Gaskell v Denkas Building Services Pty Limited - [2008] NSWCA 35

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35

FILE NUMBER(S):
40425/2004

HEARING DATE(S):
29/02/2008

JUDGMENT DATE:
20 March 2008

PARTIES:
David Anthony Gaskell - Appellant
Denkas Building Services Pty Ltd - 1st Respondent
Harding Rogers & Associates Pty Ltd t/as Richardson & Wrench - 3rd Respondent

JUDGMENT OF:
Hodgson JA Basten JA Bryson AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
CL 20763/2001

LOWER COURT JUDICIAL OFFICER:
Johnson J

LOWER COURT DATE OF DECISION:
23 June 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
[2006] NSWSC 632

COUNSEL:
D W Elliott - Appellant
J Sexton SC, J Gracie - Respondents

SOLICITORS:
G H Healey & Co - Appellant
Vardanega Roberts - 1st Respondent
DLA Phillips Fox - 3rd Respondent

CATCHWORDS:
EVIDENCE - occupiers liability - tenant of office suite injured in slip and fall in toilet, common area in office building - tenant alleged he had earlier informed director of building owner of repeated pooling of water - adverse inference based on failure of occupier to call director - Trial Judge accepted evidence of other witnesses denying complaints to them and declined to draw adverse inference although recognized that it was available - Held, no error.
COURTS and JUDGES - delay in giving judgment - reserved 29 July 2005, published 23 June 2006 - no expressed reliance on demeanour - on review of reasons in judgment, no ground for fearing that a grasp of the evidence has been lost or that conclusions have been hurried or poorly considered.

LEGISLATION CITED:
Civil Liability Act 2002
Conveyancing Act 1919 s 127

CASES CITED:
Hadid v Redpath [2001] 35 MVR 152
Jones v Bartlett [2002] HCA 56, 205 CLR 166
Jones v Dunkel (1959) 101 CLR 298
Krivoshev v Royal Society of the Prevention of Cruelty to Animals Inc. [2005] NSWCA 76
Manly Council v Byrne [2004] NSWCA 123
Monie v Commonwealth of Australia [2005] NSWCA 25
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
Expectation Pty Ltd v PRD Realty Pty Ltd & Anor [2004] FCAFC 189

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40425/2004
CL 20763/2001
HODGSON JA
BASTEN JA
BRYSON AJA
20 March 2008

DAVID ANTONY GASKELL v DENKAS BUILDING SERVICES PTY LIMITED and OTHERS

Judgment

HODGSON JA: I agree with Bryson AJA.
BASTEN JA: The appeal should be dismissed with costs, for the reasons given by Bryson AJA.
BRYSON AJA: The appellant, plaintiff in the Common Law Division, appeals against the verdict and judgment for the first and third defendants, now respondents, given by Johnson J. on 23 June 2006. The proceedings were commenced by Statement of Claim on 7 September 2001 and the Civil Liability Act 2002 has no application. On 10 September 1998 Mr Gaskell was injured when he slipped on the floor of the men’s toilet in an office building at Railway Parade, Engadine.
Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCA 35
Decision Date: 20 March 2008

CaseChat Overview and Summary

In Gaskell v Denkas Building Services Pty Limited, the appellant, Mr Gaskell, a tenant of an office suite, appealed to the Court of Appeal of New South Wales against a decision of the trial judge. Mr Gaskell had suffered injury in a slip and fall incident in a common area toilet within the office building owned by the respondent, Denkas Building Services Pty Limited. The central dispute concerned whether Mr Gaskell had previously informed a director of the building owner about repeated pooling of water in the toilet area.

The legal issues before the Court of Appeal included whether the trial judge erred in failing to draw an adverse inference against the respondent for not calling its director to give evidence, given Mr Gaskell's assertion that he had complained to this director. Additionally, the court considered whether the trial judge's delay in delivering judgment, reserved for approximately eleven months, indicated a loss of grasp of the evidence or led to hurried or poorly considered conclusions.

The Court of Appeal upheld the trial judge's findings. The trial judge had considered the availability of an adverse inference but declined to draw it, finding Mr Gaskell's evidence regarding prior complaints to be unreliable. This conclusion was based on the absence of any contemporaneous written complaint by Mr Gaskell, despite his history of raising issues concerning the premises in writing. The trial judge also noted inconsistencies in Mr Gaskell's evidence and contrasted his readiness to complain in writing on other occasions with the lack of any written record of the alleged complaint about water pooling. The court found no error in the trial judge's assessment of the evidence, including the rejection of the adverse inference. Furthermore, the court found no grounds to fear that the delay in judgment had compromised the judge's understanding or consideration of the evidence.

The appeal was dismissed, and Mr Gaskell was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs. (Bryson AJA, Hodgson and Basten JJA agreeing)

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Trial Judge found that Mr Gaskell had not complained to the respondents about pooling of water. His Honour’s reasons were:105 The evidence demonstrates that the Plaintiff was ready, willing and able to raise issues concerning the state of the premises with the agent, some times in strident terms, if he considered that it was in his interests to do so. Against this background, it is difficult to understand that had he observed pooling in the manner alleged by him and had he complained about the pooling prior to 10 September 1998, that he would not have referred to this in writing after the fall. The absence of such contemporaneous written complaint after the fall is a telling factor against the Plaintiff’s account of events allegedly preceding the fall.106 There is a significant contrast between the Plaintiff’s readiness to raise matters concerning the state of the leased premises in writing with HRA on other occasions, both before and after 10 September 1998, and the absence of any written complaint concerning alleged pooling of water on the men’s toilet floor. In my view, this is most significant in considering the existence or otherwise of contemporaneous corroborative material supporting the Plaintiff’s claim that he had complained to representatives of Denkas and HRA about the alleged pooling in about May 1998. 107 Having regard to the Plaintiff’s left knee injury sustained in 1983, it might be thought that he would have a heightened sensitivity to any risk of slipping in any part of the leased premises. The absence of any written complaint by him concerning this matter prior to 10 September 1998 is significant. Tellingly, the absence of any written complaint from the Plaintiff after 10 September 1998 alleging, in terms, that he had slipped in a pool of water on the floor of the men’s toilet and that this was a matter about which he had complained at an earlier time to representatives of Denkas and HRA, undermines his evidence on this point. 108 The position is further compounded by the matters which were alleged, and not alleged, by way of further and better particulars provided before the hearing, in his counsel’s opening address and in his own evidence in chief of the first day of the trial. The sudden and somewhat dramatic change in the Plaintiff’s evidence on the second day of the trial with respect to alleged earlier observations of pooling and complaints made to representatives of Denkas and HRA is difficult to accept. There are fundamental inconsistencies and contradictions in the evidence of the Plaintiff. His own statements expressed directly, or through his legal representatives, up to the end of the first day of the trial did not allege any direct complaint by him to any representative of Denkas or HRA prior to 10 September 1998. At its highest, there appears to have been an allegation of a hearsay account obtained through plumbers working at the premises in 2000 that a representative of Denkas was said to have some prior knowledge on this matter. This is far removed from the version ultimately given by the Plaintiff. 109 The Plaintiff's evidence on this issue is so unsatisfactory and unreliable that a finding ought not be made, on the balance of probabilities, that the Plaintiff complained about alleged pooling to representatives of Denkas and HRA prior to the fall in September 1998. The evidence of Mr Rogers and Mr Harding110 The Plaintiff’s position on these issues is worsened further by the sworn evidence of Mr Rogers and Mr Harding that no such complaint was ever made to them. This material fortifies my conclusion that the Plaintiff’s evidence does not establish, on the balance of probabilities, that some prior complaint was made.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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