Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Amanda's On The Edge Pty Ltd v Dries [2011] NSWCA 358 Hearing dates: 21 October 2011 Decision date: 24 November 2011 Before: Allsop P at 1 Beazley JA at 39 Giles JA at 40 Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - civil - fact finding - competing evidence - no error in approach of primary judge. TORTS - negligence - intoxication - not proved that plaintiff intoxicated to extent that capacity to exercise reasonable care and skill impaired. Legislation Cited: Civil Liability Act 2002 (NSW), ss 49 and 50 Category: Principal judgment Parties: Amanda's On The Edge Pty Ltd (Appellant) Andrew James Dries (Respondent) Representation: Mr R W Seton SC and Mr D P M O'Dowd (Appellant) Mr J E Sexton SC and Mr C A W Hart (Respondent) Holman Webb (Appellant) Bale Boshev Lawyers (Respondent) File Number(s): 2010/322888 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-09-14 00:00:00 Before: Sidis DCJ File Number(s): 2008/314501 Judgment 1ALLSOP P: At about 12:30am on 19 March 2007, Mr Andrew Dries, the respondent (plaintiff below) fell from an unguarded wall. The wall was adjacent to a sloping driveway leading to a garage underneath a building that housed the appellant's restaurant, located in the Hunter Valley. 2Mr Dries had been one of a number of guests celebrating the wedding of two friends, Rebecca and James Bax. 3An understanding of the layout of the premises: the restaurant building, the lawn, the marquee, the driveway and the configuration of the road assists in understanding what happened. These reasons necessarily assume some familiarity with the layout that is best appreciated by referring to the bundle of photographs used by counsel in the appeal, being Exhibits H, 3 and A and photographs 1 to 43 of Dr Cubitt's expert report. 4It is to be appreciated that the primary judge had a view of the premises, which her Honour described as follows: "At the request of the defendant I attended the premises at about 8:30pm on 7 September 2010. Regretfully, because the restaurant was operating, I was unable to view the premises with the internal and external lighting turned off and I was therefore unable to replicate the conditions claimed by the plaintiff to exist at the time of his fall. I was able to note that the area of the garden through which the plaintiff walked was well lit by verandah lighting as was the void into which he fell ." (Emphasis added.) 5At the end of the evening, Mr Dries and his partner Ms Amy Tunbridge had headed off from the marquee in a northerly direction, that would have taken them across the lawn in front of the restaurant to where their car was parked, to the north of the restaurant. While they were walking in that direction, they were called by friends who were standing approximately at the lamp post at the top of the driveway to the south of the restaurant building, at about the point where the road heads west. Mr Dries and Ms Tunbridge apparently turned and retraced their steps in a southerly direction, to a point roughly adjacent to the southern part of the restaurant building. At this point, hearing the voices of those at the top of the drive, Mr Dries proceeded to the right (to the west) in that general direction. This took him into a garden bed which he crossed and through some shrubs and bushes. On the other side of the bushes, some feet further, was the concrete wall and a drop from where he fell some six feet. 6Important to the primary judge's conclusions was the state of the lighting. It was necessary for the primary judge to resolve competing evidence about this. The resolution of this competing evidence was undertaken, in part, by reference to the demeanour and credit of witnesses. It is thus necessary to pay close regard to the reasons of the primary judge, upon which there was a precise, focused attack. 7The immediate background to the events was described by the primary judge as follows: "By 12:30am only about six or eight persons remained in the area of the marquee. They included the bride and groom, the plaintiff, Miss Tunbridge and two other guests with whom the plaintiff and Ms Tunbridge were proposing to drive to their nearby overnight accommodation. The bride and groom had a conversation with the manager of the restaurant, Ms Michelle Stanley, who told them that she was closing up. She did so and left the premises with a waitress who was working on that night, Ms Clark." 8The primary judge then, having described the fall, described the plaintiff's claim as follows: "The plaintiff's claim was based on the contention that when Ms Stanley closed the restaurant, she turned off all internal and external lighting with the exception of some form of dim emergency light inside the restaurant. As a result the plaintiff said it was very dark. He believed when walking through the garden bed that he was following a path and he saw no indication of the edge of the retaining wall or the void into which he fell." 9The primary judge then recorded Ms Tunbridge's evidence, as follows: "Miss Tunbridge confirmed that she and the plaintiff were diverted from their original path to the north by members of the wedding party calling from the other side of the restaurant. She said she was unable to see the persons who called to her. She said she and the plaintiff followed the side of the restaurant building and took what appeared to her to be a path through the garden bed. She said it was very dark and it was difficult to see where they were walking. The plaintiff walked ahead of her, holding her hand, when he fell. Miss Tunbridge denied that there were any lights internal or external to provide illumination, with the exception of one dim light in the restaurant." 10The evidence of Ms Becker, one of the bridesmaids, was to the same effect - that it was dark when she called out to Mr Dries and Ms Tunbridge. The primary judge recorded the following: "Like Miss Tunbridge, she said there was only a dim light in the restaurant. She said the lighting, internal and external, was turned off from the time she walked from the area where the marquee was erected towards the car park area. She agreed that it had been very well lit during the period of the function." 11Ms Hawes, another guest, gave similar evidence as recounted by the primary judge: "Miss Hawes was also to travel with the plaintiff and Miss Tunbridge to their overnight accommodation. She walked with Miss Becker to the point from which the bus was leaving. She said some members of the wedding party left on the bus. She heard the voices of the plaintiff and Miss Tunbridge call from the direction of the marquee and she called back to them. She said she was unable to see them. Miss Hawes said that at this point there were no interior or exterior lights turned on in the restaurant except for a dim light inside the restaurant. She said she was very sure that there were no lights on the verandah of the restaurant. Miss Hawes believed that the lights were turned off as a signal that the remaining members of the wedding party should leave the premises." 12Witnesses called by the defendant gave evidence that the verandah lights of the restaurant were left on. Ms Patton, the proprietor, left some hours before the incident. Relevantly, the primary judge recorded the following about her evidence: "She said, however, that it was restaurant policy to leave verandah lights turned on if guests remained in the area of the premises when staff went home. She agreed that a light provided over a door to the garage entry was not turned on." 13Ms Stanley was the restaurant manager responsible for closing up. The primary judge recorded the following about her evidence: "She said she locked up, leaving the verandah and car park lighting turned on. She said she did this after she told the bride that the restaurant was closing and that she would leave the verandah lights turned on. She said she also pointed out that there was an external toilet accessed from the verandah that could be used by the remaining guests if necessary. She said she then turned off the internal lights but not the verandah lights. She said when she left there were about six guests remaining on the premises. She drove away in her car with two waitresses. At the time she left the remaining guests were in the area of the marquee and she waved to them." 14No one called the bride. 15Ms Clark was a waitress working that night. The primary judge recorded the following: "She confirmed Miss Stanley's evidence that the verandah lights were left on after the restaurant was closed up." 16The central consideration of lighting was described by the primary judge as follows: "Evidence was called from experts, Dr Cubit [sic: Cubitt] and Mr Beckett, of the lighting conditions that established that, in the absence of artificial lights or any form of moonlight, the area through which the plaintiff and Miss Tunbridge walked would have been very dark and that, with the verandah lights turned on, there was more than an adequate level of lighting to illuminate that area." 17It should not be taken from that, however, that the plaintiff/respondent conceded that if the lights were on, the appellant/defendant was not liable. I will return to this proposition in due course. 18The primary judge posited the central issue as follows: "The issue therefore to be decided was which of the competing versions as to the level of lighting provided was to be accepted. In this respect the evidence of Mr Backs [sic: Bax], the bridegroom, was critical to my conclusion. He was called by the defendant in support of its case. He confirmed the conversation with Miss Stanley immediately prior to her departure. He confirmed that the verandah lights were switched on at the time that he and other remaining members of the wedding party moved to the car park area to the west of the building. He said that while he was in that area he heard a big bump and he saw a shadow on the concrete in the void into which the plaintiff fell. He said he was just able to make out a shadow on the concrete and that the area where the plaintiff fell was very dark. He agreed that he did not know if the lights were turned off after he moved from the area of the marquee. He also said it was possible that the plaintiff fell into an area of shadow thrown by the verandah light. My conclusion that the area where the plaintiff fell was in darkness was based upon the evidence of Mr Backs and on my observation during the site inspection, that the verandah light provided a considerable degree of illumination to this area. My observations were consistent with the evidence of the defendant's expert, Mr Beckett, that his light readings indicated that when the verandah lights were turned on, there was more than adequate illumination. Although I accepted that some shading might be created by that lighting it could not be said that the light left the area generally very dark as described by Mr Backs, Miss Tunbridge, Miss Becker and Miss Hawes. I am not prepared to conclude that Miss Clark lied to the Court. Some of Miss Stanley's evidence was unsatisfactory. She attempted to avoid a finding that the unguarded wall presented a hazard generally to patrons of the restaurant and their children who might play in the area of the lawn and gardens at the front of the restaurant, by denying that it was used for that purpose. She also denied that any part of the function on 18 March 2007 took place on the lawn area when the wedding ceremony itself was held there. I concluded therefore that Miss Clark was reconstructing her evidence based upon the usual practice adopted at the restaurant and that Miss Stanley was wrong in her recollection that she left the verandah lights turned on. I concluded that the wedding party left the marquee prior to the point at which Miss Stanley turned off the lights and that Mr Backs was correct in stating that the lights were on when he left the area of the marquee and walked to the western side of the building. I concluded that between that time and the time when the remainder of the wedding party arrived on the western side of the building the lights were turned off, leaving the area in darkness." 19As can be seen from these reasons, relevant to the primary judge's conclusions were (1) her observations from the view, in particular the observations of the light cast by the verandah lighting upon the area where Mr Dries fell, (2) her assessment of Ms Stanley's evidence and demeanour, and (3) an assessment of all the evidence including that of Mr Bax in reconciling apparently starkly contradictory versions of events. 20Before turning to the appellant's attack on these conclusions, an error in the third sentence of the second paragraph of the last-mentioned passage from her Honour's reasons should be noted. The appellant conceded that Mr Bax did not confirm in his evidence the conversation with Ms Stanley immediately prior to her departure. 21The attack on the finding about the lighting was based on the combination of a finding of fact and the primary judge's acceptance of Mr Bax's evidence and one piece of Ms Stanley's evidence that was not specifically the subject of cross-examination which, together, it was said, made the conclusion that Ms Stanley turned the lights off before she left impossible. Thus, it was submitted, there was incontrovertible evidence contrary to the factual finding as to lighting that had been based, in part, on the assessment of witnesses. 22The relevant finding and the evidence of Mr Bax said to be correct were that when the wedding party and Mr Bax left the marquee area the lights were on (see Red Book pp 25W-26C). Ms Stanley's evidence was that as she drove away she beeped her horn and waved to "the remaining people, mostly the bride and groom and a few of their wedding guests". When asked where they were "when you beeped them", she replied, "They were just down near the marquee on the grass" (see Black Book p 136 R-W). 23Thus, if Mr Bax was there when she left, the lights were on, the restaurant had been locked up, all the staff had left and, the light switch being located inside the restaurant, there was no way the lights could have been turned off. 24There are a number of considerations which militate against accepting this hypothesis. First, nowhere in her reasons does the primary judge reject the evidence of Ms Tunbridge, Ms Becker and Ms Hawes that the lights were, at the times they identified, off. Secondly, it was not put to these three witnesses that they were at the marquee when Ms Stanley drove off. Thirdly, the evidence does not support any clear finding that Mr Bax and the "wedding party" moved away from the marquee area at the same time as Mr Dries, Ms Tunbridge, Ms Becker and Ms Hawes. Mr Bax's evidence was not clear on the point. The primary judge, in the critical parts of her findings, drew the distinction (at least textually), between "the wedding party" and "Mr Bax", on the one hand (Red Book p 25 W-X), and the "remainder of the wedding party", on the other hand (Red Book p 26D). Fourthly, the findings are consistent with the primary judge (without expressly saying so) rejecting this part of Ms Stanley's evidence or at least such part of it as had Mr Bax and the bride at the marquee when she left. 25True it is that this precise piece of evidence of Ms Stanley was not the subject of cross-examination. But there was no shortage of conflict and cross-examination about the turning off of the lights. As I have noted, Ms Tunbridge, Ms Becker and Ms Hawes were not cross-examined about Ms Stanley leaving. 26Ms Stanley's evidence was found to be unsatisfactory. Two matters were referred to by the primary judge (Red Book p 25 N-T). Each was criticised on appeal as unfair. I would reject at least part of this criticism of the primary judge. Looking at the transcript of Ms Stanley's evidence, concerning use of the lawn (Black Book pp 140-141) (without the advantage of being present), it is not inconsistent with an attitude that could have legitimately founded the primary judge's conclusion. The criticism that Ms Stanley denied that any part of the function took place on the lawn is not supported by the evidence. That being accepted, it is not sufficient to undermine the primary judge's view that Ms Stanley's evidence in a central respect (the lights) was not correct and not to be relied on. 27The reasons of the primary judge are not long. No criticism was made of that. They were delivered orally, shortly after the trial. They reflect an attempt to resolve stark differences of evidence of events which occurred over three years previously and late at night. Part of that resolution was the lack of acceptance of one witness on a critical matter. Disturbance of the resolution requires the acceptance of another aspect of that witness's evidence which, though not specifically cross-examined on, was an aspect of the evidence, when given, adjectival to her central evidence that she had not turned off the lights. The other material in the case does not require the acceptance of that piece of evidence as either uncontroversial or incontrovertible. Indeed the evidence of three people whose evidence is consistent with the primary judge's findings would have to be taken to be rejected. In my view, the finding by the primary judge as to the lights being off should not be interfered with. The submission of the appellant is that there is an indefensible inconsistency in the findings based on incontrovertible evidence, warranting a new trial. I am not persuaded that this Court must treat the evidence of Ms Stanley about who was at the marquee when she left as mandatory to accept, rather than as something that the primary judge rejected as unacceptable in the task before her. 28The evidence of Mr Bax that the lights were on when he left the marquee, does not conclude the question that they were off when others were still at the marquee and when he was near the lamp post. He gave evidence of adjusting his eyes and of the darkness of the driveway where Mr Dries lay. There was some suggestion in argument that this must be taken as shade from the lights on the verandah then on. But the difficulty with accepting this is the primary judge's finding, in part from her own observation on the view, of the illumination of the verandah lights (Red Book p 25 G-M). 29In my view, the finding as to lighting should not be disturbed. If I be wrong about this, I would remit the matter for a retrial. It would not be possible to conclude (on this hypothesis) more than that the fact finding had miscarried. Resolution of the issue as to lighting and the consequences of any finding that might be made that the lights were on (including concerning contributory negligence) would require an evaluation of the primary evidence in a manner only able to be conducted by a trial judge. Contributory negligence 30With the findings as to lighting undisturbed, I would reject the attack on the primary judge's rejection of contributory negligence. The primary judge said the following (Red Book pp 28X-29N): "Somewhat extraordinarily having denied that there was any risk in leaving the wall without a balustrade, the defendant argued that the wall represented an obvious risk, against which the Civil Liability Act required it to take no precautions. It was argued that the plaintiff failed to take responsibility for his own safety by taking the shortcut through an area into which no one in his right mind would venture. This proposition assumed that the plaintiff was aware of the presence of the unguarded drop from the wall. This was not suggested to him at any stage by the defendant. In such circumstances I did not consider it unreasonable that the plaintiff, finding an opening having the appearance of a pathway leading to the part of the premises to which he wished to walk, took the route offered to him by the gap between the shrubbery. As contended by his counsel, in taking that route through the garden bed, he would not reasonably expect to encounter the unusual and serious hazard represented by an unguarded drop of close to three metres." (Emphasis in original.) 31If the appellant had suffered injuries referable to entering a garden bed consequent upon tripping or losing his footing in loose soil, some contributory negligence might well have been required. Here, however, in the dark, he took what appeared to be a shortcut to reach a place from where the voices were coming, walked through bushes, and, in the dark, plummeted six feet onto a driveway. The reasoning of the primary judge is not to be criticised. Alcohol 32Sections 49 and 50 of the Civil Liability Act 2002 (NSW) are as follows: " 49 Effect of intoxication on duty and standard of care (1) The following principles apply in connection with the effect that a person's intoxication has on the duty and standard of care that the person is owed: (a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person's capacity to exercise reasonable care and skill is impaired as a result of being intoxicated, (b) a person is not owed a duty of care merely because the person is intoxicated, (c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person. (2) This section applies in place of a provision of section 74 of the Motor Accidents Act 1988 or section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision. 50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated. (3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced." 33The finding of alcohol consumption by Mr Dries was not challenged: five to six beers and one to two bourbon and cokes during the occasion, over about six to six-and-a-half hours. 34The primary judge dealt with the issue as follows (Red Book pp 29N-30F): "In respect of alcohol, the plaintiff conceded that he drank five to six beers and one to two bourbons in the course of the wedding reception. The defendant argued that this affected his capacity for reasoned judgment. The plaintiff was holding an unopened stubby of beer at the time of the fall. The plaintiff said this had been given to him but he did not feel like drinking it and was proposing to take it back to his overnight accommodation. Miss Tunbridge, who was trained in the Responsible Service of Alcohol, said that the plaintiff was not significantly intoxicated. She accepted that he was to some degree affected by the alcohol he consumed during the function. It was not suggested to the plaintiff, Miss Tunbridge, Miss Becker, Miss Hawes or Mr Backs, that the plaintiff was so heavily intoxicated that his judgment of physical coordination was affected. Further, Miss Tunbridge, who was driving and therefore drank very little during the course of the function, made the same decision as the plaintiff to take the route through the garden bed. I therefore declined to conclude that the incident was the consequence of, or contributed to, by the plaintiff's level of intoxication." 35The first paragraph in the above quotation reflects the primary judge directing herself to s 50(1). What follows can be taken as dealing in a condensed way with s 50(1) and s 50(2) and (3). Some more precision would have been desirable. 36The requirement of s 50(1) was not established. The "extent" of the intoxication relevant for such a finding will depend on the circumstances and the subject or subjects in respect of which the reasonable care and skill may be impaired. Operating machinery, driving a car or flying a plane may be tasks where very little alcohol would be required for the person's capacity to exercise skill and care to be impaired (adequately satisfied by six beers and two bourbons). Here, the care and skill was walking over open ground to get to a destination. There was no reason for him, in the dark, to suspect such a danger as befell him. 37The findings of the primary judge were adequate as to s 50(1) not being satisfied, or, alternatively, as to s 50(3) being made out. Result 38The appeal should be dismissed with costs. 39BEAZLEY JA: I agree with Allsop P. 40GILES JA: I agree with Allsop P. ********** 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. Decision last updated: 24 November 2011