Peel v DINNERDALE Pty Ltd - [2009] WASCA 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PEEL -v- DINNERDALE PTY LTD [2009] WASCA 194

CORAM: OWEN JA
PULLIN JA
NEWNES JA

HEARD: 1 OCTOBER 2009

DELIVERED : 4 NOVEMBER 2009

FILE NO/S: CACV 32 of 2009

BETWEEN: STEPHEN GEOFFREY PEEL
Appellant
AND
DINNERDALE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'SULLIVAN DCJ
Citation  :PEEL -v- GLOBAL (WA) PTY LTD & ANOR [2009] WADC 27
File No  :CIV 1205 of 2003

Catchwords:

Tort - Whether respondent negligently assembled chair which collapsed causing injury to the appellant - Whether trial judge's reasons omitted a reference to important evidence - Whether there was an error of law

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D M Bruns
Respondent: Mr J R Brooksby

Solicitors:

Appellant: Separovic & Associates
Respondent: WHL Legal Pty Ltd

Case(s) referred to in judgment(s):

Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151
Leeder v The State of Western Australia [2008] WASCA 192
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244

REASONS OF THE COURT: This is an appeal by the appellant against the judgment of O'Sullivan DCJ by which the appellant's claim for damages for personal injury was dismissed.
The appellant suffered his injury when the back of a chair upon which he was sitting collapsed. He brought his action against the manufacturer of the chair and against the respondent. The appellant alleged that the respondent, which traded as Derby Retravision, negligently assembled and supplied the chair. The claim against the manufacturer was discontinued. His Honour was required only to determine the liability of the respondent. Quantum had been agreed.
The appellant was at the time of the accident a 43 year old who on 4 June 2000 was working for the Australasian Correctional Management Pty Ltd (ACM) at the Curtin Immigration Detention Centre near Derby. ACM had a contract with the Department of Immigration to run the detention centre. The chair upon which the appellant was sitting was a secretarial or typist's kind of chair. The trial judge concluded that the appellant's claim failed because it was not proved that the respondent supplied the chair.

The evidence and the identification of the issue decided by the trial judge

The following account of the evidence and the identification of the issue to be determined is taken from the trial judge's reasons with some minor supplementation from the transcript.
On the day in question, the appellant was sharing an office with a Mr Paul Reeves. He had just returned to the centre after some months and a desk and chair had been provided for his use. He was seated at the desk preparing a management plan for a detainee. Mr Reeves was sitting behind him and the appellant swung round to speak to him, raising his hands behind his head and resting back in the chair. According to the appellant, there was a loud bang and the back of the chair fell from the vertical position to an almost horizontal one causing the appellant to fall backwards and sustain injury.
The appellant was in great pain and was taken off to the medical centre. He therefore had no opportunity to examine the chair closely but he saw it the following day. Unfortunately, by the time of trial it was no longer available to be inspected but the appellant said that he had given some broken parts from it to a fellow worker. These were put in a white plastic bag and were given to the appellant's solicitor but they too had been lost by the time of trial.
Nevertheless, a chair which the appellant said was similar to the one on which he was injured, was tendered and became exhibit 3. The trial judge described the mechanism of this chair in detail in [9] of his reasons (see Peel v Global WA Pty Ltd [2009] WADC 27). In short, the chair back had a spring support mechanism. The issue determined against the appellant was whether the respondent had supplied the chair.
Bradley John Lingard was called to give evidence by the appellant. He was the Centre Manager of the Curtin Immigration Detention Centre and was responsible for preparing it to take detainees and later managing it on a day‑to‑day basis. He was employed by ACM. Preparations began to reopen the centre after it had been dormant for some years in about September 1999. By June 2000 there were between 1,100 and 1,200 detainees and approximately 200 ACM staff in addition to some officers of the Department of Immigration. Mr Lingard said that before commencing his duties he was instructed to follow a 'buy local' policy. However, he did not personally buy furniture. He would either request Mr Greg Wallis of the Department of Immigration to arrange for the purchase and supply of furniture to ACM or arrange for furniture to be purchased directly by ACM and the cost reimbursed by the Department of Immigration. Requisition via Mr Wallis was the more common method. Mr Lingard gave evidence that Mr Wallis would often ask him if he could 'spare some officers and vehicles to … go to Derby and pick up furniture from the Retravision Store in Derby' (ts 66). Mr Lingard said that he was not aware of office chairs being ordered from anyone other than Derby Retravision (ts 68). Mr Lingard met regularly with Mr Wallis and asked him to acquire furniture and equipment.
The respondent called Mr Wallis to give evidence. He was at the time of trial the Deputy State Director of the Department of Immigration and Citizenship in Western Australia. He ran the detention centre for the department between 1999 and 2003. Before that he was responsible for closing it down and 'mothballing' it after it had been operating for about 12 months in 1994 and 1995. He was responsible for reopening it in September 1999. Mr Wallis gave evidence that when the centre was reopened there were some desks and chairs which had been stored and which were still in good condition and they were put to use. However, as the detainee number increased more desks and chairs were required, and those items were purchased. Mr Wallis confirmed there was a 'buy local' policy provided local prices were not more than 10% more expensive than alternative supplies. However, he gave evidence that there was no restriction on buying items elsewhere and that:
We purchased a lot of equipment out of Perth and we purchased equipment from other locations as well.
He gave evidence that these locations included K‑Mart in Port Hedland and Broome Office Supplies, although he could not specifically recall buying chairs from those outlets. Mr Wallis acknowledged that there was a continuing need to replace office chairs which seemed to be breaking on a regular basis and that office chairs were the 'bane of my life' (ts 147) and had to be replaced fairly regularly. He specifically recalled chairs at the centre having a spring adjustment at the base and he said that he thought that they were there 'early in the piece'. He described the difficulties he had with these chairs which made them difficult to repair and when he was asked what he did about those chairs, he said:
I have a very vivid memory of buying – and because of the concerns I had about the way in which chairs were being treated around the complex, looking at an option for a chair, while not a cheap chair, would have been more robust than the chairs that [were] there, and I – I have a very good memory of actually going to Retravision in Derby and buying a chair which had a different back fitting to it. It was a rigid back and the part of the chair slipped into a bracket under the chair and did up with a - with a screw – screw arrangement, but it wasn't a spring loaded chair [25].
Mr Wallis recalled buying chairs similar to the fixed back chair (exhibit 12) but could not recall the number he ordered.
There was then some evidence about a piece of paper on which Mr Wallis had written 'Access Office Industries Perth' and a telephone number and which he said he might have given to the appellant after his accident. His evidence was that he 'imagined' that it would be correct to say that he would have got the name Access Office Industries from Derby Retravision and that was the only place he could have obtained the information from. It was put to him whether he 'believed' that the chair that was involved in the accident came from Derby Retravision as to which he said 'I had no idea where the chair came from but if it had of [sic] been said to me that they wanted the supplier of the chair I would have given that information in my role as the manager - the Immigration Manager at the facility' (ts 152). He was then asked whether the information he had was that it came from Derby Retravision who in turn got it from Access Office Industries. He said he believed that to be correct. He did not recall who he gave the paper to and he could not at the time of the trial, recollect making the inquiries which might have led him to make a note on the piece of paper.
The appellant called Mr Pace, an insurance investigator instructed by Royal Sun Alliance Insurance Company. He investigated Mr Peels's accident. He spoke to Mr Wallis on the phone and Mr Wallis told him that a Retravision store in Derby had supplied the chair upon which the appellant was injured. On receiving that information, Mr Pace said he contacted Mr Hardy of Retravision but he and gave no evidence of what Mr Hardy said to him. Mr Pace said that Mr Wallis told him he had taken a digital photograph of a chair identical to the one upon which the appellant had been injured and Mr Wallis sent him a floppy disk containing those photographs, copies of which are exhibit 8. They show a spring backed adjustable chair and its component parts. Mr Wallis, when asked in evidence, could not recall telling Mr Pace that the chair had come from Derby Retravision. Mr Wallis in cross‑examination said that even when things were very busy he would 'shop around' (ts 154) when equipment had to be purchased.
The respondent was effectively controlled by Mr Hardy. Mr Hardy was called by the respondent. He gave evidence that from time to time the respondent supplied office furniture and equipment to the Department of Immigration for use at the centre. Mr Hardy said that furniture which Derby Retravision supplied to the Department of Immigration included chairs of the kind identical to exhibit 12. This chair had a fixed back and it therefore differed from exhibit 3 (the spring support mechanism chair). Mr Hardy said that the chairs of the kind that Derby Retravision supplied to the Department of Immigration was identical to exhibit 12. Mr Hardy denied every supplying chairs fitted with a spring support mechanism.
Mr Hardy had run the business of Derby Retravision for 18 years. He could recall that after the centre reopened in 1999 he assembled and supplied chairs to it. The chairs were of the kind depicted in exhibit 12 and were not the spring support mechanism type. When asked to examine a spring backed adjustable chair similar to exhibit 3 which became exhibit 11 (ts 208 ‑ 209) he said he did not know how it unscrewed because he had never seen it before and he had never put one together. His evidence was that he had never stocked a chair of that kind or any chair having a back secured by a spring and washers and bolts. Mr Hardy had no recollection of speaking with Mr Wallis about the accident, nor with Mr Pace, but he admitted that he 'might' have told Mr Wallis that the Derby Retravision 'might' have ordered the chair from Access Office Industries and admitted that he 'might' have informed the appellant's solicitor that that was the case.
Mr Dean Anderson, who worked for Derby Retravision as a general handyman gave evidence that he recalled working for the business in the late 1990s delivering chairs to the centre and assisting Mr Hardy to assemble them. He said that the chairs were of a kind such as exhibit 12 with arms or without arms. He said that he had never assembled a chair with a spring mechanism.

The trial judge's conclusion

His Honour concluded in [45] that it had not been established on the balance of probabilities that the chair upon which the appellant was sitting when he was injured had been supplied by the respondent. His Honour's reasons for that conclusion were expressed in the following terms:
It is true that at the time of the accident, and perhaps for some time before, the Department of Immigration had a 'buy local' policy and that Derby Retravision had been a significant beneficiary of it. That is not to say, however, that it must have supplied the chair.
It is also true that Mr Wallis gave the plaintiff the note (Exhibit 17) upon which he had written the name 'Access Office Industries' and that he said that he 'imagined' that he got that name from Derby Retravision, saying that that was 'the only place I could have got that information'. However, he also said that he had 'no idea where the chair came from'.
Mr Wallis did, of course, tell Mr Pace that the chair had been supplied by Derby Retravision but what grounds he had for saying that are not known and there is nothing to suggest that he had first hand knowledge that that was the case. I have already noted that when asked about the circumstances in which he came to write the note which is Exhibit 17, Mr Wallis said:
'I can only assume that he (the plaintiff) or somebody else asked me for the details of the office chairs that we'd recently purchased and I would have found that information out for that person…'
In these circumstances, it may well be significant that Mr Wallis did not write down any details of the defendant but only noted the name of the supplier in Perth, Access Office Industries.
It is true that Mr Pace did contact Mr Hardy after speaking with Mr Wallis but curiously, he was not asked about any conversation which he might have had with Mr Hardy. It is true also that Mr Hardy may not have told Mr Pace or Ms House, the plaintiff's solicitor, that he did not supply the chair upon which the plaintiff was injured but I can find no basis for concluding that his conduct in that regard amounts to an admission that the defendant did supply it.
Conclusion
I have already noted that the chair upon which the plaintiff was injured was clearly of the spring-backed kind. In the light of the conclusion that the evidence does not establish that the defendant supplied a spring-backed chair, the claim fails [46] ‑ [51].

The ground of appeal

The appellant's sole ground of appeal alleges that the trial judge erred in law because he failed to give 'sufficient' reasons for the conclusion set out above. The ground reads:
Given:
(a)the evidence of Lingard that he knew of no‑one, other than the respondent (second defendant), who supplied office chairs at the appellant's workplace;
(b)the acknowledgement of Wallis that he had, after contacting the respondent (second defendant), advised persons that the respondent (second defendant) had supplied the relevant chair;
(c)the evidence of Hardy (on behalf of the respondent) that it was possible that he had acknowledged, following the accident, that the chair was an Access Office Industries' chair supplied by the respondent;
(d)the learned trial judge did not proceed to make any findings on the credibility of those witnesses;
the learned trial judge erred in law in failing to give sufficient reasons for his finding at [45] that, 'it has not been established on a balance of probabilities that the chair … had been supplied by the second defendant'.

The law

The giving of reasons is a normal (albeit not universal) incident of the judicial process. Fairness requires that the parties should know why they have won or lost. The requirement to give reasons is likely to produce a more soundly‑based rational judgment and the reasons must be sufficient to give effect to the right of appeal: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] ‑ [27].
What is sufficient in a particular case depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Other involve detailed and complex factual and legal issues requiring close reasoning and analysis. The requirement for reasons does not mean that reasons must be lengthy and elaborate. Nor do they need to refer to all the evidence led in the proceedings. However, relevant evidence should be referred to (albeit not necessarily in detail) and where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial judge should explain why: Mount Lawley v Western Australian Planning Commission [28].
It is necessary to note that even if reasons are inadequate, an appeal against the judgment may be dismissed. This is because the appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice. Nor does an appellable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and if it can do so, where, for example, only one conclusion is reasonably open on the available evidence, it may itself decide the matter: Mount Lawley v Western Australian Planning Commission [29].

The appellant's submissions

Counsel for the appellant began his oral submissions by referring to [45] of his Honour's reasons where his Honour concluded that the appellant had not established on the balance of probabilities that the chair upon which the appellant was sitting when he was injured, had been supplied by the respondent. Counsel for the appellant submitted that his Honour gave no reasons for that conclusion and therefore the appellant did not know why it had lost. That submission must be rejected because quite clearly, in the paragraphs which followed, his Honour gave reasons for his conclusion.
Counsel for the appellant then submitted that the reasons were deficient because they omitted a reference to important evidence. The submission referred to two main areas of evidence which counsel contended had to be, but were not dealt with, in the reasons. They were:
(a)evidence in favour of the conclusion that the respondent did supply the chair; and
(b)aspects of Mr Hardy's evidence which the appellant contended should have led the trial judge to reject the evidence which Mr Hardy gave, denying that the respondent supplied the chair in question.
Each of these areas of evidence is dealt with in turn below.

Did the trial judge fail to refer to evidence supporting a conclusion that the respondent supplied the chair?

The appellant's counsel in oral submissions referred to pars 4, 5 and 6 of the appellant's written submissions and said that they contained references to important evidence supporting a conclusion that the respondent did supply the chair. Paragraph 4 concerns Mr Lingard's evidence and listed five points in his evidence which the written submissions said had not been referred to by the trial judge. However, in oral submissions, counsel conceded that the first two points of evidence were referred to by the trial judge. That left three points. The three points referred to the evidence given by Mr Lingard and recorded on ts 66, 67 and 68 set out below:
O'SULLIVAN DCJ: … What proportion of items were ordered from Mr Wallis and what were bought directly.
BRUNS, MR: Thank you, your Honour. Yes, we don't require precision, I'm just asking for a general - - ----The majority of items were purchased through Mr - well, when I say 'purchase', were requisitioned through Mr Wallis. And minimal equipment, as I said before, emergent needs were purchased directly on my authority for ACM, which would in turn be reimbursed by the Department of Immigration.
…
BRUNS, MR: … Do you have any personal knowledge of how furniture was being delivered? Did you see it being delivered? Did you arrange for any delivery---I have personal knowledge of how it was delivered in that, once again, I - I base my discussions here on my relationship with Mr Greg Wallis. We've met on a regular basis, daily, and he would often ask me if I - if he could - I could spare some officers and vehicles to actually go to Derby and pick up furniture from the Retravision store in Derby. I know of that occasion - on many occasions, that occurred. There were times when I believed that furniture may have been delivered in bulk off semi‑trailers directly, but the majority of the time it was his requisition for us to go and pick it up.
BRUNS, MR: Now, would Mr Wallis ever organise a purchase of furniture for ACM without your knowledge‑‑‑Highly unlikely. I can't speak for his state of mind at all given times, but I would say our - our working relationship dictated that he would consult with me all the time on anything associated with bulk purchases. He would outline why - why they were being purchased, where they were likely to go. So we had - as I said before, we had a very strong, close partnership relationship.
And with office chairs in particular, would he ever order those without your request‑‑‑The answer would be - I'm just thinking here - he wouldn't - may not specifically say that office chairs or a number of office chairs would be purchased … it wouldn't be a case of me saying personally I would want two chairs here, one chair there, whatever it might be. It was a case of more - in generalistic terms as such.
BRUNS, MR: …
So are you aware of any office chairs ever being ordered from anyone other than Derby Retravision‑‑‑No.
What would you say about the proportion that chairs could have been ordered from a retailer in Broome‑‑‑Well, I find that illogical, based upon our discussions initially with Mr Wallis in regards to buying locally. The other thing is that one has to take into account the tyranny of distance … As far as I was aware, we always went there to get what we needed to get. We didn't go anywhere else because it just seemed illogical and to go to Broome to buy things like what we're talking about here, I never heard that from Mr Wallis, nor did we actually exercise that option at all because it was just - well, Broome was nearly a three‑hour drive away for us one way, so it's a six‑hour trip there and back and why would you want to waste that time and staff resources to go and pick up something from Broome when you can get it from Derby delivered. It just didn't make sense.

Counsel for the appellant submitted that this evidence, together with other evidence, supported the conclusion that the respondent supplied the chair which collapsed. The appellant submitted that it should have been referred to in the reasons.
It will be seen immediately, that at no point does Mr Lingard assert that the chair which collapsed was supplied by the respondent and it is clear from the evidence that Mr Wallis and not Mr Lingard was the person mainly concerned with furniture purchased. It is also clear from that evidence that some furniture came from the respondent in Derby and some came on semi‑trailers (from Perth). All that could be drawn from the evidence on ts 68 about Mr Lingard's lack of awareness of chairs being ordered elsewhere than from the respondent, was exactly that - that he was not aware, but was unable to say that the chairs were not ordered from some other source. The trial judge's reasons show that he understood this. Finally nothing in that evidence dealt with the differences in the chair mechanisms.
In our opinion the trial judge's reasons fairly captured the essence of Mr Lingard's evidence which was that he did not personally purchase any chairs, that Mr Wallis was more directly involved in the purchase of furniture and that Mr Lingard was unable to say who supplied the chair which collapsed.
In par 5 of the appellant's written submissions there is a reference to the evidence of Mr Pace. The appellant submits that this was important evidence and should have been referred to in the trial judge's reasons. Mr Pace testified that he spoke to Mr Wallis who told Mr Pace that chairs depicted in photographs, (chairs with spring backs and which were similar to the chair on which the appellant was sitting when it collapsed) were supplied by the respondent. Counsel for the appellant, in oral submissions, placed great reliance on this evidence. He submitted that it was evidence to support a conclusion that the respondent supplied the chair in question. That submission must be rejected. The Pace evidence was evidence of an out‑of‑court statement made by a person (Mr Wallis) who was not a party or representative of a party to the litigation. It was hearsay evidence and did not prove what was stated. When Mr Wallis was cross‑examined, he conceded that he may have spoken the words to Mr Pace. This was not an admission that could bind the respondent and nor did it otherwise amount to testimony that the respondent supplied the chair. The trial judge did not err by failing to mention in his reasons that there was some hearsay evidence (albeit not objected to at trial) which did not go to prove of the point in issue.
Paragraph 6 of the written submissions referred to Mr Wallis' evidence. Mr Wallis' evidence was damaging to the appellant's case and the appellant contended that the rule in Brown v Dunn had been breached because what he had to say was not put to Mr Lingard. Counsel for the appellant submitted that the trial judge should have said this in his reasons. Mr Wallis' damaging evidence was that when the detention centre was reopened after its period in 'mothballs', there was sufficient furniture (and therefore chairs) to permit operations to begin. This was damaging to the appellant's case because this provided another source of chairs and there was no evidence about who had supplied the chairs when the detention centre was originally in operation. The rule in Brown v Dunn is a rule of fairness to witnesses and parties calling witnesses. A cross‑examiner must confront a witness whose evidence is to be contradicted by other evidence to be called by the cross‑examiner or which is to be otherwise challenged. See Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244.
However, there was no unfairness in the respondent calling Mr Wallis and having him give evidence about the fact that there was furniture already on site and available for use when the detention centre was reopened (without putting this to Mr Lingard in cross‑examination). Mr Wallis' evidence was not evidence contradicting anything said by Mr Lingard. If Mr Lingard had given evidence that there was no furniture on site when the detention centre was reopened, then the rule in Brown v Dunn may have required the respondent to put the substance of Mr Wallis' evidence to him; but that was not the case. Furthermore, Mr Wallis was not an employee or aligned to the respondents. He was a witness either party could have called or interviewed and the evidence was that the appellant's representatives did speak to him before the trial.
Paragraph 6 of the appellant's written submissions lists three points of evidence given by Mr Wallis which the appellant says that the trial judge should have mentioned in his reasons. However, in oral submissions, counsel abandoned the first two points because the trial judge did in fact refer to the evidence in his reasons.
The third point reads:
Mr Wallis … did acknowledge … that he told Mr Pace that the chair had come from the respondent … [ts 153], and that the photographs received by Mr Pace 'could have been' taken by him.
Once again, this was an attempt to rely upon hearsay evidence for the reasons already mentioned. It was not evidence proving that the chair which collapsed was supplied by the respondent.
Finally, the appellant contended in oral submissions, that the appellant's evidence was that the chair was a 'new' chair and if it was a 'new' chair, it could only have been supplied by the respondent and could not have been part of the 'mothballed' stock of chairs. In fact, the word 'new' had very uncertain meaning. At ts 50 the appellant's evidence was:
BROOKSBY, MR: Thank you, your Honour, I will tender that in due course. I just want you to be quite clear, Mr Peel, that's your answer and you swore that document to be true to the best of your knowledge‑‑‑Well, I signed it.
Your Honour, I will tender that in due course if I may, I don't have another copy. So whilst you may not be sure of the date upon which it was delivered it's potentially been at the site for a period of eight months before your accident‑‑‑Any of the chairs could have potentially been there at that time.
And could have been used by any number of people over the months between November and June‑‑‑Except for the chair that I saw was a new chair.
It looked new‑‑‑Looked new to me.
Right. How new‑‑‑Well an unmarked chair and in the detention centre‑‑‑
People looked after it perhaps‑‑‑Well, I would say - if it had been there all that time then it was well looked after.
Right. So you don't know‑‑‑It looked new to me.
It didn't have any polythene on it, it was just‑‑‑I didn't see any polythene on that chair, I did on others but not that chair.
So there were others that were newer than that chair‑‑‑That's not what I said. There were chairs with polythene on them.
Were they delivered with polythene on them‑‑‑I didn't see that chair being delivered.
You didn't see that chair delivered‑‑‑Chairs normally had polythene on them when they were delivered.
This evidence was neutral on the issue of who supplied the chair and how long it had been on site. It was not evidence which had to be mentioned by the trial judge.
In those circumstances, the first complaint of deficiency in the reasons must be rejected.

Were there important aspects of Mr Hardy's evidence which the trial judge failed to refer to?

As to the second point the appellant submits that the trial judge, in his reasons, should have rejected Mr Hardy's evidence. That submission must be dismissed. During closing submissions his Honour was not invited to reject Mr Hardy's evidence. Mr Hardy's evidence was not contradicted by any other witness in any respect. The appellant only submitted to the trial judge that Mr Hardy's evidence 'strained credulity' in a certain respect and that his evidence should be treated with 'caution'. The aspect of his evidence which was said to 'strain credulity' was Mr Hardy's evidence that he had never seen or supplied a spring‑back chair until about a month before trial. The appellant pointed to evidence by Mr Hardy admitting that he sold another type of chair, an executive chair, with a spring‑back mechanism. From this counsel submitted that his denial that he supplied a spring‑back chair of the kind the appellant was sitting on was suspect. That submission must be rejected. Mr Hardy was asked to give evidence about a chair of the type on which the appellant was injured. It was only about a month before trial that he realised that the chair involved had been of a type which he testified had never been supplied by the respondent. His evidence about whether the respondent supplied the chair was very firm. See ts 178 where the following appears:
BROOKSBY, MR: …
Have you ever stocked a chair at Derby Retravision with that type of component‑‑‑No, I haven't, no.
And have you ever supplied to the Department of Immigration a chair‑‑‑‑‑‑‑‑No.
‑ ‑ ‑ looking like or similar to that chair‑‑‑No. Well, it looks very similar to that chair until you turn it upside‑down, but no, not one of my chairs. I've never supplied it.
Mr Hardy was the only person who supplied chairs on behalf of the respondent. Mr Hardy's unequivocal evidence was therefore that he had never supplied a chair of the type which injured the appellant. This was corroborated by Mr Anderson, and Mr Wallis also gave evidence that he purchased a fixed back chair from the respondent. He did not testify that he could remember buying a spring back chair.
In the light of all that evidence, there was not any contest to be resolved. His Honour nevertheless heeded the appellant's submission to treat Mr Hardy's evidence with caution. We say this because if the trial judge had unqualifiedly accepted Mr Hardy's evidence, he would have been bound to find that the chair was not supplied by the respondent. Instead the trial judge concluded that he was not satisfied on the balance of probabilities that the respondent supplied the chair. As a result, the second point falls away.
Viewed overall the appellant's submissions proceed by concentrating on aspects of the evidence which favour a conclusion that the chair was supplied by the respondent and by ignoring evidence against that conclusion. For example, the appellant's written submissions refer to Mr Lingard's evidence that the main store he used locally for office furniture was Derby Retravision; that he and Greg Wallis followed a 'buy local' policy; that the majority of the time his officers would pick up furniture from the respondent; that it was unlikely that Mr Wallis would organise purchase of furniture without his knowledge and that he was not aware of office chairs being ordered from anyone other than the respondent. The appellant does not refer to the evidence that furniture was sometimes supplied from Perth and does not refer to the fact there was furniture on site when the detention centre was reopened, the source of which was the subject of no evidence.
The appellant's submissions that there was some evidence from which it may have been concluded that the chair was supplied by the respondent does not establish error: Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151, 52; Leeder v The State of Western Australia [2008] WASCA 192 [84] ‑ [85].
Even if Mr Hardy's evidence is disregarded, there was still not sufficient evidence to establish on the balance of probabilities that the chair was supplied by the respondent. This was because the overall effect of the evidence was that office chairs came from various sources and the respondent was only one of those sources. No witness said that the particular chair in question was supplied by the respondent. All that could be inferred from the evidence (if Mr Hardy's evidence were disregarded) is that the chair was possibly supplied by the respondent. Even if the reasons were deficient, a reading of all the evidence (and disregarding Mr Hardy's evidence) leads us to the same conclusion reached by the trial judge; that is, that the appellant had not satisfied the onus of proving that the chair was supplied by the respondent. If Mr Hardy's evidence is accepted, then unquestionably the chair was not supplied by the respondent.
The trial judge's reasons capture the essence of the relevant evidence. In our opinion, the reasons are not deficient. No error of law is revealed.

The respondent's notice of contention

The respondent sought to sustain the judgment by a notice of contention suggesting findings which were open to the trial judge in addition to his Honour's conclusion that the chair was not supplied by the respondent. The respondent contends that the cause of the appellant's accident was not the respondent's failure to assemble the chair correctly, but rather that at the workplace, persons unknown had adjusted the mechanism of the chair so that when the appellant lent back on the chair the adjusting nut holding the back upright parted company with the bolt, allowing the back of the chair to collapse.
The respondent points to the evidence of a Mr Robinson who saw the chair after it had collapsed and saw that the retaining nut was on the floor. The respondent submits that such evidence provides an explanation for the collapse of the back of the chair which does not involve negligence on the part of the respondent.
The appellant responds to this by pointing out that the expert witness Mr Apgar (called by the appellant) referred to the fact that a retaining washer was not found after the collapse, which suggested that pressure was placed by the spring mechanism directly onto a plastic adjusting handle surrounding the nut (and which formed a handle to allow the nut to be tightened or loosened). Mr Apgar gave evidence that with the washer missing, the spring behind the nut could put pressure onto the plastic handle and punch through the plastic handle. However, if that occurred, then the nut would remain on the bolt. Mr Apgar's evidence seemed by inference to be suggesting that the spring could pass over the nut and fall onto the floor, allowing the chair to collapse. That explanation however, does not accord with the facts. The nut did not remain on the bolt. It had fallen to the floor, suggesting that it had been wound out or adjusted to the point where the adjusting nut parted company with the bolt, allowing the chair to collapse. However, it is not impossible that the lack of the washer could cause the plastic handle to break allowing the spring to pass over the nut and to cause the chair to collapse; and that at the same time the nut having been adjusted by a seat user to the end of the thread came off the bolt at the same time. Those possibilities would require further consideration by the trial judge and would require determination at a retrial.
The existence of that uncertainty means it is impossible for this court to reach a conclusion. The notice of contention must be dismissed.

Conclusion

The appeal must be dismissed.