Byrnes v Hawkesbury City Council

[2015] NSWCA 173

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Byrnes v Hawkesbury City Council [2015] NSWCA 173

Hearing dates:

16 June 2015

Date of orders:

16 June 2015

Decision date:

25 June 2015

Before:

Basten JA at [1];
Emmett JA at [2];
Sackville AJA at [55]

Decision:

1    Dismiss the appeal.

 

2    Order the appellant to pay the respondent’s costs of the appeal.

 

3    Reserve reasons.

 4    Direct that the orders not be entered until the delivery of reasons.

Catchwords:

TORTS – negligence – findings of fact – whether the primary judge erred in concluding that the Council did not perform work at the location of the appellant’s fall and was therefore not responsible for the appellant’s injury – whether the primary judge erred in, alternatively, accepting and declining to accept certain evidence and in not giving sufficient weight to other evidence

Cases Cited:

Fox v Percy [2003] HCA 22; 214 CLR 118
Short v Barrett (Court of Appeal (NSW), 5 October 1990, unrep)

Category:

Principal judgment

Parties:

Michelle Byrnes (Appellant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
M Joseph SC with D Epstein (Appellant)
J Sexton SC (Respondent)

  Solicitors:
Roderick Storie Solicitors (Appellant)
McCulloch & Buggy Lawyers (Respondent)

File Number(s):

2014/175025

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

16 May 2014

Before:

Williams DCJ

File Number(s):

2012/20574

Judgment

1. BASTEN JA: This appeal was heard on 16 June 2015. At the conclusion of the hearing the Court dismissed the appeal with costs and reserved its reasons. I agree with the reasons given by Emmett JA. The orders may now be entered.

2. EMMETT JA: This appeal was concerned with findings of fact made by a judge of the District Court (the primary judge) as to whether the respondent, Hawkesbury City Council (the Council), was responsible for placing loose gravel on the side of the road leading to the driveway of a residence situated at 19 Ski Lodge Drive, Lower Portland (the Premises). Ms Stacie Byrnes (Stacie) resides in the Premises. The appellant, Mrs Michelle Byrnes (Michelle), who is Stacie’s mother, claimed that the Council carried out such work in breach of a duty of care that it owed to her, which resulted in her slipping and falling, as a consequence of which she suffered loss and damage. As a matter of convenience, I shall refer to Mrs Byrnes as Michelle and to her daughter as Stacie, without intending any disrespect.

3. Michelle sued the Council in the District Court. The primary judge found that the Council was not responsible for the placement of loose gravel, as alleged by Michelle, and entered judgment for the Council. His Honour ordered Michelle to pay the Council’s costs. Michelle now appeals from the orders made by the primary judge. After hearing counsel for Michelle in support of the appeal, this Court indicated that it did not need to hear from counsel for the Council. The Court ordered that the appeal be dismissed and that Michelle pay the Council’s costs of the appeal. My reasons for joining in those orders are as follows.

Michelle Byrnes’s Complaints

4. On 29 August 2009, Michelle attended a birthday party with her husband at the Premises and suffered her fall when leaving with him at approximately 8:30 pm. She said that her husband was three to four steps ahead of her and she did not see him experience any difficulty with the area between the driveway of the Premises and the sealed roadway (the Crossover). The area of the Crossover was not illuminated and there was no street lighting. A partially buried concrete pipe was located within the Crossover.

5. Michelle stepped off the lower end of the concrete driveway of the Premises onto the Crossover. She said that the surface under her right foot was hard and slippery and, when she put weight on her right foot, she slipped and fell onto a “chunky” and “gravelly” surface. She said that she was not concerned that she might slip on the Crossover as she approached it and was not worried about falling, even though she knew that the gravel material was there. She described the material as looking like “a white crushed concrete”.

6. In her amended statement of claim filed on 7 May 2014, Michelle particularised the negligence of the Council as follows, so far as is now relevant:

• carrying out remediation work at the driveway of the Premises, which increased the risk of persons slipping and falling;

• failing to place more stable material, such as tarred gravel or concrete, on the area near the foot of the driveway of the Premises, rather than loose gravel;

• failing to remove the concrete pipe, or requiring the owner of the Premises to remove the concrete pipe, before undertaking suitable remediation work;

• leaving loose gravel on top of a hard concrete pipe, thereby hiding the presence of the pipe and creating a particularly slippery surface;

• failing to roll, tamp or otherwise flatten the surface so as to avoid the effect of loose gravel on the concrete pipe.

7. Relevantly for present purposes, Michelle invited the primary judge to make three findings as follows:

• On 29 August 2009, there was a loose surface covering the Crossover, consisting of road base resembling white crushed concrete;

• Before 29 August 2009, the road base was placed there by servants or agents of the Council when works were performed in the immediate vicinity of the Premises on behalf of the Council;

• The loose material on which Michelle fell was placed on the Crossover by or at the direction of the Council.

8. The primary judge found that the preponderance of the evidence established that neither the Council nor the Council’s contractors performed any work on the Crossover or deposited any material at that location. In the light of that conclusion, his Honour found that Michelle had failed to establish the essential factual foundation for her pleaded case. His Honour therefore found a verdict for the Council.

Evidence before the Primary Judge

9. Before dealing with the grounds of appeal, it is desirable to say something about the evidence before his Honour and the reasoning that led to his Honour’s conclusion. The evidence included internal records of the Council, oral evidence from Michelle, Stacie, and Mr Christopher Lehane, Stacie’s husband, as well as oral evidence from Council officers and Council contractors.

Oral Evidence Adduced for Michelle

10. In her evidence in chief, Stacie said that a couple of months before her mother’s accident, she had contacted the Council to complain about run-off water and asked that the driveway be looked at because “the water was pooling up and it was washing away”. She said that she made another phone call several weeks later and that, in the period between the two phone calls, road base had been placed on the Crossover. She described the material that had been placed as “grey” “compact rubble” (as compared to Michelle’s description of it as “white”). She was shown a photograph of the Crossover, which was taken about a week after the accident (Exhibit D). She said that she recognised Exhibit D as being a photograph of “the gravel that was placed” but said that she did not know who had put the material in place. Although she said that she made a second phone call after the material had been placed, she did not give any evidence in chief as to what was said in that phone call.

11. The primary judge concluded that Stacie accepted that Exhibit D depicted the Crossover as it was after the Council allegedly placed road base at the location. His Honour considered that Stacie gave varying answers as to the extent of the gravel on the day of the fall, as compared with Exhibit D. Initially, she said that it was worse, but then said it was the same and that there was a lot of gravel. She said that she had concerns about people slipping, but she did not convey those concerns to anyone.

12. In cross-examination, Stacie said that, when she first rang the Council, her concern was that the Crossover area would become muddy after rain. She agreed that she rang the Council again about ten days later. When asked whether she remembered what her complaint was when she called on the second occasion, she said, “My complaint was in the entire driveway … between the crossover”. She was referred to a Council record that described her complaint as having been that “[t]he driveway is very boggy and she is very concerned about the damage it is doing”. However, in cross-examination, she could not recall what “damage” she was talking about when she spoke to the Council. It is significant that, at that stage, she did not suggest that she had made a complaint to the Council about the material that had been placed on the Crossover.

13. However, later in cross-examination, Stacie asserted that she had contacted the Council to express concern about someone slipping when leaving the Premises. Nevertheless, she did not say anything to her mother or to any other guest on the evening in question. When it was suggested to her that she did not contact the Council to say that she was concerned that someone had created a slipping hazard by placing material on the Crossover, she asserted that she had. She then said that she had called the Council “several times” before the accident to complain about the placement of the material and asserted that she told the Council that the material that was placed on the driveway was breaking up. She asserted that Exhibit D showed loose gravel all over the Crossover, which she said was the loose material that she had complained about. She accepted, however, that she had not complained about the presence of the pipe shown in Exhibit D.

14. Mr Christopher Lehane, Michelle’s son-in-law, gave evidence that he had not had any conversations with Stacie about there being any problem with the Crossover before the Council turned up to do work. He said that the Council came and did the whole street and not just the Premises. He also said that he was concerned about people slipping on loose gravel, but did not say anything to anyone about it.

Council Records

15. A note made by a Council officer recorded that, on 14 July 2009, Stacie telephoned the Council. The note says:

Advises driveway where it meets the road is getting muddy and making [it] hard to get in and out of drive due to water run off down road from other properties.

If not a Council responsibility please advise [Stacie] on [telephone number].

Another note made by a Council officer recorded that, on 24 July 2009, Stacie telephoned the Council again. The note says:

Miss Stacie Burns [sic] has phoned again as no action has been taken thus far. The driveway is very boggy and she is very concerned about the damage it is doing.

Shortly after the second phone call from Stacie, an internal email was sent within Council in the following terms:

Miss Stacie Burns [sic] phoned today and she called on the 14th July stating “driveway where it meets the road is getting muddy and making [it] hard to get in and out of drive due to water run off down road from other properties. Miss Burns [sic] property is at the lowest point in the street and all the water run off is flowing into her property.

Miss Burns [sic] would like to know if Council can do anything to fix her problem or if it is not a Council responsibility please advise her on [telephone number].

She has become a little frantic and really just wants to know what to do …

16. A “Request for Work” form completed on behalf of the Council, bearing the date 14 July 2009, repeated the record of the telephone call from Stacie on that day. The request for work refers to an inspection report on 20 July 2009 as follows:

Water ponding in shoulders, requires material and shaping with bob-cat.

The form indicates that the following action was required:

Redefine table drain into pit. Recut driveway access at 21 (cs) to allow positive drainage.

17. On 12 August 2009, the Council received an invoice dated 7 August 2009 from LJ Follington Constructions Pty Ltd (Follington Constructions). The invoice referred to the address of the Premises and sought payment for the following work:

Remove accumulated silt, vegetation and mud from table drain and road shoulder. Load and cart roadbase material to effect repairs to pot holes and ruts. Load and cart away all excess material. Traffic control.

Another invoice from Follington Constructions to the Council dated 14 August 2009 also referred to the address of the Premises and sought payment for the following work:

Remove driveway crossing at No. 21, recut to correct level. Mix load and cart cement stabilized roadbase to re-instate driveway access. Load and cart away all excess material. Traffic control.

18. The Council’s “Request for Work” form bears the signature of Mr Larry Follington, the principal of Follington Constructions, saying that the work was “completed” in the week ending 14 August 2009. An internal note of the Council dated 19 August 2009, which appears in a continuous record relating to Stacie’s complaint, records the following:

Action Complete

redefine table drain into pit recut driveway access at 21 to allow postiv [sic] dranage [sic] 14/8/09

larry

19. An internal record of the Council of 14 August 2009 dealt with a request by a resident to “fix drain properly in front of 23 Ski Lodge Road”. The record says the following:

[The resident] said contractors were out there today fixing up drainage problem for two houses further up the road… There has been an ongoing problem with water/sewerage [sic] coming from a house up the road. They were doing work there and dug out the area in front of my property because the water ends up here to go into the drain. There is now a muddy mess.

The Resident spoke to the contractor and asked him to fix the mess up and he said he had to put in a works request to fix up a mess that resulted from a work request he did not ask for …

The contractor admitted he had dug way too deep and had created a hole… resulting in the water pooling in front [of] No. 23… which is near the drain…

The contractor said he was going to come back and modify the drain by cutting a piece out of the concrete structure of the drain so the water could flow…

Resident is not happy about this option and would like to speak to a Manager about this mess up and why he was told he had to put in a request to council to fix up a mess created and made by the contractors that did not exist before they dug the area out…should they have not just fixed up the mistake and left the area in the way it was found?

20. On 17 August 2009, Mr Matthew Toriola, an officer of the Council, made the following request in relation to that resident’s complaint to Mr Robert Thomas, another officer of the Council:

Please arrange to investigate this matter at your earliest convenience. You will need to confirm first with the Environment & Development Section to ascertain whether the work being carried out is authorised.

Feel free to discuss the outcome of your investigations with either Richard V. or myself [sic] prior to getting back to resident with the solutions. Although, you may let the resident know in the interim that the matter is currently being investigated and that you will get back to him in due course.

Thanks & let me know if there is any problem or concerns with this request.

21. On 21 August 2009, Mr Thomas sent an email to Mr Toriola saying as follows:

Upon my visit to Ski Lodge Dr[ive] I found that works carried out by one of Larry Follington’s team was of high quality and has resolved the drainage issue in front of no’s 19 to 23.

However, the owner of No. 23 pointed out to me that the flow of water is continuous and as a result the road shoulder in front of his property is very wet and [he] would appreciate a more solid base so that motor vehicles who park at this location do not bog down.

While on site I have noticed that further shoulder works are required on Ski Lodge Dr[ive] from Laws Farm Road for a distance of approx 350 m on the northern side.

Before the works can commence the flow of what appears to be waste water from various properties between no’s 5 to 21 needs to be addressed. Debbie West of Health and Building has been informed of this and will inspect the site on Tuesday 25 Aug with a view [to] handing out notifications to stop the flow of water. I have asked Debbie to inform us when this is done.

22. Later on 21 August 2009, Mr Toriola sent an email to Mr Thomas saying:

Thanks for investigating this matter. As earlier discussed, please forward this task to Debbie W. with your comments. This will allow Debbie to update Dataworks with the outcome of her subsequent investigation when carried out and completed.

On 24 August 2009, Mr Thomas recorded that “[t]he task has been forwarded to Debbie West”.

23. The continuous Council record concerning Stacie’s complaint contains a note of 24 November 2009 to Mr Toriola as follows:

Ms Byrnes has called again today. States that someone fell and broke their leg on the driveway and Council needs to do something about this. Her contact no is [telephone number] and she is at home today, she did not give me any other contact no. She wishes to talk to someone about this.

An internal Council note of 25 November 2009 records that Mr Toriola tried to telephone Stacie but could not be connected. A further note of 27 November 2009 from Mr Toriola addressed to Mr Thomas records the following:

As discussed yesterday, please follow up this matter and if necessary refer the matter to Ron M. If any outstanding maintenance works especially with respect to the existing table drain is required.

Any other problem, please discuss.

It is significant that there is no suggestion that Stacie asserted that she had complained about the surface of the Crossover before the fall reported in the telephone call.

Oral Evidence Adduced for the Council

24. Mr Richard Vaby, the construction and maintenance manager of the Council for more than 20 years, gave evidence about the system of recording and acting upon complaints as to the condition of roads. He said that it was established practice that the Council does not maintain or adjust driveways unless there is an alteration in the road level that would somehow disadvantage access for a resident. He said that contractors are clearly instructed not to touch or adjust driveways unless there is an alteration to the road level.

25. Mr Vaby said that the invoice from Follington Constructions of 7 August 2009 related to a table drain, which was parallel to the edge of the seal of the roadway, and related to the removal of accumulated silt, vegetation and mud from the table drain and road shoulder at the Premises. He described the table drain as being “the depression that conveys the water parallel with the road”, which was the location of the build-up of sedimentation. He said that the invoice of 14 August 2009 involved work for removing the driveway crossing at No. 21 Ski Lodge Road.

26. Mr Thomas, who had been employed by the Council for over 40 years, inspected the work done by the Council’s contractors in Ski Lodge Road. Mr Thomas demonstrated confusion in his evidence, particularly as to the house numbers (but the primary judge hypothesised that that confusion may have been due to his hearing impairment). However, he said that, when he first went to visit the area, he saw a very wet area in front of the Premises and, when he went back, he understood that the works had been completed and saw that the wet gravel shoulder had been dug out and some dry hard material had been entered and the drainage pit had been lowered to allow good drainage. That appears to relate to the work done in front of No. 21 Ski Lodge Road. Mr Thomas denied that the Council had done any work on the Crossover and asserted that it had done work only to the drainage pit. Mr Thomas agreed that the Council had a high regard for Follington Constructions as contractors. The primary judge considered that the evidence given by Mr Thomas was consistent with his email of 21 August 2009.

24. Mr Larry Follington, the principal of Follington Constructions, which has been doing work for the Council for 26 years, said that, while he had inspected the job in Ski Lodge Drive, he had not done any work on the job. He said that the driveway crossing at the Premises was too high, that he contacted the officers of the Council and he was told to do nothing about the pipe crossing and to leave it as it was. He said that, on his instructions, no work was done on the Crossover. He also said that, since 2006, he had been using black recycled road base and that the material shown in Exhibit D was a different colour and looked more like broken concrete to him, rather than road base. Having regard to the way in which Mr Follington gave his evidence, the primary judge saw no reason not to accept his evidence, so far as it was relevant.

25. Mr Grant Follington, a machine operator and labourer with ten years’ experience, did the work at the Premises, together with Mr Michael Woods. Mr Follington said that he did not touch the driveway at the Premises, as the Council stipulated the job and he was told not to touch driveways. He said that he had also been told by Larry Follington not to touch the driveway. Mr Follington also denied the proposition that the small area shown on Exhibit D was broken up road base that had not been cemented. He said that it was definitely not road base as road base is not that colour, but is “a real dark grey, near on charcoal”.

26. The primary judge considered that Grant Follington stood up well to a comprehensive cross-examination and his Honour accepted his evidence. His Honour said that he was an impressive witness and did not appear to be reconstructing or manufacturing a version. Rather, his Honour considered, he gave prompt and appropriate answers to the cross-examiners.

27. Mr Michael Woods, who was the bobcat operator working with Grant Follington on the job, said that they worked on the stormwater pit and denied having done any work on the Crossover or the driveway in front of the Premises. The primary judge accepted the evidence of Mr Woods, which his Honour considered had been given in a direct and convincing manner. His Honour considered that Mr Woods was not shaken in cross-examination.

Reasoning of the Primary Judge

31. The primary judge accepted the evidence of the “experienced contractors” who did the work, which evidence his Honour considered was consistent with the evidence of the “senior Council officers” who attended the site. His Honour preferred their evidence to that of Michelle and Stacie, whose evidence his Honour considered was “of a fairly general and non-specific nature” and some aspects of which suggested some unreliability. His Honour gave a number of reasons as to why he had come to that conclusion.

32. The primary judge observed that Michelle said that it was just going on dark when she arrived at the Premises at 5.30 pm, that there was no street lighting and that there was no apparent reason for her to take any particular notice of the condition of the Crossover as she walked into the Premises in near-darkness. His Honour said that, on her evidence, she was not aware of anything that would have put her on notice of a change in the condition of the Crossover since her last visit to the Premises some weeks earlier. His Honour considered that there was “an air of unreality and perhaps reconstruction” attached to her positive assertion that she could see white crushed concrete at the time. That was all the more so in circumstances where Stacie said that one could not see one’s feet at the Crossover when it was very dark, even if the house light was on.

33. The primary judge also referred to a variance between evidence given by Michelle and the instructions she had given to her solicitors as to whether she had traversed the Crossover in the week or so before her fall. On 29 July 2010, Michelle’s solicitors wrote to N & K Adams Consulting Pty Ltd, safety management and ergonomic consultants, with a view to requesting a report concerning the circumstances of her accident. In the letter, the solicitors asserted that Stacie had complained about the nature strip between January and August 2009 by telephoning the Council and that, in response to her complaint, the Council put material similar to road base on the nature strip. The letter asserted that, after three days, the road base, or gravel, broke into pieces. The solicitors said that, although Michelle had been to her daughter’s place on many occasions, her accident occurred approximately ten days after the road base was laid. Significantly, the letter said that Michelle had in fact been to her daughter’s place on a couple of occasions since the road base was laid (but, presumably, before her accident).

34. However, in cross-examination, Michelle said that the time when she had her accident was the first time that she had been to her daughter’s place “since this concrete gravel stuff was put there”. When asked about her solicitors’ letter, Michelle said that she was “not sure” whether she had told her solicitors that she had been to the Premises a couple of times after the material was laid. She accepted that her memory of what she did in the middle of 2009 would have been better when she spoke to her solicitors than it was at the time of the trial.

35. Michelle also said in the course of cross-examination that she had not said anything to her daughter or her son-in-law about what was on the Crossover when she went into the Premises on the night in question, because her daughter had already told her that the driveway had been fixed. She said that “as I drive [sic] past in the morning or in the afternoon you could tell it had been fixed”. Michelle said that her daughter had told her “probably a week beforehand” that the driveway had been fixed.

36. Further, the primary judge observed, Michelle had not identified in her evidence to the Court a date for the placement of the material. Thus, in his Honour’s view, it was “difficult to see how it could have been asserted”, as it had been in the letter to her solicitors, that the material broke up within three days. The primary judge also noted that Michelle had described the material as “white crushed concrete” whereas Stacie had described it as “grey” “rubble”.

37. The primary judge also referred to Stacie’s assertion that she had telephoned the Council several times before the accident to complain about the placement of material. His Honour considered that there was “an air of unreality” about the evidence, suggesting a desire to assist her mother’s case, since one would have expected that any such calls would be recorded in the Council’s contemporaneous records, as was the case with the other phone calls made by Stacie.

38. The primary judge did not consider the evidence of Mr Lehane to be consistent with Stacie’s evidence. Mr Lehane said that, when he and Stacie bought the Premises, there was no loose material in the unpaved area of the Crossover that would have been moved when heavy rain came down the driveway. He said that the surface was hard packed ground, that it was “just dirt” and that there was not anything loose. He did not agree that there was any difficulty moving the car in and out and asserted that Stacie had complained to the Council about “bad work”. He said that he “assumed” that she complained about the Council work because there was a lot of loose gravel around after the Council had “come through”.

39. Significantly, Mr Lehane said that he did not remember Stacie complaining to the Council before any work was done. He said that the Council came and “did the whole street” and that it was not just the Premises. He had no conversation with Stacie about there being any problem with the Crossover before the Council came to do the work. The primary judge considered that it was surprising that Mr Lehane knew nothing of any drainage problem at the Crossover that needed fixing, that he knew nothing about Stacie’s complaints prior to work being done and that he simply remembered that the Council had done work on the whole street.

40. The primary judge observed that, at its highest, Michelle’s case involved the proposition that there was something different about the surface of the Crossover on 29 August 2009, in that it looked like white crushed concrete had been laid over the top. Given the absence of any evidence of further work, cleaning up or heavy rain causing further damage between 29 August 2009 and the date when Exhibit D was taken a week later, his Honour found it difficult to accept Michelle’s evidence. On the contrary, his Honour considered that Exhibit D showed evidence of considerable wear and tear, including what was described as “a pothole” and “an area of broken up concrete or road base”, partly exposed pipe and a series of corrugations and ruts. His Honour considered that there was nothing in Exhibit D to suggest that any recent work had been done on the Crossover, or that any material had recently been deposited on the Crossover.

41. The primary judge concluded that the complaint made by Stacie, as recorded in the Council’s documents, did not concern the safety of the Crossover, but rather that the driveway where it meets the road was getting muddy and making it hard to get in and out of the drive because of water run-off down the road. The second complaint was that the driveway was very boggy and that Stacie was concerned about the damage that it was doing. His Honour referred to the Council’s analysis that the work required was to redefine the table drain into the pit and recut the driveway access at No. 21 to allow positive drainage. His Honour found that that was the work that was actually done. Accordingly, his Honour found that the preponderance of the evidence established that neither the Council nor the Council’s contractors performed any work on the Crossover or deposited any material at that location. In the light of that conclusion, his Honour found that Michelle had failed to establish the essential factual foundation for her pleaded case.

42. Having found in favour of the Council on that issue, there was no need for the primary judge to consider whether the Council had been negligent, on the assumption that it was in fact responsible for the placing of material on the Crossover. Accordingly, his Honour did not make any hypothetical findings of negligence. Indeed, there is no finding that the accident actually occurred on an area for which the Council was responsible. Nevertheless, after concluding that there should be a verdict for the Council, his Honour assessed the damages to which Michelle would be entitled, had she succeeded. His Honour concluded that the quantum of damages would have been $354,369. There is no issue as to that quantification.

The Appeal

43. In her notice of appeal filed on 15 August 2014, Michelle seeks orders that the appeal be allowed and that the verdict for the Council be set aside. She also asks for a verdict and judgment in the sum of $354,369. She asserts that the primary judge erred in the following respects:

1. in accepting the evidence of Larry Follington, Grant Follington and Michael Woods;

2. in failing to give sufficient weight to the invoice of 7 August 2009 sent by Follington Constructions to the Council;

3. in not accepting the evidence of Stacie that material shown in Exhibit D was placed on the Crossover after she had telephoned the Council;

4. in not accepting the evidence of Michelle that the surface of the driveway, as shown in Exhibit D, on the date of her accident, was different from what it had been previously;

5. in finding that the preponderance of the evidence established that the Council’s contractors did not perform any work at the Crossover or deposit any material at that location;

6. in finding that there was nothing in the photographic evidence to suggest that any recent work had been done on the Crossover or that any material had been deposited recently on the Crossover.

Ground 1

44. Counsel for Michelle contended that Mr Vaby had conceded in evidence that road base was placed on the Crossover. When cross-examined about the invoice from Follington Constructions, which referred to loading and carting road base material to effect repairs to “pot holes and ruts”, he agreed that that indicated that somebody from Follington Constructions had deposited some road base somewhere in front of the Premises. He also agreed that he could not say whether it was deposited in the area of the drainage problem or whether it was in the Crossover. However, that evidence is quite equivocal. It is not inconsistent with the evidence of the contractors.

45. Mr Vaby, Mr Woods and Mr Grant Follington were also cross-examined about what appears to be a pile of leaves shown in Exhibit D. They agreed that the leaves suggested that there was a pot hole where they had accumulated. However, that evidence is equivocal as to whether any material was placed on the Crossover. If anything, it suggests the contrary, in that, had the pot hole containing the leaves been filled, it would be curious that it still existed a week after the accident (being the time when the photograph comprising Exhibit D was taken). The presence of the pot hole could not be said to constitute incontrovertible, or even persuasive, evidence that any material was deposited at the location of the Crossover.

46. Michelle also relied on the absence of evidence corroborating that of the contractors and the Council’s officers. She asserted that their evidence was not supported by any objectively established facts or contemporaneous material. Thus, she argued, while the contractors asserted that road base was black in colour, no photographic or other evidence was tendered to corroborate that assertion. That, however, is not a reason for rejecting the evidence given by the three contractors.

47. Whether or not the road base used by Follington Constructions was dark in colour or light in colour is, in any event, of marginal relevance. The real concern is that there was no evidence shown in Exhibit D of any significant material at all. Rather, as the primary judge found, Exhibit D indicates that the area of the Crossover showed evidence of considerable wear and tear and bare compacted earth, rather than loose gravel.

48. Michelle has not pointed to anything that is “glaringly improbable”[1] in the evidence of the contractors. Rather, she simply asserts that his Honour should have accepted her evidence and Stacie’s evidence in preference to that of the contractors. There was nothing inconsistent in the contractors’ evidence with other incontrovertible evidence. There was nothing in their evidence that was “contrary to compelling inferences”[2] that might otherwise have been available. Rather, their evidence was corroborated by the contemporaneous material.

    1. See Fox v Percy [2003] HCA 22; 214 CLR 118 at [28]-[29].

    2. Ibid.

49. The primary judge explained why he accepted the evidence of the contractors as reliable. Nothing has been said to cast doubt on his Honour’s assessment of their reliability. Ground 1 must be rejected.

Ground 2

50. Michelle complains that the primary judge failed to give sufficient weight to the invoice of 7 August 2009 from Follington Constructions. She asserts that it should be understood as referring to work on the Crossover. However, the invoice must be understood in the context of the Council’s Request for Work form, which was addressed to Follington Constructions and bears the date 14 July 2009, with an inspection report dated 20 July 2009. The form makes clear what work was required. Having regard to the other contemporaneous documentary evidence and the oral evidence of the Council’s officers and the contractors, the primary judge did not fail to give appropriate weight to the invoice. His Honour made no error in concluding that the invoice did not relate to work involving the deposit of material on the crossover.

Grounds 3 and 4

51. It is difficult to find any fault with the reasoning of the primary judge in concluding from the matters addressed above that the evidence of both Michelle and Stacie was unreliable. Against that, his Honour had the evidence of the contractors and the Council officers, whose evidence he accepted as reliable. There is no basis for concluding that his Honour erred in not accepting the evidence of Michelle or Stacie.

Ground 5

52. This ground is quite unspecific. It merely asserts that the primary judge reached the wrong conclusion on the basic factual question before him. It had to be rejected unless another more specific ground was made good.

Ground 6

53. Michelle complains that the primary judge wrongly used Exhibit D (and Exhibit A, being another photograph of the Crossover taken from a further distance away) as a substitute for the evidence of the witnesses. The primary judge expressly referred to the proposition that a judge should not attempt to read or construe a photograph, but rather look at it in determining which of the explanations given by the witnesses appears to be the most worthy of acceptance. [3] There is nothing to suggest that his Honour erred in the use that he made of Exhibit D or Exhibit A. Neither exhibit does anything to support the evidence given by Michelle or Stacie. Rather, they very much corroborate the evidence given by the contractors and the Council’s officers to the effect that no material was placed on the Crossover. There was nothing in this ground.

    3.    Short v Barrett (Court of Appeal (NSW), 5 October 1990, unrep) at 7.

Conclusion

54. There was no merit in the appeal. Accordingly, for the foregoing reasons, it was appropriate that it be dismissed with costs.

55. SACKVILLE AJA: I agree with Emmett JA.

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Endnotes

Decision last updated: 25 June 2015