Singh v Panjabi Sangeet Centre [2008] NSWCA 19

New South Wales Court of Appeal

CITATION: Singh v Panjabi Sangeet Centre [2008] NSWCA 19

HEARING DATE(S): 27 February 2008

JUDGMENT DATE: 27 February 2008

JUDGMENT OF: Beazley JA at 32, 34; Hodgson JA at 1; Tobias JA at 33

EX TEMPORE JUDGMENT DATE: 27 February 2008

DECISION: The appeal dismissed with costs. The Notice of Motion for orders as to the incompetency of the appeal is also dismissed with costs.

CATCHWORDS: TORT - Negligence - Whether primary judge's preference for the defendant's witneses was justified - Whether adquate reasons given - Whether judge should have made clear findings as to what happened to the plaintiff.

LEGISLATION CITED: Trade Practices Act

CATEGORY: Principal judgment

PARTIES: Premila SINGH (Appellant) PANJABI SANGEET CENTRE INCORPORATED (Defendant)

FILE NUMBER(S): CA 40214/07

COUNSEL: S NORTON SC (Respondent) J E SEXTON SC (Respondent)

SOLICITORS: Bryden's Law Office (Appellant) Lee and Lyons (Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2843/05

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 16 March 2006

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40214/07 DC 2843/05

BEAZLEY JA HODGSON JA TOBIAS JA

27 FEBRUARY 2008 Premila SINGH v PANJABI SANGEET CENTRE INCORPORATED Judgment 1 HODGSON JA: On 10 April 2005, the appellant fell and sustained injury while attending a cultural festival conducted by the respondent. She brought proceedings against the respondent claiming damages. On 16 March 2006, Ashford DCJ determined these proceedings, giving a verdict and judgment for the respondent and ordering the appellant to pay the respondent's costs. The appellant appeals from that decision. 2 We are dealing with that appeal, and also with a motion brought by the respondent seeking an order to the effect that the appeal is incompetent. Having regard to the view that the court has reached on the merits of the appeal, it is not necessary to deal with the notice of motion. However, I would comment that the notice of motion should have been brought within a limited time after the lodging of the appeal, and it was not brought when it should have been brought. 3 At the trial the appellant gave evidence that she had been born in Fiji in 1954, had married in 1975, and came to Australia with her husband and children in 1990. On the day of the accident, she and her friend, Ms Nadan, arrived at Blacktown Showground at about 12.30pm for a cultural festival. They paid an admission charge and for a time watched some entertainment on a stage. There were some hundreds of people present. 4 The appellant gave evidence that she and Ms Nadan then went to stalls selling food, and they had lunch. The appellant's evidence was that, as they went back to the stage area, she tripped on something and fell to the ground on her right arm. When she stood up, she saw a rope running along the ground, and two men with turbans doing something with the rope. She said "this rope was not here", and one of the men said "sorry, we are marking this for the sport, the sports is going to be held here". 5 The appellant's evidence was that the ground was hard and the grass was brown, and that the men were about three to four metres apart, the one on her right who spoke to her being "not even a metre from where I fell". The other man was standing near a post. The rope was tied right at the bottom of this post and was lying on the ground and was straight. It was rope coloured and maybe as thick as the appellant's finger. The appellant said she did not see the rope before she fell because there were "so many people around". 6 Ms Nadan gave evidence to somewhat similar effect. She was walking maybe a metre behind the appellant when the appellant fell, and she looked and there was a rope on the ground. However, Ms Nadan could not remember if there was a post the rope might have been attached to, and she said it was in a coil sort of position, it was "like twisted" and was not straight. 7 Both the appellant and Ms Nadan drew diagrams showing the stalls to which they went as being in an area to the left of the stage, looking from the stage; and showing the rope as extending across the front of the stage to a point near the stalls, and locating the fall as being at a point to the left of the stage or perhaps opposite to the left extremity of the stage. 8 The defendant called three witnesses: Mr Dharia, who said he was the overall organiser of the event; and Mr Pooni and Mr Khakh, who said they had erected the rope for the sporting events on that occasion. All of them gave evidence that this rope was erected in an area to the right of the stage, looking from the stage, and that the stalls were some distance from the stage generally in front of it and extending both to the left and right of it. 9 Neither Mr Pooni nor Mr Khakh had any recollection of the appellant or of anyone falling; and for her part, while the appellant remembered seeing Mr Dharia on the stage, she had not seen either Mr Pooni or Mr Khakh before. 10 Mr Pooni gave evidence that there was an area intended to be roped off and that was roped off by him and Mr Khakh. They got the rope from behind the stage, the rope being fluorescent orange, about five millimetres diameter and about 50 to 60 metres long. They set it up in an L-shape to the right of the stage, and they used about 15 poles each about one metre high. Mr Pooni said that he banged the poles in with a hammer, and as each pole was hammered in the rope was looped round the top and pulled taut, this being done by both Mr Pooni and Mr Khakh. The poles were about six metres apart. At the venue there were other ropes on tents, but this was the only rope erected where races were to be conducted. When they set up the rope, there were no other people there. 11 Mr Khakh gave somewhat similar evidence, although he gave very different estimates as to the length of the rope and also as to the distance of the stalls from the front of the stage. His evidence was also rather vague about the procedure for looping or tying the rope to the top of the posts. 12 Mr Dharia gave evidence to the effect that Mr Pooni and Mr Khakh roped off the area for the sports, and gave evidence also that there were few people in that area when the ropes were set up. 13 So far as concerns this appeal, the important part of the decision of the primary judge was her decision rejecting a case of negligence against the respondent. The case was put both in terms of negligence at common law and also a failure to take due skill and care in terms of s 74 of the Trade Practices Act. However, nothing was made of any possible distinction between those two causes of action. 14 The reasons for the primary judge's decision adverse to the appellant are set out in paras [26]-[31] of her judgment as follows: 26. The evidence in relation to the rope over which the plaintiff is alleged to have fallen differs. On the one hand the plaintiff described the rope as being "rope coloured". The witnesses for the defendant described the rope as being 'orange fluoro'. The plaintiff's witness was not asked the colour of the rope. There is general consensus that the surface of the showground was dry grass. The plaintiff and her friend did not recognise any of the defendant's witnesses as being the persons present in connection with tile rope. The defendant's witnesses did not recognise the plaintiff or her friend.