondent in Reply 135 After the close of the defendant's case the plaintiff was re-called. He was reminded about the evidence of there being a coating of sand material 100mm thick over the entire area of the ponds. His evidence was: "Q. What do you say about your observations in terms of the area carrying 100 mils of sand over the ponds and the general area? A. There was no blanket. There was no 100 mils of sand over the whole pond area whatsoever. There was 100 mils of sand, possibly a 100 mil, sometimes 50, sometimes more in certain sections where they couldn't get this pond surface up to a good quality for lining. So they did use crusher dust, it was crusher dust not sand because that's what was available at the time, it's a grey material, and that was in certain sections of different ponds. So basically it was a clay liner or the sandstone crushed, whatever. I'm not sure exactly what the consistency of it was but it was a clay looking material that when it got wet got a bit soft et cetera. Q. You've heard the evidence of Mr Garrido that all of the excavation necessary for the site was effectively done at the same time, and by the time Beltreco came on the site that excavation had been completed, what do you say about that? A. Totally incorrect. Q. Are you confident about that? A. One hundred percent." 136 He also gave evidence: "Q. Now you've heard the evidence to the effect that there was no excavation of the depth that you've given evidence of, both in relation to your fall and Brendan's fall? A. Yep. Q. What do you have to say about that, if anything? A. It's totally incorrect. There was excavations in all four of those ponds at that depth. Q. What about the pipe work? Mr Smith used to be of the view that the pipe work had to be in by the time Beltreco was putting down even the felt underlay? A. I didn't even see any pipe work even [ semble in] the culvert like the whole time I was on site." 137 He was personally involved with placing the plastic liner in the area immediately adjacent to the service slab: "… the hole was, as I said, made and backfilled by myself to a shorter depth so you could stand in the trench no problem. The plastic was cut on the corners of the hole, the pit as such, pipe pit as we call it, and then welded down into the corner. So you'll see a well going from the corner down into the pit disappearing … … since I'd been on site I left it with – all I could see inside the crusher dust which is what I backfilled it with, which is a grey material that was stockpiled on site and used for, as I said before, back-fixing parts of subgrade. All I saw was that, and when I come back to the site with Mr Henstock there was a slab, concrete slab and pipes in the same place where I had left just crusher dust. Q. What did you observe about the plastic liner, had there been any backfilling of that since you'd last been on site, or what was the position? A. No it was just, the slab was poured where the hole was. So basically the, yeah basically poured the slab in the hole that I left." Mr Henstock's Oral Evidence 138 Mr Henstock gave evidence that "he would have expected" the pipe excavation to be carried out at the same time as the excavation for the concrete culvert, and that it was common to excavate to a depth greater than the minimum depth of excavation required. That latter evidence is to be contrasted with Mr Smith's evidence that he had supervised the excavation himself, and was satisfied it was done to the correct depth to within 100mm. 139 In cross-examination, Mr Henstock agreed that there was no evidence to support the hypothesis he had put forward in his report that the crest of the dam had been widened in the area of the slab. After being reminded of his hypothesis that the excavation of the area under the services slab had been to the same depth as that required for the culvert, his evidence was: "Q. It's pure speculation on your part to suggest that it's highly likely that these two excavations would have been performed down to the same depth? A. I agree with you that there is no documentation or evidence to suggest that they were or weren't, yes." 140 It will be recalled that part of Mr Henstock's reasons for not accepting Mr Garrido's reasoning as to why a hole of the size claimed by the Respondent could not exist, was that he had not seen any information that the sides of the hole were vertical. Mr Polin showed Mr Henstock a diagram that the Respondent had drawn, that had been provided in response to a request for particulars, and that showed the hole into which he fell as being rectangular, 2m deep and 1m wide, with vertical sides. The eastern side was formed at the top by the concrete culvert, but continued, in a downward prolongation of the line of the western edge of that culvert, to a depth of 2m. The western edge of the hole met the top of the battered section of the dam wall. Mr Henstock agreed that "it would have been an unusually deep hole in that position". The evidence continued: "Q. And even if it was a hole that was dug before the culvert was put in place, it is a hole which would cause all sorts of problems with not only the structural integrity of the dam wall, but also the structural integrity of the culvert? A. I'm not sure where you're going with that but I understand that you mean the undermining of the culvert? Q. Yes? A. If the material is a well compacted crushed sandstone a hole deeper than the bottom of the culvert at two metres depth as shown in this way I would have to agree that would place some question as to the loss of material under the floor of the culvert. … Q. Let's assume the hole, if we call it the hole for the culvert and the hole which is two metres deep dug at the same time? A. Yes. Q. There is no way that would ever have occurred in that fashion is there? A. I would have to agree with you on that one yes." 141 He accepted that the reason why it would not have occurred would be because if a 2m hole had been dug at the same time as the culvert trench, there would be no lateral support for the culvert. The consequence of this is that Mr Henstock accepts that a hole of the size the Respondent claims is unlikely to have been dug at the same time as the culvert excavation was dug. 142 Mr Polin then turned to consider a different sequence of construction, in which the culvert was put in place first and the hole identified by the Respondent dug afterwards: "Q. Yes. I think if I'm correct, from what you said earlier it would have been impossible, looking at the same diagram, to dig and place the culvert in place and then dig a hole two metres deep as depicted in that diagram? A. I would agree with you that if you were digging a hole that deep after the culvert was placed it would be extremely difficult to do it to that type of detail particularly as you're excavating from the other side of the culvert. Q. Your words were 'without risk of damage to the dam wall or the culvert'? A. That would be reasonable. Q. Because of course the hole like that adjacent to the culvert, again stability of the culvert and the dam wall would come into question? A. Would become a risk during excavation." 143 Mr Henstock went on to agree that a hole of the size the Respondent identified was one "you could not miss", "if you're looking forward where you are walking you would see a hole and that would be subject to nothing else being around it." The Judgment Below 144 The judge referred to the evidence of the Respondent, Mr Shepherd and Mr Galbraith, about falling into holes. He said "[a]ll those three witnesses seemed to be good witnesses. They seemed to be telling the truth but there was a significant dispute." 145 The judge referred to the evidence of Mr Garrido about walking over the site each day, including on the areas where the holes were alleged to be, and that the holes simply could not have existed. He also referred to Mr Smith's evidence about not seeing any hole of this depth. He said: "…and so there was a direct conflict of evidence and there was nothing in either Mr Smith or Mr Garrido's evidence which would cause me concern. Mr Smith more than Mr Garrido, perhaps, and I will come to that in a minute." 146 What his Honour was evidently referring to by that last remark was his comment later in the judgment when he said (somewhat inconsistently) that: "Mr Smith was a little vague when giving evidence" and "very vague about a lot of issues". By comparison Mr Garrido "was quite a good witness and had a good memory of the site and what happened". 147 The judge refers to the text of each of exhibits 2, 3, 4, 5 and 6. He notes that exhibit 3 was signed by the plaintiff on 20 September 2000, but otherwise does not mention the dates of these documents. The first time a date is mentioned concerning a doctor's history is when the judge records: "On 15 December Dr Crawford reported 'Fell into hole'". I note that a consequence of proceeding this way is that the judge did not consider whether there was any significance in the fact that records within three weeks of the accident were made by Mr Bianco, Dr Lewis, Dr Gray and in the claim form making no reference to a hole, and the first recorded mention of a hole is more than three months after the accident. 148 The rest of the judge's reasons on liability are: "The plaintiff when asked about some of these histories said that when he spoke to Bianco he told him he fell into the hole. He said whenever he was asked he said he slipped and fell into a hole. He could not explain why there were these various references which did not mention the fall into the hole. Nor could he say why it was not on the claim form. He said that he had always said he fell into the hole. It is somewhat of an unusual case because you have got the plaintiff and two witnesses, together with what he told his wife, and all say he fell into the hole. Whereas you have some histories which are not quite as helpful. If he did not fall into the hole then these witnesses had to be lying. It is not a case where you can say perhaps they made a slight error. He either fell into a hole 1.5 to two metres deep or he just slipped over and hurt his hip. As I said before these witnesses were quite acceptable. They were cross-examined. They did not move from the evidence that they gave. It is not their case. There is no reason why they should not come and tell the truth. And, indeed, the expert gives support for the size of the hole, although the defendants say there was no such hole. I never have much confidence, as I have often said in this court in histories taken by doctors. That is not being critical of them, it is simply the fact that they do not take histories for the purpose of a court case. They take histories for treatment. They use an impression they gain and a very short history. The claim form I cannot explain. Perhaps all these people have come here and lied. On the other hand, at or about the time of all that, you have another doctor, Dr Crawford, recording he fell in the hole. On the balance of probabilities I am satisfied that the plaintiff and his two witnesses and his wife have told the truth. I was more impressed with Mr Henstock's opinion as to the possibility that there was a hole of this size in this area and his reasoning in relation to that. It was interesting that there were not any plans or drawings which would assist us with this hole. The other evidence came from Mr Garrido who, interestingly enough, was very strongly of the view you could not have a hole of this size. He would have seen it if there was, but you simply could not have it and he gave reasons for his opinion. They were not illogical or stupid and, in addition, a Mr Redman, geotechnical consultant, provided a report in which he thought it was unlikely there could be such a hole. What he and Mr Garrido, as I recall, both said is that if you had a hole of this size in this area there would more than likely be a collapse. He also said he thought that the excavation undertaken to accommodate the installation of the pipe work would commence at the crest level, then follow a line to the east, which would result in a totally different hole being there to that which the plaintiff and his witnesses claim. And he supported Mr Garrido's opinion that the hole would not be constructed of this size in this place. The other interesting question, of course, is that Mr Galbraith falls down a similar hole in another pond on a different day. I do not believe that this was a case in which I got great assistance from the experts. The fact is that these holes could have been dug in this area. We know what they were to be used for. It could be that they had been dug to a greater depth than was expected because the evidence, as I understand it, is when you are digging a hole it is far better to dig it deeper than you need because it is easy to backfill it to the level you need. It is more difficult to dig a hole further down if you decide it needs to go further down than it is to have the bigger hole and backfill it. There were also photographs of the pipes which needed to go in there and to me it became quite obvious that the version being given by the plaintiff and his witnesses is quite feasible and it became obvious that there was no reason why I should reject their evidence. They were supported as I said by Mr Henstock and, whilst I understand the other witnesses' evidence, it in the end I believe came to no more than (1) Mr Garrido and Mr Smith had not seen these holes and (2) that in the normal course holes of that magnitude would not be dug and (3) that it was unlikely that the job would be done that way. Of course, none of them could say it would not. I accept the plaintiff. I thought the plaintiff was a good witness. He was cross-examined at some length. I accept the witnesses. I accept the plaintiff's wife and therefore I accept and find that on 4 September 2000 the plaintiff was walking in the area of the wall near pond 6 when he slipped and fell into a hole which was about 1.8 metres deep and certainly in excess of 1.5 metres deep …." The Telephone Evidence Ground of Appeal 149 There is a discrete ground of appeal that the judge erred in permitting the evidence of Mr Galbraith to be given by telephone. 150 Uniform Civil Procedure Rule 31.3 provides: "(1) If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication." 151 Whether a judge actually makes such an order in a particular case is a discretionary matter of practice and procedure. Various factors that might in some circumstances influence the exercise of that discretion are referred to in case summaries in Ritchie's Uniform Civil Procedure para [31.3.10]. 152 When a trial judge's decision to permit evidence by telephone is challenged on appeal that challenge can succeed only if the criteria for an appeal against a discretionary judgment identified in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505 are satisfied. These have been restated by Gleeson CJ, Gummow, Hayne and Callinan J in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25]: "… Is specific error shown? (Has there been some error of principle? Has the [judge] allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the [judge] not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust?" 153 The closest the Appellant's submissions come to identifying an alleged error of principle in the trial judge's reasoning on this matter is to say that it was apparent that there was going to be a clear conflict in the lay evidence, that by taking evidence by telephone the trial judge put himself into a situation of disadvantage in assessing the witness. 154 When Mr Frame raised the question of Mr Galbraith's evidence being taken by telephone, he informed the judge of the substance of the evidence he expected Mr Galbraith to give. The judge ascertained that Mr Galbraith had not seen the Respondent's fall, and that the Appellant had no record of Mr Galbraith's fall, but that Mr Polin was not positively going to say that he (Mr Galbraith) did not fall. The judge enquired whether Mr Galbraith was near a fax machine. At no time did Mr Polin make a submission that the evidence should not be taken by telephone. In that circumstance, there was no occasion for the judge to give a judgment on the question. The closest he came to stating the basis upon which the evidence would be taken was: "HIS HONOUR: Why don't we try, see how we get on? If we need to do that we might have to stop his evidence and then find out if he can [get] himself to a fax machine because what essentially you would want to have would be this drawing and some photos I guess. FRAME: Yes your Honour. HIS HONOUR: But it may be you can [get] round that. What do you think? FRAME: I think we probably can. HIS HONOUR: Why don't we give it a go and see how we go?" 155 At no time did Mr Polin interrupt Mr Galbraith's evidence with an expression of concern that the way the evidence was developing gave reason to reconsider the appropriateness of taking the evidence by telephone. 156 After Mr Galbraith's evidence had finished, the Respondent's case ended more quickly than Mr Polin had been expecting. Witnesses who Mr Polin wished to call, and who no longer worked for the Appellant, were not available, and were not in Sydney that day. In response to a suggestion from the judge that their evidence might be taken by telephone, Mr Polin expressed reluctance to do so: "POLIN: Well I would think so because your Honour is at the end of the day I anticipate going to have some widely different versions. HIS HONOUR: Yes. POLIN: I mean you already have them and I would have thought in circumstances where your Honour has basically got to accept certain versions over other versions in relation to reliability and whatever I think I would prefer your Honour to see the witnesses." 157 Even at that stage he did not make a submission that the decision to permit Mr Galbraith's evidence to be given by telephone should be revisited. 158 In these circumstances I am not persuaded that the judge made any appellable error in permitting the evidence to be given by telephone. In coming to that conclusion, I say nothing about what the situation would have been if objection had been taken. Adequacy of the Judge's Reasons 159 There has been no dispute in the present case about the principles by reference to which the adequacy of a trial judge's reasons should be decided. 160 In Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 Ipp JA (with whom Mason P and Tobias JA agreed) said, at [28]-[29]: "It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: "I believe Mr X but not Mr Y and judgment follows accordingly". That is not the way in which our legal system operates. I hasten to add that this is not what the trial judge did in this case. Her Honour gave detailed reasons as to why she preferred Mr Arsic's testimony. Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent." 161 The criteria for adequate reasons for judgment include that the judge should refer to relevant evidence, should set out any material findings of fact and any conclusions or ultimate findings of fact reached, and that the judge should provide reasons for making the relevant findings of fact and conclusion: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. 162 In my view, the judge has not set out all the relevant evidence, nor has he given reasons why, in light of the relevant evidence, he comes to the conclusion that the plaintiff's account of the incident is correct. 163 While the judge gave a reason for not placing reliance on the histories in the medical reports, he gave no reason why he did not give weight to the Record of Injury Treatments form. While it may be said with some justification that a medical practitioner will frequently record as history only those matters that are relevant to diagnosis and treatment, and that frequently the precise circumstances in which an injury was sustained do not matter for the purpose of diagnosis and treatment, documents like the Record of Injury Treatments form, and the claim form, have a different purpose, for which the circumstances in which the injury occurred can be important. Such documents call for some consideration. While the judge has recorded the terms of the Record of Injury Treatments form, he says nothing about the significance, or lack of significance, that he accords it. 164 The judge's conclusion that he is satisfied that the plaintiff and his witnesses and his wife have told the truth, is reached without giving consideration to the expert evidence. While the judge says that he did not get assistance from the experts, he does not explain why. There are some matters in their evidence that need to be dealt with. It will be recalled that the Respondent came to accept that a hole of the size that he fell into could not have been constructed while the culvert was still in place, but said that it was nonetheless possible for the hole to have been constructed because parts of the culvert were pulled out from time to time. There was also some evidence from Mr Galbraith about culverts being put in and taken out from time to time. However, there was also evidence from Mr Garrido that sections of the culvert could not be taken out because they lock in together. As well there was evidence from Mr Smith about the pipes being in place in the culvert before Beltreco's work started on dam 6. The judge says nothing about how that conflict in the evidence should be dealt with. 165 Another topic in the evidence that the judge did not discuss concerned what, if anything, the judge made of the evidence that compaction of a layer of sand or clay over the dam surface was a prerequisite to the laying of the lining, and that if there had been a hole of the size the Respondent said, compaction would have caused the dam wall to become unstable. 166 The judge does not deal with the evidence concerning the Respondent carrying out a detailed inspection of an area before starting work on lining that area, yet not seeing a hole of the size he says he fell into. 167 No consideration is given to the significance of the evidence of Mr Smith going over the area six to eight times in a day, if not more, and Mr Garrido walking over the site daily. The judge regards them as largely acceptable witnesses, yet does not seek to explain how they (a) could miss a hole of the type the Respondent described, and (b) could see a hole in the location where the Respondent said he fell, that was 600-800mm deep. 168 No consideration is given in the judgment to evidence about where pipes actually passed, (and in particular at what depth) in going from the culvert to eventually emerge through the services slab. That bears upon what purpose could be served by having a hole of the depth the Respondent gave evidence about, at that location. 169 Any consideration of the weight of Mr Garrido's evidence would need to take into account the quite extraordinary circumstance that, as the man who had been the engineer in charge of the job, he prepared an expert report that stated incorrectly the composition of the dam wall, when that composition was an essential element of the theory he was putting forward about why a hole of the depth that the Respondent claimed could not exist. That circumstance gives rise to a question about whether that serious error in his report affected the weight to be given to his other evidence. 170 As well, the judge did not give consideration to what effect the incorrectness of Mr Garrido's evidence about the composition of the bank had on the reliability of the views expressed by Dr Redman and Mr Henstock. Both Dr Redman and Mr Henstock proceed on the basis that the statement in Mr Garrido's report about the composition of the bank was correct. A question arises of how much of their views remained reliable, once the composition of the bank was known to be (apart from the top 100mm) virgin earth. 171 In all these circumstances, the case presented by the defendant has not been dealt with. Dealing with it involves questions of credibility that cannot adequately be decided from the papers. Regrettably, there is no alternative to having a new trial. The Notice of Contention 172 Ms Norton SC, counsel for the Respondent on the appeal, relies on the fact that it is common ground that there was an excavation in the top of the eastern wall of pond 6, at the area where the service slab was later located. The difference between the parties related only to the depth of that excavation, with the Appellant contending that it was only about 800mm deep. By the Notice of Contention the Respondent submits that "If it is found that the respondent fell into a hole more than about 800mm but less than 1.5 metres in depth then the trial judge should have found the appellant liable in negligence". 173 While it is common ground that there was an excavation of at least 600-800mm deep at the site of the services slab, it is not common ground that it was that excavation that the Respondent fell into. There is a dispute about whether the Respondent fell into any hole at all, rather than slipped. Resolution of that question could involve questions of credit that cannot be decided on the transcript. It is not possible to take the course that the Notice of Contention seeks. Orders 174 I propose the following orders: (1) Appeal allowed. (2) Set aside the judgment in the court below. (3) Remit the matter to the District Court for re-trial. (4) Respondent to pay costs of the Appellant of the appeal. Respondent to have a certificate under the Suitors Fund Act 1951 if entitled. (5) Costs of the hearing in the court below reserved to the judge who hears the new trial. 175 BARR J: I agree with Campbell JA. ********** 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.