Graham v Remo Constructions P/L

[2005] NSWCA 225

CITATION:	GRAHAM v. REMO CONSTRUCTIONS P/L & ANOR [2005] NSWCA 225
HEARING DATE(S):	03/06/2005
JUDGMENT DATE:	6 July 2005
JUDGMENT OF:	Mason P at 1; Bryson JA at 2; Hislop J at 30
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	NEGLIGENCE - employment (building site) - bricklayer in partly constructed residential building - worker exited from building by walking through opening for sliding door - worker claimed to have tripped on unstable metal cover placed over door runner (for glass door, not yet in place) - claim against employer (bricklayer subcontractor) and also against head contractor as occupier - DCJ did not accept worker's evidence of manner in which he tripped i.e. causation in instability in metal cover - unsuccessful challenge to findings - consideration of Betts v. Whittingslowe reasoning - decision on facts.
CASES CITED:	Fox v. Percy (2003) 77 ALJR 989 Betts v. Whittingslowe (1945) 71 CLR 637 Bennett v Minister for Community Welfare (1992) 176 CLR 408 TC by his tutor Sabatino v. State of New South Wales [2001] NSWCA 380
PARTIES:	Charles Graham – appellant Remo Constructions Pty Ltd – 1st respondent Richard Crookes Constructions Pty Ltd – 2nd respondent
FILE NUMBER(S):	CA 40401/04
COUNSEL:	H Kelly SC and Shoebridge – appellant J Catsanos – 1st respondent G Bateman – 2nd respondent
SOLICITORS:	Taylor & Scott – appellant Hunt & Hunt – 1st respondent Moray & Agnew – 2nd respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	11446 of 2001
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ

CA 40401/04

MASON P
BRYSON JA
HISLOP J

WEDNESDAY 6 JULY 2005

GRAHAM v. REMO CONSTRUCTIONS P/L & ANOR

Judgment

1 MASON P: I agree with Bryson JA.

2 BRYSON JA: The appellant Mr Graham appeals against judgment for the defendants given by her Honour Judge Sidis in the District Court on 5 May 2004. Mr Graham sued the first respondent Remo Constructions, first defendant in the District Court, and the second respondent Richard Crookes Constructions, second defendant in the District Court, for damages for personal injuries which he suffered in a work accident on 1 December 2000. The work accident occurred at the building site at Liberty Grove, Concord West, New South Wales, where Mr Graham was employed by Remo Constructions as a bricklayer. Richard Crookes Constructions was the head contractor on the site and Remo Constructions was carrying out building work as a subcontractor, in the course of which Mr Graham was working on the 9th floor of a partly constructed residential building.

3 On 1 December 2000, a little after 9 am, when there was a break for smoko, Mr Graham left his worksite on the 9th floor, with the object of going to a canteen outside the building on the ground level. The hoist, referred to as the alimack, was not available, so he walked down the internal stairs and arrived at the foyer. There was no reason why he should not have used the stairs, or should not have been expected to use the stairs. Mr Graham found that the main entrance to the building, the usual means of access, was blocked by a concrete truck and that there was safety tape in position across the main entrance, indicating to him that he should not walk past the safety tape and out the main entrance. Upon the findings of the Trial Judge no other means of access were indicated by signs, tapes or otherwise, and in the foyer Mr Graham saw on his right hand side an open doorway to one of the ground floor units, and through the doorway and the unit he saw an open sliding door giving egress to a courtyard and a route to the canteen. Scaffolding pipes were erected beyond the open sliding door and outside the perimeter of the building. The Trial Judge found that there was no alternative exit available to Mr Graham.

4 The Trial Judge summarised Mr Graham’s case about what followed in these terms: (Red 53-54)

By this time it was about 8 minutes after 9 am. [Mr Graham] said he could see some people still in the canteen, and because he needed to be back at work by 9.15, he was hurrying. He therefore walked through the unit and towards the sliding door. He said, as he approached the sliding door, he put his foot on what he thought was the door runner. The structure that he stepped on moved, and that caused him to trip and fall. He then said it caused him to fall forward, the momentum of which was so great that he put his arm out to protect his head, twisting his torso as he fell. He said he fell on debris; his arm was caught in part of the scaffolding and he heard a rip and tear in his right arm. He also said that he hurt his neck and his back at the same time.
When he stood up after his fall, he looked around to see what it was that had been under his feet. He noticed that there was a metal track, at which he kicked. Having kicked it, he noticed that it was loose and it had not been secured in any way. He described it as like a piece of stainless steel or similar material.

5 A large part of the evidence and (it would seem) of the time occupied in the trial was taken up by cross-examination of Mr Graham by counsel for each respondent dealing with the facts and circumstances relating to his injury, and the damages he claimed. Her Honour grouped her findings into the following topics, referred to as issues (Red 57):

The issues, as I identified them from the evidence and submissions, were as follows: firstly, the question of the availability of the alimack; secondly, whether there were alternative exits available to the plaintiff, which had been adequately signposted; thirdly, the nature of the metal cover and its utility; fourthly, inconsistencies in the description of the manner in which the plaintiff was injured; and fifthly, issues relating to apportionment of responsibility, if any, between the defendants and contributory negligence on the part of the plaintiff.

6 The first issue (availability of the alimack), the second issue (alternative exits) and the fifth issue (apportionment of responsibility) do not need further examination for the purpose of disposition of the appeal. After dealing with evidence on the first and second issues, the Trial Judge turned (Red 59) to the third issue, the nature of the metal cover. Her Honour’s consideration of this subject, which extends for more than two pages, began with this sentence (Red 59X): “The third issue goes to the metal cover on which the plaintiff stepped.” During argument on appeal consideration was given to whether this sentence records a finding establishing that it was part of the event that Mr Graham indeed did step on the metal cover. To my mind it is clear that the sentence does no more than introduce the subject under consideration, and does not express any conclusion on it. Her Honour went on to deal with evidence of Mr Graham and of two other witnesses dealing with the metal cover, and thence to state findings. On no reasonable reading could the first sentence be thought of as a conclusion.

7 Evidence to which the Trial Judge referred shows that Mr Graham was not familiar with the use of a metal cover to protect part of a door runner while building work was continuing, but evidence of the two other witnesses, Mr Ostaric who was Richard Crooke Constructions’ site manager and Mr Tozer a consulting construction engineer who gave expert evidence on behalf of Mr Graham, shows that the use of metal covers to protect door runners is known in construction practice. Mr Ostaric’s evidence speaks of the common use at the Liberty Grove construction site of metal covers with foam rubber inside for protection of door runners. Mr Ostaric further explained the function of metal covers, and his evidence shows that metal covers were placed over door runners to provide protection when people stand on door runners or wheel their barrows over them (Red 60VX). The metal cover which, according to Mr Graham’s case, was involved in his accident and injury was not produced in evidence, and the evidence does not establish whether or not that metal cover had foam rubber inside it. Evidence shows that the piece of metal (Exhibit N) which Mr Graham produced to illustrate his evidence is not in all respects the same in shape or dimensions as the metal cover which he claimed was involved.

8 When dealing with the third issue the Trial Judge said: (Red 60-61)

On the basis of this evidence, I make the following findings: (1) egress through the unit and the sliding door was readily available; no attempt was made by the second defendant to prevent its use as a means of exiting the building; (2) there was no direction or signage at the ground floor to any alternative temporary means of egress; (3) the metal cover over the door runner was not fixed and it was not stable; (4) it was foreseeable, and in fact foreseen, that a building worker might step on the door runner; this was the very purpose of the metal cover in protecting the door runner in the event that it was stepped on; and (5) a reasonable person in the position of the second defendant, having overall responsibility for the building site, and paying attention to the need to provide appropriate alternative means of exiting the building, would recognise the risks inherent in the instability of the metal cover and would take steps to remove that risk.

The effect of this passage is that her Honour found that there was negligence being failure to provide appropriate alternative means of exit, so that persons such as Mr Graham were left to find their own way out in circumstances where it was foreseeable that they would pass through the unit and out the open sliding door, and that they might step on the door runner and the unstable metal cover while doing so. These findings were not challenged on appeal.

9 It will be seen that the fifth finding related only to Richard Crookes Constructions and not to Remo Constructions. For present purposes it is not necessary to examine further whether this limitation was appropriate; for some purposes such examination would be appropriate, but not for the disposition of this appeal.

10 The Trial Judge’s findings went on to deal with the fourth issue: (Red 61-62)

This of course does not end the matter, because it is necessary for the plaintiff to establish that this neglect was the cause of his injury, and it brings me to the fourth and most significant of the issues; that is, the inconsistencies in the versions of the accident give by the plaintiff.

This passage was followed by several pages in which her Honour referred to Mr Graham’s evidence about the cause of his fall and injury, and to statements in a number of other sources traceable to him on the same or closely similar subjects. Mr Graham’s evidence is not entirely internally consistent, leading for example to the Trial Judge’s statement in the judgment: (Red 55) “He said he did not see the object in the doorway covering the door track, although his view had not been obstructed,” and a later finding (Red 65): “He said he saw the cover and in fact stepped on it, believing it to be stable.” There are passages in Mr Graham’s evidence which show to the effect that he tripped and fell because the metal cover moved; there is evidence which can be understood to the effect that he tripped or slipped on the metal cover; and there is evidence which can be understood to the effect that he did not see the metal cover until after his fall.

11 The following transcript passages illustrate this:

(Black 23H-J)
Q. What happened as you approached the aperture heading towards the canteen?
A. As I approached I put my foot, what I thought was on the door runner, and it moved and it caused me to fall, to trip and fall.

(Black 24B-F)
Q. So what did you do next?
A. I got to my feet, I looked around me to see what it was that went underneath my feet, I noticed that a metal track, I kicked it and it wasn't, it was just loose, it wasn't secured down or nothing.
Q. What was it that you kicked?
A. It was a piece of like stainless steel metal similar to that piece you have on the table there.

(Black 24R-Y)

Q. Now just go back in point of time, you've said after your fall you got up and you looked around and you observed what you've described as something over the track, you said you kicked it and what did it actually do when you kicked it?
A. It moved, it moved; it wasn't secured.
Q. Did you have a look at the track itself at this point of time?
A. I might have.
Q. When you say it moved when you kicked it, how far did it move?
A. It was - the track was say here and this was moving like a good 120mm, like four or five inches in the old scale, it was just like...

(Black 53V-54D)

Q. You have described the metal cover as having moved, I think in your terms, something like six inches or so?
A. 100mm to maybe 120mm.
Q. Are you clear in that recollection of things? I mean--
A. It might have been a bit less but there was a fair distance between it, I never got down and measured it, I am just judging by how much it moved.
Q. Are you sure it moved?
A.I am positive it moved.

(Black 54G-M)

Q. You'd describe it as `I stepped on something which gave way or moved or shifted'?
A. It shifted and then I tripped, like I lost my footing, sorry, I lost my footing when it moved.
Q. Well the moving of the metal plate is something that is the reason you lost your footing, according to you?
A. Yes.
Q. Did you tell your solicitors in describing this incident about that movement of the metal plate?
A. To the best of my recollection I told my solicitor, I stepped on it, I wasn't sure what foot it was that stepped on it first, it moved, I lost my footing, then I stumbled forward and then tripped over the scaffold.

(Black 54O-Q)

Q. Well from your perspective, I am not asking you from any other, but from your own perspective, looking back on it, the reason that you lost your footing was because the metal moved?
A. Oh yes, there's a good chance of that.

(Black 55C)

A. It moved quite a bit when I stepped on it and I lost my footing and I tripped over the scaffold.

(Black 97V – 98E)
Q. And you say you put your foot on top of the runner cover, can we call it that?
A. You can call it anything you want.
Q. And it moved, is that what you say?
A. Moved, causing me to trip, yeah, lose my balance, yes.
Q. You didn't know the runner cover was there?
A. I never saw it.
Q. Did you give any mind at all to where you were putting your foot?
A. As far as I was aware I was putting my foot on top of the door...
Q. On top of the runner itself?
A. Yeah.

(Black 100Q-V)

Q. You tripped on it?
A. Yes, well it moved on me and it caused me to lose my balance, where I fell forward and then I tripped over the scaffold.
Q. Well now let's get this straight, sir. You say you were standing on that metal piece and it moved, causing you to lose your balance or that you tripped over that metal piece?
A. I stood on that metal, it moved, it caused me to do, it must have been lose my footing, I tried to regather myself but my momentum was taking me forward and then I tripped on the scaffold.
(Black 101G-L)
Q. You haven't told any doctor that you were seeing, either for treatment or for the purpose of these proceedings that your accident was caused by you standing on a galvanised piece of metal which shifted under foot, have you?
A. I've told them exactly what I told you now. I stood on that piece of metal, I've tripped, slipped on it, then I've lost my momentum and then I tripped over the scaffold trying to regather myself, that's what I told them.
Q. I suggest to you, sir, that you have invented that just recently?
A. That's not right.

(Black 103C-E)

Q. No, but you're not saying that you slipped on the surface of the runner, are you?
A. No, no, no. It moved on me. It moved on me, causing me to lose my footing and then I fell, my momentum was going forward, I tried to regather.

12 In dealing with the evidence of Mr Graham, her Honour made reference to Mr Graham’s evidence (Red 63J): “In cross-examination, the plaintiff stated that he was positive that the metal object moved, causing him to lose his footing and stumble.” Her Honour also said (Red 65):

The plaintiff’s evidence to the court was that he did not in fact trip or slip on the metal cover. He said he saw the cover and in fact stepped on it, believing it to be stable. At the most, he said that he lost his footing because of instability in the metal decking.

13 The passage last quoted does more than recite the effect of Mr Graham’s evidence referred to at Red 63J; it must be understood to state conclusions in which the Trial Judge found facts. Notwithstanding the internal inconsistencies of Mr Graham’s evidence her Honour was in a position to come to a conclusion after hearing the whole of Mr Graham’s evidence about which version of these events his evidence truly supported.

14 After the Trial Judge reviewed versions of the accident given by Mr Graham, and noted inconsistencies in his evidence or the effect of his evidence as found, her Honour proceeded to review statements in a number of other sources. Her Honour referred to the Employer’s Report of Injury completed shortly after the accident and shortly after the appellant had undergone surgery for his shoulder injury; this report was signed by Mr Graham and referred to his having “slipped, walking through the door on a scaffold.” (Blue 145). Her Honour further referred to information furnished by Mr Graham’s solicitors in instructions to Mr Tozer for the purpose of an expert report. The instructions included, as quoted by Mr Tozer: “As Mr Graham walked through the sliding door, he lost his footing on a metal cover which had been placed over the bottom guide channel for the sliding door. He stumbled forward, trying to regain his balance, but tripped on some scaffolding tubing…erected outside the doorway.” (Blue 107). Later instructions to Mr Tozer include statements (Blue 117): “Mr Graham tripped when the leading foot came into contact with the apex of the metal as he exited the building” and “We are instructed that the mechanism of the fall following the trip on the metal was the plaintiff fell forward extending his right arm to protect his upper body but was unable to regain his balance falling to the floor striking inter alia erected scaffolding as he did so.”

15 A statement furnished by Mr Graham to his solicitors, tendered in re-examination apparently to rebut an express suggestion of recent invention, states: (Blue 104) “It was as I was walking through the sliding doors that I lost my footing on a metal cover which had been placed over the door runners. I stumbled forward then tripped on scaffolding pipes which were erected and I fell down.” The statement further states: “It was smooth and shiny metal. I lost my footing walking over the bridge. It should have been made of checker plate steel, which would have given me much better grip as I walked over it.” Her Honour also referred to the histories in numerous medical reports, and found that the accounts in them varied to some degree. Her Honour said, after reviewing the accounts in medical reports (Red 64C):

Having been taken to these inconsistencies, the plaintiff said that he had in fact tripped on scaffolding, but he believed that he had also told the doctors who he had consulted that he had lost his footing having stepped on the metal cover, tripped and slipped on it, lost momentum and tripped over the scaffolding whilst trying to trying to recover his balance. He denied that his evidence concerning movement of the metal deck was a matter of recent invention.

16 Her Honour then reviewed the statements about the events in the Statement of Claim and Particulars of Negligence (Red 3-4), which made no reference to movement in the metal cover, but alleged that the surface of the passageway was smooth and slippery, and alleged “Failed to ensure the surface of the said passageway was not slippery and uneven due to the presence of the metal cover and scaffolding pipes.”

17 Her Honour then made these observations (Red 64U-65F), to part of which I referred earlier:

Thus, all of the evidence and the complaints made in the statement of claim, insofar as they relate to the metal cover, are directed at the plaintiff having slipped, tripped, or lost his footing on the metal cover. There is nothing in these materials referring to instability of the metal cover as the cause of the trip, slip or loss of footing. The plaintiff’s evidence to the court was that he did not in fact trip or slip on the metal cover. He said he saw the cover and in fact stepped on it, believing it to be stable. At the most, he said that he lost his footing because of instability in the metal decking.

18 The materials which the Trial Judge examined include some which are of kinds which are usually poor sources for evidence dealing with the credibility of a witness, either as to capacity for recollection or sincere truthfulness. Histories given to medical examiners are characteristically extremely brief, and are given on occasions when it is not the purpose of the patient to establish fully in the minds of the medical examiners all the relevant circumstances of the injury. It is not the purpose of the medical examiners to ascertain and record all the relevant circumstances, and the patient has no opportunity to check or correct what the medical examiners have noted. It is not often that such materials have any weight for testing credibility.

19 Similarly pleadings and particulars are more the responsibility of the solicitors who prepare them than of the client they represent, although the client’s instructions should have some influence. Statements by a client in instructions to his or her solicitors, and statements by the solicitors on behalf of the client in instructions to an expert witness have greater call on attention. The possibility of misunderstanding can clearly be seen and is greater than the possibility of misunderstanding when a witness speaks his or her evidence in an open court before a Judge. The Trial Judge was aware of these shortcomings and mentioned them particularly in relation to the medical reports (Red 65F-M); her Honour gave more weight to the pleadings and particulars, and to the instructions to Mr Tozer and to Mr Graham’s statement to his solicitors (Red 65M-V). Her Honour did not use the information from these various materials as the basis for some positive finding about what caused the injury and said (Red 65R):

Having regard to those materials, I am led to the conclusion that the plaintiff’s evidence at its best is a reconstruction of events or, alternatively, that an added feature of recent invention has been inserted into his evidence; namely, that relating to the instability of the metal cover.
It is not credible, in my view, that a feature of the incident so vital to the circumstances of the plaintiff’s fall and subsequent injury would remain apparently unrecorded until the plaintiff’s evidence was given at the date of the hearing. The evidence is therefore not accepted. However the plaintiff’s injury occurred, I am not persuaded that it was as the result of instability in the metal cover.

20 That is to say, it was the complete absence in all these sources of any reference to the floor’s being caused by instability of the metal cover that contributed to her Honour’s reasoning and conclusion. When her Honour expressed the conclusion that Mr Graham’s evidence at its best was a reconstruction of events or alternatively that evidence relating to instability of the metal cover was an added feature of recent invention, it should be understood that her Honour’s reference was principally to the effect of Mr Graham’s evidence as stated at Red 65 – that he did not in fact trip or slip on the metal cover, and that he saw the metal cover, stepped on it believing it to be stable and lost his footing because of its instability. At a later point (Red 66) referring back to this conclusion her Honour spoke of it as “… my rejection of his evidence on causation.”

21 Her Honour did not make any express finding, adverse or otherwise, about Mr Graham’s demeanour while giving evidence. Her Honour had a full opportunity to observe Mr Graham and consider the effect of his evidence; his evidence took up much of two hearing days in February 2004. There was one later hearing day on 15 April 2004 when some submissions were received, and judgment was given on 5 May 2004, after appropriate opportunity for consideration. Mr Graham underwent two searching cross-examinations and the transcript of his evidence shows that he is articulate. As well as being taken, by three different counsel, to the circumstances of the accident and injury in detail, he was taken through evidence on other subjects which might well have had a bearing on the conclusion as to his credibility, including his work history before and also after his injury, his earnings and income tax affairs, the impact of injuries on him, about which there were some matters in issue, and other aspects of his life circumstances; and there are a number of passages in his evidence which could reasonably be regarded when assessing his credibility.

22 In my view, notwithstanding the absence of express reference or analysis of their effect, these passages must have had some influence on the Trial Judge’s conclusion rejecting Mr Graham’s evidence on causation, and they put her Honour in a position of considerable advantage over myself with access only to the written record. There is nothing in evidence with the nature of incontrovertible facts or uncontested testimony which does or could demonstrate that the Trial Judge’s conclusion rejecting Mr Graham’s evidence on causation was erroneous. Within the principle restated in Fox v. Percy (2003) 77 ALJR 989 at 993 to 995 [20] to [31] (Gleeson CJ, Gummow and Kirby JJ) there are in my opinion no grounds upon which the Court of Appeal should set aside her Honour’s finding on the issue of causation.

23 On appeal Senior Counsel for Mr Graham put an argument in which it was contended that acceptance or rejection of Mr Graham’s evidence about causation of his injury, particularly the evidence to the effect that he saw the metal cover and in fact stepped on it, believing it to be stable and that its instability led to his trip and fall, is not essential for establishing the causation of his injury, and that what is essential to establish causation appears from her Honour’s five findings. It was contended that it should and could only have been found as a fact that instability of the metal cover was a contributing cause of his fall if her Honour’s findings are taken with the simple fact that Mr Graham tripped or slipped on the metal cover.

24 This invokes a line of reasoning often related to discussion by Dixon J in Betts v. Whittingslowe (1945) 71 CLR 637 at 649 of the facts of that case; what is involved is not a principle of law but a line of reasoning on causation for consideration by the tribunal of fact. A strong and, I would think, the highest available version of this line of reasoning was expressed by Gaudron J in Bennett v Minister for Community Welfare (1992) 176 CLR 408 at 420-421:

And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed [See, for example, Duyvelshaff v Cathcart and Ritchie Ltd and Quigley v Commonwealth, where was an onus on a plaintiff employee to establish what he would have done if different working conditions had been provided.], generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect [McGhee v National Coal Board [1972] 1 WLR 1, per Lord Wilberforce at 6,7, where it was said that in the circumstances of that case the defendant bore an onus to that effect. But cf Wilsher v Essex AHA [1988] AC 1074, per Lord Bridge of Harwich at 1087, 1090, where the issue of causation in that case and the remarks of Lord Wilberforce in McGhee were analysed in terms consistent with an inference arising from the evidence in the plaintiff’s case in chief with a resultant evidentiary onus on the defendant. Also note the debate in Canada on a possible shift in the onus of proof, seemingly resolved in the manner indicated by Lord Bridge in Wilsher by the Canadian Supreme Court in Snell v Farrell (1990) 72 DLR (4th) 289, at 301.], or that the injury would have occurred even if the duty had been performed [See Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 and British Road Services Ltd v AV Crutchley and Co Ltd [1967] 2 All ER 785.], it will be taken that the breach of the common law duty caused or materially contributed to the injury.

Bennett v. Minister for Community Welfare and much other learning on this subject were considered in TC by his tutor Sabatino v. State of New South Wales [2001] NSWCA 380 by Mason P at [53] to [74]. See too Seltsam Pty Ltd v. McGuiness (2000) 49 NSWLR 262 at 278-280 (per Spigelman CJ).

25 There is no sign in the Trial Judge’s careful reasons that any such line of reasoning was put before her for adjudication. A finding that engagement of Mr Graham’s foot with the unstable metal cover actually took place is necessary to initiate consideration of this line of reasoning. There is in the judgment no factual finding concluding affirmatively that Mr Graham’s fall was caused by or involved tripping or slipping on the metal cover. To my reading the Trial Judge’s conclusion at Red 65 is that “the plaintiff’s evidence to the Court was that he did not in fact trip or slip on the metal cover.”

26 There are other difficulties related to this line of reasoning. One difficulty is that this line of reasoning is often or usually associated with negligence consisting of omissions rather than positive acts (although the distinction can be very elusive). Another difficulty is that the line of reasoning relates to reaching findings on the facts, and it is difficult to say that a positive conclusion on negligence is so plainly required that it would be an error correctable on appeal not to have reached it by drawing an inference. Considerations which are difficult to elucidate or even to identify fully relating to credibility of or confidence in Mr Graham and to the tribunal’s understanding the events overall should enter into a decision to draw such an inference, and represent difficulties for a conclusion that a failure to draw the inference is erroneous. However a conclusion may be so clearly required as to require correction on appeal; as Dixon J appears to have done in Betts v. Whittingslowe.

27 At the trial Mr Graham embarked on proving that the cause of his fall was the instability of the metal cover when he trod on it, the basis of his case was clear and distinct, and it failed, and in my opinion he should not now be allowed to present his case on another basis which was not examined when the opportunity to adduce evidence existed.

28 There were further submissions relating to the apportionment of liability between the defendants, their rights against each other and the assessment of damages. In my opinion these issues do not call for decision.

29 In my opinion the Court of Appeal should make the following order:

Appeal dismissed with costs.

30 HISLOP J: I agree with Bryson JA.

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