Condos v Clycut Pty Ltd - [2009] NSWCA 200

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Condos v Clycut Pty Ltd [2009] NSWCA 200

FILE NUMBER(S):
40422 of 2008

HEARING DATE(S):
24 June 2009

JUDGMENT DATE:
16 July 2009

PARTIES:
James Condos - Appellant
Clycut Pty Ltd - First Respondent
Reflections Security Pty Ltd - Second Respondent

JUDGMENT OF:
McColl JA Campbell JA Macfarlan JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
85 of 2006

LOWER COURT JUDICIAL OFFICER:
Goldring DCJ

LOWER COURT DATE OF DECISION:
9 September 2008

COUNSEL:
RW Seton SC with KW Andrews - Appellant
RA Cavanagh - First Respondent
AJ Hourigan - Second Respondent

SOLICITORS:
Konstan Laawyers - Appellant
HWL Ebsworth Lawyers - First Respondent
Corporate Counsel, Reflections Group - Second Respondent

CATCHWORDS:
TORTS – negligence – proof of negligence – sufficiency of evidence – plaintiff allegedly struck by barricade blown over by strong wind in shopping centre – no eyewitness evidence as to circumstances of plaintiff’s fall – no evidence as to nature of any barricade – no evidence that managing agent or security services appointed by occupier failed to discharge duties – whether inference of negligence could be drawn
EVIDENCE – burden of proof, weight and sufficiency of evidence – generally
EVIDENCE – unexplained failure to call witness – whether adverse Jones v Dunkel inference could be drawn – lack of forensic utility in drawing adverse Jones v Dunkel inference against all parties

LEGISLATION CITED:
Evidence Act 1995 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29
Anikin v Sierra [2004] HCA 64; 79 ALJR 452
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135
De Gioia v Darling Island Stevedoring & Lighterage Co Limited (1941) 42 SR (NSW) 1
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155
Hampton Court Limited v Crooks [1957] HCA 28; (1957) 97 CLR 367
HML v R [2008] HCA 16; (2008) 235 CLR 334
Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470
Jackson v Lithgow City Council [2008] NSWCA 312
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Manly Council v Byrne [2004] NSWCA 123
Payne v Parker [1976] 1 NSWLR 191
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Portelli v Tabriska Pty Ltd & Ors [2009] NSWCA 17
Progressive Recycling Pty Limited v Eversham [2003] NSWCA 268; (2003) 40 MVR 141
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308; (2006) 150 LGERA 11
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 10; (2006) 226 CLR 161
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Wynn Tresidder Management v Barkho [2009] NSWCA 149

TEXTS CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40422/08
DC 85/06
McCOLL JA
CAMPBELL JA
MACFARLAN JA
Thursday 16 July 2009

James Condos v Clycut Pty Ltd & Anor

Judgment

McCOLL JA: The appellant, James Condos, brought proceedings against the respondents in the District Court of New South Wales alleging that he was injured on 23 March 2005, between 9am and 9.30am, when he was walking through the Pacific Square Shopping Centre (the “Centre”), at Anzac Parade, Maroubra when a barricade fell over and struck him.
The first respondent, Clycut Pty Ltd (“Clycut”), was the owner of the Centre. The second respondent, Reflections Security Pty Ltd (“Reflections”) was a security firm which Clycut engaged to provide security services for the Centre.
The appellant also originally joined Abigroup Ltd, a building firm carrying out construction work on the premises, as a defendant, however that aspect of the case was settled prior to trial with a verdict being entered in Abigroup’s favour.
Goldring DCJ found that the appellant had failed to show that either Clycut or Reflections owed him a duty of care in the circumstances or that there was a breach of that duty, and gave a verdict and judgment for the respondents. He also assessed the damages he would have awarded had the appellant succeeded.
The critical issue on appeal is whether the primary judge was correct in holding the appellant had failed to establish that either respondent had breached its duty of care to him.
Statement of the case
The appellant was born in Greece, and gave evidence in somewhat broken English which makes it hard, at times, to understand the transcript.
The Centre was located on the west side of Anzac Parade. The appellant said he fell outside a shop called Wokmaster. That shop was located on the corner of the Centre’s Anzac Parade frontage, in a passageway immediately outside Wokmaster which ran in an approximately east-westerly direction. The passageway appeared to open onto a courtyard. However it also appeared from photographs that the passageway was covered with a roof of sorts which extended some way into the courtyard. There were chairs and tables in the courtyard, apparently protected by large outdoor umbrellas.
He gave evidence that on 23 March 2005 he went to the Centre to buy fish. It was windy and rainy. His description of his accident was as follows:
“A. …I cross the road and I went towards the fish shop and suddenly I’ve – I didn’t see anything..(not transcribable)..I was on the floor with people on top of me”
He was shown a photograph on which he had marked where he fell – exhibit A. The evidence about the markings on the photograph, a “circle” (in about the middle of the passageway) and a “cross” (close to the Wokmaster premises) was confusing in the extreme. At first he said the “circle” represented “when I was there hit, no – I was fall down there” and the “cross”, “it was – there was a shop on the right hand, a Chinese restaurant, take away”. He was asked about the cross again, and said “… It was, my head was there and my body was where the cross is”. The transcript does not record what if anything he was indicating in the photograph. This evidence appeared to indicate that he had fallen in about the middle of the passage opposite a restaurant called “Wokmaster” and an area with tables and chairs which appeared to be open space. After identifying the spot where he said he fell and Wokmaster, the appellant said:
“And there was glass in the front, all the doors in the front is glass.
Q.           Right?
A.           And they had some barricades to hold – the doors and barricades at the other side.
Q.           So--
A.           The – the barricades, it was for three days, because people used to be – put the tiles down--
Q.           … the barricades were there all right?
A.           Mm mm.
…
Q.           Now you’ve told us that you were walking towards the fish shop and something happened and you then ended up on the ground, is that right?
A.           That’s it.
Q.           And do you know how it came about you’re on the ground or do you not?
A.           No, funnily I didn’t know what it was because I was hit down. The only thing, I saw people and the security man”
…
Q.           Now did the security man do anything to help you?
A.           Yes, straight away. He moved the people away and he grabbed me … I was dizzy … he says, ‘I’ll take you to medical across the road’. ”
A security guard, Mr Rezant Hasan, took the appellant to a medical centre. The primary judge admitted evidence of what the appellant said he heard Mr Hasan say at the medical centre over objection, saying he would disregard it as against Clycut unless a relationship of agency was established and as against both respondents, if it were hearsay. The appellant said that Mr Hasan told a person at the medical centre who inquired what had happened: “The barricade’s been hit him”.
Mr Hasan was not called at trial, but he filled out, signed and dated on the day of the accident, an incident report which the appellant tendered.   It stated:
“Action Line Security Consultants (VIC) Pty Ltd
INCIDENT REPORT (Section 1)
Date: 23.3.05        Time:     9.20 to  Site: MAROUBRA MALL
Type of incident:
Location of Incident:          PACIFIC SQUARE
DESCRIPTION OF INCIDENT…
Details
A MR JAMES CONDOS WAS WALKING THROUGH MAROUBRA MALL PAST SHOP OR MASTER SHOP WHICH WAS BARRICADED OR WHICH HAD A BROKEN/CRACKED WINDOW AND THE BARRICADE FELL OVER AND HIT THE CUSTOMER ON THE KNEE SO I TOOK MR JAMES CONDOS [to] THE MAROUBRA MEDICAL CENTRE
[THE APPELLANT’S ADDRESS]
NOTE: THE WEATHER OUTSIDE IS VERY WET & WINDY.”
The appellant also tendered two file notes prepared by Jones Lang LaSalle (“Jones Lang”), Clycut’s Managing Agent. These file notes appear to have been brought into existence by Jones Lang after the appellant had commenced proceedings, or at least issued a letter of demand, however no party took issue with their tender on this basis: cf s 69(3), Evidence Act 1995 (NSW).
The first file note, dated 8 February 2006 documented a telephone conversation between Ms Catherine Kain, the Centre Manager at the time and Mr Lawrence Hee, the operator of the Wokmaster store. It stated that Mr Hee remembered that the “edge of window of shop front on Anzac Parade was ‘shaking’ in the wind”. It further stated that Mr Hee “believes Security erected barricades after shop closed” and that he received a call from the Centre Management the following day “advising of situation of loose shop front window”, following which he called the shop fitter immediately to fix the window. Ms Kain noted, “Lawrence’s rendition is different from others on file”.
The second file note, dated 12 May 2006, documented a telephone conversation between Ms Kain and Mr Hasan. It relevantly stated:
“Rezant was not an eyewitness
– started work in the morning, barricade was already in place @ 5.30am
Wind – cyclone like winds
Barricade – white and red colour
– not sure who put barricade there. Thinks he may have
…
Broken glass – someone broke into shop either 2 – 3am
– glass everywhere
Tenant called police re break-in
…
A/c has some anomalies.”
There was a substantial issue at trial as to what led to the appellant’s fall. The appellant did not know what happened: see [8] – [9] above. The appellant relied upon Mr Hasan’s statement in the medical centre and in the Incident Report to establish that a barricade struck him causing him to fall. However, assuming that proof for present purposes, Mr Hasan’s statements did not establish the shape of the barricade.
During his examination in chief, the appellant was shown photographs of barricades and asked:
“Q.         … What can you say about the barricades that were there on the day of your accident and these photos?
A.           Those barricades being…(not transcribable)…not only that but some other barricades but…(not transcribable) …a big job to be done and when I was passing there I see it but I never take notice much.
Q.           Those barricades, are they the same as the ones there or different from the ones you saw?
A.           It was the sort of barricade it was yes”
The barricades depicted in the photographs showed two trestle legs supporting a striped bar inserted into a slot at the top of each leg.
During cross-examination by Mr A Hourigan, who appeared for Reflections at trial and on appeal, the appellant was asked to explain the reference in his evidence in chief to tiling work (see [9] above):
“Q.         Do you recall going to the shopping centre, the Maroubra Shopping Centre the day before the accident?
A.           Yes.
Q.           Or perhaps the day before that?
A.           Yes.
Q.           You gave some evidence, as brief as it was, that some people were putting some tiles down, do you remember that?
A.           Yes.
Q.           Where were the people putting the tiles down can you say?
A.           The building, it was only half having been built…(not transcribable).. and they only finishing that time the half, the other half they have cover with…(not transcribable).. and the people working they have sands, barricades, tiles, they used to be having – we used to be walk around. They had another passage on the other side, people like going inside to do shopping.
Q.           The passage where you have told his Honour that you walked across the road and started walking down a passage towards the fish shop you referred to, do you recall that?
A.           Yeah.
Q.           Was that area being tiled at that stage?
A.           That place it was, the concrete where they built up the building and they lay the concrete and they left it like this just plain concrete.
Q.           There was no tiles on it at that point?
A.           No tiles.
Q.           Were they tiling that passageway as far as you could tell?
A.           No tile.
Q.           Was there any tilers adjacent in the area around the passageway where you say the injury occurred?
A.           The passageway which I used to passing there was no tiles only they had a couple of tiles, they started fixing up the other side * where the barricades was on.
Q.           Now you have referred to barricades there, now can you describe to his Honour what you mean by barricades, how many were they and were they in comparison to where you got struck for instance?
A.           Well two or three, couple of days before, one day before, when I was going shopping I see a lot of sand, they have a lot of tiles and barricades everywhere. They kept the barricades there because the people they don’t slip in because it was deep inside, they have sand and everything to fix up the, to put there. They keep working, the people keep working and that’s why they kept the barricades over there.
Q.           The day before the accident that you had can you recall how many barricades you saw in the immediate vicinity of where you tripped?
A.           There was barricades there but I never count how many barricades.
Q.           Were there more than a few?
A.           Yes, was probably around, to give the people, not to fall in.
Q.           Were they the same type of barricades that you say struck you?
A.           Sir it was different barricades, I …(not transcribable) different barricades, they say, I don’t know what sort of barricades it was. But I never pay attention on the barricades, what kind of barricades it was.
Q.           We will try and narrow that down a little bit. Were all the barricades you saw the same colours or colour?
A.           There was some colours, some not colours, some I don’t know, but I can’t remember back to there, but it was barricades. They had, those big …(not transcribable) in the front where said work be done here, and some other different barricades on the side where there was tiling.
Q.           There was some black and yellow ones like the photo that you were shown--
A.           Yeah
Q.           –and then was given to his Honour?
A.           They had some of them.
Q.           Were there some red and white ones as well do you recall?
A.           I can’t recall that, I can’t remember.
Q.           Were some of the barricades different sizes to the ones in the photo that was shown to his Honour?
A.           I cannot, can, recall this one it’s –
Q.           Are you at all confused or do you just not recall the size of the barricade that you say struck you?
A.           Well I only heard the security man which he took me and the people were, when they trying to lift me up, ‘barricade’s been hit, it hit him’. Now if you lie down just about, they don’t even know where you are, aching (?) you, only heard the voice which the voice coming say ‘barricades, you’ve been struck him down’.
Q.           So you do not necessarily know whether the barricade was 1.5 metres long by one metre high?
A.           I cannot sir.
Q.           Because is it the case that you were asked to describe for your solicitors back in two thousand, in the middle of 2006, the dimensions of the barricade, do you recall being asked that?
A.           No they show me the barricade, I says that type of barricade I saw that. But that’s what I, want said.
Q.           Well did you give your solicitors a description that it was 1.5 metres long and about a metre high?
A.           No I said the barricade which I saw in the paper, on the book, that I saw barricade, I saw that the day before, the day before, that saw barricade. But I never see the barricade which –” (emphasis added)
* It was accepted “the other side” was a reference to the other side of the courtyard.
On further cross examination by Mr Hourigan about his statements to his solicitors regarding the size of the barricades, the appellant emphasised that he had not actually seen the barricade that struck him down:
“Q.         You would agree with me would you not that a recollection you had back in July of 2006 would probably be better than the recollection you had today of the barricade that actually struck you, it being closer to the accident.
A.           Like I said--
Q.           Do you agree with that?
A.           – It’s, about the barricades I never see the barricade myself. I only heard what the people say been strike by barricade. What saw barricade it been strike down, I didn’t see that”. (Emphasis added)
Later he said:
“Q.         Do you recall telling him that and this is in or about October 2005, that a gust of wind caught a door which struck a barricade which flew through the air striking you. Do you recall telling him that?
A.           I recall it tell me, he ask me that time, he says ‘how are you been and knocked down?’. I said ‘I haven’t seen the barricade myself because I was … (not transcribable) … but it was wind the doors, on the right side when, where the shop was there, and they have out a barricades there for the doors not to been open by the wind’.
Q.           Do you recall the door being loose and knocking that barricade or something of that nature causing the barricade then to hit you?
A.           Sir, I was not sure, I’m not recall that, the door, the door was … (not transcribable) … door it was open in, out.”
The appellant tendered meteorological records from the Bureau of Meteorology in relation to the weather on 23 March 2005 relating to observations from stations closest to Maroubra. Those stations were at Little Bay Coast Golf Club (0.7 kilometres “from Maroubra”) and Sydney Airport (7.5 kilometres “from Maroubra”) respectively.
The appellant also tendered an expert report of Dr Adams, an ergonomic and safety management consultant dated 15 May 2008 over objection from both respondents. Clycut objected on the basis that there was no evidentiary foundation to support the opinions Dr Adams expressed, the most fundamental objection being that there was no evidence to support Dr Adams’ assumption about the type of barricade which struck the appellant. Reflections also objected to the report on the basis that Dr Adams did not set out the basis upon which his conclusions were drawn so as to allow a reader to make a reasoned assessment of his opinions.
The primary judge accepted that Dr Adams’ assumption had to be proved by independent evidence. He said that he would admit the report subject to the assumptions upon which it was based being established. Insofar as Dr Adams’ opinions were concerned, he expressed the view that the reasoning process was sufficiently clear, but that there was a question as to what weight he should place on them.
It is unnecessary to set out Dr Adams’ report at great length. It is sufficient to note, for present purposes, that it was based on the assumption, in part, that one or more of the barricades of the type the appellant had identified in photographs in the course of his evidence as being those he had seen on other visits to the Centre on the days before the accident, had been placed “beside the entry walkway to prevent pedestrians coming into contact with … repair work” being undertaken on a broken window adjacent to the Wokmaster counter.

I have earlier described the barricade the appellant identified when shown photographs in his examination-in-chief. Dr Adams said he measured a “standard” barricade of that type as being 2.5m long and 900mm high at the top of the crossbar, with the support stand being 725mm wide at the base and constructed of light 25mm square-sectioned steel tube.
Dr Adams said he was aware that such barricades had historically used a crossbar of timber and, more recently, a lighter plastic. The lighter plastic version crossbar weighed 2kg while the hardwood timber crossbar weighed approximately 9kg. Each barricade support stand weighed 2.5kg. Dr Adams’ photograph of such a barricade demonstrated that there was a close fit between the crossbar and the socket in the support stand.
For the purpose of making his calculations, Dr Adams inferred that as the appellant was passing the barricade, or just before he reached it, either the crossbar and/or the entire barricade structure was dislodged by a gust of wind. He also inferred that the appellant fell either because he was actually struck by part of the barricade or was caused to trip and stumble by virtue of his foot or leg being struck by part of the structure, probably a support frame.
Dr Adams accepted that he could not be precise about the wind speed at the face of the crossbar of the barricade at about the time it may have been dislodged. It is not clear why he made that statement bearing in mind there was no evidence as to which part, if any, of a barricade struck the appellant. However Dr Adams then opined in relation to a barricade as a whole:
“Given the width of the base of the barricade described above and the height at the centre of the crossbar it may be calculated, by taking simple moments about the outer feet at one side of the barricade, that the force required to start the barricade toppling would be less than 4kg force imposed horizontally against the face of the cross bar. With the exposed area of the crossbar being over 4000 square centimetres, the pressure applied directly against the face of the crossbar need be no more than 1g force per square centimetre to achieve the necessary 4 kilograms. While, as noted above, I am unable to specify precisely what wind speed and hence what air pressure may have impacted against the crossbar, I have no doubt that in a wind of gale force or more that pressure would very substantially have exceeded the level needed to produce a force of 4kg. It would equally undoubtedly have exceeded the 7kg necessary to dislodge a barrier holding an older-type timber crossbar.”
It should be noted that not only could Dr Adams not be confident about wind speed at any relevant time, he did not turn his mind to wind direction, which would be an important consideration in determining whether, having regard to the relative positions of the appellant and any barricade, it was wind which caused it to fall.
Dr Adams expressed the opinion that he considered “it to be a matter of common knowledge and common experience within any industry that uses the type of barricade under discussion in this report that those barricades are relatively unstable and prone to movement in windy conditions. It is common to see the stands of such barricades weighted down with sand bags laid across the bottom horizontal bar of each stand when the barricades are in locations exposed to the wind.” He also said that he could not “conceive that the wind conditions within the entry plaza at the time would not have been entirely obvious to the defendants.”
Dr Adams suggested preventative actions which could have been implemented presumably on the assumption that the barricade was of the sort he said the appellant had identified, and that no steps had been taken to secure it. In addition to weighing it down with heavy sand bags, those steps included securing the crossbar more firmly into the support stand socket (a preventative action which again appears to have depended upon the unproven assumption that it was the crossbar rather than any other part of the barricade which moved free of the support stands and somehow struck the appellant) or using wire mesh barricade/fencelike structures which appeared to be stabilised by concrete footings.
Dr Adams also expressed opinions concerning cause, probability and foreseeability. Despite his earlier inability to be “precise about the wind speed at the fact of the crossbar of the barricade at about the time that it may have been dislodged”, Dr Adams opined in this section that “there was a distinct probability that the strong wind at that location at that time would have the potential to cause movement of the barricade or part of it.”

The first and second respondents

Clycut owned the Centre. It engaged Jones Lang as its Managing Agents for the Centre pursuant to a Management Agency Agreement (the “Management Agreement”) which authorised them to “conduct and carry out on behalf of [Clycut] the operation and management of the Centre. Their duties included regularly inspecting the Centre “to ensure the required standard of presentation, repairs and operations is being maintained, including ensuring all cleaning is carried out … for presentation and safety purposes” and overviewing the “physical operation” of the Centre including the “common parts” and supervising any onsite staff they employed or otherwise engaged.
Under an Agreement for Contract Security Services (the “Security Services Agreement”) dated 16 November 2004 between Clycut and Reflections (the latter under its former name “Action Line Security Consultants (VIC) Pty Ltd”), Reflections provided services to Clycut in respect of the Centre as set out in Schedule A, including “[t]o ensure primarily, the safety of the building and everyone entering it” and “[t]o notify Centre Management of any problems or potential problems concerning building security”.
Clause 3.4(a) of the Security Agreement stated that although the overall co-ordination of safety and environmental matters relating to the Centre was Clycut’s responsibility, Reflections must “at all times exercise all necessary precautions for the safety of all persons on the Property and the public…”
The respondents’ cases at trial
Clycut called Ms Freda Carr, a Jones Lang employee, who was the Centre Manager at the time of the incident employed to undertake the Centre management duties Jones Lang had contracted to perform for Clycut. She gave evidence in chief of the contracts with Reflections and a cleaning company, who she was permitted to say were independent contractors. She said she first became aware of the incident when the appellant came to her office, she thought “days later”. She had no recollection of the incident being brought to her attention on the day it occurred or that there was any problem with glass at the front of the Wokmaster store.
Clycut also called Mr Hee. He started the Wokmaster business in January 2005. He gave evidence that the store was open from 10am to 9.30pm seven days a week. He was shown exhibit A, the photograph showing the area where the appellant said he fell. He said that when the store was closed there were glass bifold doors along the entrance to his store. The store operated from a corner site, with one side along Anzac Parade. Mr Hee said that when he started the business all the paving work outside the store had been finished. He could not recall an occasion when he went to open the store and found a barricade across the bifold doors –although it emerged in cross-examination that he did not usually get to work until about midday. However, there was also no occasion on which he had the bifold doors fixed in the first few months after he started the business. He could recall an occasion when he was informed that the glass on the Anzac parade side of the shop was shaking and he contacted a shop fitter to repair it. He had no recollection of talking to Donny regarding a broken window or door or the presence of any barricades. Donny was not called. No party complained about that. There was no challenge to Mr Hee’s evidence that he had not had to have the bifold doors repaired or that, to the extent there was an issue with a window, it was on the Anzac Parade side of his premises.
Reflections did not call any witnesses. It tendered a number of emails which formed part of a sequence of exchanges apparently within the Jones Lang organisation after the appellant had commenced proceedings, or at least issued a letter of demand. The primary judge admitted the emails over objection from Clycut that they had come into existence in contemplation of legal proceedings, ruling Ms Carr’s mail was a business record. No party complains about that ruling. His Honour also indicated he would reject a file note Ms Kain prepared dated 12 May 2006, but did not appear to appreciate that document had already been tendered by the appellant, and also appeared to have been marked as part of exhibit 4 along with a file note of 8 February 2006 prior to his ruling.
The email series commenced with an email dated 3 February 2006 from a Mr Check but the only part Reflections relied upon was an email from Ms Carr (who had left her position as Centre manager by then) to Ms Kain, the Centre manager in 2006, dated 8 February 2006 which stated, relevantly:
“On the day of the incident Abi Group erected barriers in Town Square to carry out works. I cannot say what the works were on that particular day, however they had not sought permission from centre management to erect the barriers. When centre management became aware of the incident with Mr Condos, Abi Group’s Project Manager Ben ? was requested to remove the barriers. I cannot recall whether this was done then or had been done already as soon as they knew there had been an incident.” (emphasis added)
The matters referred to in Ms Carr’s email were not put to her during her evidence.
The 8 February 2006 file note recorded a telephone conversation between Ms Kain and “Donny”, referred to as the manager of Wokmaster. It stated that Donny at first could not remember the incident, but when Ms Kain called back “with details of ‘broken window’”, his memory was triggered. It then stated that although Donny was not on duty the night of the “incident”, he “remembered the window concerned was the front of the shop on Anzac Parade”. The file note further states: “Barricades used were builders/road barricades”. It recorded that, according to Donny, Lawrence (Hee) was on duty and he suggested Ms Kain speak to him.
The primary judgment
The primary judge delivered an ex tempore judgment. He found that Clycut occupied the Centre, but entrusted its management to Jones Lang. He also found that independent contractors dealt with the cleaning and security, with security “delegated” to Reflections. His Honour noted the provisions of the Security Services Agreement I have set out above (at [31] – [32]). There is no challenge to these findings.
His Honour noted that the appellant’s description of the events was that:
“… as he was walking along what can best be described as an arcade, something happened. He was thrown to the ground and the next thing he knew he had pain in his shoulders and right leg … He does not remember anything about the incident.”
The primary judge next observed, accurately, that there was no evidence that there was any eyewitness to the incident. In relation to the failure of either party to call Mr Hasan, his Honour found that the only inference that he could draw was that his evidence would not have assisted any of the parties who did not call him. His Honour set out the text of Mr Hasan’s Incident Report. He also referred to other Jones Lang records which in his view confirmed, but did not add to the Incident Report.
His Honour referred to Mr Hee’s recollection that the window of the shopfront on Anzac Parade was shaking on the day of the incident, but that he had no recollection of a barricade or a broken window. He noted the suggestion in one of Ms Kain’s notes that a barricade had been erected in front of the Wokmaster shop after it had been broken into to stop people coming into contact with the broken glass.
Next, the primary judge referred to the meteorological records. He accepted that they showed that on the day in question “it was wet and there were extremely strong southerly winds of about 50 kilometres per hour with gusts of up to 90 kilometres per hour”. He referred to the appellant’s submission that the wind could be only reason that the barricade fell over and injured him. However, he stated:
“If I could be satisfied on the balance of probabilities that that were the case, and that is by no means certain, Mr Condos would still have to show that the existence of the barricade and the fact that it fell over was in some way related to the negligence of one of the defendants”
Turning to the issue of the existence of a duty of care and breach, the primary judge recorded the submission of counsel for the appellant, Mr K Andrews, that Reflections, in particular, owed a duty of care to the appellant. He said:
“There is some evidence that Mr Hasan was aware that the barricade had been placed where it was when he came to work at 5.30 or 6. There were strong winds and that it was there because there had been a break-in to the shop. Someone had called the police. No police records appear to have been subpoenaed and they are not in evidence, so I could not be satisfied that that had happened.
Even if that had been the case, in order to show a breach of duty, the plaintiff would have to show that [Reflections] owed it a duty and it has failed to do that. He also had to prove a breach of the duty and he failed to do that because there is no evidence that the [Reflections] did anything other than what was reasonable. There is certainly no evidence that it did something or failed to do anything in respect of the barricade. Similarly, I could not be satisfied that … Clycut, did or failed to do anything that was unreasonable in relation to the barricade.
The principle of res ipsa loquitur, the thing speaks for itself, is important in our law, but it does not relieve a person who claims a breach of duty for proving that there was such a duty and that there was a breach of it.” (emphasis added)
His Honour concluded:
“In this case the plaintiff cannot show me on the balance of probabilities that either Clycut or Reflections Security owed a duty of care to it in the circumstances and even if it could, that there was a breach of that duty. Accordingly there will be a verdict for the defendants.”
Issues on appeal
At the outset of the hearing, the appellant sought, and was given, leave to file an amended notice of appeal, relying on the following grounds of appeal.
1.The primary judge erred in finding that the appellant failed to prove either respondent owed a duty of care to the appellant.
2.            In doing so, his Honour erroneously:
(a)failed to consider the relationships that existed between the appellant and each respondent which was established by the evidence.
(b)ignored evidence of Reflections’ knowledge of the barricades’ presence and of high winds.
3.The primary judge erred in finding that neither respondent had breached its duty of care.
4.In doing so, his Honour erroneously:
(a)          ignored the evidence that:
(i)the appellant’s injury was caused by being struck by the barricade;
(ii)the barricade had been in position for a considerable period of time and
(iii)         it had been so to Reflections’ knowledge
(iv)         it was extremely windy
(v)the barricade was likely to be capable of being moved by the high winds
(b)appears to have treated Mr Hee’s evidence of lack of recall as detracting from the probative value of Mr Hasan’s incident report.
(c)appears to have drawn an inference adverse to the appellant’s case due to his failure to call Mr Hasan.
(d)appears to have placed undue weight or significance on the “suggestion that the Wokmaster shop had been broken into and that a barricade was erected to stop people coming into contact with the broken glass”
(e)should have found that in the absence of any other explanation the barricade struck the appellant because it was blown onto him.
(f)failed to consider and weigh up the competing considerations (calculus) set out in cases such as Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.
5.            The primary judge failed to give adequate reasons for finding:
(a)          no duty of care had been proven and/or
(b)          no breach of duty of care had been proven.
Submissions
Mr R W Seton of Senior Counsel, who appeared with Mr Andrews for the appellant on appeal, but not at trial, accepted that the evidence the appellant himself gave about the circumstances of his accident did not prove how he was injured. However, he contended that when that evidence was taken into consideration with Mr Hasan’s Incident Report, the appellant had established that while walking through the passageway in the Centre outside the Wokmaster shop, he passed a barricade which was blown over by the strong winds on the day in question, hit the appellant and caused him to fall over and suffer injury.
While he accepted, again, that there was no direct evidence of what sort of barricade might have struck the appellant on 23 May, he contended that having regard to the appellant’s evidence about the sort of barricades he had seen in the vicinity in the days prior to his accident, and in the absence of any other evidence, it was a reasonable inference that the barricade which struck the appellant was the sort of structure he had previously seen.
Mr Seton submitted that there was no other explanation for the barricade having fallen, but that it was hit by the high winds which were blowing on the day in question. He submitted that in the absence of evidence that the barricade was secured, the Court could infer that it was not and that, having regard to Dr Adams’ evidence, the appellant had established that an unsecured barricade could fall over if struck by the kinds of gusts which were being experienced at the time.
Mr Seton submitted, as against Clycut, that as the owner/occupier it had effectively absented itself and not effectively delegated its obligations as occupier to Jones Lang. He argued that Clycut’s responsibility as owner and occupier, and as landlord, was to make sure the premises were safe while Reflections’ duty was to ensure the safety of persons entering upon the premises.
Mr Seton argued that Clycut had a residual duty of care it had not delegated through its engagement of Jones Lang. He drew attention to the parts of the Management Agreement to which I have referred, but did not explain why, notwithstanding those provisions, Clycut still had a duty of care.
Mr Seton effectively submitted that the evidence from Ms Carr, who managed the property pursuant to the Management Agreement, was irrelevant having regard to his contention that Clycut had not entirely delegated its obligations to that firm. He contended that notwithstanding the Management Agreement, Clycut owed a duty of care to the appellant to ensure the premises were safe, that they were not safe because of the presence of the barricade since at least 5.30am on the morning the appellant said he was injured and that that, in itself, sufficiently demonstrated that Clycut had breached its duty of care.
Mr R A Cavanagh, who appeared for Clycut, accepted that Clycut was the occupier, but submitted that Jones Lang’s role could not be ignored. He contended that there was no evidence that Clycut did, or failed to do anything, in relation to a barricade. He argued, in substance, that the appointment of Jones Lang was evidence of Clycut discharging its duty of care and that it would not be reasonable for the Court to find (absent any evidence that there was some omission in relation to the appointment of Jones Lang) that Clycut should have had any additional personnel at the Centre discharging its duty of care as occupier.

Mr Cavanagh submitted that even assuming there was sufficient evidence for the primary judge to find precisely what occurred, the appellant adduced no evidence that Clycut knew, or should have known, anything at all about the presence, existence or stability of any barricade which may have been in the area. He submitted that the primary judge did not err in concluding that even if the wind was the only reason the barricade fell over, the appellant had not established that Clycut did, or failed to do, anything that was unreasonable in relation to the barricade.
Mr Cavanagh submitted that the primary judge’s findings did not support the contentions on which the appellant relied to establish that the danger of the barricade being blown over due to high winds was foreseeable to Clycut. As to the appellant’s contention that the barricade was in position for a considerable period of time, Mr Cavanagh noted that the primary judge did not make that finding and the basis of the proposition was unclear. As to the proposition that it was windy to the extent that a barricade could be moved, Mr Cavanagh submitted that this appeared to be based on Dr Adams’ evidence, which had been objected to and which was based on a number of factual assumptions which were not borne out by the evidence. Finally, insofar it was contended that the appellant was struck by the barricade, Mr Cavanagh submitted that that proposition was apparently based on the statement of Mr Hasan, which was not admitted as against Clycut.
Mr Hourigan, who appeared for Reflections at trial and on appeal, submitted that notwithstanding the appellant was within a class of persons to whom Reflections may have owed a duty of care, the appellant failed to establish that the incident of 23 March 2005 was caused or contributed to by Reflections. As such, he argued, the appellant did not bring himself within a relevant class of persons to whom Reflections owed a duty of care. He also contended that for the same reasons, the appellant failed to establish a breach of any such duty which Reflections may otherwise have owed him.
Mr Hourigan submitted that the appellant never established the identity, nature, weight or structural details of any barricade which might have hit him. He also submitted that the appellant did not establish where any barricade came from, or why it was in a position where the appellant may have encountered it. Insofar as Mr Hasan’s evidence was concerned, Mr Hourigan contended that it was equivocal in that when the latter spoke to Ms Kain in May 2006 he was not sure who put the barricade in place and that the statement “thinks he may have” was conjecture. It was significant, Mr Hourigan argued, that Mr Hasan was not an eyewitness to the incident so that any statement by him in the Incident Report about what may have happened to the appellant was hearsay which, consistent with the ruling the primary judge gave when he admitted that evidence, ought be disregarded.
Next, Mr Hourigan submitted that while the evidence entitled the primary judge to find it was windy on the day of the incident, there was no evidence that it was particularly windy in the area where the appellant said the incident occurred, let alone that the wind was sufficient to dislodge any barricade, in whole or in part.
Finally, Mr Hourigan submitted that the appellant did not establish sufficient facts to enable the primary judge, or this Court on appeal, to draw any inferences capable of establishing liability against Reflections.
Consideration
It is difficult to understand why the primary judge concluded that neither respondent owed the appellant a duty of care.
Clycut was the owner and, as the primary judge found, the occupier of the Centre. As I observed recently, with Tobias and Young JJA’s concurrence, in Wynn Tresidder Management v Barkho [2009] NSWCA 149:
“59 As I have said, it was common ground that the appellant was the occupier of the Centre. This status arose from its care, control and management of the premises. By virtue of its power of control, it owed the respondent, as a lawful entrant to the Centre, a duty to take reasonable care to avoid a foreseeable risk of injury. The measure of the discharge of its duty was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 487 - 488) per Mason, Wilson, Deane and Dawson JJ, approving the observations of Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 662 – 663); see also Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 (at [17] – [18]) per Gleeson CJ (Gaudron J agreeing (at [42])); (at [60]) per Kirby J; (at [112]) per Hayne J (Gaudron J agreeing (at [42])); (at [138]) per Callinan J; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) per Gummow J (Heydon J agreeing).”
However, as Hodgson JA (Gyles AJA and Nicholas J agreeing) said in Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 (at [53]):
“53 There is no doubt also that this occupier’s duty of care is ‘delegable’, in the sense that it may be discharged in whole or in part by the occupier’s exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier’s duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability.”
Clycut delegated its responsibility to operate and manage the Centre to Jones Lang. There was no suggestion that it had not selected those agents with the care and skill to which Hodgson JA referred. The question of the extent to which, accordingly, Clycut had delegated its duties as occupier does not appear to have been debated at trial. The primary judge found that Clycut had entrusted the management of the building to Jones Lang, but did not discuss the significance of that. He also found Clycut had delegated its security obligations to Reflections and that the latter was an independent contractor, again without discussing the significance of these matters.
Mr Cavanagh did not really challenge the proposition that Clycut owed the appellant a duty of care, but said it was discharged by Jones Lang’s appointment and there was no evidence the latter had failed to act reasonably in relation to a foreseeable risk.
Mr Seton submitted, as I have said, that Clycut had not delegated its entire obligation arising out of its control of the common area at the Centre to either Jones Lang or Reflections. In my view Mr Cavanagh is correct in contending the delegation to Jones Lang is of relevance when considering Mr Seton’s submission that the appellant’s case against Clycut, fragile as it was, could succeed absent Clycut calling evidence to contradict the inferences he alleged emerged from the appellant’s evidence: see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (at 308, 312). I note that Mr Seton accepted that Ms Carr, who Clycut called, and who discharged Jones Lang’s obligations was, for the purposes of the delegation debate, acting as Clycut. I shall return to the significance of this concession.
Reflections was responsible for ensuring the safety of entrants to the Centre pursuant to the Security Services Agreement with Clycut. It, too, owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury to him: Wynn Tresidder (at [61]); Bevillesta (at [54] – [55]). It was, as the primary judge found, an independent contractor. The person engaging an independent contractor is generally not vicariously liable for such a contractor’s conduct: Sweeney v Boylan Nominees Pty Ltd [2006] HCA 10; (2006) 226 CLR 161 (at [12]) per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. It is unnecessary, however, to explore the extent to which, if at all, Clycut may have borne some liability if Reflections had been found to have breached its duty of care because, for the reasons which follow, the primary judge did not err in concluding the appellant did not establish either breached any duty of care.
The appellant relied upon the same particulars of negligence against both respondents. He alleged that they had breached their duty of care in failing to ensure the barricade was secured to the floor of the shopping centre, failing to remove the barricade when the respective respondent knew or ought to have known that the weather conditions were such that the barricade was likely to be lifted by the wind, failing to warn him of the presence of barricades which if they struck him could cause him serious injury and damage, and failing to properly supervise and manage the area where the barricade was positioned so as to ensure that the conditions and the area were safe for pedestrians such as him.
In order for the appellant to succeed against either or both respondents, he had to adduce evidence supporting a positive inference implying negligence on their part, an inference which arose as an affirmative conclusion from the evidence and one established to the reasonable satisfaction of a judicial mind. The evidence had to rise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (at 5); Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 (at 359 - 360) per Dixon, Fullagar and Kitto JJ; Jones v Dunkel (at 304 – 305) per Dixon CJ; (at 310) per Menzies J, (at 318 – 319) per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 (at 161–2) per Stephen J, (at 168) per Mason J; Anikin v Sierra [2004] HCA 64; 79 ALJR 452 (at [45] – [46]) per Gleeson CJ, Gummow, Kirby and Hayne JJ. It was necessary that “according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood”: Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 (at 480 – 481) per Williams, Webb and Taylor JJ. A court is entitled to draw inferences from “slim circumstantial facts that exist so long as that goes beyond speculation”: Progressive Recycling Pty Limited v Eversham [2003] NSWCA 268; (2003) 40 MVR 141 (at [7]) per Young CJ in Eq (with whom Ipp JA and Davies AJA agreed). The inference must be available and be considered to be more probable than other possibilities: Jackson v Lithgow City Council [2008] NSWCA 312 (at [12]) per Allsop P (Basten JA and Grove J agreeing).
Mr Seton submitted that the evidence that the appellant fell, the statement in the Incident Report that the barricade fell over and hit the appellant on the knee and Dr Adams’ evidence that the wind on the day was sufficient to blow over such a barricade was sufficient, in the absence of evidence from the respondents, to establish the latter had been negligent.
A plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant. In those circumstances slight evidence may be enough unless explained away by the defendant; the evidence “should be weighed according to the power of the party to produce it.” Hampton Court Limited v Crooks [1957] HCA 28; (1957) 97 CLR 367 (at 371) per Dixon CJ; see also De Gioia v Darling Island Stevedoring & Lighterage Co Limited (1941) 42 SR (NSW) 1 (at 4) per Jordan CJ. In De Gioia, Jordan CJ also pointed out that if a prima facie case had been made out only if some evidence remained unexplained, and the defendant furnished an explanation by evidence which could not be treated as genuinely in dispute and which reasonable persons could not reject, then what appeared to be a prima facie case no longer existed.
However, in my view, the appellant’s submission that an inference of negligence on the part of one of the respondents (he did not distinguish between them) could be drawn from the fact that the barricade had been in place for a long time (accepting for that purpose that the barricade had been in place since at least 5.30am on the morning of 23 March 2005) and that it was windy on the day in question should be rejected. As Kitto J said in Jones v Dunkel (at 305):
“…[N]o ground for an inference is to be found in general considerations as to the likelihood of negligent conduct occurring in the conditions which existed at the time and place of the collision. One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.”
In my view the appellant did not adduce evidence supporting a positive inference implying negligence on either respondent’s part.
I will assume, for present purposes, that the appellant fell because he was struck by a barricade. However, in my view, the appellant never established the nature of the barricade which struck him. It is a rather remarkable feature of the case that, assuming he was struck by a barricade, the appellant did not see it at any point prior to, or after, impact. Identification of the barricade accordingly depended on circumstantial evidence.
At best the appellant said that on days before the incident, he had seen some barricades in an area of the Centre on the other side of the courtyard from where he was struck where some tiling work was being done. Mr Hee’s evidence established that the paving in front of his shop was complete when he opened his store, so it was clear the tiling work to which the appellant referred was not being done outside his store.
When the appellant was shown photographs of barricades, being the photographs Dr Adams relied upon for the purposes of his report, while he appeared to accept that the barricades he saw in the photographs were ones he had seen at the Centre, he also said there were “some other barricades”. In short, as one might expect, he had never taken particular notice of barricades in or around the Centre. The confusion in which his evidence was left was demonstrated by the following passage from his cross-examination:
“Q.         The day before the accident that you had can you recall how many barricades you saw in the immediate vicinity of where you tripped?
A.           There was barricades there but I never count how many barricades.
Q.           Were there more than a few?
A.           Yes, was probably around, to give the people, not to fall in.
Q.           Were they the same type of barricades that you say struck you?
A.           Sir it was different barricades, I …(not transcribable) different barricades, they say, I don’t know what sort of barricades it was. But I never pay attention on the barricades, what kind of barricades it was.” (emphasis added)
It was also apparent from his evidence that there were “big” barricades “in the front” and “some other different barricades on the side where there was tiling”.
It appeared from the cross-examination of the appellant that the barricades which appeared in the photographs the appellant was shown in his evidence-in-chief (which were reproduced in the Combined Appeal Book in black and white) were black and yellow. The appellant could not recall whether there were also red and white barricades in or around the Centre, but it appears from Ms Kain’s note of her conversation with Mr Hasan in May 2006 that that was the colour of the barricade he recalled. If that was the case it might give some force to Donny’s recollection that the “barricades used were builders/road barricades”, being the large, apparently PVC, barricades used to separate pedestrians and traffic from road works.
This account of the competing evidence as to the possible configuration of any barricade which might have been used underlines, in my view, the uncertain state of the evidence concerning what, if any, object may have struck the appellant. That uncertainty meant that Dr Adams’ opinion that a barricade of the sort he tested was capable of being moved by high winds was of no evidentiary weight.
The appellant could not establish the second proposition (the barricade was likely to be capable of being moved by the high winds) absent evidence of the probable configuration of the barricade, its position prior to it allegedly hitting the appellant (an issue complicated by the appellant’s confusing evidence about where he fell), evidence of how the barricade was secured prior to the fall and evidence of the likely direction and speed of the wind at the time relative to the position of the barricade. As to the last point, I note that even Dr Adams was not prepared to extrapolate from the Bureau of Meteorology records the velocity (let alone, it might be assumed, the direction) of the wind at the probable site and time of the appellant’s fall.
Although the primary judge did not refer to Dr Adams’ report in his ex tempore judgment, it is tolerably plain, in my view, having regard to his Honour’s succinct reasons, that he concluded there was no factual substratum on which Dr Adams’ opinions could be founded. In particular, it might be noted, that even assuming Dr Adams’ opinions were expressed in respect of a barricade which did strike the appellant, as I have said, there was no evidence as to what, if any, steps had been taken to secure any such barricade, or precisely where it was prior to it apparently falling, which would establish that it fell because of the wind. The evidence did not rise above the level of conjecture in this respect. The absence of evidence of that nature made good, in my view, the objections both respondents took to Dr Adams’s report.
In the absence of evidence which would enable a finding to be made as to the configuration of the physical object which might have caused the appellant to fall and how it came to fall, it was not possible, in my view, for the Court to draw an inference, that either respondent had failed to take reasonable care to avoid a foreseeable risk of injury to the appellant. In particular, the appellant failed to establish that either respondent did, or did not do, something in relation to a barricade on the day in question which would support a finding that they failed to respond to a foreseeable risk.
In considering Mr Seton’s submission that an inference of negligence can be drawn against Clycut, it is relevant to note that counsel for the appellant at trial did not put any proposition to Clycut’s witnesses which went to the discharge of Clycut’s duty of care. This was of particular significance when, as I have said, Mr Seton accepted that Ms Carr, who Clycut called, was effectively Clycut’s representative at the Centre on the day of the incident.
Mr Seton sought to argue that, on the assumption Clycut owed a duty of care to the appellant independently of any delegation of its obligations to Jones Lang, Ms Carr’s evidence was, in substance, irrelevant where Jones Lang was not a party. However, in my view, Mr Seton’s submission that Clycut had effectively absented itself could not be sustained when no case was established at trial that Jones Lang had not properly discharged its duties as managing agent or raised the issue at least as to whether or not Jones Lang had effectively discharged its duties under its agreement with Clycut. Where Clycut had called Ms Carr as its representative at the Centre at the time it was, in my view, incumbent upon the appellant to demonstrate, in the first instance, that Jones Lang had for some reason not effectively discharged its duties under its agreement in relation to the safety of the premises before a conclusion could be drawn that Clycut had some residual obligations to the appellant which it had breached: cf Wynn Tresidder (at [61]).

I also note that counsel for the appellant at trial did not challenge Mr Hee’s evidence that he had not had cause to repair a window along the Centre passageway in the first few months he operated the store – a period which clearly included 23 March 2005 when the appellant said he was injured. Mr Hee’s evidence cast doubt on the proposition that there was any need for a barricade in the passageway outside his shop on the day in question. On his evidence, supported by Ms Kain’s file note of her conversation with Donny, the only problem with a window of the shop around the relevant time was with a window on the Anzac parade frontage. This evidence was not inherently improbable, and in the absence of cross-examination, could have supported an inference that any incident did not occur in the passageway at all: see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553. However as the respondents’ counsel did not challenge the appellant’s evidence as to the location of his fall, it is unnecessary to take it further.
The appellant complains that the primary judge erred in drawing an inference adverse to him from the fact Mr Hasan was not called. It is not clear how, if at all, his Honour’s statement that he would draw the inference that Mr Hasan’s evidence would not have assisted the parties worked adversely to the appellant. However it should be borne in mind that the rule in Jones v Dunkel (at 308, 312 and 320 - 321) that failure, to call a witness, if established, leads to the inference that the witness' evidence would not have assisted that party, only applies where a party is required to explain or contradict something, a question which turns on the issues in the case: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 (at [51]). Unexplained failure by a party to call witnesses can also cause an inference arising from the evidence of the opposing party to be more confidently drawn: Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 (at [72]) per Ipp JA (Giles and McColl JJA agreeing) referring to HML v R [2008] HCA 16; (2008) 235 CLR 334 (at [303]) per Heydon J; Portelli v Tabriska Pty Ltd & Ors [2009] NSWCA 17 (at [53] – [55]) per Allsop P (Hodgson and Macfarlan JJA agreeing); Manly Council v Byrne [2004] NSWCA 123 (at [44] ff) per Campbell J (Beazley JA and Pearlman AJA agreeing).
The primary judge did not explain why, having regard to the issues, he thought any of the parties should have called Mr Hasan, let alone specify why an adverse inference should be drawn against any particular party. This was an essential pre-requisite to drawing any adverse Jones v Dunkel inference: Manly Council v Byrne (at [54]). An adverse inference drawn against all parties, which appears to be the effect of his Honour’s statement does little, with respect, to assist the forensic process.
A Jones v Dunkel inference against the appellant would not have impacted adversely if his case had otherwise been accepted: Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29 (at [100]) per Giles JA (Beazley and Campbell JJA agreeing). And an inference against either respondent only arose if either had been required to explain or contradict something, a point it is clear from his Honour’s reasons, with which I agree, was never reached.
In my view, however, it was open to the primary judge, and to this Court, to draw an adverse Jones v Dunkel inference against the appellant. He bore the legal onus of establishing either or both respondents had not acted in accordance with reasonable care. He had little material to which he could point to explain why a barricade knocked him over. Mr Hasan’s absence was more adverse to the appellant’s case than the respondents’. The appellant contended Mr Hasan was virtually on the scene when he fell, an assertion belied to some extent by the file note the appellant also tendered stating Mr Hasan was not an eyewitness. If the appellant wished to rely on the Incident Report to support the proposition, contrary to Ms Kain’s file note, that Mr Hasan was recording his own observation of what happened, it would be expected he would call him: see Payne v Parker [1976] 1 NSWLR 191 (at 201 – 202) per Glass JA.
The appellant gave no explanation for not calling Mr Hasan whose telephone contact details appeared to be on the file note he tendered. In my view the appellant’s failure to call Mr Hasan supports the inference arising from the respondents’ evidence that the cause of the appellant’s fall was unknown.
Finally I note that the appellant did not address the “no reasons” ground of appeal in either his written or oral submissions. It is unnecessary to rehearse the principles relating to the judicial obligation to give reasons. They were addressed recently in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (at [56] ff). There might some room for argument that the primary judge’s reasons were spare, although, at least, insofar as breach was concerned, that is explicable by reason of his conclusion that the appellant’s evidence was insufficient to establish that either defendant had breached whatever duty of care it may have owed the respondent. The appellant did not contend that if this ground was made good the issue of liability should be remitted for a new trial. This was a sensible approach, having regard to the fact that the appeal was by way of re-hearing and it was necessary for the Court to consider the evidence and reach its own conclusion: see also Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308; (2006) 150 LGERA 11 (at [310] – [316]) per Basten JA.
I note that there were various issues raised in the appellant’s amended notice of appeal which relate primarily to the correctness of the primary judge’s reasons. As I have approached the matter on the basis of considering the evidence pursuant to the Court’s rehearing function, it is unnecessary to deal with those criticisms of his Honour.
I would note that the appellant’s submissions did not address the particular of negligence which related to failure to warn of the presence of barricades, as to which I would only observe that the notion that there should be a warning about an object which is itself a warning and precautionary measure and which, taking the appellant’s evidence at its highest, was clearly visible, would grossly offend the notion of the concept of reasonable care.
In my view the appellant’s evidence did not enable the Court to conclude, as a matter of probability, that either respondent breached its duty of care to the appellant.
Conclusion
Finally I note that in the event that he was in error on liability, his Honour assessed damages. Regrettably in respect of non-economic loss his Honour merely accepted a submission, presumably the appellant’s, that his injuries were “in the order of 28 to 30% of the most extreme case”. The purpose of a trial judge assessing damages against the contingency that an adverse liability finding is erroneous is to enable an appellate court to substitute that amount in the event the liability ruling is overturned. It is incumbent on the trial judge, therefore, to assess the precise figure which would have been awarded, not to make an assessment within a range, which will lead to further argument on appeal, and, in some cases, the risk the issue of damages has to be remitted for further consideration in the event the appellate court overturns the liability ruling. In this case, for example, it meant the Amended Notice of Appeal sought an order that the matter be remitted to the trial judge for assessment of damages, a course necessitated, regrettably, by the imprecision of the first damages assessment.
Order
The appeal should be dismissed with costs.
CAMPBELL JA: I agree with McColl JA.
MACFARLAN JA: I agree with McColl JA.
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LAST UPDATED:
16 July 2009