Coffs Harbour City Council v Fokes

NEW SOUTH WALES COURT OF APPEAL

CITATION: Coffs Harbour City Council v Fokes [2003] NSWCA 368

FILE NUMBER(S):
40158/03

HEARING DATE(S): 19 November 2003

JUDGMENT DATE: 19/12/2003

PARTIES:
Coffs Harbour City Council - Appellant
Desmond Bryan Fokes - Respondent

JUDGMENT OF: Giles JA Ipp JA Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 192/01

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

COUNSEL:
J P Guihot - Appellant
S Norton SC & D M Wilson - Respondent

SOLICITORS:
Hunt & Hunt, Newcastle - Appellant
Stacks, The Law Firm, Taree - Respondent

CATCHWORDS:
Personal injury - fall from bicycle - whether judge entitled to accept plaintiff's evidence - whether judge misapprehended plaintiff's evidence and erred in findings as to fall - whether this error vitiated holding as to breach of duty - no question of principle.

LEGISLATION CITED:

DECISION:
(1) Appeal allowed; (2) Set aside the verdict and judgment for the plaintiff; (3) Order that there be a new trial; (4) Set aside the order for costs made by the trial judge; costs to be in the discretion of the judge conducting the new trial; (5) Respondent to pay the appellant's costs and have a certificate under the Suitors Fund Act if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40158/03
DC 192/01 (Taree)
GILES JA
IPP JA
HOWIE J
Friday 19th December 2003

COFFS HARBOUR CITY COUNCIL v FOKES

Judgment

GILES JA: The defendant had the care and control of Englands Park adjacent to Coffs Creek at Coffs Harbour. It constructed the Coffs Creek Walk, a paved path across the parkland and a boardwalk over and through the mangroves at the edge of the creek. The path ended and the boardwalk began at the creek bank. A sign was placed beside the path 6 m before the junction, stating that bicycles were prohibited on the boardwalk.
The plaintiff alleged that he was cycling along the path, that he saw the sign prohibiting bicycles on the boardwalk, that he steered off the path, and that he fell from his bicycle and was injured. He alleged that his fall was caused by the defendant’s negligence in creating or leaving a hazardous situation for cyclists using the path.
The judge accepted the plaintiff’s account of how he came to be injured, held that the defendant had breached its duty of care owed to the plaintiff, but held also that the plaintiff had failed to take proper care for his own safety. He assessed the plaintiff’s damages at $222,570, reduced them by 20 per cent for contributory negligence, and gave judgment for the plaintiff for $178,052.00.
This was an appeal on liability and contributory negligence. There was no appeal on damages or cross-appeal on contributory negligence.
Although it was presented through a great many grounds of appeal, there were essentially three limbs to the appeal. First, it was said that the judge erred in accepting the plaintiff’s account of how he came to be injured, and that he should have left the injury which the plaintiff undoubtedly suffered to be attributed to some other but unknown incident. Secondly, it was said that even if the plaintiff’s account of how he came to be injured was to be accepted the judge erred in his findings, and that the judge thereby erred in holding that there had been breach of a duty of care owed to the plaintiff. Thirdly, it was said that even if the holding as to liability remained the plaintiff should have borne a much greater responsibility for his injury than was reflected in the 20 per cent discount for contributory negligence.
Acceptance of the plaintiff’s account
The defendant’s counsel pointed on appeal to what were said to be many inconsistencies within the plaintiff’s evidence, between the plaintiff’s evidence and medical records and between the plaintiff’s evidence and that of his wife. I do not think it necessary to set out all the inconsistencies on which he relied. The following more general matters were prominent in the defendant’s submissions.
The plaintiff said that he was in great pain after his fall: he had in fact broken his neck. He said that he went back to his home after the accident, notwithstanding that his usual doctor’s surgery was nearby. He said that while waiting for his wife to dress the children before taking him to the doctor he drank a quantity of rum and a can of beer. From the doctor’s surgery he went to a radiologist, who on seeing the x-rays advised him to go straight to a hospital. He said that he went home to change his shirt, notwithstanding that the route home was past the hospital. He said that he drank the rest of the bottle of rum and another can of beer before going to Coffs Harbour Hospital. This, the defendant submitted, was a most improbable account.
The plaintiff told the triage nurse at the hospital, and then the doctor, that he had drunk four to six schooners at the RSL and had had the accident as he cycled home. He said that this was a lie to account for his inebriated condition, in truth due to his drinking the rum and the beer. He did not, however, refer to this post-accident drinking on other occasions when he related what had happened. On a number of occasions when taxed in cross-examination the plaintiff said that he had no memory, for example, as to what he told medical staff at Royal North Shore Hospital to which the was transferred or to a police officer who later interviewed him about the blood alcohol analysis of a blood sample taken at Coffs Harbour Hospital. The defendant submitted that this cast great doubt on the plaintiff’s evidence.
The judge found that the plaintiff’s claimed restrictions on his activities as a result of his injury were contradicted by videos, which the judge said were “telling evidence that he is capable of doing more than that to which he attests and secondly, they reflect adversely on his credit.” The defendant submitted that the videos reflected on the plaintiff’s credit otherwise than as going to damages, instancing that the plaintiff had denied ever riding a bicycle one-handed while smoking a cigarette but that the videos showed him doing just that.
It is evident that these matters were put to the judge by counsel for the defendant, and there is no reason to think that the whole range of inconsistencies on which the defendant relied was not also deployed. The judge plainly enough considered that the plaintiff’s credit was compromised. He nonetheless accepted the plaintiff’s account of how he came to be injured.
The judge said -
“Under cross-examination the plaintiff maintained his account of events. Whilst he readily conceded other sequences of events might have had a better result, he still adhered to the one he gave in chief. Secondly, whilst he agreed he may have received medical treatment earlier by going straight to the general practitioner and following the x-ray, straight to the hospital, he still maintained the account he originally gave.
Much more importantly, whilst asserting the untruthfulness of his history of drinking that day, given to a nurse and a doctor and the truth of the rest of the information he gave he still maintained firstly, that he had nothing to drink before the accident and secondly, that he had lied to give a better complexion to his state at the time. He said he was embarrassed about his solitary drinking and to account for it by having visited a club was some amelioration of his shame in this regard.”
After referring to a listing by the defendant’s counsel of matters said to reflect adversely on the plaintiff’s credit, the judge said -
“He remained, however, unshaken on the place, time, nature and circumstances of his accident, which is to a degree supported by the police evidence of what he said to him when he was discharged from hospital.
Whilst I am prepared to believe him on these matters, I have grave reservations on his present pain and incapacity, about which there appears to be a degree of exaggeration supported by his wife’s evidence. In this regard I have reservations about her evidence too.
LIABILITY.
The Court is, of course, entirely reliant upon the plaintiff for the account of what happened. Have seen [sic] the plaintiff examined and extensively cross-examined and I have observed his demeanour. His evidence relating to the accident remained unshaken, nor is there any evidence which would point to it having happened elsewhere or otherwise than [as] he said. I accept the plaintiff in this regard and I am satisfied on balance, that it occurred as he said it did.”
The police evidence was that of Senior Constable Millward, the police officer who interviewed the plaintiff about the blood sample. He recorded in his notebook “Riding pushbike end of Edgar St to boardwalk. Fell off pushbike walk back home felt crook had a few beers went to Dr Mason surgery … “. He said that the plaintiff told him that he felt sore and “had a couple of medicinal ales”. This was some weeks after the accident, no doubt the reason for “to a degree”.
As appears from the heading in the passage last cited, this was in the judge’s consideration of liability. It is necessary to go also to what the judge later said under the heading “Contributory negligence, the alcohol issue”.
The judge referred again to the plaintiff having hold medical staff that he was cycling home from the RSL after drinking, saying that the plaintiff had “sought to explain this in his own evidence by denying having been drinking prior to the accident, but asserting that he drank afterwards to dull the pain”. He referred to the evidence of Mr Bryan Harper, who saw the plaintiff leave on his ride and said that he was “just quite normal”, and to the evidence of the plaintiff’s father, who spoke to the plaintiff in hospital and said the plaintiff told him he had had a drink after the accident because of shock. He referred to evidence of the plaintiff’s wife and of Senior Constable Millward. The judge said -
“In most cases, that which is said first lasts longest. The less chance for sober consideration, the less chance exists for fabrication, particularly where questions of drink, amounts and time over which it was ingested are concerned. Normally what was said to a triage nurse by a plaintiff may well be regarding this matter, seen as the truth of it.
In this case however, there is an explanation. It must be said that in itself, it is not particularly persuasive. But there is the sworn evidenced of three witnesses, which has not on this issue, been shaken by cross-examination, nor is the evidence in the case of two of them, tainted by matrimony. I am left therefore quite undecided and as the defendant bears the onus of proof, that remains to be discharged.
However, I am persuaded that the plaintiff was taking less than proper care for his own safety. He was confronted with a choice. There was no agony of the moment. Had he pulled up on the board walk, he would have come to no harm. In making the choice he did, he should have been more careful. I am satisfied on balance, that there has been contributory negligence in this regard, which I assess at twenty per cent.”
The defendant submitted that the judge should have addressed the reliability of the totality of the plaintiff’s evidence, rather than confined his adverse view of the plaintiff’s credit to the question of damages, and that if he had done so he should have concluded that the plaintiff’s credit was such that he could not be accepted on any contested question of fact. The defendant relied in particular on Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, in which Handley JA said at 118 that the trial judge had erred “by simply deciding to quarantine the worker’s proved lies and not use or ‘transpose’ them in order to carefully weigh other parts of his evidence which were neither corroborated nor shown to be false”. The defendant submitted that the judge’s error was compounded by his confining the significance of pre-accident drinking to the issue of contributory negligence, being then “quite undecided” and so declining to accept the plaintiff’s explanation for the admitted lying to the medical staff.
I do not think that in his consideration of liability the judge did confine his adverse view of the plaintiff’s credit to the question of damages, or fail to address the reliability of the totality of his evidence. The passages I have set out show that he considered whether, in the face of the numerous matters adverse to the plaintiff’s credit, the plaintiff’s account of how he came to be injured should be accepted. A judge is entitled to accept a witness on one matter although not on another: indeed, it is wrong to jettison a witness’ evidence entirely without considering whether it should be accepted in part. There were grounds for questioning the plaintiff’s credit generally, and the judge was alive to them. The judge had the advantage of seeing and hearing the plaintiff give his evidence, and subject to what follows I do not think the case falls within the “glaringly improbable”, “contrary to compelling inferences” or other misuse of advantage territory necessary, on established principles of appellate restraint, in order that his acceptance of the plaintiff’s account be overturned.
What the judge said when he returned to pre-accident drinking in connection with contributory negligence is another matter. It was not correct to say when considering liability that there was no evidence which would point to the plaintiff’s accident having happened “elsewhere or otherwise than [as] he said”. The route from the RSL to the plaintiff’s home would not have taken him along the path to the boardwalk, and if what the plaintiff said to the medical staff was correct that was contrary evidence. The “alcohol issue” went beyond contributory negligence, since if the plaintiff’s inebriation was due to pre-accident drinking at the RSL rather than post-accident drinking at home it is hard to see that the plaintiff’s account of how the accident happened could be accepted. If the judge was truly undecided on the alcohol issue, there was inconsistency within his reasons.
The judge’s reasons must be read as a whole. The judge had earlier accepted the plaintiff’s account of how he came to be injured. Presumably because the parties separately addressed it in connection with contributory negligence, the judge was considering in more detail the evidence going to post-accident drinking at home rather than pre-accident drinking at the RSL. Not without doubt, I consider that in saying that he was undecided the judge meant that, consistently with his earlier acceptance, he was not persuaded of pre-accident drinking at the RSL. The judge appeared positively to accept the evidence of the two witnesses, although it is not entirely clear who of Mr Harper, the plaintiff’s father and Senior Constable Millward they were, and the contrast was with persuasion of contributory negligence in other respects. The language of the burden of proof and being undecided is probably to be explained by the context of contributory negligence.
If this is an incorrect understanding of the judge’s reasons, and I accept that it may be, there is an inconsistency of significance, undermining the judge’s earlier acceptance of the plaintiff’s account of how he came to be injured. In that event the judgment could not stand and a new trial would be necessary. As will appear, for other reasons I consider that there must be a new trial.
Breach of a duty of care
The judge said that the plaintiff was riding along the path at about 15 kph, that he was not familiar with the route, and (speaking of the sign prohibiting cycling along the boardwalk) -
“He came to it, realised its import and sought to stop. He pulled up and steered his bike off the track. At the point he chose, the grass was not roughly level with the path, but slipped away sharply to the creek bed over which the board walk [sic] formed a bridge across the mangrove [sic]. It formed a right angle bend to the path and another left handed bend as it went out along the mangrove [sic].
He did not brake suddenly, but his front wheel went down into a hole and he was pitched forward to a position in exhibit A, p 82 photograph 8.”
The plaintiff had returned to the scene about six weeks after the accident and had taken some photographs. He had marked the photographs to show where he rode along the path and went off it, although he said the markings were only approximate. Some time later the defendant had carried out works which changed the topography.
Photographs 6 and 7 showed the path from a little on the approach side of the sign to the junction of the path and the boardwalk, plus the initial part of the boardwalk. The path had a gentle right-hand turn and a sharper right-hand turn where the boardwalk began. These photographs were marked to show the plaintiff’s bicycle going almost straight ahead and leaving the path tangentially close to where the boardwalk began. Following that course would take the bicycle across a grassed area to the bank of the creek, where the photograph showed a small inlet and, on the opposite side of the inlet, a hole in the creek bank. Photograph 7 was marked with an X at the end of the bicycle’s course and approximately at the hole, which the plaintiff described as “a very big hole”.
Photograph 8 to which the judge referred in his findings was a closer view of the end of the bicycle’s course. It showed the boardwalk in the right foreground and on the right of the photograph, the grassed area in the centre foreground and on the left, and the inlet and hole in the middle. The hole was marked by the plaintiff with an X, a more accurate positioning of the X in photograph 7 to show where he came to rest.
The judge made no express finding about where the plaintiff’s bicycle left the path. He said that the plaintiff “steered his bike off the track”, and the plaintiff said that he “turned to the left to get off the path” but the markings on the photographs did not show a turn to the left and, in order to end up in the hole, the plaintiff’s bicycle had to go almost straight ahead and leave the path tangentially (as the markings showed). When the judge found that where the plaintiff’s bicycle left the path “the grass was not roughly level with the path, but slipped away sharply to the creek bed”, he was not particularly explicit. He appeared to equate the grass not being roughly level with the path and the grass slipping away sharply to the creek bed, but from what he later said about a 12.5 cm differential may also have intended to find that that the path was above the level of the grass. Of particular significance, the judge found that the front wheel of the plaintiff’s bicycle “went down into a hole and he was pitched forward” to where he came to rest at the hole in the creek bank. The boardwalk was in fact much less than a right angle to the path, but little if anything was made of that in the appeal.
The breach of a duty of care found by the judge requires some analysis of the reasons.
When stating his conclusion the judge said that when it constructed the Coffs Creek Walk the defendant created a foreseeable risk “to the cyclists who would be required to dismount at the behest of the sign”. After striking a balance between the cost of rectification of the risk and the magnitude of the risk and likelihood of its occurrence, he said -
“I am therefore of a view that a duty of care existed in the council in regard to the plaintiff as one of a class of persons, namely cyclists, whom the council foresaw would use the path, despite its wishes to the contrary. To require them to dismount, it erected signs. In the expectation that they would obey the sign, the council should have seen the surrounding area was safe to do so.
In placing the sign where it did and paying no heed to the drop from the path to the creek bed, the council was not taking reasonable care for the plaintiff and thereby breached its duty of care.”

Thus the breach was failing to see that the area where the sign called for dismounting was safe for that purpose, specifically in placing the sign where it was and “paying no heed to the drop from the path to the creek bed”. Again, the “drop from the path to the creek bed” was not particularly explicit. It appeared to be the same as the grass slipping away sharply to the creek bed, and at this point the 12.5 cm differential was not obviously in mind.
The conclusion must be read in the light of the explanation in the preceding paragraphs of the reasons, which I set out in full -
“Mr Green, architect of the pathway and board walk, gave evidence of the council’s work after the event and it appears as the result of receiving the report of the expert Mr Byrne [sic], the sign which was perhaps six metres from the commencement of the board walk was moved back another six metres and the land around the path, which because of drainage pipes, stood proud of the grass perhaps 125 millimetres, was re-graded so that the path and grass formed a level whole.
When cross-examined as to why the council moved the sign, he would not resile from the view that since it was indicated and could be achieved, he saw no good reason not to do so.
Mr Byrne [sic], the plaintiff’s expert, indicated in his report that the path was suitable for both pedestrians and cyclists and that good practice would be to keep the path and grass level. The sign was positioned too close to the board walk to permit safe stopping and coupled with the higher level of the path and uneven ground beyond, it presented a danger which was foreseeable and could be prevented. What was in fact done subsequently, can be seen in exhibit 4.
The report of Mr Jamieson, tendered on behalf of the defendant, appears to be postulated on the assumption that the plaintiff knew the path. The plaintiff denies this and there is no evidence to the contrary. I am therefore satisfied that he did not. He also viewed the 12.5 centimetre difference between the path and the grass as something which could be accommodated by an experienced cyclist such as the plaintiff who had cycled for some forty years.
In the subsequent report, Mr Jamieson dealt with sign locations, which in his view were quite adequate to warn against cycling. However, the plaintiff has given evidence of joining the path at a point where the only sign he would see, was the sign at which he stopped. In the view of Mr Jamieson, only excessive speed and/or drunkenness could account for the accident.
Whilst there would be much to be said for the Jamieson view if each circumstance were looked at in isolation, it is the concatenation of circumstances which caused the hazard. Alone, the 12.5 centimetre differential would not cause difficulties for a cyclist moving from the path, but coupled with a pothole beyond and a steep bank to the creek beyond that, it did.
True it is that the sign where it was positioned, if viewed at walking pace, would have been adequate to allow cyclists to stop. But it was not to warn pedestrians, but cyclists and fifteen kilometres per hour is no great speed for a bicycle. At this speed according to exhibit H, it takes 13.5 metres to pull up. Under these circumstances, to leave the path was the only option for someone wishing to subscribe to the council’s requirements and not go onto the board walk.
The fact that the council and Mr Green saw that and re-arranged the land, drainage and bank, so that it presented one level whole and placed the sign six metres back, so that any errant cyclist had adequate time to stop, indicated that the defendant acknowledges the correctness of Byrnes’ [sic] view”.
This explanation gave content to placing the sign where it was, in that it was said that the sign was so placed that a cyclist obedient to the sign had to leave the path. It also gave content to, and amplified, “paying no heed to the drop from the path to the creek bed”. That embraced three elements in the concatenation of circumstances: the 12.5 cm difference between the path and the grass, the pothole beyond, and the steep bank to the creek beyond that.
Relating this to the judge’s findings as to how the plaintiff came to be injured, then, the plaintiff steered off the track (the placement of the sign); where the plaintiff left the path “the grass was not roughly level with the path” (the 12.5 cm differential); the front wheel of the bicycle went into a hole (the pothole beyond); and the plaintiff was pitched forward to a position in the hole in photograph 8 (the steep bank to the creek beyond that).
The judge’s reasons were stated to have been given “without recourse to a transcript”. It is unfortunate that resources are not made available whereby judges of the District Court have greater availability of transcript. With the benefit of the transcript, I consider that the judge did err in his findings as to how the plaintiff came to be injured. The critical error lay in the front wheel of the bicycle going into a hole, but that should be seen against a background of the 12.5 cm differential.
As approached by the plaintiff the sign was about 6 m before the junction between the path and the boardwalk. The photographs taken by the plaintiff clearly showed a difference in level at the sign, where drainage pipes ran beneath the path. They showed the natural ground level rising as one moved from the sign towards the junction, but were not distinct enough to judge any difference in level in the vicinity of where, as marked on the photographs, the plaintiff’s bicycle left the path.
Mr Harry Burn, an expert for the plaintiff, inspected the scene before the topography was changed. His report said -
“Commencing just prior to the bicycle sign and continuing around to the edge of the boardwalk, the outer curvature at the curve of the paver path is approximately 125 mm above the surrounding ground. In order to avoid the restrictions with regard to riding on the boardwalk the bicycle rider is forced to leave the path tangentially over the 125 mm deep edge.”
The report included a photograph showing what its narration called “the high kerb”, but where between the sign and the junction between the path and the boardwalk the photograph was taken was not stated.
Mr Warwick Kiernan, the other expert for the plaintiff, visited the scene only after the topography was changed. In describing the “geometric layout” Mr Kiernan said that photographs in Mr Burn’s report “show that there was a drop of about 125 mm from the concrete pavers to the grass at the time of the incident”. That was correct in the vicinity of the sign, but otherwise Mr Kiernan must have been relying on the description in Mr Burn’s report.
Mr John Jamieson, the expert for the defendant, also visited the scene only after the topography was changed. He referred to Mr Burn’s report for the level of difference of 125 mm and assumed that the plaintiff “rode off this edge”.
However, the defendant called Mr Neville Green, who had been a landscape architect with the defendant for ten years. He had been responsible for the construction of the Coffs Creek Walk. According to Mr Green, there was a difference in level between the path and the grass where the pipes went beneath the path, but the difference tapered back over about six metres each side of the lowest point so that the grass became level with the path. That is broadly consistent with the photographs taken by the plaintiff, and if correct there would be no or little difference in level where, according to the markings on the photographs, the plaintiff’s bicycle left the path.
The disconformity between Mr Burn and Mr Green was left unexplored. None of the experts gave oral evidence in chief and none was cross-examined. Mr Green was not cross-examined on this matter. In considering Mr Green’s evidence the judge referred to “the land around the path, which, because of drainage pipes, stood proud of the grass perhaps 125 millimetres”, but did not appear to recognise that Mr Green’s evidence meant, if accepted, that there was not a 12.5 cm differential where the plaintiff’s bicycle left the path, or at least that a clear finding that the plaintiff’s bicycle left the path at some point of greater differential was called for.
The plaintiff initially gave no evidence of the difference in level. In his evidence in chief he was taken to two of his photographs and agreed with the suggestion “that the grass verge is on effectively the same level as the path, perhaps even a little higher”; the photographs were of the path before coming to the sign. He was then asked -
“Q. Prior to getting off the path in the area you’ve indicated on photograph 6, did you notice the drop from the path, the apparent drop from the path to the surrounding ground?
A. I didn’t notice it in particular. No I didn’t.
Q. And what happened, if anything, to you and your bike when you rode off the path?
A. Well the front wheel went down and the handle bars turned, I lost control and I went over the handle bars.”
No more was said in chief which might have posed the 12.5 cm differential as the occasion for the plaintiff’s accident. However, this was taken up in cross-examination. Apparently with reference to when the plaintiff returned and took the photographs, he was asked –
“Q. Well, when you were there, did you look at the pave way [sic] and the level of the grass and make any observations about it?
A. Yes I did.
Q. Would you agree that the level on 18 August 2000 was something in the order of between four and five inches drop?
A. I’d say so, yes.
Q. And you’re not suggesting for one moment, are you, that a man with more than 40 years experience of riding cycles would have any difficulty whatsoever riding a cycle off a pave way with a drop of four to five inches? You’re not suggesting that, are you?
A. Well, it happened.
Q. You’re not suggesting that that would be a difficult manoeuvre, are you?
A. You wouldn’t think so, but it turned out it was that day.
Q. Any self-respecting seven year old would not only drive over the edge of that pave way onto the grass but could come up from the grass on to the pave way; there’s no doubt about that, is there?
A. Well, some of those may well break their neck. I did mine.”
The cross-examiner appeared to accept that there was a difference in level where the plaintiff’s bicycle left the path. Despite the unpromising response to his questions, the cross-examiner returned to the difference in level -
“”Q. Just tell me this. You’re not suggesting for one moment that the presence of this four or five inch difference between the pavement and the grass alongside the pave way had anything to do with your accident? You’re not suggesting that, are you.
A. Yes I am.
Q. What contribution, if at all, do you say that gap had in taking you into the area adjacent to the timber boardwalk? What did that have to do with it?
A. When I went off the side of the path and the front tyre encountered the gap, it went over it, the wheel wobbled --
Q. Oh, the wheel wobbled, did it?
A. The wheel did wobble.
Q. You’re just making this up, aren’t you?
A. It is what happened. And that’s about the last I remember except seeing the front of the ditch coming towards me.
Q. And you still had some distance to go to get to the edge of the bank and into this hole, I take it?
A. Well, I got there.
Q. The front wheel was wobbling was it?
A. The front wheel wobbled as it went down the gap.”
It was not submitted on appeal that, given the evidence of Mr Green, the judge erred in finding that at the point where the plaintiff’s bicycle left the path there was a difference in level in the order of 12.5 cm, or in failing to give proper reasons for his finding. It must be accepted that the judge was entitled to find that, according to the plaintiff, the 12.5 cm differential caused the front wheel of his bicycle to wobble as it “encountered the gap” and had something to do with his accident. But that makes all the more important the judge’s findings as to other elements in how the plaintiff came to fall.
I go then to the front wheel of the bicycle going into a hole. In his evidence in chief the plaintiff described how he saw the sign and decided to get off the path. He was taken to photograph 6 and described the X as representing “a very big hole”, and he said he went off the path -
“Q. Where?
A. Just before – well, a bit before the hole.
Q. Where in relation to the X?
A. Can I just have a look? A couple of yards before that, maybe a bit more, because I – when I got off and went down the side of the path, I went through the air and I landed in the hole, so – “.
This was the first reference to a hole. There were many other references. The plaintiff said that there “just happened to be a hole where I tried to get off it”, that he went over the handle bars and his body “hit the bank head on, hit the hole”, that his head and helmet went “into the bank that was made by the hole”, and that he got up slowly, picked up his bicycle, and “pulled it out of the hole and myself out of the hole”.
In cross-examination the plaintiff himself was the first to mention the hole, saying of one of the markings “there’s a hole there towards the end of that black line, which is where I fell into”. He was taken again to photograph 6, and he said that the X in the photograph “marks the place where my head hit inside the hole”. He described how, when his bicycle went off the path, what was ahead of him was “a big hole” in which he and the bicycle ended up, and described the size of the hole by his arms outstretched in a circle nearly joined at the fingers and as about 2’6” deep.
The cross-examination included -
“Q. Well, tell me this. Where were you when your cycle catapulted? Was it as a result of part of the cycle going into this hole you’ve described, or before that?
A. Sorry, where was I when what?
Q. I’ll ask it again. If you don’t understand, please say so and I’ll happily repeat any question. Do you say your bike commenced to catapult, with you going over the handle bars, as a result of coming into the hole, or did it commence to catapult at some stage prior to reaching the hole?
A. It was prior to reaching the hole. It was just on the – after it left the edge of the pavement.
Q. So the hole had nothing to do with causing you to come to grief on your bike?
A. Well, I don’t know, it may have been part of where the front tyre came off. I cannot remember.”
In my opinion, it is plain beyond doubt that the plaintiff’s references to a hole were not to a pothole into which the front wheel of his bicycle went whereby he was pitched off his bicycle. The hole was where he and his bicycle ended up after he had fallen. The plaintiff suggested in the appeal that when the plaintiff said there “just happened to be a hole where I tried to get off it” he was also describing as a hole the difference in level, but I am unable to agree. On the plaintiff’s evidence, he may have fallen because the 12.5 cm differential caused the front wheel of his bicycle to wobble, but he did not fall because the front wheel went down into a hole distinct from the difference in level between the path and the grass, or went into “a pothole beyond”.
In speaking of the concatenation of circumstances the judge apparently did not think the placement of the sign and the 12.5 cm differential were sufficient for breach of duty. The breach of duty lay in the forced leaving the path over the 12.5 cm drop with the pothole beyond and the steep creek bank beyond that. On the judge’s findings, the pothole brought the plaintiff undone. But there was in fact no such element in the hazard giving rise to the breach of duty, and the plaintiff did not fall because of a pothole. The judge’s findings were in error, and the breach of duty on which he proceeded was flawed. The flaw was the more significant because of the unexplored disconformity between Mr Burn and Mr Green over the 12.5 cm differential, which would have better been recognised and resolved by more precise findings of where the plaintiff’s bicycle left the path and what difference in level, if any, there was at that point.
In my opinion, the error vitiated the judge’s holding that the defendant breached its duty of care owed to the plaintiff. That holding cannot stand unless it can be concluded that the plaintiff would in any event be entitled to succeed. The plaintiff did not file a notice of contention seeking to maintain the judgment on that basis. I do not think it can be so concluded.
The judge found the breach of duty in the concatenation of circumstances, and it seems would not have found it absent a pothole into which the front wheel of the plaintiff’s bicycle went. Arguably a forced leaving of the path over a 12.5 cm drop with the steep creek bank ahead could provide a basis for breach of duty, but the judge did not make findings whereby that could properly be concluded. It would involve the adequacy of an un-potholed area onto which cyclists could turn, and while the judge observed that at 15 kph it would take a cyclist 13.5 metres to pull up that figure, which was taken from a supplementary report of Mr Kiernan, took no account of turning and was in unresolved conflict with Mr Jamieson’s opinion that the plaintiff could safely have ridden straight ahead or come to a stop. The judge appeared to accept Mr Jamieson’s opinion but for the concatenation of circumstances. Because he came to his conclusion upon the concatenation of circumstances, it was not necessary for the judge to go further, hence the absence of other findings.
Nor can it be concluded that the plaintiff must fail. While the judge apparently did not think that the placement of the sign and the 12.5 cm differential with the steep creek bank ahead were sufficient for breach of duty, he did not fully address or make findings appropriate to breach of a duty of care absent the pothole. In my opinion, there must be a new trial.
Contributory negligence
Since there was error in the judge’s findings as to how the plaintiff came to be injured, and the defendant’s liability must be the subject of a new trial, there is no point in addressing contributory negligence.
Orders
I propose the orders -
(1)          Appeal allowed.
(2)          Set aside the verdict and judgment for the plaintiff.
(3)          Order that there be a new trial.
(4)Set aside the order for costs made by the trial judge; costs to be in the discretion of the judge conducting the new trial.
(5)Respondent to pay the appellant’s costs and have a certificate under the Suitors Fund Act if otherwise qualified.
IPP JA: I agree with Giles JA.
HOWIE J: I agree with the orders proposed by Justice Giles and generally with his Honour's reasons.
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LAST UPDATED: 19/12/2003

[2003] NSWCA 368

19 December 2003

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Evidence

Legal Concepts

Appeal

Breach

Duty of Care

Expert Evidence

Natural Justice

Procedural Fairness