Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McDonald v Shoalhaven City Council [2013] NSWCA 81 Hearing dates: 2 April 2013 Decision date: 18 April 2013 Before: Beazley P at [1]; Ward JA at [71]; Simpson J at [72] Decision: 1. Appeal allowed; 2. Set aside the verdict and judgment entered for the respondent; 3. Remit the matter to the District Court for rehearing; 4. Order that the respondent pay the appellant's costs of the appeal; 5. Order that the costs of the first trial abide the outcome of the remitted hearing. [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: TORTS - negligence - statutes and regulations - breach - Civil Liability Act 2002, 3B(1)(f). TORTS - negligence - statutes and regulations - breach - Civil Liability Act 2002, 5B(1)(b). TORTS - negligence - duty of care - employment - derivative duty to rescuer. TORTS - negligence - causation - failure to consider relevant evidence. Legislation Cited: Civil Liability Act 2002 Occupational Heath and Safety Regulation 2001 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Bulstrode v Trimble [1970] VR 840 Chapman v Hearse [1961] HCA 46; 106 CLR 112 Czatyrko v Edith Cowan University [2005] HCA 14; 214 ALR 349 Shaw v Thomas [2010] NSWCA 169 State of New South Wales v Ball [2007] NSWCA 71; 69 NSWLR 463 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Category: Principal judgment Parties: Christopher McDonald (Appellant) Shoalhaven City Council (Respondent) Representation: Counsel: B Toomey QC; M McManamey (Appellant) J Sexton SC; R Gambi (Respondent) Solicitors: Slater & Gordon Lawyers (Appellant) DLA Piper Australia (Respondent) File Number(s): CA 2012/25853 Publication restriction: No Decision under appeal Jurisdiction: 9101 Citation: Christopher McDonald v Shoalhaven City Council Date of Decision: 2011-10-27 00:00:00 Before: Cogswell DCJ File Number(s): DC 2010/101628 HEADNOTE [This headnote is not to be read as part of the judgment] The appellant was injured whilst assisting an employee of the respondent out of a trench which had collapsed. The appellant was not an employee of the respondent. The trial judge held that the respondent owed the appellant a duty of care but found that the duty had not been breached: Civil Liability Act 2002, s 5B. On appeal to this Court, four issues arose for determination: (1)Whether the appellant's claim was governed by the Civil Liability Act 2002. (2)Whether the trial judge erred in failing to consider that the duty owed to the appellant was in the nature of the duty owed by an employer to an employee. (3)Whether the trial judge failed to consider all of the evidence relating to the collapse of the trench and therefore fell into error. (4)Whether the trial judge erred in applying the term "not insignificant" in the Civil Liability Act 2002, s 5(b)(1)(b) as if it bore the same meaning as the word "significant". The Court allowed the appeal. Held per Beazley P (Ward JA and Simpson J agreeing): In respect of (1): i.The Civil Liability Act 2002, s 3B(1)(f) must be interpreted literally even though a literal construction may produce anomalies: [10]. The appellant's claim was governed by the Civil Liability Act 2002. Applied: State of New South Wales v Ball [2007] NSWCA 71; 69 NSWLR 463. In respect of (2): i.The respondent owed a duty to take reasonable care to avoid injury to those individuals whom it was reasonably foreseeable would render assistance to employees of the respondent who were in a position of danger brought about by the respondent's alleged negligence: [15]-[16]. Considered: Czatyrko v Edith Cowan University [2005] HCA 14; 214 ALR 349. Applied: Chapman v Hearse [1961] HCA 46; 106 CLR 112. In respect of (3): i.The trial judge failed to determine whether he accepted the appellant's evidence and to consider the respondent's evidence in that light. Accordingly, the trial judge erred by failing to properly weigh all of the evidence and base his determination on his assessment of the evidence: [62]-[63]. In respect of (4): i.The "not insignificant" test is more demanding, but not by very much, than a test that required a risk to be "not far-fetched or fanciful": [67]. This ground of appeal became redundant due to the nature of the disposition of the appeal: [68]. Considered: Shaw v Thomas [2010] NSWCA 169; Civil Liability Act 2002, 5b(1)(b). Judgment 1Beazley P: The appellant was injured whilst assisting an employee of the respondent out of a trench which had collapsed. The appellant was not an employee of the respondent and the trial judge characterised him as a volunteer and found that the respondent owed him a duty of care in accordance with the principles in Chapman v Hearse [1961] HCA 46; 106 CLR 112. However, the trial judge dismissed the appellant's claim for damages on the basis that he had not established a breach of the duty of care the respondent owed to him. In finding that there had been no breach, his Honour applied the provisions of the Civil Liability Act 2002, s 5B. 2The issues raised by the appellant on the hearing of the appeal may be summarised as follows: (1) Whether the appellant's claim was governed by the Civil Liability Act; (2) Whether the trial judge erred in failing properly to consider that the duty owed to the appellant was in the nature of the duty owed by an employer to an employee (this issue reflected the first part of ground 2 of the notice of appeal); (3) Whether the trial judge erred in failing to consider the question of breach of duty in the context of the duty thus owed to the appellant (this issue reflected the second part of ground 2 of the notice of appeal); (4) Whether the trial judge erred in failing to consider how the collapse of the trench occurred. (5) Whether the trial judge had properly considered all of the evidence, including evidence contrary to the evidence accepted by his Honour that the walls of the trench were dry and/or solid so as not to require shoring; (6) Whether his Honour erred in applying the term "not insignificant" in the Civil Liability Act, s 5B(1)(b) as if it bore the same meaning as the word "significant". (This issue was contained in ground 6 of the notice of grounds of appeal.) 3Not all of these issues resided in the notice of grounds of appeal. However, as no point was taken and the matters argued were met by the respondent, the Court permitted the appellant to advance his arguments notwithstanding a lack of correspondence between some of the arguments and the grounds of appeal. That the Court permitted this course should not be taken by litigants as a general licence to do so. Was the appellant's claim governed by the Civil Liability Act? 4The first issue raised by the appellant was that the appellant's claim was not governed by the Civil Liability Act. On this argument, the trial judge erred in having regard to s 5B(1) in determining whether the respondent had breached its duty of care to the appellant. The appellant submitted that the proper test to apply was the common law test as pronounced by the High Court in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40. 5The Civil Liability Act, s 5A provides: "5A Application of Part (1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. (2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B." 6Section 3B provides, relevantly: "3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: ... (f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies-the whole Act ..." 7The appellant contended that as the duty of care owed to him by the respondent derived from the duty of care owed to the respondent's employees, and as claims for damages for negligence brought by an employee against an employer were exempted from the Act by s 3B(1)(f), the appellant's claim was likewise exempted from the provisions of the Act. 8The civil liability that the appellant asserted against the respondent did not relate to an award to which the Workers Compensation Act 1987, Pt 5, Div 3 applied. Part 5, Div 3 of the Act applies, relevantly, to an award of damages in respect of an injury to a worker: see s 151E. Although the term "worker" is not a defined term within the Workers Compensation Act, that Act is a cognate Act with the Workplace Injury Management and Workers Compensation Act 1998. Section 4 of that Act defines "worker" as follows: "worker means a person who has entered into or works under a contract of service or a training contract with an employer ..." 9There was no relationship of worker and employer between the appellant and the respondent. The appellant, correctly, disavowed that his claim for damages was governed by the Workers Compensation Act, Pt 5, Div 3. It follows that this argument must fail. 10The appellant submitted, however, that there would be a significant incongruity in having the determination of a breach of a derivative duty of care determined in accordance with different principles than applied as between an employer and employee to whom the primary duty was owed. He contended, therefore, that s 3B should be given a construction so as to avoid any such incongruity. There are two immediate answers to that submission. First, it would do violence to the plain words of the section. Secondly, this Court has acknowledged that s 3B(1)(f) produces anomalies: see State of New South Wales v Ball [2007] NSWCA 71; 69 NSWLR 463 at [9]. 11In State of New South Wales v Ball, the Court was concerned with a claim by a detective chief inspector in the New South Wales Police Force for injuries caused in the course of his service. The plaintiff sought to avoid the application of Civil Liability Act, s 42 to his claim by pleading that his case was exempted by s 3B(1)(f). He acknowledged that his own case did not fall within the Workers Compensation Act, Pt 5, Div 3 because of legislation which provided that only police officers who joined the police service after a certain date were governed by its provisions. He had joined the service before that date. 12Ipp JA (McColl JA and Young CJ in Eq agreeing) stated: "9 There is no doubt that s 3B(1)(f) can produce anomalies. Indeed, that is the case as regards the legislation that presently governs civil liability in this state. For example, different persons injured in the same incident may be governed by one of three different statutory regimes, the Civil Liability Act, the Motor Accidents Compensation Act 1999 (NSW), and the Workers' Compensation Act. This may result in different legal consequences for each person. In Landon as Executrix of the Estate of the Late D Landon v Ferguson (2005) 64 NSWLR 131 at 135 [17] (with the concurrence of Hodgson JA and Santow JA) I said: 'The statutes in this State relating to workers compensation and common law damages claims by workers against their employers and others can be described as a hodge-podge. No consistent thread of principle can be detected ... In some cases it is difficult to discern under which particular statute the case falls, and difficult and sometimes illogical distinctions have to be drawn.'" (emphases added) 13In my opinion, the ratio in that case is applicable to this case and for that reason also, the appellant's first argument must be rejected. The words of s 3B(1)(f) are crystal clear and any resultant incongruity in damages claims brought in varying circumstances does not affect the clear meaning of the provision. What was the nature and content of the duty of care owed to the appellant? 14The appellant contended that the duty of care owed to him was derivative of the duty of care owed by an employer to an employee. He submitted, therefore, that the duty was of the same scope and content as the employer's non-delegable duty of care to an employee to take reasonable care to avoid exposing the employee to unnecessary risks of injury. The appellant referred the Court to Czatyrko v Edith Cowan University [2005] HCA 14; 214 ALR 349, where the High Court, at [12], stated the duty of an employer in the following terms: "If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness particularly in the case of repetitive work." 15Whilst this submission correctly captures the duty owed by an employer to an employee, the nature of the derivative duty owed to someone in the appellant's position is that propounded in Chapman v Hearse. His Honour, mirroring what the High Court said in Chapman, thus formulated the duty of care in the following terms, at [14]: "... whether, the [respondent] might foresee, as a consequence of its alleged failure to exercise reasonable care to its employees, the assistance which might be rendered at some risk to [themselves] of a volunteer nearby, fulfilling a moral and social duty to help the men who were in a position of danger brought about by the alleged negligence." 16His Honour held, correctly, that the respondent owed the appellant such a duty of care. 17As I understand the appellant's position at the end of the argument, he did not contend that his Honour erred in expressing the nature and content of the duty of care owed by the respondent to the appellant in these terms. The argument, as it was developed, essentially focused on two matters. The first matter was the correct test to be applied in determining whether there had been a breach of the duty of care owed to the appellant. This is dealt with below. The central issue that was agitated was the trial judge's failure to consider the appellant's evidence as to how the accident occurred in determining whether there had been a breach of the relevant duty of care. The submissions on this question, as developed, essentially involved a combination of the third, fourth and fifth issues articulated above, with a significant focus on the absence of any consideration of the appellant's evidence as to how the accident occurred. It is to that which I will now turn. Did the trial judge properly deal with all the evidence? 18The respondent called four witnesses, all of whom were employees and who were present at the site on the day the trench collapsed. One, Mark Russell, was in the trench when it collapsed and was the person whom the appellant assisted out of the trench. Another employee, Mr Bishell, who was also in the trench when it collapsed, was not called as a witness, because he could not be found. The four witnesses were all experienced employees with appropriate training in relation to the safety conditions of trenches and, in particular, what the static and dynamic factors were in determining when shoring should be put in place when a trench was being or had been dug. They all agreed that shoring was required: (1) When the trench reached a depth of 1.5 m or perhaps more than 1.5 m. This requirement derived from the Occupational Heath and Safety Regulation 2001, r 240(1); and (2) When water was seeping out of the walls, or to engage with the more technical term used by the witnesses, whether the ground was water charged. 19These witnesses also agreed that the condition and type of soil was also a relevant consideration in determining whether a trench should be shored. It was said that these conditions, that is, depth of trench, whether the ground was water charged and the condition and type of soil, might exist singly or in combination. The appellant embraced these matters as correctly reflecting the circumstances that indicated when shoring should be put in place in a trench. 20It should be noted at this point that whilst the depth of the trench was in issue at trial, the appellant on appeal did not pursue that question. 21Each of the four witnesses, including Mr Russell upon whom the wall collapsed, gave evidence that no conditions were present on the day of the accident such as to require that the walls of the trench be shored. This evidence needs to be considered in a little detail and in the context of what had occurred to cause the trench to be dug. 22Sometime during the night prior to the accident, an underground pipe had commenced to leak, causing water to rise to the surface and seep out between the gutter and the road base. The pipe operated under pressure and earlier in the morning, at about 9 am, Mr Lawrence, a service waste water pump attendant, turned off the pressure, so that the water leakage was substantially reduced. Mr Lawrence said that there was moisture in the surface soil above the pipe. 23The pipe had been laid in a trench which extended from the roadway underneath the curb and guttering through to a grassed area. On the day of the accident, the location of the original trench was ascertained by digging a number of test holes with a backhoe. Each hole was dug to a depth of 250 mm, save for the last hole which was dug to a depth of 600 mm. Each of the holes filled up with water as they were dug. Once the trench in which the pipe had been laid was located, the backhoe was used to dig out the soil in the trench so as to give access to the pipe. As will be apparent from what I have already said, this did not involve digging a new trench. Rather, what was being dug out was the soil and other material that had been placed in the trench when it was filled in after the pipe was laid. This material was placed on the grass near the trench. 24When the pipe was located within the trench, it was still leaking slightly. The repair of the pipe required a particular part, called a "gibble", to be brought to the site to be placed around the hole in the pipe that was causing the leak. The part did not arrive until approximately 1 pm-1:30 pm. 25Mr Conroy was a waste water coordinator and the senior person at the site on the day of the accident. He had been employed by the respondent for about 20 years and had undergone a course relating to trenching and the shoring of trenches in June 2002. Mr Conroy said that when he arrived at the site, he observed water sitting on the grass area and also spilling over onto the roadway. The water spread for about 2 m. Mr Conroy explained that for water to come to the surface, "it only needs a point of entry, which could be a small crack in the ground". He said that in his experience, in the circumstances of a leaking pipe, the area of dampness upon excavation "could be as small as the size of a bucket". 26Mr Conroy described the "ground surface within the trench" during the period whilst the work crew was waiting for the part needed to repair the pipe to be brought to the site as, "very hard, very compact". He said that the only water was "the initial water that was on top". He also described "some leakage [in the trench], as the pipe was continually draining" and stated that the soil immediately around the pipe was wet. However, he said that a pump was used in the trench to remove any extra water. 27Mr Conroy left the site at about midday. He said that at that time, he considered that it was not necessary to shore the trench. He said that, given the "depth of trench, the fact that there was no water seeping out of any of the walls", there was no indication that the trench was water charged or that the ground was waterlogged. He also considered that as the pump had been turned off, "the flow had stopped coming out of the pipe". He added that there was "no obvious signs of any cracking or anything of that nature" at that time. Mr Conroy supported his observation that the ground surrounding the trench was not water charged by the observation, given by reference to the photographs of the trench taken the day after the accident, that the trench had not filled up with water. He stated, rhetorically, "if it was water charged ground why wouldn't [the trench] have just filled up with water?". 28Mr Conroy assessed that the trench had been dug to a depth of 1400 mm. It had also been necessary to undertake some further excavation immediately under the pipe so as to be able to place the girdle over the leak. However, Mr Conroy said that in his recollection there was no water sitting in the section of the trench underneath the pipe. He also said that the top 100 mm of the material that had been removed from the trench was wet and that in the area where the excavation was begun, the ground had been soggy. 29Mr Russell was a waste water attendant as at the date of the accident. He was in the trench when a portion of it collapsed. Mr Russell was an experienced employee, having dug thousands of trenches. He described the floor surface of the trench at the time when he was working in it up until 10 am as being "on shale, on rock and a bit of muddy water. A bit of mud from digging". He described the walls of the trench up until that time as: "... compressed road base, shale that had been wet [by] the leak of the pipe, that were firm. There was no thought that it was about to collapse." 30Mr Russell said that at the point when they ceased working in the trench at about 10 am, he did not consider there was any necessity for shoring the walls of the trench, or taking any other step, such as benching or stepping to secure the trench. He explained that in the first place, the trench was not over 1.5 m deep and that: "The walls were fine, it was firm, and it never occurred [to him] that it was about to collapse, or that it would collapse later on." 31He said that he remained "around the trench" from the time they stopped working at about 10 am until the part to repair the pipe arrived later in the day. 32Mr Russell described the ground of the trench when he went back in after the part arrived as "still wet but ... workable, it was fine, bit muddy". He estimated the depth of the water in the bottom of the trench to be "an inch to two inches at the most". He said that the "walls were fine ... dried out by the time, totally dry". 33Mr Russell agreed that the ground that the trench was dug into was waterlogged at the beginning and was "saturated" "on the surface". He said, however, that it was only waterlogged for the first couple of hundred millimetres, not "all the way down to the pipe". He agreed it was "wet but it wasn't saturated all the way down". He denied there was any seeping from the walls 300-400 mm from the surface to the bottom of the trench. He described the state of the walls in the first 300-400 mm as being "wet", "waterlogged", or "seeping" due to "the water running off into it", including water from the surface. Below that, the "walls weren't seeping water". 34Mr Russell said that when he got back into the trench the second time to clear around the pipe, the ground of the trench had dried up significantly, as had the walls. He said "everything had dried". 35Mr Russell described the collapse of the trench as follows: "I believe [the trench] collapsed somewhere under the kerb. I heard someone say 'Look out,' and I turned and saw it collapsing and then I turned towards the road and it hit me, knocked me onto the road, with my arm onto the road and my face onto the road ..." (emphasis added) 36Mr Russell described how the "collapsed material" hit the right side of his lower back, pinning him to the side of the trench. Mr Russell recalled that a crowbar was used to lever the collapsed material from him. He described this material as "compressed road base and shale" which did not crumble and was "just a slab". 37Brian Gillard was the backhoe operator who dug out the trench on the day of the accident. His evidence was that a trench should be shored if it was over 1.5 m depth or in unstable ground. When Mr Gillard first arrived at the site, in order to locate the original trench, he dug a number of test holes to a depth of 250 mm, all of which filled with water. 38Prior to commencing the backhoe operation, Mr Gillard filled out a site specific checklist in which he identified a hazard of "water charged ground". He said he had made this entry because the water "had to be there by some means or for some reason". This was clearly a reference to the fact that the test holes had filled with water. 39Mr Gillard explained his understanding of "water charged ground", as ground being: "... like in a swamp, where there's water all around, it's absolutely charged with water and that's more or less like water charged ground. There's something that's charging it all the time." 40He explained this further in the following terms: "If it's wet on the surface you would tend to think it's charged by either rain or like - or there's a broken pipe or something like that. But once that's all turned off and whatever then it isn't water charged anymore, it stops, it ceases and once it's pumped out and/or dewatered it is just dry again, it's not water charged." He again contrasted this with a swamp, which "will be charged all the time". 41Mr Gillard said that by the time he had finished digging out the trench with the backhoe, the "ground condition was good, it was dry, it was hard, it hadn't been disturbed, it was natural ground, it was solid shale". Mr Gillard's evidence at this point is not entirely clear, due in part to being asked, in the one question, as to his observation of the "inside" and "around" the trench. Having read this material several times, it is not clear to me that Mr Gillard was being asked about the state of the walls of the trench. He did not provide a description of the walls of the trench, except perhaps for this: "Q. Now in terms of what you stated in the [Site] Specific Check List, that is, there was water charged ground, did you make any observation of anything either inside the trench or around the trench on the grass side that was consistent with water charged ground after you had dug the trench out? A. Yes I did check all of that and you can see seepage coming in a little bit from the grassed area and from the water that was on the top in the puddle holes, the test holes and that - there was nothing else. And then what we did was the bottom of the trench and the far end, I dug it down a bit, probably about another 100 below and put a pump in there just for pumping out any seepage that was coming in." 42Mr Gillard denied that there was a considerable amount of water in the ground around where he was going to dig the trench. However, he described the ground around the line of the trench as "real soft, real soft, real easy", thus enabling the trench to be easily located. Mr Gillard said the only water on the ground was the water that had come from the pipe. He said that the only water in the trench was that "coming down from seepage" and that a small pump had been placed in the bottom of the trench to pump the water out. He explained that the water coming into the trench was "a trickle type of thing". 43The final witness called by the respondent was John McKay, who was employed by the respondent as a contract supervisor. Mr McKay said that in his experience, a trench would be shored when it was to a depth of about 1.5m. Even at a lesser depth than that, shoring could be required if the trench was near a building, or the ground was unstable, or if it was water charged. Mr McKay said that in his opinion, the soil inside the trench when it was dug was "definitely not water charged". He said that "[w]ater charged is when there is water there all the time and it's coming at [you] all the time". He agreed that the soil at the bottom of the trench was "a bit sloppy", but otherwise he saw "nothing unforeseen" with the bottom of the trench. Mr McKay denied that "the ground on the grass side of the kerb and gutter within the trench or around the trench" was water charged. 44Mr McKay witnessed the accident and described what occurred as follows: "... the trench actually slithered - a piece fell out of the side and pushed [Mr Russell] against the trench ..." 45Mr McKay was asked whether he had made any observation of the trench as to what might have occurred to have caused the pieces from the side of the trench to come away. He said: "No all I can say is probably a bit of water had run back from on top of the ground, I can't really give you a reason because it was nice and solid when they dug it and it could have been a bit of water seeping from the top or something like that." 46Mr McKay said that he had come to this conclusion because the clump that had broken away was "a bit damp on the top". He continued: "It certainly wasn't running water but it was damp so I assumed that it must have seeped through [the puddle on the grass] and run on the walls of the trench." 47Mr McKay did not accept that there was a substantial amount of water in the ground in the area where the wall slipped. He said that there was water "over the back of the pile where they were pumping it to" and that it was "obvious that some of it's filtered back through". The following questioning then occurred: "Q. I'm not asking about where things were pumped or whatever, what I'm just asking you is, if the facts are there were four holes dug, they filled with water of their own accord, they didn't fill with water because someone pumped water into them, they dig a hole, fills with water, they dug four of them to 200 mils and it appears to have been starting at that puddle you see there and then getting progressively closer to where they dug the trench. That when they first started digging the trench they dug down to 600 and again filled with water. Assume they are the facts? A. Yeah. Q. If you're aware of that situation would that suggest to you, or would you conclude, that the soil around where the trench was dug had a substantial amount of water in it? It's not pumped there, it seeps in when you dig a hole. A. Well, if it seeped in when they dug the hole it would have a fair amount of water. But what I'm - yeah, you don't want me to say anymore, no. ... Q. That would indicate that the water that you saw seeping out of the wall of the trench after the collapse occurred was water that had come from the surrounding ground? A. Mm, yes. Q. And if the level of water I've described had been there at the beginning of the day, the water that was seeping from the side could have been in the ground all day? A. Could have been. But when I observed the trench there was no water in the - on the side of the trench, that's what I'm saying. ... Q. And if you'd been aware of that you may well form the view, given that the trench was down to 1.5 metres at its deepest point, that shoring may well have been appropriate? A. ... I wouldn't have thought that the nature of the type of clay that it was that it would have caused a problem back on the road. ... Q. If at least part of this thing that collapsed extended into the grass side, then it's a matter that should have been taken into account, do you agree? A. Yeah." 48In re-examination, Mr McKay said that, having regard to the observations he made on the day and, further, having regard to the propositions put to him in the cross-examination to which I have just referred, there was nothing that suggested to him that the ground surrounding the trench was water charged. Nor was there anything about the trench that suggested to him that it required shoring, or that any other form of support should have been constructed. 49Before turning to the evidence of the appellant, it is convenient to refer to the findings of the trial judge in respect of the evidence of these four witnesses. First, his Honour observed, at [26], they were all of the view that in the circumstances as they existed on the day the accident, the trench did not need shoring. At [38], his Honour then identified the question in issue as to being whether: "... there was a 'not insignificant' foreseeable risk in the circumstances which a reasonable person would have taken precautions against." 50At [43], his Honour noted the appellant's submission directed attention to the evidence that indicated there was a substantial amount of water on the ground. In this regard, his Honour referred to Mr McDonald's evidence that the trench was "wet, slushy and messy" and that the "upper wall of the trench was sweating". His Honour referred to the further evidence that the trench was "quite slippery when the second worker" entered the trench to assist Mr Russell. 51His Honour, at [44], next referred to the evidence of the respondent's four witnesses which, in summary, was that the ground was "very hard, very compact"; that "there was no water seeping out of the walls"; and that there was no indication that the ground was "water charged, waterlogged ground". His Honour, at [45], also dealt with the entry in the site specific checklist which identified as a hazard that there was "water charged ground". His Honour, at [47], referred to Mr Russell's evidence that the walls of the trench were "fine, it was firm", at about 10 am when the trench was first dug. His Honour then referred to Mr Russell's evidence that when he re-entered the trench later in the day, it was "still wet but it was workable", and that the walls were "fine" and "dried out by the time, totally dry". His Honour, at [49]-[50], also referred to the evidence of Mr McKay and Mr Gillard, to which I have referred in some detail above. 52His Honour, at [50], found that on the evidence, the ground was not water charged at the time of the accident occurred. His Honour accepted the evidence of the respondent's witnesses because of their seniority, their experience and qualifications and their "occupational interest in observing the conditions of the trench". His Honour also observed that Mr Russell, who was injured in the trench collapse, had "a personal interest in observing the conditions of the trench because he was inside digging". His Honour contrasted the expertise and positions of the four witnesses with that of Mr McDonald, who had no such qualifications and who was at the site in another capacity. 53His Honour held: "52. I am also of the opinion that in the circumstances a reasonable person in the Council's position would not have taken the precaution of shoring or otherwise stabilising the trench. I accept in accordance with s 5B2(b) that the likely seriousness of harm from a collapse was significant and that the burden of taking precautions was not great. The shoring equipment was not far away. In fact it could have been obtained at the same time as the missing part. There was obviously social utility in the activity of digging the trench because it was to fix a leak. But what I am not satisfied about is that the probability that the harm would occur if the shorting was not put [in] place, was significant. I would regard the probability as slight. That happens to be the view expressed by the qualified and experienced men at the site and I gain some support and comfort from that but it is also my opinion, based upon the evidence which they gave in describing the conditions which they saw. It is also relevant to take into account their own opinions in so far as they expressed those opinions but I am charged with the responsibility under the Civil Liability Act of determining whether or not there has been a breach of the duty of care. 53. I am of the opinion that the risk could not be described as 'not insignificant' and I am of the opinion that in the circumstances a reasonable person in the Council's position would not have taken the precautions which are said ought to have been taken in this case." 54In recording this finding, I have not overlooked that there is a challenge to his Honour's application of s 5B(1)(b). 55The particular evidence that the appellant contended his Honour did not, but should have, taken into account was his description of what he saw as the accident was unfolding. On the appellant's account, the accident occurred when the "bottom section of the uphill side of the trench wall collapsed" and "the remaining section back towards the gutter hit [Mr Russell]". The appellant said that: "... the upper more compacted section back towards the road base, 2 to 3 feet in from the guttered kerb, collapsed as well and hit [Mr Russell] and pinned him hard up against the pipe." 56The appellant described the incident in more precise terms, as follows: "... initially this bottom section dropped out. It was like a jelly. It just dropped like a muddy slushy jelly and just knocked [Mr Bishell] over and pinned [Mr Russell] ..." 57The appellant described the piece that hit Mr Russell as being "slightly more compacted". The appellant was asked: "Q. And before you described something like a jelly. What was the jelly bit? A. That was the sloshy sort of wet material underneath that gave way first ... ... Q. And is what you've described initially the natural soil has given way -- A. Yes, a good section of that soil had given way then the upper more compacted 3 to 4 feet came down afterwards. Q. It's taken away the support from the compacted pieces then broken away and fallen? A. That's correct." 58The appellant complained that his Honour did not take this evidence into account at all and that he should have done so. In particular, the appellant contended it was necessary for his Honour to determine whether he accepted the appellant's evidence as to what occurred and, assuming its acceptance, would then be required to assess the evidence of the respondents having regard to that evidence. It was submitted that something caused the wall to collapse. Had the evidence of the respondent's witnesses been assessed in light of the appellant's evidence, the trial judge may not have accepted their evidence that the wall of the trench was stable and solid. At the least, his Honour may have given that evidence less weight, or assessed it differently, so as not to so readily accept that there was no indication that the walls of the trench needed shoring. 59There is considerable merit in this argument. The respondent's evidence should have been assessed against what the appellant described. This evidence was critical, graphic and, importantly, not subject to cross-examination. Not being the subject of cross-examination, the trial judge might more readily have accepted the appellant's evidence: see Bulstrode v Trimble [1970] VR 840. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Hunt J explained this rule as follows: "As Newton J observed (in Bulstrode v Trimble [1970] VR 840, at p 846), there are two aspects to be considered. Firstly, there is a rule of practice or procedure, based upon general principles of fairness, which is designed to achieve fairness to witnesses and a fair trial between the parties; and, secondly, there is a rule relating to the weight or cogency of the evidence. His Honour went on to say (at pp 848-850) that the second rule in or aspect of Browne v Dunn meant no more than that if a witness is not cross-examined in relation to a particular matter upon which he has given evidence, then that circumstance would often be a very good reason for accepting the evidence of that witness upon that matter; there is, however, no requirement in law that the tribunal of fact must accept that evidence, and no basis in law upon which the other party is precluded by this failure to cross-examine from leading evidence in direct contradiction to that evidence." 60However, his Honour did not state whether he accepted the evidence and, in the circumstances, it was necessary for him to do so. It was not sufficient for his Honour to disregard the appellant's evidence because four witnesses assessed that there was no reason to shore the trench. That was evidence based upon their experience. It did not take account of the eyewitness account of the accident. If that was all that needed to be considered, I would be inclined to accept the appellant's submission that there should be new trial. In this regard, neither party asserted that this Court was in itself in a position to itself determine the matter, as the outcome in the case will depend substantially upon the assessment of the reliability of the witnesses. 61However, before adopting that course, it is necessary to refer to another matter, namely, the manner in which the appellant conducted the trial. Although the respondent did not cross-examine the appellant as to the reliability of the description he gave, the appellant, likewise, did not cross-examine the respondent's witnesses to the effect that the accident had occurred in the manner he had described. As he did not do so, there was no reason why the trial judge could not accept the respondent's version of events, for the reasons explained in the rule of practice described in Bulstrode v Trimble. 62Although the matter has caused me some difficulty, I have come to the conclusion that his Honour should have expressly addressed the appellant's evidence as to what he observed at the time the trench collapsed, determined whether or not he accepted the appellant's evidence and then considered the respondent's evidence having regard to that determination. I consider that his failure to do so means that there has been a failure by the trial judge to properly weigh all of the evidence and to base his determination on his assessment of the evidence. 63My conclusion in this regard is reinforced by Mr Russell's evidence that he believed the trench collapsed somewhere under the kerb and the evidence of Mr McKay, that the clump that broke away was "a bit damp on the top", causing Mr McKay to assume that water from the puddle on the grass had seeped down on to the walls of the trench. Whilst it will be a matter for the trial judge to assess, this evidence may suggest that the assertions of the respondent's four experienced witnesses needed to be treated with some care and that their assertions that the trench did not need shoring called for further analysis. The error, as I see it, with the trial judge's approach, was that he accepted the evidence of the respondent's experts without first determining whether he accepted the appellant's evidence and, if so, then assessing the other evidence having regard to that evidence. In this regard, it is to be remembered that the appellant was the only witness who gave evidence of what occurred at the moment of the trench collapse. Did the trial judge err in applying the Civil Liability Act, s 5B(1)(b)? 64It follows, in my opinion, that for this reason the appeal should be allowed and there should be a new trial. 65In coming to this conclusion, I have not dealt with the last issue raised for determination, namely, whether his Honour applied the wrong test for the purposes of s 5B(1)(b) in that he applied the phrase "not insignificant" as if it meant "significant". This complaint was directed to his Honour's finding, at [52], that he was not satisfied "that the probability that the harm would occur if the shoring was not put in place, was significant". 66The Civil Liability Act, s 5B(1)(b) provides, relevantly: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: ... (b) the risk was not insignificant ..." 67The drafting of s 5B(1)(b) has some linguistic complexity in the use of a triple negative: viz, a person is not negligent, that is, will not have breached a duty of care in failing to take precautions unless the risk of harm was not insignificant. It is a difficult test to restate. However, what is known is that "not insignificant" does not mean "significant". As Macfarlan JA pointed out in Shaw v Thomas [2010] NSWCA 169, a test of "not insignificant" was more demanding, but not by very much, than a test that required a risk to be "not far-fetched or fanciful": see Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40. 68It is likely, with respect to his Honour, that he failed at the s 5B(1)(b) linguistic hurdle. However, having regard to the appellant's success on the other issue on the appeal, it is not necessary to determine whether the error in respect of s 5B(1)(b) would have been sufficient to require a different outcome on the claim or a remittal for a rehearing. 69I note that no order for costs appeared to have been made by the trial judge. I nonetheless have made order (5), which would be the usual order on remittal. The parties are free to make an application in respect of that order if they so wish: see the Uniform Civil Procedure Rules 2005, r 36.16. 70The orders I propose, therefore, are: 1. Appeal allowed; 2. Set aside the verdict and judgment entered for the respondent; 3. Remit the matter to the District Court for rehearing; 4. Order that the respondent pay the appellant's costs of the appeal; 5. Order that the costs of the first trial abide the outcome of the remitted hearing. 71WARD JA: I agree with Beazley P and the orders her Honour proposes. 72SIMPSON J: I agree with Beazley 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: 18 April 2013