Dean v Stockland Property Management Pty Limited & Anor

[2010] NSWCA 66

New South Wales

Court of Appeal

CITATION:	Dean v Stockland Property Management Pty Limited & Anor [2010] NSWCA 66
HEARING DATE(S):	30/03/10
JUDGMENT DATE:	13 April 2010
JUDGMENT OF:	Giles JA at 1; Handley AJA at 2; Whealy J at 3
DECISION:	1. Appeal allowed. 2. Set aside the order directing the entry of a verdict for the first and second defendants against the plaintiff. 3. Set aside the order dismissing the cross-claim by the first respondent against the second respondent. 4. Remit the proceedings to the District Court of New South Wales for a new trial on all issues. 5. Costs of the first trial to abide the events of the second trial. 6. The respondents are to pay the appellant's costs of the appeal and to have a Certificate under the Suitor's Fund Act 1951 if otherwise entitled.
CATCHWORDS:	Appeal - Slip and fall accident in shopping centre - Ex-tempore judgment - Whether failure to give reaons for decision - Failure to consider points in issue - Failure to analyse inconsistencies - Inadequate reasons - Whether new trial should be ordered.
LEGISLATION CITED:	Civil Liability Act 2002 Evidence Act 1995 (NSW) Suitor's Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 Mifsud v Campbell (1991) 21 NSWLR 725 (at 728) Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (at 444) per Meagher JA Moylan v Nutrasweet Company [2000] NSWCA 337 per Sheller JA (Beazley and Giles JJA agreeing) Sun Alliance Insurance Limited v Massoud (1989) VR 8 (at 18 per Grey J) Waterways Authority v Fitzgibbon; Mosman Municiapl Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; [2005] 79 ALJR 1816 [at 130] - [131] per Hayne J Najdovski v Crnojlovic [2008] NSWCA 175 [at 21] per Basten J
PARTIES:	Kathleen Anne Dean v Stockland Property Management Pty Limited & Anor
FILE NUMBER(S):	CA 2009/298324
COUNSEL:	C T Barry QC; P Beale - Appellant R A Cavanagh - First Respondent S Campbell SC; A Hourigan - Second Respondent
SOLICITORS:	CMC Lawyers - Appellant Curwood Lawyers - First Respondent/Cross-Appellant In House Counsel - Second Respondent/Cross Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 783/08
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	20/03/09

CA 2009/298324
DC 783 of 2008

GILES JA
HANDLEY AJA
WHEALY J

TUESDAY 13 April 2010

Kathleen Anne DEAN

v

STOCKLAND PROPERTY MANAGEMENT PTY LTD & Anor

Judgment

1 GILES JA: I agree with Whealy J.

2 HANDLEY AJA: I agree with Whealy J.

3 WHEALY J: It is the fundamental duty of a trial Judge, where there is a complex of arguably contradictory evidence underlying the resolution of a critical issue at trial, to analyse, evaluate and carefully weigh up the evidence, including any inconsistencies, before deciding the outcome of the issue.

4 This appeal squarely raises the question whether, in the circumstances of the trial involving the present appellant who lost her case, the trial Judge failed to carry out this fundamental duty, thereby negating his judicial obligation to afford the appellant a fair trial according to law.

The appellant’s accident

5 The appellant gave evidence that, while she was in the Jesmond Mall shopping centre on Sunday 1 July 2007, she had an accident in which she sustained painful injuries. The appellant was there with her partner, Peter Charlton and her two young children. They had come into the shopping centre through the main entrance and were walking in a generally southerly direction to Woolworths which was located at the other end of the complex. This journey took them through the food court.

6 The appellant identified, through a photograph, the approximate point where her accident occurred. She said it was adjacent to some of the tables and chairs in the food court. The photograph shows that on the western side of the food court there are fixed stools and tables for patrons to use while they are consuming food. On the eastern side where the appellant was walking, she identified the store most adjacent to the point of her fall as a Red Lea chicken shop. It was also near a kebab shop. Exhibit “D” was a sketch which generally indicated the main entrance, the location of the food court, the stools and tables and a number of shops in or close to the food court, including the chicken shop and the kebab shop. It also shows at the far end the Woolworths store. The sketch does not appear to be drawn to scale.

7 The appellant said that, while she was at the location she had indicated, she suddenly slipped and fell. The appellant was pregnant and was concerned that she might land on her abdomen in the fall. For this reason, as she fell she tried to push herself backwards. The consequence was that she fell on to her right knee and then back on to her right elbow. It was apparently quite a severe fall. She felt pain in her right arm, her back and her right knee. According to the appellant and her partner, who gave similar evidence on this point, nobody came to their immediate assistance. The appellant struggled to her feet and endeavoured to walk towards the main entrance. As they were walking out, the appellant said “a security guard or a cleaner or something” came up to her and spoke to her. The appellant said that she had been on her way to the Information Centre down near the main entrance when she was stopped by this man. According to her, he said that “they were just about to put a sign out”. She did not see anything done with the sign and did not accompany him back to the point where she had fallen. She recalled that this person enquired after her health and asked whether she needed an ice pack. The appellant was a person who, prior to the fall, had suffered panic attacks and according to her evidence that was precisely what was happening at the time she was speaking to the gentleman she had identified. She said that she was having a panic attack and that she was “quite embarrassed” by the incident. She told the man this was so and that she “just wanted to leave”. The appellant was adamant that on the day of the fall she did not, in the immediate area of the food court, see any cleaners or security guards. She did not see any warning signs in relation to the slipperiness of the floor and, apart from her partner no one else came to her immediate assistance in the location where she had fallen.

8 It appeared to be accepted at trial that the fall occurred at approximately 3.55pm. It also appeared to be accepted that the appellant had indeed slipped and fallen in the vicinity of the food court more or less where the appellant had indicated the accident had occurred. It was also accepted that she had slipped on a wet substance on the floor, probably a spill of water. It was a small patch varying in estimate between 5 and 15 centimetres. A male cleaner, Mr Grace, later said that there was a slip mark through the water when he came to clear it up. It was not contested that she had landed on her right side and that she had thrown herself back because she was pregnant and did not wish to fall on her abdomen. The trial Judge made findings consistent with these matters and accepted that she had first fallen on her knee and then her elbow before landing on her right side.

9 The first respondent was the occupier of the shopping centre. It was represented by Mr Cavanagh of counsel. His cross-examination of the appellant included the suggestion that immediately after the fall a female cleaner had come to the appellant’s assistance and had spoken to her at the time. The appellant denied that this was so. She said that she had only spoken to the one person, so far as she could recall, and this had happened while she was on her way towards the Information Desk. The desk was about 50 metres away and she had been approached by the person she thought was a security guard about “20 metres or so” from where she had fallen. She said (Black Appeal Book 31/40): -

“I was heading back to the Information Desk and he came out of the toilet area on the way”.

10 The sketch, Exhibit “D” shows that there is a corridor leading down to the shopping centre toilets some little distance away from where the appellant said she fell. The sketch is marked with an “X” being the point at which the appellant said she spoke to the man concerning her fall. The appellant repeated that she was not certain whether he was a security person or a cleaner, although she thought he was probably the former. As the plan is not drawn to scale, it is impossible to be precise about the distance between the fall location and the entry to the corridor. The photograph in evidence suggests the two locations are not visible, one from the other.

11 The second respondent is the company that had contracted with the first respondent to provide cleaning services for the centre. Mr Hourigan of counsel appeared at trial for the second respondent. He suggested to the appellant that the food court area was closed at the time of the fall. The appellant maintained however, that people were eating there and that food court businesses were still open. The appellant maintained her position that she had only been spoken to by one person, a male, after her fall. She denied speaking to a female.

12 The appellant gave further evidence that, following the fall, she attended at the John Hunter Hospital in Newcastle. Her primary concern was that she might lose the baby as a consequence of the fall. Obstetric tests were carried out by way of a Doppler examination. These dispelled any immediate concern about the health of the baby. The next day the appellant attended her local General Practitioner, Monica Mehta, at Wallsend. The medical notes kept by the general practitioner confirmed the nature of the injuries the appellant had described in her evidence. They were essentially injuries to her right knee, her elbow and her back. The information also confirmed that, because of her pregnancy, it was not possible to carry out any x-rays at the time and that no major medications could be administered at least for the time being.

The issues at trial

13 It was not in issue at trial that the first respondent owed a duty of care to shoppers to make the shopping centre premises reasonably safe and, in particular, to take reasonable care to ensure that, in the area near the food court, frequent and regular cleaning and inspection occurred so as to minimise the risk that spillages might result in injury of the type sustained by the appellant. There was no dispute that, in order to discharge its obligations, the first respondent had entered into a contract with the second respondent. This contained specific and precise stipulations as to the cleaning and inspection duties to be carried out in the food court area and the timing of those activities. It was the case sought to be made by the appellant that, upon examination of all the circumstances, it might safely be concluded that the appellant’s injury had been caused by the respondents’ failure carry out their own mutually agreed system of inspection, maintenance and cleaning within the time frame agreed between them.

14 In this regard, the appellant’s case relied, first, upon the service obligations contained in the agreement between the first and second respondent. This agreement had been made in July 2006 and is set out in Blue Appeal Book (Volume 1 131-200). The services to be provide by the first respondent are set out in the Schedule to the Agreement and include the following: -

“Daily cleaning requirements

· Centre common areas to be maintained to a high standard during trading hours, including internal areas and external entrances

· All common Mall areas and public facilities must be circulated once every 15 minutes

· The area immediately outside the Mall entry to a radius of 10 metres must be circulated every 15 minutes

· All car park areas must be checked during the day as necessary

· All loading dock areas must be circulated at least once very 30 minutes

· All public toilet areas to be maintained at 15 minutes intervals, or more frequent if required

· Waste collection areas to be washed and cleaned daily

· Spillage to be attended to as seen with appropriate signage displayed.

· Response time in excess of two minutes is considered to be unacceptable

· All slips and falls to be noted and reported to Centre Management immediately. The full incident reporting procedure is detailed in paragraph 15 below.

· Incident Reports to be assessed monthly by Contractor and Management - Retail and Food areas.

· Food court area to be maintained to a high standard during trading hours with a maximum five minute rotation time between the hours of 11.30am to 3pm and a maximum 10 minute rotation time outside these hours. Extended to 11.30am to 7.30pm on Thursdays and other days of extended core trade. (Underlining added).

· Cleaners to respond to 2-way radio communications re spillages, promotional display assistance etc”

15 The Schedule contains other obligations imposed by agreement between the occupier and the cleaning company. There is no need to set these out in full. They include the obligation during trading hours “to constantly maintain floor areas of the Mall in a clean manner by use of dust control mops, wet mopping and removal of dropped litter and other actions necessary to keep floor clean at all times”. There is also the obligation to “empty and reline all refuse bins internal and external constantly during trading hours”. There is an obligation to “constantly check and clean all public toilet areas and parents rooms etc…keeping same at a high standard of cleanliness at all times”. All calls to the cleaning staff to attend spillages “must receive immediate attention”. Special attention is “to be paid to all floor services during trading hours”. There are incident reporting procedures that require the second respondent to complete a “cleaner’s statement” in the event of a slip and fall (Clause 15 of Schedule). There is a corresponding obligation on Stocklands Centre Management to complete a Public Liability Incident Report Form in the event of a slip and fall so that this can be submitted to the insurer “promptly”. Finally, the agreement notes the trading hours at a number of centres including “Stockland Jesmond”. On Sunday the centre trades from 10am to 4pm, although Big W remains open until 5pm and Woolworths Supermarket trades to 9pm.

16 The appellant next relied upon the contemporaneous “Statement of Cleaner” prepared apparently pursuant to the obligation in the Services Agreement. It is part of Exhibit “A”. This was prepared, it seems, by one Nigel Grace who gave his occupation as a cleaner “on behalf of Reflections”. He describes the “daily tasks” as “clean all toilet blocks, mop gallery level, sweep, scrub, dust floor, food court bins, mop hallways”. He describes this as a “circuit” of the centre and suggests that it takes “15 minutes to complete“ a circuit.

17 In relation to the particular incident on 1 July 2007, Mr Grace’s statement indicated that he commenced work at 3pm and that, immediately prior to the accident, he had been working by way of cleaning the toilets near Big W. He identified his co-cleaner at the time as one “Cindy Newton”. At the time of the incident, the statement indicates that he was working “near OPSM”. It states, importantly, that he had at last passed the site of the fall “20 minutes before hand”.

18 The statement then indicated that Mr Grace arrived at the accident scene and had observed a small water spill “with a slip mark through it”. He had been notified of the incident “a minute later” meaning, it is assumed, a minute after the incident had occurred. He was notified of the incident by “Customer Care” and described his immediate action as “took wet floor sign and mop to dry spill”. His statement also indicated that “Colleen from Customer Care notified cleaners over the radio”. He described the spillage as “water” but said he was “unsure” as to “where it had come from”.

19 Thirdly, the appellant placed reliance on the Public Liability Incident Report Form compiled by Stockland. This document came into being because of the first respondent’s obligation to notify its insurer of an accident following a slip and fall in the Jesmond Centre. It is quite a detailed statement. It notes that assistance was given by a security man “Will Van Der Heul”. The assistance, it notes, was given on 1 July 2007 at 4pm. The details are: -

“Asked if she would like an ice pack but declined all treatment…no possible sign of injury but Ms Dean stated that her knee was sore. She was wearing long pants so it was hard to see injury. Embarrassed. She stated she suffers from hyper anxiety which she feels the fall set off”.

20 The second page of the Incident Report confirms a number of matters mentioned by the appellant in her evidence. These include the fact that there was a substance on the floor and that it was probably water and that the floor was wet. It confirms the injury was to her right knee and describes it as “sprain - strain”. Importantly, there was a section that deals with “details of spillage – foreign material”. This indicates that the floor had last been inspected on 1 July 2007 at 3.35pm by Nigel Grace. It also reveals that the floor was “last cleaned” by Nigel Grace on 1 July 2007 at 3.35pm. There was “no spill detected at that time”. The cleaners on duty were identified as “Cindy Newton and Nigel Grace”. The cleaning rotation period was described as “every 15 minutes”. The document has the following note endorsed on it: -

“Cleaner and cleaning supervisor on duty to submit a statement (attached to this report) indicating when the scene was last passed or cleaned.”

21 This is a reference presumably to Mr Grace’s report identified earlier. The section of the Incident Report Form dealing with “investigation details” contains the following notation: -

“When Nigel from Reflections arrived on the scene approximately one minute after being informed of the incident by Colleen at Customer Care, he saw a small amount of water on the floor with a slip mark through it.”

22 Once again, this detail appears to have been taken from Mr Grace’s “cleaner’s statement”.

23 Fourthly, the appellant relied on a statement dated 1 October 2007 from Will Van Der Heul, also part of Exhibit “A”. He is described as working for a firm called “T V M Security”. The statement reads as follows: -

“At 3.55pm on 1 July 2007, I was informed by a customer that a woman had slipped over between Red Lea and Kols Kebabs.
When I arrived I saw Kathleen Dean standing near Danoz with her family. Ms Dean told me that she had slipped on a drink spill; she told me her right leg slipped first resulting in her falling on her back.
I offered Ms Dean first aid which she declined; she told me she was fine, but very embarrassed. Ms Dean also told me she suffered from hyper anxiety, and the fall had set it off and she was feeling quite anxious and embarrassed but otherwise okay. She also stated that she was five and a half months pregnant. I told her she should go to a doctor to get checked out.
Nigel Grace from Reflections Cleaning Group attended the scene straight away. Ms Dean told Nigel that she was fine. When Nigel went to clean up the spill there was a slip mark through it and the spill was clear liquid”.

24 The shop or business referred to by the security man as Danoz is shown on the sketch - Exhibit “D”. it is located close to the area where the “X” is marked on the statement. It is around the corner, and somewhat distant, from the precise spot which the appellant said she fell. It is a business that might probably be described as along the passageway leading to the Information Desk and the main entrance. The sketch, as I have said, does not reveal its precise distance from the point of the fall. There is a photograph in one of the exhibits, however, which appears to demonstrate, at least so far as one can gather, that the Danoz business is also out of sight of the point where the appellant says she slipped and fell.

25 It will be apparent from the foregoing that the appellant’s case at trial was a relatively simple one. If the respondents had carried out their agreed system of supervision, inspection and cleaning, the area where the fall took place would have been cleaned up by no later than 3.50pm and a warning sign would have been put in place on that spot. In that situation, the appellant argued, the accident would not have happened because there would have been a sign where the spill had been cleaned. The appellant’s case was that the respondents simply failed to maintain and carry out a cleaning system of their own creation and that this was a breach of the duty of care owed to her, a breach which materially caused or contributed to her injuries.

26 The pleadings, as might be expected, raised issues as to the proper approach to be taken to the facts in the light of the various provisions of the Civil Liability Act 2002 relevant to the claim. There was also a pleading alleging contributory negligence, although it seems that this was not pressed at the hearing. As I have indicated earlier, the appellant’s principal claim in this appeal is that, as it happened, the trial Judge gave no real consideration to the case presented on the appellant’s behalf. Rather, it is submitted that the trial Judge decided the case upon the sole basis that, having accepted the evidence of one of the cleaners that she had “passed through” the area where the accident occurred “two or three minutes before the fall or it could have been three or four minutes before the fall but at any rate very shortly before the fall”, and that she did not see any spillage on the floor “therefore, there was no spillage on the floor at that time”. This was a reference by the trial Judge to the evidence given by the second cleaner, Cindy Newton. It is necessary now to turn to her evidence.

Cindy Newton’s evidence

27 It will be recalled that Ms Newton was the second cleaner identified in the incident report as being on duty at the time. She had not completed any statement or incident report at the time of the accident. It will also be recalled that questions were put both by Mr Cavanagh and Mr Hourigan to the appellant suggesting that, when the appellant sustained her injuries in the fall, she had been either attended upon or spoken to by a female cleaner.

28 Ms Newton was called by Mr Hourigan on behalf of the second respondent. The witness confirmed that her shift on Sunday 1 July 2007 ran between 10am to 4.30pm. She confirmed the general nature of her duties as a cleaner and indicated that this included walking around and scanning the floors “to make sure there is no rubbish on them, drinks, cordial people drop everything” (Black Appeal Book 147). She described the standard procedure when she found that material had been spilt or dropped on the floors in the following terms: -

“Well, if it is a spill I definitely stay there, call another cleaner and they will go and retrieve a bucket and a mop and we will clean the mess up and put a sign up”.

29 Ms Newton confirmed that Mr Grace had commenced work as the other cleaner at about 3pm on that Sunday. Her shift was drawing to a close at that time. She identified the special role that she had to carry out before the end of her shift on that afternoon as being “the last bin run” so the centre would be ready for the next day. This was a job that took “about an hour”. It entailed taking all the bins out of the different receptacles around the centre and putting them into a “wiz bin” and then taking them back to the dock to empty. This involved her walking continuously through the centre to various parts of the centre. Mr Hourigan then asked her about her observations on that day. I will set out the relevant passage at (Black Appeal Book 148): -

“Q. I want to ask you about the 1 July 2007, do you recall that day?
A. Yes, I do.
Q. Can you describe whether at approximately five to four, you saw an incident occur?
A. I was going to back to food court, I’d finished the bin run and as I sort of looked up I noticed a woman standing up, getting up off the ground and I walked over and asked her was she okay.”

30 (There is no need to set out some intervening comments. The evidence continued on the same page): -

“Q. Sorry, I think I cut you off Madam telling his Honour about what you saw, I think you said you saw a lady getting up off the ground, can you continue to describe from there?
A. I seen a lady getting up off the ground really quickly. She had two kiddies with her and a gentleman and I asked her was she okay and said ‘Oh yeah, I am more embarrassed than hurt’. And then she said, she proceeded to say she was pregnant and I said ‘Well, are you’re sure you are okay?’ At that moment the security guard come down sort of like behind us and noticed what was happening, the other cleaner come through from the other way just on his normal rounds”.

31 Ms Newton then identified the security guard as Mr Van Der Heul, and the other cleaner as Nigel Grace. She said that the food shops were “definitely closed” and that they usually close “about 3.30 to 4”. Mr Hourigan then asked: -

“Q. During the course of your bin run, are you also carrying out your inspection duties and things of that nature as you go around the place?
A. I notice all the time if there is something on the floor”.

32 Importantly, Ms Newton did not suggest or state in answer to this question, or elsewhere in her evidence-in-chief, that she had actually inspected the area of the spill prior to her seeing the appellant “getting up off the ground”. Moreover, as later cross-examination demonstrated, Ms Newton had given a statement on 19 November 2008 to her employer . This became Exhibit “G”. Paragraphs 6 and 7 of the statement are in the following terms: -

“6. We are very particular in monitoring the entire Mall floor areas for any debris/hazards. Procedures are in place when a spill occurs in the centre at Stockland Jesmond. Along our patrols, cleaners are constantly looking down and monitoring the floor. We never leave a spill area, a cleaner or security officer stays at the spill area until cleaning equipment arrives and wet floor signs are put in place until the spill – contamination has been eliminated. The response and response times to these matters are dealt with promptly and immediately and the area is monitored until the hazard has been removed completely.
7. I recall on the day of the incident that I was walking in the direction towards the incident. I didn’t witness the lady fall but I remember that when I was coming around the corner of the incident area, I do recall seeing a lady who appeared to get up really quickly. I recall the lady had children and a male person with her. She seemed to be okay and I recall that she refused any first aid treatment; she stated that she was okay and walked away normally.”

33 It will be noted that this statement, taken some 17 months after the accident, makes no mention of any pre-accident inspection of the site on the particular day by Ms Newton.

34 At the conclusion of her evidence-in-chief, the first cross-examination was conducted by Mr Cavanagh on behalf of the first respondent. I shall set out the relevant questions and answers (Black Appeal Book 150-151): -

“Q. Ms Newton when did you last walk past the area where the accident occurred before, that is before seeing Ms Dean standing up after her accident when before had you been there?
A.. I had just finished a bin run which I walk through the food court empty the bins out the back dock which is no more than a couple of minutes away and then I went back to the food court to check it was clean as in tables were wiped over for the night cleaner and that’s when I seen the lady.
Q. Well let’s just go back a couple of steps then if we can. I asked you when and you answered by saying ‘Well I just finished a bin run’?
A. Yeah.
Q. So is what happened is that you walk through I’m sorry, approach please your Honour. I’m just showing you now page 9 of the report of Mr Fogg and the photograph on page 9, do you recognise that area?
A. Yes I do.
Q. So there’s a circle there and I want you to assume that it’s been suggested this is the area where the accident occurred?
A. I thought it was a bit further down.
Q. Okay, you’re now saying it might be a bit further down, you pointed--
A. It was roughly around that area--
Q. Roughly around there?
A.. Yeah.
Q. Well what I’m asking is, when were you last in that area before seeing the plaintiff standing up?
A. Only a couple of minutes because I walked through that way.
Q. Now you’re pointing, we have to record on the transcript, you use a little finger to go along the line of the arrow shown in the photograph but in different direction that right?
A. Yes.
Q. So you are saying you walked in the direction from the bottom of the photograph on page 9 towards the top of the photograph is that right?
A. Yes.
Q. And when last before Ms Dean’s accident did you do that, think you answered a minute ago but?
A. As long as it took me to walk up there take three or four garbage bins out and then park the bin and walk back in.
Q. Now I just want to ask you to estimate the time, how long before was an hour, half-an-hour, one minute, 10 seconds, 15 minutes what was it?
A. Three or four minutes.
Q. So you’d walked along that line in the arrow three or four minutes before coming back and seeing Ms Dean standing up is that right?
A. Yes getting up off the floor she was.
Q. You accept don’t you that Ms Newton that it was your job to clean up any spillages from the floor.
A. That’s right.
Q. That was what you were paid to do?
A. That’s right.
Q. That’s why you were there at that time?
A. Mm.
Q. As part of the role you had as you walked through that area, did you say two or three minutes before--
A. That’s right.
Q. Now if there was a spillage on the floor at that time you should’ve cleaned it up--
A. I should’ve.
Q. --is that right?
A. Yes.
Q. So either would you say it wasn’t there or you didn’t clean it up one or the other, it’s got to be one of those doesn’t it?
A. Well it seems when I read my statement there was a small, clear liquid spill on the floor very small, now if I had’ve seen it I would’ve cleaned it up because I always carry a rag on me.
Q. You’d accept that it was your responsibility to clean it up?
A. Definitely my responsibility.
Q. So you’re agreeing with me that when you walked along that area two or three minutes before the accident that if it was there it was your job to clean it up?
A. Yes”.

35 Mr Beale, trial counsel on behalf of the appellant, cross-examined Ms Newton. It might be observed that part of Mr Cavanagh’s cross-examination had involved the use of leading questions. It would have been open to Mr Beale to object to this procedure as it was arguably the case that the first and second respondents had a “consistent” interest, namely the shared interest of defeating the appellant on liability. (Evidence Act 1995 (NSW) s 42). Mr Beale, however, did not object to the procedure adopted.

36 The cross-examination then produced several aspects that were quite confusing, at least for a time. Ms Newton insisted that she had only ever made one statement, the one that was produced by Mr Hourigan when a call had been made for its production. This was the document marked for identification that subsequently became Exhibit “G”. Ms Newton said that she had never made a statement to assist Mr Van Der Heul the security guard when he had made his contemporaneous note as to what happened. The witness said that she had been interviewed and that was the occasion when she made the statement Exhibit “G”. In fact, she agreed that the first time she had been asked to turn her recollection to the events of the 1 July 2007 was some 17 and a half months later on the November 2008 date when the insurance company investigator came to speak to her about what had happened (Black Appeal Book 152). She insisted that she had not made any statement prior to that date, nor had she discussed the matter with any investigators.

37 Ms Newton, however, had said in evidence-in-chief that the appellant had said to her “I’m more embarrassed than hurt” and then had said “she was pregnant”. The problem was that neither of these two statements appeared in her statement Exhibit “G”. Mr Beale took her to task over this apparent omission, only to be informed that Ms Newton claimed to have seen the two sentences in a copy of her written statement that she had read earlier on that morning. Mr Cavanagh did not volunteer that he held a statement from the witness but, after some prodding by Mr Beale, a call was made for any second statement made by Ms Newton. The transcript records that a document answering that description was produced by Mr Hourigan. It seems to be common ground, however, that it was in fact produced by Mr Cavanagh. Mr Beale was given the document and it was marked for identification but neither counsel tendered it.

38 Ms Newton was cross-examined on the second statement. It apparently bore the date 29 April 2008. It had been taken, if that date be correct, some 10 months after the accident. As it happened, it threw up a number of inconsistencies with the evidence given earlier by Ms Newton. For example, she said in the April statement, referring to the appellant, “She appeared to be pregnant”. In her oral evidence Ms Newton insisted that the appellant did not look like she was pregnant, but that she had told Ms Newton she was pregnant. Secondly, there was cross-examination about where the conversation between Mr Van Der Heul and the appellant had taken place. Was it at the scene of the fall, as Ms Newton had said, or was it “around the corner” near the corridor where Danoz was situated? The transcript does not reveal, however, whether there was anything in the statement of April 2008 that corresponded with the evidence given by Ms Newton during her cross-examination by Mr Cavanagh that, in effect, she had inspected the fall area only a few minutes before the accident. In the final part of her cross-examination by Mr Beale, Ms Newton suggested that when she performed a bin run, the other cleaner would stay in the food area because “we know how dangerous it can be”. Mr Beale then engaged in the following exchange (Black Appeal Book 165): -

“Q. You’re an experienced cleaner?
A. I believe I am.
Q. You said it was highly dangerous if anything spilt on it?
A. And wasn’t cleaned up.
Q. But until it’s cleaned up it’s highly dangerous isn’t it?
A. Yeah, yeah well if you spill cordial anywhere on tiles it can be dangerous.”

39 It will be observed that Mr Beale did not put to Ms Newton during his cross-examination that she was not telling the truth about the statement that she may have made an inspection three or four minutes before coming back and seeing the appellant standing up after the fall. She was not confronted on the issue. Nor did Mr Beale put any question in cross-examination to suggest that her recollection on this matter was simply inaccurate, and could not be relied upon. The evidence of the possible inspection three or four minutes before the fall had emerged in highly unusual circumstances. It had not been led in chief and it was not mentioned in the statement held by Mr Hourigan. Since the statement held by Mr Cavanagh was not put into evidence, it is impossible to know whether it was referred to in that statement. Mr Barry QC, who appeared for the appellant in this appeal, pointed out that Mr Beale would not have had any material in his possession that enabled him, with propriety, to put to Ms Newton that she was not telling the truth. There was no reason however, why Mr Beale could not have traversed the matter with the witness, at least in terms of its possible unreliability. Moreover, the absence of any reference to this inspection in the contemporary documents and her second statement raised the possibility of recent intervention, although that may have been rebutted by her earlier statement.

40 The trial Judge appears to have seized upon the evidence as a potential shortcut for determining the critical liability issue in the trial. At (Black Appeal Book page 200) he described the issue in very simple terms. In effect, the trial Judge told the parties directly that, if he accepted Ms Newton, then he would be bound to find a verdict for the defendants. On the other hand, the trial Judge made it clear that the only way the appellant could succeed would be if he were to disbelieve Ms Newton. This proposition was repeated the next day (Black Appeal Book 202). The trial Judge said: -

“In this particular instance the fact that I’ve got to find is whether or not and Ms Newton was there two to three minutes before the slip and fall and had there been any substance on the floor she would have wiped it up with her rag that she carried.”

41 Of course, Ms Newton’s evidence was not as unequivocal as the trial Judge appeared to regard it. It was, however, some evidence that the food court floor area was clean shortly before the fall. It was some evidence of an inspection, even if an imperfect one.

Problems with Ms Newton’s evidence

42 It is clear that in his final submissions to the trial Judge, Mr Beale made a “generalised attack” on Ms Newton’s credit pointing to differences in the size of the spillage and the differences in her prior statements that were said to be inconsistent. The full extent of counsel’s submissions however, is not recorded in the transcript. There were, however, other “problems” with Ms Newton’s evidence that went beyond inconsistencies between her oral evidence and her statements. Mr Barry’s submission in this Court highlighted a number of general “inconsistencies” which he submitted had to be analysed, addressed and resolved before reliance could be placed on the simple issue as to whether Ms Newton was, or was not, a credible or reliable witness. I shall now briefly mention the matters of “inconsistency” pointed out by Mr Barry in his submissions.

First, Ms Newton said that, after she had finished the bin run, she was on her way back to the food court when she saw a woman getting up off the ground. She also said she walked over and spoke to the woman who said “I am more embarrassed than hurt”. Ms Newton also said that the security guard came down behind the two women and noticed what was happening. Finally, she said that the “other cleaner” came through from the other way “on his normal rounds”. The appellant’s evidence (and indeed, that of her partner, Mr Charlton) was completely to the contrary of this. The appellant denied that she had been spoken to by a female at the point of the fall and insisted that she had not been assisted by anyone at that moment. She denied speaking to anyone in the food hall itself.

Secondly, Mr Van der Heul, the security man, said that he had been informed of the accident by a customer who was walking by. He walked up to see what had happened and he came upon the appellant and her family. They were not at the accident location at the time he approached them. In his evidence in chief, Mr Van Der Heul first said that they were probably about “five metres away” from the fall location. In cross-examination, however, he agreed that when he first spoke to them, the conversation occurred down near the Danoz Direct store. This was “around the corner” from the main passageway where the fall had taken place. He agreed that it was not possible to see the location of the accident from this point. He agreed with an estimate that it was “about 50 or 60 metres” from the location of the accident. This was not at all consistent, at least on the face of it, with Ms Newton’s evidence about the spot where the conversation occurred.

43 Mr Van Der Heul was cross-examined about the details in the Stockland Incident Report Form. He agreed that he had “completed” this Report although the document itself states that it was “completed” by one Katrina Fletcher, presumably with Mr Van Der Heul’s assistance. The Incident Report confirmed that there were two cleaners on duty at the relevant time. They were Cindy Newton and Nigel Grace. The latter had been the cleaner who actually cleaned up the spill. It appears that Mr Grace had provided Mr Van Der Heul with general information about the incident as well. The information that enabled the security guard to complete the Incident Report, particularly in relation to details of the appellant, her family and the injuries she sustained was obtained, however, by Mr Van Der Heul himself. He said he had spent ten minutes or so conversing with the appellant to obtain this information. On the other hand, the details in the form that related to the last inspection of the accident site, and the last occasion on when it had been cleaned, were obviously given to him by Nigel Grace.

44 Thirdly, Mr Van Der Heul was also able to identify a later statement he had made for the insurance company on 1 October 2007. This statement confirmed that Nigel Grace had been the cleaner who attended the scene “straight away”, and that it was he who “cleaned up the spill”. Mr Van Der Heul appeared to accept that Ms Newton was not present during any of the conversations he had with the appellant nor was she nearby. He accepted that the detailed conversations he had with the appellant either took place near Danoz or, perhaps by then, they had moved further away from the accident scene towards the Information Desk.’

45 Fourthly, Nigel Grace in his evidence confirmed that he was the cleaner who had cleaned up the spill. Eventually, after some hesitation, he agreed that he had been called to the accident scene by Colleen from Customer Care. It seems that Customer Care had sent a message to the two cleaners on duty and, according to his recollection, he had quickly moved to the location. He had been working in one of the toilet areas when he received the call. The other cleaner, Cindy Newton, he said, had been on a bin run because “that’s what she does before she leaves on a Sunday afternoon”. Mr Grace said that he first spoke to the appellant after he had cleaned up the spill, not before. He was quite clear on this point and repeated it several times. He said that Cindy Newton was at the spill scene while he cleaned it up and that she stayed there when he went back to the cleaner’s room in the corridor adjacent to the toilets and Danoz. It was only at this point that he spoke to the appellant. He also agreed that there was a conversation at that location between the appellant and Mr Van Der Heul. He did not see Cindy Newton talking to the appellant. He did not see Cindy Newton talking to the security man. He said she remained at the accident location while those conversations took place. Only he and Mr Van Der Heul were present with the appellant and her family when the particular discussions occurred. He agreed, as Mr Van Der Heul had done, that all the discussions with the appellant took place down near the Danoz store. Finally, Mr Grace said that he thought that the appellant had then walked away in the direction of the Information Desk with Mr Van Der Heul, and that he had no further discussions with her after that time.

46 Mr Barry QC made the point that all this showed that there were some significant inconsistencies between the version of events given by Ms Newton and that given by the appellant and the other witnesses. Ms Newton had said that she came upon the appellant at the precise spot where she had fallen over and that Mr Grace was there “doing his normal rounds”. She also said that the security man came up and spoke with the appellant at that very location. Mr Grace, however, said he received the call and went to the toilet corridor. He collected the sign and the cleaning material and it was only after he had cleaned up the spill and come back to that area that he had his conversation with the appellant. He also confirmed that it was in that location that the security guard had his conversation with the appellant and then moved further away in the direction of the Information Desk. This location was out of sight of the point where Ms Newton was guarding the spill location. These inconsistencies, senior counsel submitted, required analysis and careful examination.

Reasons for decision given by trial Judge

47 The trial Judge was faced with a situation where, based on the documentary material emanating from the first respondent’s Public Liability Incident Report, the appellant had a reasonable case on liability. This document had been completed with the assistance of the security guard, Mr Van Der Heul. He, in turn, had relied on the cleaning report from Nigel Grace who worked for the second respondent. The report showed that the area where the appellant fell had last been inspected and cleaned some 20 minutes prior to the accident. The cleaning contract provided for rotation inspections of 10 minutes maximum in the food court area at the relevant time. The evidence established that during this 20-minute period, Mr Grace had been involved in cleaning the toilet areas. Ms Newton had been involved, during this time, on her end of day bin run. The evidence given by Ms Newton, however, posed the possibility that there may have been an inspection of the fall area shortly before the accident. This was not, however, a cut and dried matter. Her evidence did not unequivocally state there had been an inspection. It did not unequivocally state there was no spillage. Rather, it proceeded on the basis – “If there had been a spill I would have cleaned it up – I didn’t clean it up, so there mustn’t have been a spill there at that time”. As I have identified, there were, however, a considerable number of matters that arguably required examination and analysis before a proper evaluation could be made of the reliability of Ms Newton’s evidence on the point.

48 In his decision, the trial Judge accepted that “the amount of water that she slipped and fell on was not sighted by anyone before her fall”. He also accepted that it was not contested by either of the defendants that the fall occurred and that it occurred by way of the appellant “slipping on water”. It was then necessary to consider the critical liability issue. In this regard, the trial Judge said: -

“In my opinion the crucial matter in this case was the evidence of one of the cleaners, Cindy Newton. It is evidenced by the staffing documents that at least at the time or thereabouts of the accident, Cindy Newton and Mr Grace, who were cleaners and Mr Van Der Heul who was the security guard were present in the mall. Mr Charlton and the plaintiff did not notice Cindy Newton and indeed their evidence was the only persons they spoke to Mr Grace and Mr Van Der Heul.
Cindy Newton gave evidence that she two to three minutes before the fall or it could have been three to four minutes before the fall but at any rate very shortly before the fall, walked along the very area in which the plaintiff slipped and fell. She further gave evidence that at the time of that walk through she did not see any spillage on the floor. And further she said, had she seen a spillage, she would have mopped it up because she carries a rag on her for the very purpose. Furthermore Ms Newton said she was conscious that the area around or near the food court was an area that she had to be vigilant in looking for spillages.
The question that Ms Newton was there and present at the time and that she walked along that line that she said before the fall, was not a subject of cross-examination by the plaintiff. It was never put to Ms Newton that she was not there or was not at the time there or that she was also engaged in what she called the bin run or that her bin run obscured her vision of the floor. None of this was put to the witness Newton.
The plaintiff made a generalised attack on Ms Newton’s credit pointing to differences in the size of the spillage and differences in prior statements that the plaintiff said were inconsistent. I do not find that Ms Newton was a witness who was not credible, I found her to be wholly credible and reliable witness.
Mr Beale did not quite get it right, but to be a reliable witness they have to be both honest and accurate and I find Ms Newton to have been both honest and accurate and therefore her evidence is reliable. Her demeanour in the witness box whilst she was an assertive woman, and one has to take that into account I suppose, that an assertive person seems more honest than a timid person, I suppose. But nevertheless I accept what she had to say in all the important respects and especially and crucially I accept that she had inspected the floor, whether or not she was carrying bins, within five minutes of the fall.
In my opinion that is a reasonable period of time and therefore in my opinion the plaintiff has not established that either of the defendants were negligent.”

Resolution of the issues

49 Initially, Mr Barry argued that the trial Judge’s complete reliance on Ms Newton’s evidence as determinative of the liability issue was misplaced. Counsel had argued that, at best, the evidence merely amounted to some evidence that suggested the possibility of an inspection shortly before the accident but did not go so far as to prove the point conclusively. Mr Barry, however, accepted the situation, after oral debate, that it would not be appropriate for this Court to substitute the findings of fact he urged upon us in circumstances where the real complaint was that the trial Judge had not properly analysed and evaluated all of the evidence that conflicted with, or cast doubt upon the reliability of, Ms Newton’s evidence. It was simply not possible for this Court to make the necessary findings as to the credit and reliability of the four or five witnesses whose evidence needed to be scrutinised to determine the issue. Upon reflection, Mr Barry accepted that, in the circumstances of this appeal, the best that he could argue for was an order for a new trial.

50 Mr Campbell SC opposed an order for a new trial and submitted that the trial Judge had been justified in determining the liability issue in the way he had. Senior counsel for the second respondent argued that many of the inconsistencies that were suggested did not in fact arise or, alternatively, were not critical to the resolution of the credit or reliability of Ms Newton. Mr Campbell emphasised that at trial, counsel for the appellant had not cross-examined Ms Newton to suggest that she had not inspected the food court area shortly before the accident. It was also argued that the trial Judge’s reference to the appellant exaggerating her injuries when he considered the damages aspect of her claim was a matter that was entitled to be brought to bear on the credit issues affecting any differences between the appellant’s evidence on liability and that of Ms Newton.

51 I have concluded that the appellant has made good her case for a new trial. In my opinion, the trial Judge has failed to conduct the necessary analysis of the inconsistent versions of the events that occurred. He has failed to analyse and give reasons based on an analysis of the evidence as to why there was a rejection of the evidence of the appellant, her partner, the security guard, Mr Grace and the contemporary documents in favour of the evidence of Ms Newton. There was no examination of, nor reasons given in respect of, the fact that the trial Judge has simply relied upon the demeanour of Ms Newton rather than the apparent failure by the respondents, reflected in the contemporary documents, to maintain their agreed system of inspecting and cleaning the food court area.

The duty to give reasons – relevant principles

52 The principles underlying the need to give reasons and the various circumstances in which a critical failure may occur warranting a new trial are set out in a recent decision of this Court in Pollard v RRR Corporation Pty Limited [2009] NSWCA 110. The principles are comprehensively stated in the judgment of McColl JA (with whom Ipp JA and Bryson AJA agreed). Since those principles are thoroughly stated in McColl JA’s decision, I will simply distil the principles that are most relevant to the present matter: -

1. The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and “denies both the fact and the appearance of justice having been done”, thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA.

2. The extent and content of reasons will depend upon the particular case under consideration and the matters critically in issue. While a Judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point or points critical to the contest between the parties. The reasons must do justice to the issues posed by the parties’ cases: Moylan v Nutrasweet Company [2000] NSWCA 337 per Sheller JA (Beazley and Giles JJA agreeing).

3. The nature of the matters in issue in a particular contest will normally determine the extent to which there is an obligation on the trial Judge to refer to the evidence and to make findings of fact in relation to evidence in contest. Failure to do so may promote a sense of grievance in the adversary and create a litigant who is entitled to feel a sense of legitimate grievance ( Mifsud (at 728) per Samuels JA; Sun Alliance Insurance Limited v Massoud (1989) VR 8 (at 18 per Grey J).

4. Because a primary Judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis has been made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it will be apparent that the process of fact finding has miscarried. The reasons must reveal why it is that the evidence which has been accepted was preferred to that of other witnesses; Waterways Authority v Fitzgibbon ; Mosman Municipal Council v Fitzgibbon ; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; [2005] 79 ALJR 1816 [at 130] – [131] per Hayne J (with whom McHugh J [AT 26] and Gummow J [at 27] agreed); See also Najdovski v Crnojlovic [2008] NSWCA 175 [at 21] per Basten JA (Allsop P and Windeyer J agreeing).

Reasons for conclusion that trial Judge failed to do justice between the parties

53 The first thing to observe is that after a four day hearing, the trial Judge felt, it seems, comfortably able to determine the issue of liability in the first section of an ex-tempore judgment that spanned no more than three and a half pages. Litigation involving issues on liability such as the present case would ordinarily require a very careful examination of a whole range of circumstances. Those circumstances will normally include a careful appraisal and examination of the contractual arrangements between the defendants. It will also involve a close scrutiny of the actual practices of those involved in the cleaning operations. It will require a careful analysis of the evidence of those who saw the accident or who were concerned with its immediate consequences. This case was no exception to that rule. Indeed, it was more complex than the usual case because there was a considerable body of conflicting, or at least apparently conflicting, evidence concerning the events of the day. It was simply unlikely that the entire issue of liability could be determined by a single demeanour question such as that posed by the Judge – do I believe the evidence of the witness, Ms Newton? Yet that was, without any further scrutiny, the essential basis on which liability was determined.

54 Importantly, the way in which Ms Newton’s evidence on the point had emerged should have given the trial Judge considerable concern in terms of its possible unreliability. It should have flagged the need to examine all the circumstances of the accident with great care and caution before accepting the proposition that Ms Newton had carefully inspected the floor area within five minutes before the fall.

55 First, there was the fact that the issue of a late or last minute inspection had never been raised before the trial Judge when the parties opened their respective cases. If this were to be the issue, it should have been opened but it was not. Secondly, Ms Newton, when called by counsel for the cleaning company, made no mention in chief of any such inspection on behalf of her employer. The statement taken from Ms Newton by those responsible for the presentation of the cleaning company’s case made no mention whatsoever of such a late inspection. It is inconceivable that this possibility would not have been raised with Ms Newton, especially given the fact that Mr Grace’s “cleaner’s statement” – the basis for the first respondent’s contemporaneous Incident Report – clearly stated that the “last inspection” or the “last cleaning” of the food court area occurred at 3,35pm on the day in question, some 20-minutes before the fall. This should have been seen as an important issue for the determination of the liability issue at trial.

56 Thirdly, the proposition that there had been a late inspection a matter of minutes before the accident was raised, not by the second defendant, but by Mr Cavanagh for Stocklands. In one sense, it was a matter of indifference to the first respondent whether the cleaners had done their job properly or not. The first respondent had the benefit of an indemnity from the second respondent, as evidenced by its cross-claim against the second respondent. To an extent, however, there was a shared interest between the two respondents. If the trial Judge could be persuaded that the appellant had failed altogether on the liability issue, that would be an end of the matter. A careful reading of the cross-examination that elicited the evidence of a late inspection suggests that this came as no surprise to counsel for the first respondent.

57 Whether that be so or not, it appears there was in the possession of the first respondent a statement made in late April 2008 by Ms Newton. Although it was cross-examined on by Mr Beale for the appellant, it did not get into evidence. Mr Beale was criticised by the trial Judge for not cross-examining Ms Newton directly about matters relating to her asserted observation. This criticism was repeated during the argument in this appeal. Mr Barry accepted this criticism up to a point, but made the countervailing submission that , if there were anything in the statement which supported the late inspection, in light of the cross-examination that did occur, the statement could have been tendered by counsel who had called the witness.

58 In addition, given the circumstances of the manner in which the evidence had emerged, the issue really could not be determined on demeanour alone. There was a need to consider why it was that both the first and second respondents appeared to have accepted, in the preparation of the reports following the accident, that the food court had not been the subject of an inspection for some 20-minutes before the fall. It was likely that Ms Newton would have been involved, at least to some degree, in the enquiries leading to the preparation of the reports. It is likely there would have been some discussion on the day between Mr Grace and Ms Newton. Although these questions were not explored in the cross-examination of the three witnesses called by the second defendant, the reports were in evidence. None of these possibilities was considered or examined in the reasons for decision.

59 Finally, there was a need to examine all the surrounding evidence to see whether the probabilities favoured acceptance of Ms Newton’s evidence. This extended to the need to consider the likelihood that a cleaner who was finishing up for the day, carrying out the various tasks involved in the bin run, would have been in a position to make a careful inspection of the food court as the garbage was being taken or wheeled to the principal garbage collection area. It included the need, more importantly, to examine the question as to whether there were inconsistencies between Ms Newton’s recollection of the incident and the recollections of those who were involved in the immediate aftermath of the accident. If so, it was necessary to reflect upon the possible impact of those inconsistencies or the accuracy of Ms Newton’s evidence.

60 In this regard, I refer particularly to the fact that the evidence of the plaintiff and her partner, the evidence of the security guard and Mr Grace, at least on the face of it, suggested that the various conversations with the appellant occurred well away from the accident scene and in the absence of Ms Newton. Yet her evidence appeared to be that she had heard these conversations at the fall location and was there with the other individuals I have mentioned.

61 Mr Campbell SC argued that the evidence established, on any view, that Ms Newton was at the accident scene. To that extent, counsel argued, there was no meaningful inconsistency. Mr Barry QC did not dispute that Ms Newton was at the scene of the fall when the cleaning up occurred, but argued that the evidence suggested that she simply remained at that scene waiting for the sign to be put in place. She was there for the purpose of making sure that other people did not fall over on the slippery floor. Importantly, Mr Barry argued that all the conversations with the appellant occurred well out of sight and hearing from the place where Ms Newton was stationed.

62 The debate on this point between two-experienced senior counsel simply serves to demonstrate, in my opinion, how important it was for the trial Judge to engage with the very point at issue. This he simply did not do. The same response may be made to a number of the other arguments advanced by Mr Campbell. They were not without their force but each of them required the trial Judge to consider those very matters and to put them into the equation and analyse the factual situation before coming to a finding, if he was so minded, that Ms Newton should be accepted. This, as I say, was simply not done.

63 There were other matters of a similar kind raised by Mr Campbell during argument. For example, he submitted that the fact that the appellant had mentioned her embarrassment “stuck” in Ms Newton’s mind, according to her evidence. There was no doubt the appellant made such a remark and, indeed, it is contained in the written incident Report and in the security man’s statement. Similarly, the number of children with the appellant had been mentioned by Ms Newton in her evidence, although this too appears in the Incident Report. The remark about the appellant’s “embarrassment”, according to the security guard, was not however, made at the fall location, but some 50 or 60 metres away. So, would it be likely that Ms Newton actually heard the comment? Once again, this is another of those matters simply not mentioned by the trial Judge, not examined and not analysed in any way. His response was simply that Ms Newton was a credible and reliable witness and that he believed her. There is no need to refer to the detail of the other matters raised by Ms Campbell SC simply because, as I have said, each of the matters simply reflects the lack of analysis carried out by the trial Judge in his reasons.

64 The final matter mentioned by Mr Campbell related to the trial Judge’s statement when he came to examine the damages issue. This was the observation that, in his view, the plaintiff had been exaggerating her complaints. Mr Campbell argued that the trial Judge was entitled, where there was a conflict between the appellant and Ms Newton, to prefer Ms Newton having regard to this finding. In my opinion, the trial Judge’s finding that the plaintiff exaggerated her complaints was not one that he brought to bear on the liability question which he determined quite separately. That argument has no substance. Indeed, it is fair to say that, on the liability issue, the trial Judge made no findings, either based on credit or reliability, in relation to the evidence of any of the witnesses, save for his findings concerning Ms Newton. Yet findings of this kind were necessary before true reliance could be placed on Ms Newton’s evidence.

Conclusion

65 For all these reasons, I conclude that there must be a new trial. The trial will need to relate to both liability and damages. In my view the following orders should be made: -

1. Appeal allowed.

2. Set aside the order directing the entry of a verdict for the first and second defendants against the plaintiff.

3. Set aside the order dismissing the cross-claim by the first respondent against the second respondent.

4. Remit the proceedings to the District Court of New South Wales for a new trial on all issues.

5. Costs of the first trial to abide the events of the second trial.

6. The respondents are to pay the appellant’s costs of the appeal and to have a Certificate under the Suitor’s Fund Act 1951 if otherwise entitled.

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