Manly Council v Byrne
[2004] NSWCA 123
•9 June 2004
| CITATION : | Manly Council v Byrne and Anor [2004] NSWCA 123 |
| HEARING DATE(S) : | 2 March 2004 |
| JUDGMENT DATE : | 9 June 2004 |
| JUDGMENT OF : | Beazley JA at 1; Pearlman AJA at 2; Campbell J at 3 |
| DECISION : | Appeal dismissed |
| CATCHWORDS : | EVIDENCE - general - effect of failure to call a witness - whether Jones v Dunkel inferences can be drawn concerning evidence of an eye witness - whether inference should be drawn when witness is not called who could give evidence on a particular topic but witnesses giving evidence on that same topic are called - effect of a witness who is not called being equally available to both parties - PROCEDURE - courts and judges generally - judge's obligation to give reasons - TORTS - NEGLIGENCE - proof of negligence - factual decision about whether negligence established concerning Council's operation of swimming pool - TORTS - NEGLIGENCE - contributory negligence - when appellate court justified in altering trial judge's assessment of proportions of contributory negligence - effect of age, intelligence and experience of a child plaintiff on contributory negligence - TORTS - NEGLIGENCE - proof of negligence - factual findings about whether negligence established against club operating water polo competition at swimming pool |
| LEGISLATION CITED : | Law Reform (Miscellaneous Provisions) Act 1946 Law Reform (Miscellaneous Provisions) Act 1965 Law Reform (Miscellaneous Provisions) Amendment Act 2000 Supreme Court Act 1970 (NSW) |
| CASES CITED : | Abalos v Australian Postal Commission (1990) 171 CLR 167 Australian Breeders Co-operative Society Ltd v Jones and Others (1997) 150 ALR 488 Ballard v Lumbermens Mutual Casualty Co 148 NW 2d 65 (1967) Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Brandi v Mingot (1976) 12 ALR 551 Cafe v Australian Portland Cement Co Pty Ltd (1965) 83 WN (NSW) (Pt 1) 280 Caswell v Powell Duffryn Associated Collieries, Limited [1940] AC 152 Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Cubillo and Another v Commonwealth (No2) [2000] FCA 1084; (2000) 103 FCR 1 Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 197 ALR 201 Gafford v Trans-Texas Airways 299 F 2d 60 (1962) Gunning v Fellows (1997) 25 MVR 97 (NSW CA) Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 James Hardie & Coy Pty Limited v Seltsam Pty Limited [1998] HCA 78; (1998) 196 CLR 53 Jones v Dunkel and Another (1959) 101 CLR 298 Jones v Hyde (1989) 63 ALJR 349 Joslyn v Berryman and Another; Wentworth Shire Council v Berryman and Another (2003) 198 ALR 137 JPQS P/L v Cosmarnan Constructions P/L [2003] NSWCA 66 McHale v Watson (1965) 115 CLR 199 McLean v Tedman and Another (1984) 155 CLR 306 Mifsud v Campbell (1991) 21 NSWLR 725 Mye v Peters and Another (1967) 68 SR (NSW) 298 Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 Payne v Parker [1976] 1 NSWLR 191 Pettitt v Dunkley [1971] 1 NSWLR 376 Phillis and Another v Daly (1988) 15 NSWLR 65 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 R v Burdett (1820) 4 B & Ald 95 Rowes Bus Service Pty Ltd v Cowan (1999) 29 MVR 430 (CA NSW) RPS v R [2000] HCA 3; (2000) 199 CLR 620 Ryan v State Rail Authority of New South Wales [1999] NSWSC 1236 Sainsbury v Great Southern Energy Pty Ltd [2000] NSWSC 479 Sierra v Anikin [2003] NSWCA 11 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State Bank of NSW and Another v Brown (as liq of Parkston Ltd (in liq)) and Others [2001] NSWCA 22; (2001) 38 ACSR 715 Sungravure Proprietary Limited v Meani (1964) 110 CLR 24 Tabvena v Oag [2002] NSWCA 61 Winbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 |
| PARTIES : | Manly Council - Appellant Brooke Byrne by her next friend Michael Byrne - First Respondent Ken Taylor as Representative of the Members and Office Holders of the Manly Water Polo Club - Second Respondent |
| FILE NUMBER(S) : | CA 40449/03 |
| COUNSEL : | R Sheldon - Appellant M L Williams SC, S W Davis - First Respondent A B Parker - Second Respondent |
| SOLICITORS : | Phillips Fox - Appellant McCabe Terrill Lawyers - First Respondent Curwood & Partners Solicitors - Second Respondent |
LOWER COURT JURISDICTION : | District Court |
LOWER COURT FILE NUMBER(S) : | 4307/02 |
LOWER COURT JUDICIAL OFFICER : | Garling DCJ |
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40449/03
DC 4307/02
BEAZLEY JA
PEARLMAN AJA
CAMPBELL J
9 JUNE 2004
MANLY COUNCIL v BROOKE BYRNE & ANOR
Judgment
1 BEAZLEY JA: I agree with Campbell J.
2 PEARLMAN AJA: I agree with Campbell J.
3 CAMPBELL J: On the evening of 27 October 2000 Brooke Byrne, who was then aged 13 years and one month, attended the Manly swimming pool complex to participate in an under 14 years water polo competition. The Manly swimming pool complex was operated by Manly Council (“the Council”). The water polo competition was organised by the Manly Water Polo Club (“the Club”).
4 The Manly swimming pool complex contains a 50m pool, a 25m pool, and a combined teaching pool and wading pool. The water polo competition was being conducted in the 50m pool.
5 Soon after she arrived at the swimming complex, Brooke dived into the 25m pool. She hit her head against the bottom of the pool, and suffered a fracture of the neck. The fracture was not so severe as to deprive her of the use of her limbs, but she retains some disability.
6 She sued the Council, and Mr Ken Taylor as representative of the Club, alleging negligence against each. The Council filed a cross-claim against Mr Taylor as representative of the Club, seeking contribution towards any verdict for which it might be liable.
7 The case was heard before his Honour Judge Garling in the District Court over the period 5 May 2003 to 8 May 2003 inclusive. At the hearing, Brooke did not press her claim against Mr Taylor, but the Council continued to press its cross-claim against him.
8 His Honour delivered judgment on 15 May 2003, holding that the Council had committed the tort of negligence against the plaintiff, but that the plaintiff should have her damages reduced by 15 percent for contributory negligence. The Council’s cross-claim against Mr Taylor was dismissed.
9 The Council appeals, contending that it should not have been found liable to Brooke, in the alternative that his Honour should have found an amount of contributory negligence larger than 15 percent, and in the further alternative that his Honour should have upheld the Council’s cross-claim against Mr Taylor. There is no appeal against his Honour’s assessment of damages.
10 At the hearing of the appeal, the Council distilled its four page Amended Notice of Appeal containing some 38 grounds of appeal, (of which six had multiple sub-grounds) into the following broad topics:
1. His Honour failed to give reasons, or adequate reasons:
(a) for the rejection of the cross-claim against Mr Taylor, and
(b) for the rejection of the evidence of a pool attendant, Mr Neville.
2. His Honour was mistaken in his findings of fact about how the accident happened, and in his findings that certain omissions on the part of the Council amounted to a breach of duty.
3. That his Honour was wrong in dismissing the cross-claim against Mr Taylor, and
4. That his Honour arrived at too low a figure for the plaintiff’s contributory negligence.
Layout of the Pool Complex
11 It was common ground at the trial that the structures within the pool complex were organised as follows.
12 The 25m pool into which the plaintiff dived is the one shown as “training pool” in the above diagram. It has a uniform depth of 1m. Surrounding that pool on all sides is a raised section or coping, which one must take a small step up onto from the surrounding paving if one is to enter the pool. A ladder, for entering the pool, goes into the pool at the westernmost extremity of its southern side. Immediately to the east of the eastern end of the pool, a pool cover sits, rolled on a roller in a position from which it can be unrolled to cover the pool. Immediately to the west of the western end of the pool are several starting blocks.
13 The 50m pool is of variable depth. Its deep end is at its western end. Immediately to the north of the 50m pool, and about half way along the length of it, is a structure used as a lifeguard station. The 50m pool also has starting blocks, immediately to the west of its western end.
14 There are three large poles or towers to which floodlights are attached. Two of them are on the northern side of the 50m pool, one towards the western end of the 50m pool, the other towards the eastern end of the 50m pool. The third floodlight pole or tower lies south of the 25m pool, a little to the north of the easternmost end of the kiosk. The location of each floodlight is shown with a handwritten cross on the above diagram.
Garling DCJ’s Findings Relating to Liability of the Council
15 His Honour found that the Council charged Brooke a fee to enter the pool, and that fee was paid. He also found:
“On the day of this accident , 27 October 2000, and in the period leading up to the accident, the pool had two lifeguards at about this time and two other employees, ladies who collected entry fees.
The fifty metre pool was divided into three areas after 7pm. One where water polo was played, one area for players engaged in water polo games to warm up, and one area for the public. The public could also use the twenty-five metre pool. At five to eight, an announcement was made that the public had to leave the twenty-five metre pool and the section of the fifty metre pool which was open to the public, as those pools were to close to the public at 8pm, and the general public were to leave the complex.
…
The pool complex remained open after 8pm, and public entry to the pool complex was still allowed and the fee was still charged; however, the swimming areas were not open to the public. …
The lifeguard who normally looked after the twenty-five metre pool area left at about 8pm after checking that all were out of the pool.
On 27 October 2000 at 8pm, it was dark. Young water polo players from the same team as the plaintiff’s were in the pool area. At some time after 8pm, some of those players, together with a young man – a friend of one of the girls – entered the twenty-five metre pool. Between 8.15 and 8.30, the plaintiff and a friend Melissa, and Melissa’s mother entered the pool complex and paid the fee. At about 8.30pm, the girls dived into the twenty-five metre pool; the plaintiff struck her head on the bottom of the pool, and fractured her neck. …”
One of the girls in the pool at the time the plaintiff arrived was Ebony Grose.
16 His Honour made findings about the system which was put in place at the pool. It was:
“… that at five minutes to eight an announcement was made that all persons in the twenty-five metre pool and in the public section of the fifty metre pool were to leave the pool and vacate the complex. A sign was then to be put out at the twenty-five metre pool; that sign is shown in Exhibit B (the second last photo). A pool cleaner – a device for cleaning the pool – was then put into the pool and a cover was pulled over the pool. The purpose of the cover is to keep the heat in the pool.”
The sign shown in exhibit B is one which says in block letters on a white background “THIS POOL IS CLOSED” with the word “CLOSED”, italicised and in red. The photograph shows it located at the ladder at the western end of the southern side of the 25m pool. The sign stands as tall as, or perhaps slightly taller than, the upper most portion of the handrail of that ladder, which looks as though it would be about hip height on a person. The sign sits on the coping which surrounds the 25m pool, and so is elevated somewhat from the general level of the surrounding pavement. It is the sort of sign which would be bound to be seen by anyone approaching the 25m pool, unless that person was quite grossly inattentive.
17 His Honour found that at the time that Brooke dived in “it was night time; the sign that the pool was closed was not out; the cover was not over the pool; and four young people were in the pool”.
18 There were various signs at the complex. On the exterior wall of the women’s change rooms, facing towards the 50m pool (but in a position where anyone walking from the entry pavilion to the 25m pool would need to walk past it) was a sign which read “No running, dunking, diving or bombing”. On the northern side of the 25m pool, facing south, was a rectangular sign in portrait orientation, the upper portion of which was occupied by the word “DANGER” in block letters and red, and a pictogram showing a red circle with a line through it, and inside that circle a graphic representation of a person diving into water. The lower portion of the sign said:
“SHALLOW WATER!
NO DIVING!
Except during
Competition Events and
Supervised Training”
That sign was placed on a pole, located about half way along the length of the 25m pool, and at a height such that the bottom of the sign was just above the top of a transparent fence with ran along the northern side of the 25m pool. On the vertical surface of the coping which lies on the southern side of the pool, is a white tile with “1M” in black on it.
19 His Honour found that the floodlight which was designed to illuminate the 25m pool was off at the time of the accident. He found that the plaintiff arrived at the pool with her friend Melissa Pratt and Melissa’s mother Mrs Pratt, that those two girls had their costumes on underneath a tracksuit, took off their tracksuits and then entered the water. Though there was no express finding concerning this, it was uncontested that the place where Brooke and Melissa took off their tracksuits was near the kiosk, in an area where there are some tables and benches. His Honour found that Brooke ran towards the pool, intending to dive into the pool to swim underwater and come up and frighten or scare her friends who were already in the pool. He finds that Melissa entered the pool first, and “as Melissa’s head either came out of the water or she stood, the plaintiff dived in”. He finds that:
“The plaintiff did run towards the pool, but it is quite obvious that she has then had to stop before entering the pool to allow Melissa to go in first and for her then to follow.
So I am satisfied that the plaintiff did run. Ebony saw her run, but it is also quite obvious that she stopped before diving in the pool. I do not know how significant all that is going to be in the end, but it is a finding I have to make, and I make that finding.”
20 His Honour found that the plaintiff wore glasses, that she took her glasses off when she went swimming, and that with her glasses off she would have difficulty in seeing the signs on the far side of the pool.
21 His Honour found that the plaintiff was:
“a good witness. … She gave evidence over quite a period of time. She was extensively cross-examined, and she made a very good impression. One has to take into account, of course, her age and her serious injuries, but I found her evidence very acceptable.”
22 His Honour sets out evidence of the plaintiff that, though she had been to the pool complex several times before for either water polo or swimming competitions, they had all been conducted in the 50m pool, and she had never swum in the 25m pool. She was aware of the starting blocks at the end of the 25m pool, and “to her, the starting blocks were enough to indicate it was deep enough to dive.” She had never seen the tile marked “1M” on the southern side of the pool, and she did not see it on the night of the accident. It was dark, and she could not see the depth of the pool. She assumed the water was deep enough to dive in. Though she had seen the sign on the dressing room wall which said “No diving”, etc, she found it hard to accept that it really meant what it said, because the sign was facing the 50m pool, where there were starting blocks and people were regularly diving into the pool, and there were starting blocks on the 25m pool as well. In all these matters, his Honour accepted Brooke’s evidence. He also accepted her evidence that if she had been aware of the depth of the pool she would have entered the water in an entirely different way.
23 His Honour found that a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff, that it was “totally foreseeable” that a person would dive into a swimming pool which had only 1m of water in it, and that if they did there was “every chance that they would hit their head on the bottom of the pool” and injure themselves. He held that the risk was neither farfetched nor fanciful. His Honour held that, in response to that risk, the defendant should:
“(1) have signs prominently displayed;
(2) ensure that everyone entering that complex knew the depth of the water in this pool and the danger of diving into it;
(3) not turn off the lights;
(4) if turning off the lights, ensure that a lifeguard was stationed there to stop anyone entering the pool, or the notice put up, or the cover placed over it.
There are probably other steps that could have been taken. They are not expensive and they could easily have been done.”
24 His Honour rejected a submission that the 25m pool should have been fenced. His Honour held, concerning the signs near the pool:
“The nearest of them is depicted in one of the photographs. It is a long way away from where the plaintiff is entering the water. The plaintiff does not have good eyesight, and it was dark, and the sign was, in my view – both signs – totally ineffective. What was needed was something, as a person approaches this pool – similar perhaps to what they have got there now – warning, together with the other sign, that the pool was closed. I do not believe that this pool was signposted in such a way that it would have alerted anyone to the danger, and, once the lights were turned out, the starting blocks were there, that the plaintiff quite rightly could assume that it was safe for her to dive.”
The “what they have got there now” which his Honour was referring to is a series of signs, in white lettering, on the red-brown paving immediately adjacent to the coping which surrounds the 25m pool, saying “SHALLOW WATER DO NOT DIVE” together with a pictogram depicting that diving is forbidden. Those signs were placed there after Brooke’s accident.
Rejecting the Evidence of Mr Neville
25 Mr Neville was a lifeguard on duty at the pool at the time of the accident. He gave evidence that the floodlight over the 25m pool was on at the time of the accident. His Honour rejected that evidence.
26 The rejection of Mr Neville’s evidence on this topic needs to be placed in the context of the whole of the evidence which Mr Neville gave. He was called by the plaintiff and gave evidence of the physical layout of the swimming complex. He said that on the night of the accident at five to eight he made the announcement over the public address system for people to leave. He did this from the entry area. Another lifeguard, Simon Power, had been working with him on the evening of 27 October, but Mr Power left at eight o’clock. The only other people on duty at the complex were two cashiers, located in the entry area. He said that after making the announcement he went to clear members of the public from the 50m pool, while Mr Power went in the direction of the 25m pool, with the apparent intention of clearing it. He said that a bit after eight o’clock he administered first aid, at the lifeguard station by the 50m pool, to a person who had stubbed his toe. Mr Neville cleaned up the injury, gave the injured person a couple of bandaids, then went to the first aid room near the entrance to replenish the supply of bandaids for the first aid kit. While he was getting the bandaids he was called to the phone, took a call, and while he was taking that call a lady told him that a girl had been injured at the 25m pool. He said that the time of the plaintiff’s accident was approximately 8:15pm, and that his telephone call (which was a personal call) took “about twenty seconds”. Within 10 or 15 seconds of finding the plaintiff, he asked someone to ring for an ambulance, and an ambulance arrived within ten minutes.
27 It was when Mr Neville was cross-examined by counsel for the Council that he gave evidence that the floodlighting for the 25m pool was on when he arrived to attend to Brooke, and that he had at no time turned the lighting off. He gave evidence that if the floodlights were turned off, it took about 10 minutes before they could be turned back on again. (The pool manager, Mr McManus, gave evidence that the floodlight that illuminates the 25m pool has its own switch, and that if the floodlights were turned off it would take 20 minutes to come back on again.) Mr Neville said that the sequence for closing the 25m pool was to put up the “pool closed” sign, set up the overnight pool cleaner, put it in the water, then cover the pool. He said the floodlight for the 25m pool ordinarily remained on until he left the premises.
Overturning Factual Findings of a Trial Judge
28 In Jones v Hyde (1989) 63 ALJR 349 at 351-352 McHugh J (with whom Brennan, Deane, Dawson and Toohey JJ agreed) said:
“It is true that the learned judge did not expressly rely on the demeanour of the plaintiff in making his findings of primary fact. But this does not mean … that an appellate court is in as good a position as the trial judge to determine the primary facts of the case. When a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his determination cannot be overlooked. It does not follow, that because the learned judge made no express reference to demeanour and credibility, they played no part in his conclusion … I do not accept that in this case the learned trial judge’s observations of the demeanour of the plaintiff and the defendant and their manner of giving evidence played no part in his findings. I think that they almost certainly did. In accordance with the rules relating to the review of findings of fact based in whole or in part on demeanour, those findings are not open to review in an appellate court.”
29 In Abalos v Australian Postal Commission (1990) 171 CLR 167 McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed) said, at 178-179:
“In SS Hontestroom v SS Sagaporack [1927] AC 37, at 47, Lord Sumner pointed out that:
“… not to have seen the witness puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.”
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v Thomas [1947] AC 484 at p.488 …
As I pointed out in Jones v Hyde (1989) 63 ALJ 349 at p 351; 85 ALR 23 at p 27, when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to the demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part in her findings on the supervision issue.”
30 In Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472 at 479 Brennan, Gaudron and McHugh JJ said:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.” (Citations omitted)
31 In Fox v Percy [2003] HCA 22; (2003) 197 ALR 201 the majority judgment (Gleeson CJ, Gummow and Kirby JJ) reiterated, at [26], the ongoing application of the principles expressed in Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. Their Honours tempered that, however, by reminding the reader of the Court of Appeal’s duty under section 75A of the Supreme Court Act 1970 (NSW) to conduct an appeal by way of a rehearing, and also stating:
“[30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. [Eg Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 per Samuels JA]. Thus, in 1924 Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) [(1924) 20 L1 L Rep 140 at 152. See also Coghlan v Cumberland [1898] 1 Ch 704 at 705]:
… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances [See material cited by Samuels JA in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and noted in SRA (1999) 160 ALR 588 at 617-18 [88]; 73 ALJR 306 at 329] . Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”
Should the Finding the Light was Off be Overturned?
32 Garling DCJ was influenced by his impression of the witnesses in reaching the conclusion that the floodlight was off at the time that Brooke dived into the pool. There was evidence that the light was off from Brooke, from Ebony Grose (a friend of Brooke who was in the 25m pool at the time Brooke dived), and Ebony’s mother, Mrs Grose, who was in the area near the kiosk where the tables and benches were located. His Honour made the express finding about the plaintiff’s credit which I have set out at para [21] above. He made an express finding that “Mrs Grose was a good witness”. He does not say in terms that Ebony was a good witness, but neither did he make any adverse comment on her, and he referred to some of her evidence with apparent acceptance. Concerning Mr Neville, his Honour said “his evidence has some problems, and I do not have a lot of confidence in some of his evidence”, and “I have some doubt about the accuracy of Mr Neville’s evidence”. While that is not in terms a finding that Mr Neville was not a credible witness, it is the sort of finding concerning which an appellate court cannot have confidence that the judge’s impression of the witness played no part.
33 However, to decide whether his Honour’s rejection of the evidence of Mr Neville is a situation where he “has failed to use” or has “palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”, it is necessary to review the evidence on the topic of whether the light was on.
34 The time of the accident has a bearing on this. Mr Neville’s view was that it occurred at 8:15pm. This view appears in an incident report which the pool Manager, Mr McManus, wrote on 30 October 2000, based on information supplied by Mr Neville. His Honour found that the accident happened at about 8:30pm. The water polo match in which Brooke was due to take part was scheduled to start at 8:50pm, and there was evidence that the water polo competition was run on a tight timetable. The records of the ambulance service show that the call to it was received at 8:33pm, that it responded at 8:37pm, and was at the scene at 8:39pm. Mrs Grose gave evidence that she saw Ebony lifting Brooke out onto the side of the pool, but assumed that they were just practicing rescue and resuscitation, and maybe a minute later she realised something was wrong. She and Mrs Pratt (with whom she had been talking) both went over to Brooke, Mrs Pratt tried to calm Brooke down, and Mrs Grose set about finding a lifeguard. A young man working in the kiosk took her to the entrance, where she found Mr Neville sitting on a set of stairs, talking on the telephone. Mr Neville ran straight over to Brooke. Mr Neville gave evidence that the emergency services that he arranged attended the pool within five minutes, or maybe 10 minutes. On this evidence, his Honour’s finding that the accident happened at about 8:30pm is correct.
35 The other lifeguard, Mr Power, had no recollection of the events of the evening, but gave evidence of his general practice on nights when the water polo competition was on. He said that on those occasions when he works past 8:00 o’clock, he never turns the light over the 25m pool off.
36 Mr McManus, the pool Manager, was not at the pool on the night of the accident. He gave inconsistent evidence concerning whether there was an instruction to lifeguards concerning turning off the light over the 25m pool. When cross-examined by counsel for Brooke, his evidence was:
“Q. Well, have you given any direction about whether the light over the twenty-five metre pool should be on or off after the pool is closed at 8 o’clock?
A. On Wednesday nights – well, it’s up to the lifeguard in charge whether he puts the light on or not, I don’t know if he puts it on or off on that night.
Q. In your experience turning the light off over the pool would make it less attractive for people to want to go and dive into or swim in, isn’t that right?
A. Yes.
Q. So it’s likely that the lifeguards would turn the light off over that pool once the pool was closed to deter people from going in there, isn’t that right?
A. Yes.” (emphasis added)
When cross-examined by counsel for the Club, his evidence was:
“Q. And was the system that you would, when you were closing the twenty-five metre pool back in October of 2000, that you would put the signs up first, step one?
A. That’s correct.
Q. Step two would be to cover the pool?
A. Yes.
Q. And step three would be to turn off the light?
A. Yes.
Q. And those were the instructions to the lifeguard?
A. Yes.
Q. In other words the lifeguard should never turn off the light without properly closing the pool by putting up the signs and putting up the cover, is that correct?
A. That’s correct, yeah.” (emphasis added)
When asked in re-examination what the sequence of closing the 25m pool was generally, he said:
“Generally the sign is put on the pool first and then the blankets are put on and the pool cleaner put in and then the light is switched off.”
The general tenor of this evidence is that, whether as a result of obedience to a direction, or as a result of the independent decision of the lifeguards on duty, there was a likelihood that the light over the 25m pool would be turned off once the pool cover had been put on. The significance of this is that it differs from Mr Neville’s evidence that usually he left the light over the 25m pool on until he left the premises.
37 There was direct observation evidence from Mrs Grose as follows:
“Q. There were floodlights above the twenty-five metre pool, were there not?
A. If there were they weren’t on. It was dark, it was pitch dark, the pool itself.
…
Q. You’re not suggesting, are you, that while seated at that table with your cup of coffee you looked up specifically to determine whether the floodlight near the twenty-five metre pool was on?
A. No.
Q. And I take it that once you heard Brooke scream you didn’t take any time to look up and see if the light was on?
A. I didn’t have to, it was dark, there was no lights on.
…
Q. You didn’t notice the floodlight come back on, did you?
A. No.
Q. The lighting never changed in the whole time you were there?
A. It might have come back on, we were on the opposite side of the pool at that stage.
…
Q. I put it to you that the floodlight was on at all times?
A. No. No, it wasn’t. You couldn’t see the people in the pool, you couldn’t see faces.
Q. And was that the situation as you approached the side of the pool?
A. Yes.
Q. Were there people in the pool?
A. Yeah, you could – there were bodies but you couldn’t make anybody out, put it that way.
38 Ebony gave evidence about the lighting:
“Q. Now, during the time that you were in the pool were there any lights on in the area?
A. Not in the twenty-five metre pool area.
Q. What was the closest light that you could see?
A. Outside on the road.
Q. The street lights?
A. Street light.
Q. Were there any lights around the fifty metre pool that were on?
A. Yes, at the deep end where the water polo game was being played.
Q. Mmm?
A. They had the floodlights on up there.”
Ebony gave evidence that, while the floodlight at the deep (western) end of the 50m pool was on, the floodlight at the shallow (eastern) end of the 50m was off. In cross-examination she resisted the suggestion that the light over the 25m pool was on.
39 Brooke, in chief, gave evidence that she could not see the faces of the people, “I could see their like figures … but I couldn’t see that much of them.” She said that the only lights on in the area were streetlights, “and there were some lights on the canteen but they weren’t on the pool and there was lights around the fifty metre pool because they were all playing water polo”. In cross-examination she said:
“Q. What was it about the pool that made you think it was deep?
A. it was dark and I couldn’t see the bottom.
She reiterated in cross-examination that she knew that the lights were off.
40 Brooke’s father was not at the pool on the night of the accident. He gave evidence of asking Brooke in hospital, within a week of the accident, why she dived into the pool, and of her replying “well, the pool was – the water in the pool was dark and it looked deep”. He continued:
“Q. Did she say anything else?
A. I asked her whether the lights were on.
Q. Yes
A. And she said, “No, they were not”.”
41 Two items of documentary evidence bear on this topic. One is a letter from Brooke’s solicitors, dated 29 April 2002, to a person from whom an expert report was sought. That letter included the statements:
“The claimant was unaware whether the pool was lit at the time of the accident
…
Witness evidence suggests that the lap pool was not lit, and extremely dark.”
42 Evidence from Mr Wood, Brooke’s solicitor, stated that that letter was written by an employed solicitor, who no longer worked for the firm, and that Mr Wood had been instructed by the Byrne family on 1 February 2001, when he saw Brooke and her parents in conference, that the pool was dark. Mr Wood said:
“Q. At the top of page 2 there’s a sentence reading, “The claimant was unaware whether the pool was lit at the time of the accident, was that your understanding as at that time?
A. No, I am quite sure that I had been instructed the pool was dark.
Q. All right?
A. And whether it means it was lit or the light was inadequate, I can’t recall.
Cross-examination then began:
Q. Mr Wood, the instruction you were given was that the area of the pool was dark, is that the situation?
A. The area and the pool itself was dark.
Q. You were actually given no instructions about whether or not the floodlight was on or off, is that the situation?
A. I don’t recall.”
43 Mr Wood had handwritten file notes of his conference on 1 February 2001, which are very terse, but include the line “Lit? Mick thinks not.” “Mick” is Brooke’s father. His Honour took these documentary matters into account, and said:
“The plaintiff’s solicitor clearly explained the things which are recorded in that letter, and I accept his evidence.”
Jones v Dunkel
44 The Council submits that his Honour should have drawn an inference that Melissa Pratt and Mrs Pratt (each of whom was not called) were likely to have given evidence which would not have assisted the plaintiff in her contention that the light was off. The Council goes on to submit that, if his Honour had drawn such an inference, he should then have concluded that the light was in fact on.
45 The statement of the Australian law about the effect of a party failing to call an available witness has been complicated by the fact that the leading cases on the topic have involved appeals from the decision of a jury. In consequence, principles about the directions which a jury should be given have interacted with principles about the effect of failure to call a witness. Some adaptation of the principles stated in the leading cases is needed to derive a statement of the law which a judge sitting alone should apply to a situation where a party has failed to call a witness.
46 Jones v Dunkel and Another (1959) 101 CLR 298 lays downs principles which a jury is entitled to be instructed about, in a situation where a witness who was also the defendant has not been called. In that case, Kitto J at 308 said:
“It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff’s evidence.”
47 Menzies J, at 312 said:
“In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.”
48 Windeyer J, at 319 said:
“But silence may amount to much more than an acquiescence in the primary facts. It may be eloquent in support of an inference to be drawn from those facts. Until facts were proved from which an inference of negligence could be drawn, the defendant was not called upon to say anything. His Honour, however, had thought that such an inference could be drawn; he had refused to direct a verdict for the defendant, and had left the matter to the jury. Having done so, he should have directed them appropriately on the conclusions they might draw from the silence of Hegedus.”
49 At 320-321, his Honour approved the following statement from Wigmore on Evidence, 3rd ed (1940), Vol 2, s 2985, p 162:
“The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.” (Emphasis added)
Windeyer J’s approval of the passage quoted from Wigmore appears not to have been total, because later, at 321, he says, “Unless a party’s failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case.” Hutley JA in Payne v Parker [1976] 1 NSWLR 191 at 194 approves the same passage from Wigmore.
50 Insofar as the passage from Wigmore approved the drawing of an inference that a witness if called would have exposed facts unfavourable to the party who failed to call that witness, it is not the law in Australia. A sufficient reason is that it is inconsistent with the joint decision of Gibbs A-CJ, Stephen, Mason and Aickin JJ in Brandi v Mingot (1976) 12 ALR 551 at 559-60:
“… a jury may infer that the evidence of the absent witness “would not have helped that party’s case”. This is just what the jury were told in the present case. With this may be contrasted the view expressed in the judgment now under appeal, that the proper inference is that the absent witness’s evidence would have exposed facts unfavourable to the case of the party failing to call that potential witness. This latter approach reflects the views of Wigmore (3rd ed, par 285 et seq), as Street J observed in Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582. Like Street J, we too regard a narrower view, as expressed in the joint judgment in O’Donnell v Reichard, as that which has come to be accepted in Australia: Insurance Commissioner v Joyce (1948) 77 CLR 39 at 61; Jones v Dunkel (1959) 101 CLR 298, especially at 308, 312 and 321; Lopes v Taylor (1970) 44 ALJR 412, per Windeyer J at 418 and per Gibbs J at 422; Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204 per Jacobs and Mason JJA.” (emphasis in original)
Later cases confirm that the fullest extent of the inference which can be drawn is that the evidence which was not called would not have helped the party who failed to call the witness: Ho v Powell [2001] NSWCA 168, (2001) 51 NSWLR 572 at [16], [76]; State Bank of NSW and Another v Brown (as liq of Parkston Ltd (in liq)) and Others [2001] NSWCA 22, (2001) 38 ACSR 715 at [104].
51 Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
52 Even though a jury should be directed about the availability of the inferences which are recognised by Jones v Dunkel, it is entirely a matter for the jury whether it actually draws one, or both, of those inferences: Cafe v Australian Portland Cement Co Pty Ltd (1965) 83 WN (NSW) (Pt 1) 280 at 286, 287. Applying this principle to the situation of a trial by judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences.
53 In Payne v Parker [1976] 1 NSWLR 191 Glass JA dissented as to the application of the principles to the facts, but his judgment has been widely recognised as stating correct legal principles. He said, at 201-202:
“(6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.
(7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par 286, or the witness would be expected to be available to one party rather than the other: O’Donnell v Reichard [1975] VR 916, at p. 921, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid [1975] VR 916, at p. 920, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid [1975] VR 916, at p. 920, Regina v Burdett (1820) 4 Barn & Ald 95; 106 ER 873, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other: Earle v Castlemaine District Community Hospital [1974] VR 722, at p. 733, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid [1974] VR 722, at p. 734. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid [1974] VR 722, at p. 728. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid [1974] VR 722, at p. 728. Evidence capable of satisfying this condition has been held to exist in relation to a party’s foreman: Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280; his safety officer: Earle v Castlemaine District Community Hospital [1974] VR 722; his accountant: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; his treating doctor: O’Donnell v Reichard [1975] BR 916, at p. 921.”
54 The inferences licensed by Jones v Dunkel are ones which are drawn, if at all, once all the evidence in the case is in. This has significance in two ways. The first is that, though Jones v Dunkel licenses drawing more confidently, an inference available against the party who has failed to call the evidence, before that can happen there must first be available to be drawn, on the evidence which has been admitted, an inference against that party. As Spigelman CJ said in State Bank of NSW v Brown [2001] NSWCA 22; (2001) 38 ACSR 715 at [17]-[18]:
“As expressed in Cross on Evidence, above, at [1215]:
… the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw an inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence … [Emphasis added]
The formulation “fairly to be drawn from the other evidence” reflects the terminology of Windeyer J in Jones v Dunkel at 312, (most recently quoted with approval by the joint judgment in RPS, above, at [26]):
… where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. [Emphasis added]
(See also Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49; 55 ALR 356.)”
That reasoning of Spigelman CJ was adopted by Hodgson JA at [104] (with whose reasons Handley JA agreed).
55 The second matter of significance is that if the evidence which has been admitted is enough to prove the case of the party who has not called the witness, the tribunal of fact could be justified in not counting the failure of that party to call that witness as something that reduces the strength of that case. I discuss this further at paras [69] – [74] below.
Significance of Whether the Light was on Depending Partly on Evidence of Eyewitnesses
56 In the present case, the question of whether the light was, or was not, on fell to be decided on the basis of a mixture of direct observation evidence, and inference from observation evidence about what could and could not be distinguished, and with what degree of clarity. To the extent to which there was direct observation evidence that the light was on, a question arises of whether the inferences licensed by Jones v Dunkel can be drawn at all.
57 In RPS v R [2000] HCA 3; (2000) 199 CLR 620 a majority of the High Court (Gaudron A-CJ, Gummow, Kirby and Hayne JJ), dealing with a case where a complainant gave direct evidence of sexual misconduct by the accused towards her, and the accused failed to give evidence, set out at [23] a passage from the judgment of Abbott CJ in R v Burdett (1820) 4 B & Ald 95 at 161-162; (1820) 106 ER 873 at 898:
“It is useful to start by referring to the well-known cases of R v Burdett and Jones v Dunkel. Burdett arose from a prosecution for criminal libel. Abbott CJ said:
“A presumption of any fact is, properly, an inferring of that fact from other facts that are known; it is an act of reasoning; and much of human knowledge on all subjects is derived from this source. A fact must not be inferred without premises that will warrant the inference; but if no fact could thus be ascertained, by inference in a court of law, very few offenders could be brought to punishment. In a great portion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime, is or can be given; the man who is charged with theft, is rarely seen to break the house or take the goods; and, in cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck or the poisonous ingredients poured into the cup. In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected; and it is one of the peculiar advantages of our jurisprudence, that the conclusion is to be drawn by the unanimous judgment and conscience of twelve men, conversant with the affairs and business of life, and who know, that, where reasonable doubt is entertained, it is their duty to acquit; and not of one or more lawyers, whose habits might be suspected of leading them to the indulgence of too much subtlety and refinement.
Their Honours continued at [23]:
“This mode of reasoning was described by Windeyer J in Jones v Dunkel as “plain commonsense”, and so it is. But it is essential to note its limits. It relates to the drawing of inferences or conclusions from other facts. It is not a mode of reasoning that is concerned, for example, with whether the direct evidence of an eyewitness should be accepted.”
58 I do not take that passage as deciding that inference from failure to call a witness never has a role to play in deciding whether evidence of an eyewitness should be accepted. Rather, the passage is directed to the particular type of reasoning set out by Abbott CJ, where an ultimate fact is being proved by inference, and a witness who could cast light on whether that ultimate fact is really true fails to give evidence. Manifestly, deciding whether an eyewitness should be accepted is not reasoning of that type.
59 In RPS, their Honours also said, at [26]:
“In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case and that:
“where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.””
The two Jones v Dunkel inferences are ones which, if drawn, can sometimes be taken into account in deciding whether to accept evidence of an eyewitness. If a party called an eyewitness, but the judge had some doubts about the credibility of that witness, the story of that witness did not mesh well with other established facts, and there was a basis in the evidence for concluding that the eyewitness’s evidence was incorrect, a trial judge could sometimes be justified in using the failure of a party to call other available eyewitnesses as part of the reasons for not accepting the evidence of the eyewitness who was called. Further, whether the light was on is not itself an ultimate question in the case, but just one matter which needs to be decided as part of a complex of facts which are evaluated to decide whether the Council took reasonable care. For these reasons, I would not regard the fact that the question of whether the light was on depended partly on evidence of eyewitnesses as in itself meaning that no inference of a type licensed by Jones v Dunkel could be drawn.
Cumulative Witnesses
60 An obstacle in the way of the Council obtaining assistance, on the question of whether the light was on or off, from the fact that Melissa and Mrs Pratt were not called arises from one of the conditions for operation of the inference in Jones v Dunkel.
61 Cross on Evidence (Australian edition, current electronic version) para [1215] recognises as an exception to the rule in Jones v Dunkel that:
“The rule does not operate to require a party to give merely cumulative evidence (Gafford v Trans-Texas Airways 299 F 2d 60 (1962) (USCA, 6th Circ) and cases there cited; Ballard v Lumbermen’s Mutual Casualty Co (1967) 148 NW 2d 65 at 73 (SC Wisc)). If five people attended a relevant meeting and some are called, no Jones v Dunkel inference can normally arise in respect of those who are not: the rule does not compel time to be wasted by calling unnecessary witnesses.”
In Cubillo and Another v Commonwealth (No2) [2000] FCA 1084; (2000) 103 FCR 1 at [360] O’Loughlin J quoted the corresponding statement from the 4th edition of Cross on Evidence with approval, and added:
“However, that statement by no means provides a shield against a justifiable criticism that a party deliberately kept less favourable witnesses from testifying.”
62 The nature of this qualification to when the Jones v Dunkel inferences can be drawn is illustrated by the United States authorities relied on in para [1215] of Cross on Evidence. Gafford v Trans-Texas Airways 299 F 2d 60 (1962) was an action for damages by an airline passenger injured when a plane was tossed around in violent turbulence. The co-pilot was called, and gave full evidence of all the details of the trip from the starting point to the point of the accident. The pilot was not called. The trial judge refused a request from counsel for the plaintiff to direct the jury that the failure to produce the pilot afforded an inference that the testimony of the pilot would not support the defendant’s contentions. The United States Court of Appeals 6th Circuit held there was no error in refusal of that direction. The Court said, at 63:
“It is claimed by counsel for plaintiff that under Tennessee law this instruction should have been given. Stevens v Moore, 24 Tenn App 61, 139 SW 2d 710, is cited in support of this contention. This case involved damage to a rug while in the process of cleaning. The defendant’s wife who worked in the office of the cleaning firm testified together with a driver for the defendant. Neither witness knew anything about the cleaning process. The defendant himself and two or three employees were familiar with the actual work of cleaning but none of them testified. It was held that the rule claimed by counsel for plaintiff was applicable and that the jury should have been so instructed. In laying down this rule the court quotes copiously from 22 CJ section 55 et seq.
The court says, at pp 72-73, 139 SW 2d at p 717 quoting from CJ: “‘Failure of a party to call an available witness possessing peculiar knowledge concerning the facts essential to a party’s case, direct or rebutting, or to examine such witness as to the facts covered by his special knowledge, especially if the witness would naturally be favourable to the party’s contention, relying instead upon the evidence of witnesses less familiar with the matter, gives rise to an inference that the testimony of such uninterrogated witness would not sustain the contention of the party. No such inference arises where the only object of calling such witness would be to produce corroborative, cumulative, or possibly unnecessary evidence;’ —
The rule was applied without discussion by the court in Strickland Transp Co v Douglas, 37 Tenn App 421, 264 SW 2d 233, where the defendant did not call as a witness the driver who parked a truck on the street which was the subject of the plaintiff’s claim for damages.
It appears that the Tennessee rule on this subject derives from CJ. This rule is discussed in 31 CJS Evidence § 156c. One of the requisites for applying the rule is that the witness possesses peculiar or special knowledge. No inference arises against a party for failing to call a witness where such witness would only produce corroborative or cumulative evidence. At p 860 it is stated in the text, “Any inference drawn from such failure is not equivalent to direct evidence; it does not take the place of evidence of material facts, or shift the burden of proof so as to relieve the party on whom rests the necessity of establishing a prima facie case; the inference is not conclusive.”
In the case at bar there is no indication that Lamb, although he was the command pilot, had peculiar or special knowledge not known by Palmer [the co-pilot]. Palmer was the operator and had the peculiar and special knowledge of the speed of the plane, flying conditions, turbulence, etc. Lamb’s testimony at most would have been cumulative.
We conclude that the court did not err in refusing the requested instruction.”
63 In Ballard v Lumbermens Mutual Casualty Co 148 NW 2d 65 (1967) Heffernan J said, at 73:
“A party to a law suit does not have the burden, at his peril, of calling every possible witness to a fact, lest his failure to do so will result in an inference against him. The requirements of the absent material witness instruction should be narrowly construed to be applicable only to those cases where the failure to call a witness leads to a reasonable conclusion that the party is unwilling to allow the jury to have the full truth. Wigmore states the rationale to be:
“The non production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavourable to the party’s cause.” 2 Wigmore, Evidence (3d ed) p 162, sec 285.
Wigmore cites the case of the Chimney-sweeper’s jewel:
“… a chimney-sweeper’s boy, finding a jewel, took it to the defendant, a jeweller for appraisal, but the defendant would not restore it. In an action of trover, in proving the value, ‘the Chief Justice [Pratt] directed the jury that unless the defendant did produce the jewel and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages; which they accordingly did.’” (Armory v Delamirie (1722), 1 Strange 505)
It is apparent that policy factors behind this rationale are not present in this case. The plaintiff herein did, in fact, produce two or three possible witnesses to the same facts.”
64 Wigmore on Evidence (Chadbourn Rev 1979), vol 2, para 287 sets out an exception to the inference arising from failure to call available evidence:
“… possible witnesses whose testimony would be for any reason comparatively unimportant, or cumulative, or inferior to what is already utilised, might well be dispensed with by a party on general grounds of expense and inconvenience, without any apprehension as to the tenor of their testimony. In other words, put somewhat more strongly, there is a general limitation (depending for its application on the facts of each case) that the inference cannot fairly be drawn except from the non production of witnesses whose testimony would be superior in respect to the fact to be proved. This limitation should not be enforced with any strictness; otherwise, it would become practically objectionable; but on principle it is sound, and has often been recognised.”
65 Best’s 2001-2 cumulative supplement to Wigmore gives the following recent examples of the principles set out in para 287 of Wigmore:
· “the failure of a party to introduce an available witness does not give rise to any inference or presumption that the testimony of the witness, if he had been called, would have been unfavourable to such party, where other qualified witnesses have testified for the party concerning the matters, and the testimony of the uncalled witness would have been merely cumulative or corroborative”: Lowder v Economic Opportunity Family Health Centre, 680 So 2d 1133, 1136 (Fla Dist Ct App 1996)
· if testimony of a missing witness would be cumulative of facts already established, the missing-witness instruction is not warranted: Zdeb v Baxter Int’l Inc, No 1-97-1039, 1998 WL 340417 (Ill App June 26, 1998)
· “the missing witness inference is not available with respect to a witness whose testimony would be comparatively unimportant, or cumulative, or inferior to what is already utilised”: Bruce v State, 569 A 2d 1254, 1267 (Md 1990)
66 The United States cases on this topic of cumulative witnesses are not influenced by any matters of substantive or procedural law which are peculiar to the United States – rather, they represent the working through of practical examples of sound reasoning concerning matters of fact. For that reason, the reliance of Cross on Evidence para [1215] on United States authorities to state circumstances in which no Jones v Dunkel inference can be drawn is sound in principle, and the statement in Wigmore para 287 can be applied by Australian courts.
67 In the evidentiary context in which Garling DCJ had to decide whether he would draw any Jones v Dunkel inference unfavourable to the plaintiff, on the topic of whether the light was off, Melissa and Mrs Pratt were merely extra witnesses, beyond the three eyewitnesses who had been called, two of whom his Honour expressly found were satisfactory witnesses and the third of whom he made no adverse comment on. For that reason, his Honour would have been justified in drawing no such inference unfavourable to the plaintiff from the absence of Melissa and Mrs Pratt.
Equal Availability of Uncalled Witness to Both Parties
68 But that was not the basis on which his Honour decided to draw no Jones v Dunkel inference concerning whether the floodlight was on.
69 While dealing with evidence about whether the floodlight was on, his Honour recorded a submission:
“… that as Melissa, and indeed her mother, were not called to give evidence, that I should, in accordance with the principles in Jones v Dunkel find that their evidence could not have assisted the plaintiff, and, in particular, in this area it would not have assisted the plaintiff.
It is argued that these are witnesses who should have been called by the plaintiff. On the other hand, it is submitted on behalf of the plaintiff that they have no property in witnesses. These witnesses were known to the defendant. It was open to the defendant to interview them, to call them to give evidence, and, if they could assist the defendant’s case, there is no doubt they would have been called. But the defendants did not elect to call them either.
I am given several decisions in relation to this point, but I am satisfied that these witnesses were available to all parties. I am not told why they were not called. I know that Melissa was available. But I do not intend to make any assumption, as I believe it was equally open to both parties to call them.”
70 There was no reason to believe that there were any obligations of confidentiality or other legal inhibitions on Melissa and Mrs Pratt talking to the lawyers for the Council. There is no evidence of any attempt by the lawyers of the Council to speak to Melissa or her mother, where those attempts were met with a refusal to co-operate. There was no evidence of hostility of Melissa or Mrs Pratt to the Council. In these circumstances, even though it was also shown that Melissa had not been at court while the hearing was going on, his Honour was right to conclude that Melissa and Mrs Pratt were equally available to the plaintiff and the defendant as witnesses.
71 But the fact that a witness who was not called is equally available to plaintiff and defendant is not always sufficient to avoid a Jones v Dunkel inference against either, or both, of those parties. In the present case, it was shown that Brooke and Melissa at the time of trial were still friends, “she’s one of my pretty good friends”, that Brooke saw her every week day because they went to the same school and caught the same bus, and that Brooke saw her nearly every weekend. There was no reason to believe that Mrs Pratt was, at the time of the trial, on anything other than good terms with Brooke.
72 In the present case, if there had been no eyewitness evidence about the state of the lighting from Mrs Grose and Ebony, and if his Honour had had doubts about Brooke’s credibility, his Honour would have been justified in concluding it was more natural for the plaintiff to call Melissa and Mrs Pratt, and that failure to do so entitled him to conclude that their evidence would not have helped Brooke, and to draw more strongly any inference available to him that the light was on. Furthermore, his Honour could, in that situation, have drawn those inferences notwithstanding that Mrs Grose and Ebony were also equally available to both plaintiff and defendant. In that situation, it would be “more natural” for the plaintiff to call Melissa and Mrs Pratt because the plaintiff had the onus of proof, the proof she had presented was thin, Melissa and Mrs Pratt were in a position to give evidence about whether the light was really on or not, and the friendly relations between Brooke and Melissa and Mrs Pratt meant that there was no obstacle to her calling them. (Having the onus of proof is not essential to whether it is “more natural” for one party to call a witness – sometimes it is enough if an onus of adducing evidence is on that party.)
73 However, on the evidence in fact before his Honour, there was ample evidence to justify him in concluding that the light was off. In that situation, the fact that Melissa and Mrs Pratt were equally available to both parties justified him in not drawing any adverse inference from Brooke’s failure to call them.
74 That the strength, or weakness, of the case made out by the evidence actually presented in the case bears on whether inferences should be drawn from other evidence not having been presented, is recognised in JPQS P/L v Cosmarnan Constructions P/L [2003] NSWCA 66. Meagher JA (with whom Beazley JA agreed, and Mason P substantially agreed) said, at [24]:
“When a finding of fact has been made in a party’s favour by a judge, the fact that an absent witness’s evidence, if it were given, would not support that finding, cannot disturb the finding actually made.”
75 In all these circumstance, I see no error in his Honour’s failure to draw any inference unfavourable to the plaintiff, on the topic of whether the light was off, from the absence of Melissa and Mrs Pratt.
Conclusion on Whether Light was On or Off
76 On reviewing all the evidence on the topic of whether the floodlight was on or off, I find no basis for concluding that Garling DCJ failed to use or had palpably misused his advantage, or that he had acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable. Nor was his Honour in error in failing to draw an inference unfavourable to the plaintiff, on this topic, from the absence of Melissa and Mrs Pratt from the witness box. I would not overturn his Honour’s finding on that topic.
Reasons for Judgment Re Mr Neville
77 The Council submits that his Honour did not give adequate reasons for rejecting Mr Neville’s evidence.
78 It is elementary that a judicial officer must give reasons for the conclusion he or she arrives at: Pettitt v Dunkley [1971] 1 NSWLR 376; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 381, 385-6; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Mifsud v Campbell (1991) 21 NSWLR 725; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
79 Sufficient reasons must be given to enable any right of appeal from a decision to be exercised: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382, 387-8. But providing sufficient reasons to enable a right of appeal to be exercised does not necessarily exhaust the duty - because the obligation to give reasons is one deriving from the nature of the judicial process itself: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273, 278. There can be a failure to give adequate reasons for a conclusion if a judge ignores evidence critical to an issue in a case which is contrary to evidence which a judge accepts: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. In Beale v GIO of NSW (1997) 48 NSWLR 430 Meagher JA said, at 443-444:
“… reasons need not necessarily be lengthy or elaborate: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, related “… to the function to be served by the giving of reasons”. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
Whilst it is desirable to address these elements in giving reasons for decision, it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations. It has been noted by this Court that the content required of a statement of reasons is to be measured against the burden that the provision of reasons imposes on the judicial system: Sinak v Tess (Court of Appeal, 15 March 1995, unreported). …
It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.”
80 Concerning findings of credibility, Mahoney JA said, in Soulemezis v Dudley (Holdings) Pty Ltd at 273-274:
“The weight which a judge will give to the evidence of a witness will often not be capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says.”
81 It is not possible to identify any particular passage in the judgment of Garling DCJ as setting out the totality of his reasons for not accepting the evidence of Mr Neville. This is because his Honour’s judgment includes a detailed examination of the evidence relevant to the question of whether the light was on, all of which rationally bears upon whether Mr Neville should be accepted. No complaint is made that his Honour overlooked any critical fact.
82 The central part of the reasoning concerning rejecting Mr Neville’s evidence that the light was on is as follows:
“Mr Neville is really the only one who says it was on. His evidence has some problems, and I do not have a lot of confidence in some of his evidence. I do not know who turned the lights off but I am satisfied that the lights were off. Mr Neville gave evidence that he did not turn them off, and it must [be] remembered that he was called by the plaintiff to give evidence, and the defendant had the opportunity of cross examining their own lifeguard. Mr Neville has not explained how these people were in this pool for a considerable period of time and allowed to stay and to swim in that pool. The evidence is that at 8 o’clock that pool was closed, yet we know from the evidence that the young people were in there for some time before this accident, probably in excess of fifteen minutes, but certainly ten to fifteen minutes.
Mrs Grose says she arrived at the pool shortly after 8pm and that the young people were in the pool for ten to fifteen minutes before the accident occurred. Ebony says fifteen minutes before the plaintiff arrived, and yet, apparently, nothing is done to remove them from the pool, and I have some doubt about the accuracy of Mr Neville’s evidence.”
83 This passage identifies the following difficulties concerning Mr Neville’s evidence: (1) his evidence deposes to a fact which his Honour is satisfied, on the basis of other evidence, is wrong (namely, that the lights were on); (2) Mr Neville’s evidence on this topic emerged only in cross-examination, and hence was not tested by cross-examination; and (3) Mr Neville’s account of events during the half hour or so before the accident occurred does not fit well with other established facts.
84 In my view, his Honour has committed no appealable error concerning the reasons he gave for rejecting Mr Neville’s evidence.
Did Brooke Stop Before Diving?
85 The Council challenges his Honour’s finding that Brooke ran to the pool edge, then stopped, then dived in. The Council says that the error is that his Honour ought not have inferred that she stopped before diving. Concerning this matter, the Council says that the trial judge committed a separate error in failing to infer, pursuant to Jones v Dunkel, that Melissa’s evidence would not have helped the plaintiff.
86 Mrs Grose gave evidence that, when Brooke and Melissa came to the pool, “they came and put their bags down and their clothes down and Melissa went straight to the pool and then Brooke followed after her.” In cross-examination she confirmed that Melissa left to go to the pool before Brooke did, maybe 10 seconds or 15 seconds before, but that she (Mrs Grose) did not follow the progress of either Melissa or Brooke to the pool, and did not actually see them get into the water. Ebony gave evidence that she saw Brooke and Melissa running towards the pool, but did not see them go into the pool, because she turned around to speak to other children in the pool. The next thing Ebony noticed was “Melissa came up and spoke to me and then I turned around to see Brooke and she was floating face down.”
87 Ebony gave evidence in cross-examination that she recognised Melissa running towards the pool because Brooke had really long blonde hair, and Melissa had dark hair:
“Q. But you could see that detail as these two people were running towards the pool?
A. I couldn’t see Melissa’s face but I could see her hair – very dark and Brooke’s hair was really white, so -
Q. And you could see that these two girls were together, could you?
A. Yes.
…
Q. Was the distance between the two girls when you last saw them a distance that it would take Brooke ten metres to cover?
A. It wouldn’t have been ten metres.
Q. I’m sorry, ten seconds --
A. Ten – not --
Q. -- To run --
A. -- No, it wouldn’t have been ten seconds.”
88 Brooke’s account was that once she and Melissa had taken their clothes off they went over to the pool “and Melissa dived in and then I dived in after her after she had surfaced”. She did not know whether she had run or walked towards the pool. She gave evidence that she was trying to trick Melissa, by saying that they would dive in at the same time, letting Melissa dive in, but not diving in herself at the same time. She saw Melissa dive in, saw her surface, and then dived in after her.
89 There was documentary evidence that Brooke ran towards the pool. Mr Woods’ notes of his conference (para [43] above) include the entries:
“ Me and Melissa running to dive in …
· Mrs Pratt there at time sitting down in front of canteen;
· I ran from there”
The solicitor’s letter to the expert, dated 29 April 2002 (para [41] above) included “the Claimant ran towards the lap pool and dived and hit the bottom.”
90 On the basis of this evidence, his Honour correctly concluded that Brooke ran towards the pool. His inference that she stopped before diving is not one which I am persuaded is incorrect. Mrs Pratt’s evidence was that, at least at the start of Melissa and Brooke’s short progress from the kiosk area to the pool, Melissa was in front of Brooke. But Ebony’s evidence if accepted justifies a finding that the two girls were, at the time together. Though his Honour did not specifically rely upon it, the plaintiff’s evidence about the type of trick she was planning to play on Melissa would have required her to be close enough to Melissa for it to be realistic for Melissa to think they would dive in together, and then to hold back.
91 Like his Honour, I do not see this finding as having any particular significance to the outcome of the case. Whether or not Brooke paused momentarily at the brink of the pool, the conditions at the pool were still such that she was led into an incorrect belief about the suitability of the pool for diving by the presence of the starting blocks, it was not made clear to her how shallow the pool was, and the reason why it was not made clear was because the pool had been left uncovered, as though suitable for swimming, with no sign to say it was closed, and with inadequate lighting and signage to warn of its shallowness. Thus, whether or not Brooke paused will not affect the question of whether the Council was negligent, and whether its negligence was a cause of Brooke suffering the injury which she suffered. Indeed, by finding that Brooke stopped at the brink of the pool before diving, his Honour has made a factual finding which is in some ways adverse to Brooke – her stopping gave her more opportunity, which she did not take full advantage of, to take stock of her surroundings. Even taking that into account, his Honour has found that the breach of duty was one of the causes of Brooke’s injury. His finding in that respect is correct.
92 The other issue on which whether or not she stopped might possibly impact, is the question of contributory negligence. Whether she was running to the pool behind Melissa and plunging straight in without pause, or whether she ran with Melissa to the pool, paused and then dived in, she was still to some extent not taking reasonable care of her own safety, and I do not see that either of these alternative scenarios involves different extents of lack of care for her own safety.
93 On the topic of whether any Jones v Dunkel inference should be drawn unfavourable to Brooke, concerning whether or not she stopped, there is a possibility that Melissa could have given evidence which no witness other than the plaintiff could have given, about the precise circumstances of Brooke’s entry into the pool. Thus, the possibility of drawing Jones v Dunkel inferences could not be ruled out on the basis that Melissa’s evidence would have been merely cumulative. However, his Honour made no error in failing to draw Jones v Dunkel inferences concerning this matter, because the only topic to which Melissa’s evidence could have gone, in a way superior to evidence called from other witnesses, was whether Brooke paused before diving in or not, and that is not a matter which is of any significance to either liability, or contributory negligence.
Findings of Breach of Duty
94 It was not disputed that the Council owed a duty of care to Brooke. There was criticism of his Honour’s findings about what the Council should have done in response to the risk. I have set those findings out at para [23] above. The Council submits that his Honour was in error in saying that one of the things which the Council needed to do was “ensure that everyone entering that complex knew the depth of the water in this pool and the danger of diving into it”. If one reads his Honour’s judgment literally, the Council’s submission is correct – all that the Council is required to do is to take reasonable care to cause everyone entering the complex to know the depth of the water in the pool and the danger of diving into it. However, this error is not one which affected the substance of the reasons why his Honour found that the Council had breached its duty of care.
95 While Brooke knew about the sign at the pool which said “No running, dunking, diving or bombing” the location of that sign, on the wall of the dressing room, was such that it faced down the 50m pool. When asked what she understood by that sign’s instruction “No diving”, Brooke said it “didn’t make sense because people dived into pools all the time and there – its an Olympic pool with diving blocks and I – yeah”.
96 Mr McManus took that sign as being a direction that no one was to dive into any pool in the complex at any stage, and regarded it as being a silly direction to give to people because there were swimming squads being conducted every day at the pool, in both the 25m and the 50m pool, and people were diving into both pools in the course of those swimming squads, and races were being conducted regularly in both pools. In circumstances where it was not clear that that sign applied to the 25m pool, and when the pool’s management regularly allowed the prohibition on diving contained in that sign to be ignored, the placing of that sign was not a sufficient discharge of the Council’s duty of care.
97 What the exercise of proper care on the Council’s part would have called for, when the 25m pool had not had the “THIS POOL IS CLOSED” sign put out, was signs which, under the condition of illumination which actually existed at the 25m pool, would have warned people of the danger arising from the shallowness of that pool. Under the conditions of illumination in which Brooke entered the pool, the signs which were intended to carry out that purpose could not properly convey their message to her, and neither was the pool illuminated so that its shallowness could be readily observed by anyone approaching it. His Honour was right in concluding that the Council breached its duty.
Ignoring Light From Other Sources
98 The Council also criticises his Honour’s reasons for treating the question of whether the 25m pool was properly lit as depending only on whether the floodlight over it was illuminated, and ignoring light coming to the pool from other sources. It is true that his Honour did not give express consideration to light sources other than the floodlight. However, giving consideration to light from other sources was implicit in findings which he made about what could, and could not, be seen:
“Mrs Grose, who was sitting there at the canteen, and a short distance from the pool, says she could see the people in the pool but not their faces. The plaintiff said she could see people and could tell by the length of their hair they were male or female, and she knew her girlfriends would be there, but she could not make out their faces and who they were.”
His Honour did not ignore light from sources other than the floodlight. I mention that there was evidence from Ebony (which his Honour did not expressly say whether he accepted) that the floodlight at the shallow end of the 50m pool was also off.
Causation of Damage
99 The Council submitted that his Honour’s judgment had a significant flaw because it did not explicitly deal with the issue of causation of damage. That submission is incorrect. His Honour’s judgment said:
“The plaintiff said if she had been aware of the depth of the pool she would have entered the water in an entirely different way. She is very experienced, and, I have no doubt, if she had any idea of the depth she would have entered in an entirely different way.”
Contributory Negligence
Principles for Assessing Contributory Negligence
100 The Law Reform (Miscellaneous Provisions) Amendment Act 2000 (which commenced on 22 January 2001) replaced, with retrospective effect (subject to some exceptions not presently relevant) the provisions of the Law Reform (Miscellaneous Provisions) Act 1965 which had previously governed apportionment of damages by reason of contributory negligence. It inserted into the Law Reform (Miscellaneous Provisions) Act 1965 a new section 9, which included:
“(1) If a person (the claimant) suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person:
(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and
(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”
101 The criterion for apportionment (“such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”) remains identical to the criterion which existed under section 10 of the Law Reform (Miscellaneous Provisions) Act 1965 before the amendment.
102 In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532-533 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ said:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre[1958] Tas SR 36 at 42–49 and Broadhurst v Millman[1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
These principles were reiterated by Hayne J (with whom Gaudron, McHugh, Gummow and Kirby JJ agreed) in Winbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68.
When an Appeal Court can Alter Findings on Percentage of Contributory Negligence
103 In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ said:
“A finding on a question of apportionment is a finding upon a ‘question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’: British Fame (Owners) v MacGregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.”
In Phillis and Another v Daly (1988) 15 NSWLR 65 at 78 McHugh JA said:
“Determining the apportionment of responsibility for damage is a task upon which minds notoriously differ. Appellate courts are reluctant to interfere with an assessment of responsibility unless the judge or jury has acted upon a wrong principle or the apportionment is manifestly erroneous.”
See also at 75 per Mahoney JA.
104 In Australian Breeders Co-operative Society Ltd v Jones and Others (1997) 150 ALR 488 at 546-7 Wilcox and Lindgren JJ say:
“The law reports contain many warnings about appellate courts interfering with determinations of trial judges regarding apportionment of culpability. Perhaps the leading statement on the subject is that of Lord Wright in British Fame (Owners) v MacGregor (Owners) [1943] AC 197, a case concerning relative culpability for a collision at sea. At 201 his Lordship said:
… it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts. It is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense. It is a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge’s apportionment. The accepted rule was clearly stated by Lord Buckmaster, with the assent of the other Lords, in Kitano Maru (Owners) v Otranto (Owners) (The “Otranto'’) [1931] AC 194 at 204, in these words: “Upon the question of altering the share of responsibility each has to take, this is primarily a matter for the judge at the trial, and unless there is some error in law or in fact in his judgment it ought not to be disturbed'’.
That statement has been adopted in the High Court of Australia: see Pennington v Norris(1956) 96 CLR 10 at 16 and Podrebersek v Australian Iron & Steel Pty Ltd(1985) 59 ALR 529 at 532. In Macquarie Pathology Services Pty Ltd v Sullivan (CA(NSW), 28 March 1995, unreported) Kirby P observed that “[a]n apportionment will only be set aside and redetermined if the trial judge has either obviously proceeded on a misunderstanding of the evidence or, alternatively, has clearly assessed the evidence incorrectly in evaluating the parties’ comparative blameworthiness'’. Clarke JA said:
It is well established that a trial judge is invested with a very wide discretion in making his apportionment and that he must be allowed much latitude in arriving at a judgment as to what is just and equitable. In these circumstances the onus cast on an appellant who seeks to disturb an apportionment is a high one … Obviously where one party can point to an error of fact or of law on the part of the trial judge it may not be difficult to argue that his or her determination as to what is just and equitable may be flawed.””
105 For recent reiterations of an appellate court’s reticence in altering a trial judge’s assessment of proportions of contributory negligence see Tabvena v Oag [2002] NSWCA 61 at [8], Sierra v Anikin [2003] NSWCA 11 at [14], [17], [97], [105].
The Council’s Criticisms of the Judge’s Findings
106 Garling DCJ dealt with the issue of contributory negligence as follows:
“It is argued, on behalf of the defendant, that there is considerable contributory negligence, on behalf of the plaintiff, that there is none. I take a differing view. I take into account the plaintiff’s age: she was thirteen years of age. I take into account that this plaintiff was very experienced. She had – if I can put it this way – “lived in the water” since she was very young. She had had excellent training, she knew about diving, and, in my view, she should have taken a little more care. If one analyses her evidence she, in effect, agrees with that: that when entering water where you do not know the depth you do take additional care. But obviously what happened is, you have got a thirteen year old who sees her friends in the pool, who is excited about the situation, who runs towards the pool, who is going to dive in and give them a scare or whatever, who does not really think at that stage that there is any danger, and perhaps does not quite take all the care she should take with her training, but dives in.
I think when you analyse her knowledge and her age, there is sufficient there to find that she did contribute in a small way to this accident. By far, the majority of the negligence is that of the first defendant, but I believe that the plaintiff did contribute, and I find that she contributed to the extent of fifteen per cent.”
107 The Council points to various ways in which Brooke failed to take reasonable care for her own safety. She ran towards the pool, when she knew there was a sign which prohibited running, and quite apart from that sign, knew it could be dangerous to run near a pool. She dived into the pool, when she could not see how deep it was and had not checked its depth. Further, in those circumstances, she did not do a shallow dive. All this I accept. Her failure to do a shallow dive is explained (though not completely excused) by the fact that a shallow dive would have been poorly suited to her plan to swim underwater and scare her friends who were already in the pool.
Brooke’s Failure to Take into Account that People Were Standing in the Pool
108 The Council submits that, in addition, “the evidence clearly established there were people in the pool as the plaintiff approached it. The water on those people came to waist height.” That submission is correct, so far as it goes. However there is no finding by his Honour that the people in the pool were standing at the time Brooke was going from the kiosk area to the pool after leaving her tracksuit, or during the time immediately before Brooke dived. Mrs Grose gave no evidence which bears on that question. Ebony gave evidence that when Brooke and Melissa turned up she was in the middle of the pool, and standing, so that the water came up to her waist, but that she had turned around, after seeing Melissa run towards the pool, and at a time when Melissa was closer to the pool than she was to the tables.
109 Brooke gave evidence that before she dived she could see there were four people in the pool, but could not see them clearly; “could tell who Daniel was because he had short hair but that’s all” and that she could not see their faces,
“A. … I couldn’t see that much of them.
Q. Why not?
A. Because they weren’t standing up.
Q. All right. Were there any lights on in the area?
A. There were the street lights.”
110 In cross-examination, Brooke was asked whether, when Melissa surfaced she stood up; she could not remember. The cross-examination on whether she saw anyone standing in the pool was as follows:
“Q. You see I want to suggest that what you could see was that the water in the pool came up to the waist level of these people you could see in the far corner of the pool?
A. No.
Q. That’s wrong, is it?
A. Because they were swimming around. I couldn’t see their whole bodies.
Q. Wasn’t Ebony standing there?
A. No.
Q. She was swimming?
A. She was probably kneeling down, I don’t know what she was doing. I didn’t know which one was Ebony.
Q. All right. Well, I want to suggest to you that Ebony was standing with the water at about waist level?
A. She wasn’t because I couldn’t see any of their whole figures. I didn’t know which one was Ebony. I didn’t – all I knew was which one was Daniel because he had shorter hair.
Q. What was the level of water on him?
A. I can’t remember. Like I said I could not see any of their whole figures.”
111 Later in the cross-examination the following occurred:
“Q. And what I’m suggesting to you is that if you were looking forward to dive what you would have seen was Ebony in the pool with the water at waist level?
A. I did not see someone at waist level.”
112 When that is the state of the evidence, I do not accept the submission implicit in the Council’s submission, that his Honour ought to have found that Brooke either realised, or could readily have seen, that the water on the people already in the pool came to waist height when they were standing up.
Brooke’s Age
113 His Honour took into account Brooke’s age. It is well established that the age of a child is a matter properly to be taken into account in deciding whether the child has engaged in contributory negligence: McHale v Watson (1965) 115 CLR 199 at 205, 215, 234; Mye v Peters and Another (1967) 68 SR (NSW) 298 at 302, 304, 305; Joslyn v Berryman and Another; Wentworth Shire Council v Berryman and Another (2003) 198 ALR 137 at 148. There is some tension in the authorities about whether, as well as the age of a child, the intelligence and experience of the particular child can be taken into account or whether, because the test for contributory negligence is an objective one, such factors personal to the individual plaintiff should not be taken into account: McHale v Watson (1965) 115 CLR 199 at 205, 215, 234; Gunning v Fellows (1997) 25 MVR 97 (NSW CA); Sainsbury v Great Southern Energy Pty Ltd [2000] NSWSC 479 (“ordinary child of the same age”); Rowes Bus Service Pty Ltd v Cowan (1999) 29 MVR 430 (CA NSW) and Ryan v State Rail Authority of New South Wales [1999] NSWSC 1236 (“a child of the same age, intelligence and experience”); Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501, per Mahoney JA (“according to the care which is reasonably to be expected of a child such as the plaintiff was”). Any difference of view on that topic need not be resolved in the present case, because the only way in which Brooke has been shown to differ from other girls of her age, is that she had extensive training and experience in water activities. His Honour has taken that into account, and counted it against her. She does not cross-appeal concerning his having done so.
114 It should also be borne in mind that Brooke’s various failures to pay attention and take care, which contributed to her accident, occurred in a very brief moment in time. They occurred at a time when she was intent on two different pieces of play – swimming underwater to scare her friends in the pool, and also tricking Melissa by not diving when Melissa thought she would dive. There is a line of authority which has held that a plaintiff’s temporary inadvertence to danger, lapse of attention, or taking of a risk or other departure from the highest degree of circumspection can sometimes not amount to contributory negligence, because it is not incompatible with the conduct of a prudent and reasonable person: Sungravure Proprietary Limited v Meani (1964) 110 CLR 24 at 37 per Windeyer J; Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 568 per Gibbs J (with whom Stephen J agreed); McLean v Tedman and Another (1984) 155 CLR 306 at 315 per Mason, Wilson, Brennan and Dawson JJ. Though this principle arose from the conditions of factory life (Caswell v Powell Duffryn Associated Collieries, Limited [1940] AC 152 at 166) it is not restricted to industrial accidents: Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 571-2 per Mason J. The relevance of this for present purposes is that the mere fact that Brooke engaged in inadvertence and inattention is not in itself sufficient to establish contributory negligence – a judgment is called for as to whether, and if so to what extent, her inadvertence and inattention goes beyond that which is to be expected of a 13 year old (or, possibly, a 13 year old of her intelligence, experience and other personal attributes) taking reasonable care of her own safety.
115 In all these circumstances I am not persuaded that his Honour made any error of the type which should be corrected on appeal in his assessment of the relative proportions of fault.
The Case Against the Club
Decision Infected by Judge’s Incorrect Recollection of Orders Made?
116 At the start of his judgment, while outlining the issues he had to decide, Garling DCJ said:
“The plaintiff sues the second defendant; however, I have already entered a verdict for the second defendant. The first defendant continues its cross claim against the second defendant …”
The Council points out that his Honour had not “already entered a verdict for the second defendant”. It submits that this error on his Honour’s part infected his consideration of the case of the Council against the Club.
117 Mr Taylor, an officer of the Club who was conducting the water polo competition on the night of the accident, was called to give evidence in the plaintiff’s case. At the close of the Council’s case, counsel for the Club asked for a verdict by direction against the plaintiff. Counsel for the plaintiff said he did not want to argue the contrary, because he had not opened the case against Mr Taylor. Counsel for the Club then made an application for a verdict by direction on the cross-claim, which his Honour declined to give, saying ‘”I have a lot of sympathy for your submissions but I’m not going to release you at this stage till I hear the submissions. It’s only going to take us at the worst half a day …”. His Honour made a costs order against the plaintiff in favour of the second defendant, reserving to the second defendant leave to argue later that those costs should be on an indemnity basis.
118 Thus, even though his Honour had not actually pronounced an order dismissing the plaintiff’s claim against the Club, it was quite clear that such an order would be made with no further argument on the part of the plaintiff.
119 When asked in argument what difference there was between the true situation, and the situation recorded in his Honour’s judgment that he had “already entered a verdict for the second defendant” counsel for the Council referred to James Hardie & Coy Pty Limited v Seltsam Pty Limited [1998] HCA 78; (1998) 196 CLR 53. That case established that if judgment had been entered in favour of a particular defendant, another defendant could not claim contribution under section 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 from that defendant. Counsel for the Council informed us that the Seltsam point had not been raised before his Honour.
120 His Honour in fact went on to give reasons, not dependent upon any dismissal of the plaintiff’s claim against the Club, for dismissing the Council’s cross-claim against the Club.
121 In these circumstances, while his Honour was wrong in saying that he had “already entered a verdict for the second defendant” that error was completely inconsequential. It provides no ground for disturbing his Honour’s finding in favour of the Club.
Inadequacy of Reasons for Rejecting Claim Against Club?
His Honour did not regard the fate of the cross-claim against the Club as in any way in doubt – he said ‘I, at no stage, have been able to see what their negligence was”. His Honour made findings of fact relevant to the claim against the Club, as follows:
“The fifty metre pool was divided into three areas after 7pm. One where water polo was played, one area for players engaged in water polo games to warm up, and one area for the public. The public could also use the twenty-five metre pool. At five to eight, an announcement was made that the public had to leave the twenty-five metre pool and the section of the fifty metre pool which was open to the public, as those pools were to close to the public at 8pm, and the general public were to leave the complex.
The fifty metre pool would continued to be used for water polo games and warming up for water polo until the close of the competition. The water polo competition was conducted by the second defendant and in particular Mr Taylor, who was in charge. Each game was closely followed by another game. Players had to go to a desk where Mr Taylor was usually seated or in the vicinity and register. They had to register with their caps on at least 30 minutes before their game, and at that stage they could go into the warm-up section of the fifty metre pool, provided they were wearing their caps. Each team had a coach and/or manager who was responsible for the team. Mr Taylor ran the actual competition, and this was the third week for this competition; it was a competition for young players. Mr Taylor did not witness the accident.
The pool complex remained open after 8pm, and public entry to the pool complex was still allowed and the fee was still charged; however, the swimming areas were not open to the public.” (Emphasis added)
122 He made findings to the following effect:
(1) The Club came to an agreement with the Council, whereby the pool would stay open after a certain hour;
(2) people who were admitted to the pool continued to pay the usual fee for admission;
(3) the pool remained under the care and control of the Council;
(4) Mr Taylor’s task was to conduct the water polo competition, which he did in accordance with strict rules; and
(5) the Club did not have responsibility for every person that entered the swimming complex.
123 The Council complains that his Honour’s reasons for rejecting the case against the Club are inadequate. There is no difficulty in ascertaining what his Honour’s reasons were for rejecting the case against the Club. This contention of the Council is rejected.
Substance of Negligence Case Against Club
124 I turn now to whether his Honour was mistaken in rejecting the Council’s cross-claim against the Club.
125 The evidence established that the water polo competition was conducted at the deep end of the 50m pool, that is to say its western end, furthest away from the 25m pool. An area of the 50m pool of middling depth was used for the warm-up area, while the shallow end of the 50m pool was made available as a “splash and play area”. Mr Taylor’s activities were centred at a table on the southern side of the 50m pool, located further towards the deep end than the lifeguard station on the northern side of the pool is located. Using that table as a base, he moved around the 50m pool from time to time. Mr Taylor’s evidence was that it was the coaches who ran and looked after their teams, while he ran the competition. He said that in one of the newsletters it was pointed out that the coaches are responsible for their teams. He said it was the choice of the coach of any team whether they actually used the warm-up area. Mr Taylor said he had never seen members of teams involved in the competition swimming in the 25m pool after 8:00 o’clock.
126 While there was no reason for his Honour not to accept Mr Taylor’s evidence in all these respects, there was some corroborative evidence of what he said concerning the role of individual team coaches. The announcement sent to schools about the starting of the competition said that while players and spectators would have to pay pool entry “Coaches ([teachers]) are free.” A newsletter, apparently sent to participants in the competition, dated 20 October 2000 said:
“1. The pool is now divided into 3 areas. The game area, the warm up area, and the splash and play area. Only teams signed (score sheet completed by their manager) and with caps on can use this area. The warm up area is available 30 minutes before your game time only. Brothers and sisters are able to swim in the splash and play area.
2. Team managers are asked to sign the score sheets before players enter the water and with correct hat numbers please.”
127 From the evidence I would infer that when Brooke and Melissa came to the pool complex they entered the water in the 25m pool without having been signed on.
128 While his Honour did not mention, in his reasons for judgment, all of the facts which I have set out which are relevant to the case against the Club, those additional facts are in the nature of corroboration and support for the findings which his Honour made.
129 The Club, in operating the water polo competition at this pool complex, was in a significantly different situation to that of a school authority who permits children to play in the school grounds unsupervised. The Club was not the only organisation which could control the activities of the participants at the pool – as well, the Council retained its general right to control activities on its own premises, and the basis on which the Club ran the competition was that there would be a team manager responsible for each team. His Honour made no error in dismissing the Council’s cross-claim against the Club.
Proposed Orders
130 The order I would make is that the Council’s appeal be dismissed.
**********
283
38
4