Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Passmore v Maitland City Council [2017] NSWCA 253 Hearing dates: 4 October 2017 Date of orders: 04 October 2017 Decision date: 13 October 2017 Before: Basten JA at [1]; White JA at [8]; Sackville AJA at [38] Decision: (1) Grant the appellant leave to rely on the second amended notice of appeal filed in court; (2) Dismiss the appeal; (3) Order that the appellant pay the costs of the first and second respondents. Catchwords: TORTS — Negligence — Proof of negligence — primary judge not satisfied the appellant was injured as a result of the condition of the tennis court — no error in primary judge's accepting evidence of respondent's witnesses — no issue of principle raised CIVIL PROCEDURE — Hearings — Adjournment — no error in primary judge's refusal to adjourn hearing CIVIL PROCEDURE — Separate determination of questions — no error in primary judge's ordering that question of liability be determined separately and in advance of other issues Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Principal judgment Parties: Duncan McFarlane Cavendish Passmore (Appellant) Maitland City Council (1st Respondent) Maitland City Tennis Club Inc (2nd Respondent) Representation: Counsel: C A W Hart (Appellant) G Jensen (1st Respondent) P Cummings SC (2nd Respondent) Solicitors: Bale Boshev Lawyers (Appellant) Moray & Agnew (Newcastle) (1st Respondent) Colin Biggers & Paisley (2nd Respondent) File Number(s): 2016/368572 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: Not published on Caselaw Date of Decision: 11 November 2016 Before: Balla DCJ File Number(s): 2015/170841 [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.] Judgment 1. BASTEN JA: On 16 June 2012 the appellant, then aged 71 years, was playing competitive tennis at the Maitland City Tennis Club. Whilst running backwards to play a ball lobbed over his head, he tripped and fell. His head hit the ground hard and he suffered a significant head injury. 2. On 6 August 2015 the appellant commenced proceedings against the Club and the Maitland City Council, as the bodies responsible for maintaining the tennis courts. His claim in negligence depended on two factual propositions, namely that (i) due to wearing of the court's artificial surface, the lines were raised a few millimetres above the surrounding surface, and (ii) the appellant tripped because his left foot caught against the raised area of the tramline as he moved backwards. The first proposition was not in dispute; the second was. 3. Following the rejection of an adjournment application, the trial proceeded on the question of liability in early November 2016. The plaintiff gave evidence that his left foot caught as he tried to regain his balance; it was his unshaken belief that it caught against the raised tramline, although he was not, of course, looking at his feet at the time and did not see what caused him to trip. 4. Five witnesses who gave evidence as to how the appellant had fallen contradicted his evidence that the fall was precipitated by his left foot catching on the tramline. Each drew a diagram which included a point at which the witness perceived that the appellant lost his balance. None of the points so identified was near the tramline. One of the witnesses was not cross-examined; witnesses to whom the appellant's explanation of his fall was put rejected his account. Not all were given that opportunity. 5. On 11 November 2016 Balla DCJ delivered judgment dismissing the appellant's claim. Having regard to the state of the evidence noted above, it was unsurprising that the trial judge was not satisfied that the appellant tripped on the tramline. That being so, his case inevitably failed. No point was raised on the appeal which provided a basis for doubting the correctness of the judgment. The judge's reasoning was concise but left no doubt as to why the appellant failed. 6. The appellant also challenged the judge's refusal of a belated adjournment application, made on the first day of the trial and her decision to deal with liability separately from damages. Neither ground had any merit. 7. If it were necessary to give any further explanation of this outcome, I would gratefully adopt the more detailed reasons given by White JA. I endorse his final observations as to the conduct of the trial. 8. WHITE JA: This was an appeal from orders of the District Court (Balla DCJ) made on 11 November 2016. The appellant was the plaintiff in the court below. He sued the first respondent, the Maitland City Council ("the Council") and the second respondent, Maitland City Tennis Club Inc ("the Club") for damages in respect of injuries he sustained when playing a game of tennis on 16 June 2012. The substance of the appellant's claim was that he suffered his injury as a result of the condition of the court, and in particular, that he caught his left foot on the edge of a line on the court known as a tramline. 9. The appellant's case depended upon a finding that he did trip on the tramline. The primary judge entered verdicts for both respondents. Her Honour was not satisfied that the appellant's fall occurred when his foot came into contact with a tramline. 10. The appeal was heard on 4 October 2017. At the conclusion of oral argument the Court ordered that the appeal be dismissed and that the appellant pay the respondents' costs. The Court reserved its reasons. 11. At the time of the accident the appellant was 71. He was an experienced and skilful tennis player who had played tennis at almost the highest levels. He was playing a doubles match in the Division 1 men's competition. 12. The tennis court was a synthetic grass court. There was no dispute that over time the condition of the court had deteriorated such that an edge had developed between the tramline and the surface of the court. Had it been necessary for the primary judge to do so her Honour would have found that the height differential between the tramline and the court surface at the point the appellant said he tripped was 2-3 millimetres. 13. The appellant gave evidence that the injury occurred when he had been standing at the net as his partner was serving. His partner was serving to the receiver's forehand court. At some point, and the evidence was not clear when, a lob was hit over his head. The appellant's evidence was that he ran backwards and leant upwards and backwards to hit a smash with his right foot in the air. The appellant said that his left foot jammed on the line and his right foot then hit his left foot and would not go back. He fell and hit his head severely. He identified the place where his left heel struck the line as being on the inner side of the inner tramline, apparently about a metre or a metre and a half inside the baseline. 14. The appellant adhered to that evidence in cross-examination. But it was not corroborated by any other witness to the fall. 15. Each of the other three players participating in the match gave evidence. One did not observe the fall. The accounts of the other two players differed in some points of detail, such as whether the plaintiff's feet tripped when he was in the air or as he was running backwards. Both witnesses said in substance that the place where the appellant clipped his feet together was on the court and well inside the tramline. 16. That evidence was corroborated by three other eye witnesses. One witness had been playing on an adjacent court and was waiting to retrieve his ball. He was standing on the same side of the net as that on which the appellant was playing and was about 12 metres away. He saw the appellant shuffling back and tripping over his own feet as he fell on his back. He identified the points at which the appellant tripped on his feet and fell backwards as being well inside the tramline. 17. Another witness was watching the game from outside the court, but looking down the line of the tramline in question. He said that the appellant was not anywhere near that tramline when he tripped. A third witness who observed the incident from inside a canteen in the clubhouse was not as well positioned to observe the fall as the other witnesses. However, he observed the fall and also said that the appellant did not fall where he said he did. 18. None of these witnesses was shaken in cross-examination. One of the witnesses, a Mr Ian Hughes, said that the point where the appellant's feet clipped together was well inside the tramline. He also said, contrary to the appellant's evidence, that when the appellant's feet clipped together it put him off balance, but he did not fall immediately, that the momentum kept him going backwards and he finally fell towards the back of the court near the tramline. This was also inconsistent with the appellant's description of the fall. He was not cross-examined. 19. The primary judge accepted the evidence of the five eye witnesses called by the Club. The appellant did not demonstrate any error in her Honour so doing. 20. The appellant was helped off the court by two people, Mr Stuart Rye, who was his partner in the game, and Mr Ian McGregor, the tennis coach who did not see the fall but quickly attended the scene. The appellant gave evidence that he said to them: "Trust these bloody lines to make my retirement". Both Mr Rye and Mr McGregor said that they did not recall the appellant saying those words. The primary judge made no finding as to whether the words were said or not. It was unnecessary for her Honour to do so. It was not suggested that the appellant did not believe that he had tripped on the line. Contrary to the submission of Mr C Hart who appeared for the appellant, the rejection of the appellant's evidence did not imply a finding by the primary judge that the appellant had fabricated his case. The primary judge made no such finding. Rather, on the finding of the primary judge, supported as it was by five eye witness accounts, the plaintiff's belief that the fall was caused by his tripping on the line was mistaken. 21. Mr Hart submitted that it was improbable that the appellant who was an experienced and highly proficient player should trip over his own feet, unless he caught his foot on the raised edge of the tramline. But that was just what the five eye witnesses saw. There was also evidence before the primary judge, to some of which her Honour referred, that a fall such as the appellant suffered can occur without the involvement of a raised line, as is common sense. 22. Mr Hart also relied upon evidence, as he had done before the primary judge, of a photograph that was amongst an unidentified number of photographs sent by the Club to its insurer at some time between 20-26 June. The president of the Club, Ms Richards, was advised by its insurer to complete a public liability claim form. The claim form was not tendered by either party. If the form contained admissions it could be expected that the appellant would have tendered it. The claim form was accompanied by photographs that were taken by Ms Richards. The appellant, by reference to one such photograph, identified the place on the tramline where he said he tripped. Mrs Narelle McGregor was with Ms Richards when photos were taken. She gave the following evidence: ""Q. And by that stage you knew basically where to take the photos, the relevant photos, didn't you? A. Yes. Q. Who told you where to go to take the photos? A. Well Stuart Rye who played with Duncan [the appellant] on that day directed us and showed – he wasn't there at that day but he had told me days previously where it was and my husband who was there – Q. When the photos were taken? A. Yes." 1. Objection was taken to Mr Hart's interruption of the witness' answer and the primary judge disallowed the last question and answer. 2. Mrs McGregor's evidence thus was that Mr Rye directed her and Ms Richards and showed them something, presumably where to take photos. What specifically Mr Rye directed them to do or showed them was not explored. One photograph of a number of photographs was tendered (Exhibit J). Mr Hart in his opening said that they (the Club) took photographs of the whole court. The fact that one of the photos was a photo of the tramline, is not evidence that Mr Rye or anyone else from the club said that the appellant tripped on the tramline. 3. Mr Hart did not ask for Mr Rye to be recalled for further cross-examination. 4. The primary judge observed that Mrs McGregor was not asked whether the photograph in question had been taken because she was aware at that time that the appellant had tripped on that tramline. Her Honour noted that the witness had earlier said in her cross-examination that at the time the claim form was completed, as far as they knew, the appellant "had only just run back and fell and hit his head". The primary judge did not err in her assessment of this evidence. 5. The appellant also contended that the primary judge erred in refusing his application to adjourn the proceedings and in ordering that the issue of liability be determined separately and in advance of other issues. 6. The proceeding had been listed for hearing in a two-week sitting in Newcastle commencing on Monday, 24 October 2016. It was the first matter in the list. The parties estimated it would take four hearing days. When the matter was called Mr Hart advised the primary judge that the appellant could not proceed in those sittings. He said that it had become apparent that the appellant was in need of protection and might need a tutor to run the case because of the effects of his injury. He said that until a medical opinion was obtained the matter could not proceed. The primary judge said that if the appellant wished to make a formal adjournment application he would need some evidence and the matter was stood in the list. 7. When the matter was called later that day Mr Hart advised that "the plaintiff has resolved his case against the first defendant, which is the council defendant …". The primary judge asked how counsel had obtained instructions to settle the matter against the first defendant if he was not sure that the plaintiff had capacity. Counsel said "Well that's subject to documents". The application was stood over to the following day. 8. On resumption, the appellant read an affidavit from his solicitor. The solicitor was cross-examined. The primary judge refused the adjournment application. Her Honour provided her reasons as part of her principal judgment. 9. The primary judge gave detailed reasons as to why she did not find the evidence that the appellant might lack capacity to manage his affairs persuasive. Amongst the matters her Honour took into account was the inadequacy of the evidence to establish grounds for concern as to the appellant's capacity, the lateness of the application, the absence of explanation as to how the appellant's legal representatives had obtained instructions to resolve his case against the Council if he lacked capacity to provide such instructions, the absence of evidence as to the appellant's capacity to meet any costs order arising from an adjournment, prejudice arising from delay, the need to maintain public confidence in the judicial system where the Club had 10 lay witnesses ready to give evidence and two experts would be available to give evidence if required, and the requirements of the Civil Procedure Act 2005 (NSW). 10. The appellant's written submissions did not demonstrate any error in the primary judge's exercise of discretion. He did not demonstrate that the primary judge had mistaken the facts, or acted on a wrong principle, or failed to take account of relevant considerations, or had taken into account irrelevant considerations, or that the refusal of the adjournment was plainly unjust. These questions were not addressed in any analytical way to suggest error. No oral submissions were advanced on the issue. 11. Nor was any error demonstrated in the primary judge's decision to order that the question of liability be determined separately. Having regard to the primary judge's conclusion, that decision was favourable to the appellant as it led to a shorter trial and a smaller costs burden. 12. It was for these reasons that I concurred in the order that the appeal be dismissed. 13. I cannot leave the matter without comment upon the conduct of the appellant's counsel before the primary judge. In her reasons the primary judge said: "During the trial counsel for the plaintiff on occasions acted and spoke inappropriately. This is illustrated by his apologies at Transcript 29.45, 355.18 and 383.15. I have decided this case on the evidence before me and have not allowed the conduct of counsel for the plaintiff to affect me in my consideration and determination of the issues. This of course does not extend to his forensic decisions made during the trial eg whether or not to cross examine on an issue or tender a document but only to the manner in which he spoke, whether the words he chose were appropriately respectful to the court and to witnesses and the manner in which he moved his body." 1. The primary judge was sorely tried by the way Mr Hart conducted the hearing. He refused to accept her Honour's rulings on evidence, cut off witnesses' answers, and sought to justify inadmissible questions on the basis that the question was "critical". He accused the primary judge of denying his client procedural fairness because her Honour had rejected objections he made to questions asked by Mr Cummings SC who appeared for the Club, but upheld objections made by Mr Cummings to questions he asked. The fact that the questions he asked, to which objection was taken, were inadmissible, but the questions to which he took objection were not, did not deter him from making that submission. The primary judge had to reprimand counsel on a number of occasions for his rudeness. There was nothing about the subject matter of the trial that should have led to the tensions that evidently arose, if the trial had been conducted by counsel acting competently and courteously. Mr Hart displayed neither quality. It is to the credit of the primary judge that she interfered from time to time with his questioning to attempt to get counsel to the point. The case took longer than it should have. That was not the fault of the primary judge, nor the fault of counsel for the respondents. 2. The primary judge conducted the hearing with admirable patience and appropriate firmness in her attempt to control the appellant's counsel. 3. SACKVILLE AJA: This appeal was without merit. The reasons of Basten JA are sufficient to explain why the appeal was doomed to fail. However, if further reasons are needed, like Basten JA I associate myself with the reasons of White JA. 4. I endorse the comments of White JA concerning the conduct of counsel and the admirable manner in which the primary Judge dealt with a difficult and unpleasant situation. ********** 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: 13 October 2017