Perisher Blue Pty Ltd v Vidakovic

[2006] NSWCA 234

Reported Decision: (2006) Aust Torts Reports 81-858

Court of Appeal

CITATION:	Perisher Blue Pty Ltd v Vidakovic [2006] NSWCA 234 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21/08/06
JUDGMENT DATE:	21 September 2006
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 2; Tobias JA at 72
DECISION:	(1) Appeal is upheld (2) The judgment and verdict of the trial judge is set aside (3) The respondent to pay the appellant's costs of the appeal (4) The matter is remitted to the District Court for retrial (5) The respondent to have a certificate under the Suitor's Fund Act 1951 (NSW) if otherwise qualified.
CATCHWORDS:	NEGLIGENCE - respondent injured while riding on a T-bar ski lift - whether operator of ski resort negligent - rope connecting T-bar to spring-box snapped - whether an adequate system of inspecting for rope frays existed. - PRACTICE AND PROCEDURE - absence of findings of crucial primary facts by trial judge - errors in fact-finding - failure to give adequate reasons. ND
CASES CITED:	Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
PARTIES:	Perisher Blue Pty Ltd (Appellant) Ilija Vidakovic (Respondent)
FILE NUMBER(S):	CA 40878/05
COUNSEL:	P H Greenwood SC/P Biggins (Appellant) D Baran (Respondent)
SOLICITORS:	Dibbs Abbott Stillman (Appellant) Petrovich Accident Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3116/04
LOWER COURT JUDICIAL OFFICER:	Ashford DCJ
LOWER COURT DATE OF DECISION:	12/10/05

CA 40878/05
DC 3116/04

BEAZLEY JA
IPP JA
TOBIAS JA

Thursday 21 September 2006

PERISHER BLUE PTY LTD v ILIJA VIDAKOVIC

Judgment

1 BEAZLEY JA: I agree with Ipp JA.

2 IPP JA:

The respondent’s claim in negligence

3 On 10 September 2001 the respondent was injured while using a T-bar ski lift (the Brumby T-bar) at a ski resort operated by the appellant. At the time, the respondent and a friend, Mr Bozic, were being pulled up the ski slope by a T-bar. The overhead towing cable stopped momentarily, then started again with a jerk. The T-bar suddenly came away from the linking system. The respondent, still holding the T-bar, fell on his back in the snow and injured his cervical spine.

4 The respondent sued the appellant in negligence and claimed damages for the injuries he had sustained. The trial judge, Ashford DCJ, upheld the claim and ordered judgment and a verdict in the respondent’s favour in the sum of $227,503.90. The appellant appeals against this judgment.

The Brumby T-bar

5 The Brumby T-bar is a continuously circulating monocable ropeway. It is 488 metres in length and has a vertical drop of 100 metres. It is not entirely clear how many T-bar carriers there were on the line. Mr Turel, the assistant manager at the ski resort, said that there were 35. Mr Gow, an expert witness called by the respondent, said that there were 38. The judge made no finding in this respect.

6 The carriers were spaced at intervals of 25.87 metres. The T-bar moved at a standard speed of 2.80 metres per second (the equivalent of 10 kilometres per hour) and there was an interval between each T-bar carrier, as it moved along the line, of 9.24 seconds.

7 The trip time for a person getting on a T-bar carrier at the loading point and getting off at the terminal was 2 minutes 43 seconds. At full capacity, the T-bar line moved 718 people per hour. On average about 5,000 people were towed on the T-bar each day. An average ski season of the Brumby T-bar was about 80 days and (according to Mr Turel) the T-bar, in a season, would turn over “a bit over 400,000 stairs”. The respondent operated about 25 towing lines at its resort and about 11,000,000 tows took place each season.

8 Mr Gow described the T-bar carrier assembly as follows:

“The T-bar carrier assembly (towing outfit) consists of a grip affixed to the haul rope (cable), hanger arm, spring box, retractable rope, tee head, aluminium shaft (tubular aluminium) and plastic seat (tee). The shaft is fixed into the tee head by means of a removable bolt, allowing removal of the shaft from the head for inspection and maintenance.

9 Mr Gow explained further:

“Unloaded T-bars travelling downhill to the load station are fully retracted with the T-bar hanger arm/seat assembly riding tight to the spring box, with the rope fully retracted. At the load point, the lift operator reaches up, grasps the stem and/or seat, and pulls it down in order to place it behind the buttocks of passengers ready to load.
The rope spools out of the spring box until the spring force within overcomes the weight of, and friction generated by the passengers, who are then towed away uphill at the cable speed of 2.8 metres per second. The spring loaded nature of the towing outfit allows for a smooth takeoff, and assists in adapting to changes of gradient and undulations along the towpath. During the uphill ride, there is a continuous pressure from the tee seat behind the passengers.
The gradient of the T-bar tow path between Towers One and Two is a 16 to 17% slope (9 degrees), the equivalent of novice ski terrain. It would be considered a gentle slope for a T bar, with correspondingly low stresses on the component parts of the towing outfit.”

10 The rope that snapped was a 6 mm diameter nylon towing rope, being the “retractable rope” referred to by Mr Gow. This rope connected the T-bar to the spring box (which in turn was connected to a hangar arm and the overhead haul cable). The rope comprised a black and red outer sheath and a white inner core. The inner core was made up of parallel strands of polyester and was the load bearing part of the rope. The woven outer sheath provided the shape of the rope and protected the inner core strands from damage or wear. The sheath was not load-bearing.

11 It is common ground that the tensile strength of the rope was sufficient for its purposes. Fraying of the inner core strands, however, could weaken the rope. Once 25% of the inner core threads were broken, the rope would have insufficient strength to tow a loaded T-bar and the rope could snap. The inner core was vulnerable to damage once the outer sheath became significantly frayed.

12 The rope linked the T-bar to the spring box through a “T-connection piece”. A photo of a T-connection piece with the rope appears below.

13 The connecting rod to the right of the T-connection piece connects the device to the shaft of the T-bar. The rope seen emerging out of the top of the T-connection piece is connected to the spring box.

14 To connect the T-connection piece to the spring box, the rope is first passed through the top tubular part of the T-connection piece and pulled out of the hole in the centre of the device. A plastic washer is inserted at the end of the rope and a double knot with a 4 cm tail is made at that point. The rope is then pulled taut. The washer and knot prevent the rope from passing through the tubular part.

The trial judge’s reasons

15 Ashford DCJ, found that, while the respondent and Mr Bozic were being towed, the rope that I have described, snapped. This caused the accident.

16 Mr Greenwood SC, who together with Mr Biggins appeared for the appellant, informed the court that, at trial, the appellant did not dispute that it owed the respondent a duty of care.

17 Her Honour’s reasoning and findings as to breach of the appellant’s duty of care are brief. They are contained in three paragraphs, namely:

“… From the evidence it appears there is a rope breakage whilst the tow is in use of less than one a year. There appears to be no system in place for checking each T-bar for frays every morning. The 7 day documentation relating to that inspection notes any rope frays or breakages or bends in T-bars or any other difficulties with the tow mechanism. It is apparently then a matter for the maintenance personnel to replace the rope at the end of the day. It seems that all ropes which are frayed and noted on the 7 day maintenance report are not immediately replaced noting that rope 9 was noted as being frayed on two occasions on subsequent weeks.
In looking to the evidence it is my view that it was incumbent upon the defendant to ensure that thorough visual inspection of the T-rope at the head and inside the T housing is done daily and if fraying is detected then the tow should not be used until the rope is replaced. From the evidence this would cause little inconvenience cost or expense to the defendant. It is clearly a simple exercise and takes a very small amount of time.

I am satisfied the defendant breached its duty of care to the plaintiff by failing to adopt a system of maintenance of ropes on the T-bars and the failure to adopt such a system including visual inspections daily and the replacement of frayed ropes caused a foreseeable risk that a frayed rope would break, which happened on this occasion.”

The appellant’s argument on appeal

18 The appellant’s notice of appeal was directed principally to:

(a) The finding that on 10 September 2001 the rope was frayed and that it broke where it was frayed.

(b) The finding that a daily inspection of the area inside the T-connection piece was a simple exercise causing little inconvenience, cost or expense.

19 As to the finding that the rope was frayed on 10 September 2001, and broke where it was frayed, the appellant:

(a) Contended that the judge’s finding that there was no system in place for the daily checking of the ropes for fraying was erroneous.

(b) Drew attention to the judge’s omission to have regard to the evidence of Mr Black, a technician employed by the appellant, who examined the rope shortly before the accident and who observed no fraying.

(c) Drew attention to the absence of any evidence that the rope was frayed.

20 As to the finding that a daily inspection of the area of the rope inside the T-connection piece would be a simple exercise, the appellant:

(a) Contended that such an inspection would not be a reasonable precaution.

(b) Contended that the evidence did not support a finding that there should be a daily inspection of that part of the rope.

(c) Drew attention to the evidence that about 11 million tows were made annually and the incidence of rope breaking (from whatever cause) was less than one per season.

21 Generally, the appellant argued that the absence of findings of crucial primary facts and the paucity of reasoning constituted judicial error.

22 The appellant’s argument has to be seen in the context of the way in which the respondent put his case. Initially, the respondent contended that the T-bar had broken and this had caused the accident. In May 2005, Dr Samson, a consulting forensic mechanical and textile engineer (who was an expert on ropes) retained by the respondent, produced a report in which he expressed the opinion that a snapped rope, and not a broken T-bar, caused the separation of the T-bar from the towing mechanism. The respondent proceeded to base his case on a frayed rope that snapped.

23 The trial commenced four months after Dr Samson’s report. In contra-distinction to the respondent, the appellant contended that the T-bar had broken and this had caused the accident (without negligence on its part).

The condition of the T-bar immediately after the accident

24 The respondent made a statement shortly after his accident in which he said: “The T-bar just snapped off”.

25 Mr Bozic said that he picked up the T-bar after he and the respondent had fallen and took it “back to the station”. He said that he did not see any rope in the T-bar at that time, although he said that he did not examine the T-bar with any care. Mr Bozic made no mention of the T-bar being broken.

26 Mr Herd, a ski patroller employed at the time by the appellant, was called to the scene after the respondent had been injured. He stated, under the heading “Cause of Incident”, in a “Lift Incident Report”, that “8 T snapped at the head of the T-bar shaft” (the T-bar that was towing the respondent when he fell was known as “T-bar no 8”). In his oral testimony Mr Herd said, at various times, that when he saw the T-bar, it was “broken”, “twisted”, “bent”, and not “straight” at the top. In cross-examination he said that he did not have a good memory of the T-bar.

27 Ashford DCJ did not refer to the evidence of the respondent, Mr Bozic and Mr Herd in the three paragraphs that contained her findings and reasoning as to breach of duty. At no point did she indicate whether she accepted or rejected that evidence.

The maintenance of the T-bar and the examinations of the rope

28 During the skiing season, the Brumby T-bar opened at 9.00 am and closed at 4.45 pm. Checks were made on the T-bars by the appellant’s lift maintenance personnel each morning at 7.00 am. A daily ropeway log was kept to ensure that all requisite checks were done prior to start up. The lift operators who carried out the checks were required to sign and initial the log.

29 The daily 7.00 am inspection on 10 September 2001 was undertaken by three technicians, including Mr Laing, a lift operator. Mr Laing completed the daily ropeway log. He stated, under the heading “Maintenance Required”, that T-bars 11 and 8 were “broken”. Although this was a contemporaneous note, the parties did not take it up and the inference is that, whatever damage there was to T-bar 8, it had been repaired by the time it came to tow the respondent.

30 There is no reference in the ropeway log to any fraying of the rope; the inference is that the technicians, in carrying out their early morning daily inspection, did not notice any fraying.

31 In addition to the 7.00 am inspection, that morning Mr Black carried out a routine weekly inspection. Thereafter, he completed a standard maintenance form, a section of which required him specifically to “check for T-bar rope frays”. He signed off that section without mentioning any fraying. There were other maintenance records in evidence where Mr Black, on past occasions, had specifically mentioned rope frays in regard to other T-bars.

32 Mr Black testified that he checked for frays on that part of the rope that extruded from the tip of the T-connection piece, but found none. He did not check whether there was any fraying on the part of the rope concealed within the T-connection piece. It was not suggested to Mr Black in cross-examination that he was mistaken in recording that the rope was not frayed.

33 Mr Black described the procedure that he followed for checking whether the rope was frayed. He said the T-bars had to be pulled down and the ropes checked. If there were any problems the lift would be stopped. He was asked what he looked for when he inspected a T-bar for rope frays. He said:

“Well, you pull your bar down and you just continue, you usually feel the top of the bar where the rope is going onto your bump and then with eye view just look all out the line and make sure the rope’s fine”.

He said that normally he would notice a fray, if it existed, “within the first foot or two”.

34 Mr Turel said that - in the course of the ordinary operation of the Brumby lift - lift operators would automatically check for rope fraying as they assisted people to get onto the T-bars. Lift staff were told to keep an eye out for fraying of the cord and this was easy to do as the ropes were “right in front of their face[s]”. This was a third category of checks that were carried out on the ropes.

35 Ordinarily, Mr Black completed his maintenance by 10.00 am to 10.30 am. The respondent said that he arrived at the ski field after 9.00 am and skied for “about a couple of hours” before he was injured. It seems that the accident occurred about a half an hour after Mr Black inspected T-bar 8 when he found no evidence of fraying.

36 Ashford DCJ found, “There appears to be no system in place for checking each T-bar for frays every morning”. This finding, on its face, is plainly wrong.

37 Her Honour gave no reasons for finding that the rope snapped “on this occasion”.

The cause of the snapping of the rope

38 The evidence as to the cause of the rope breaking (if it indeed broke) was varied.

39 Dr Samson expressed the view that the cause of the rope breaking was a reduction of intact fibres in the core resulting from abrasion and fraying during use. Her Honour summarised the evidence of Dr Samson as follows:

“Dr Samson had the benefit of a view of the Perisher Blue T-bar in September 2004. He took photographs which were included in his report and described the state of the ropes to the T-bars on that occasion as being very badly frayed with the rubber cover at the top of the T-bar being badly jagged at the top which would have some effect on fraying the rope. He also thought there to be some fraying caused by the sharp inside edge in the top of the T. He also thought that fraying would occur by the rope being twisted and in contact with other things. Dr Samson predicated his opinions in relation to this matter on the assumption that the T-bar had snapped off because of rope breakage. He agreed that if there was no damage to the nylon core on the calculation he had made the rope, although not his choice, was perfectly safe for its purpose. In his view the cause of the rope breaking was very likely a weakened rope due to fraying.”

40 Dr Samson accepted that if an inspection of the rope had been carried out on the very morning of the accident, and had such an inspection revealed no fraying of the outer sheath, his conclusions as to the cause of the accident being a broken rope would be “very unlikely”.

41 Any finding based on Dr Samson’s evidence should have had regard to the inspections that in fact were carried out, the fact that he was unable to examine the rope that had snapped, and the T-connection piece that was in use at the time and, in addition, that there was no evidence that the rope had frayed. Ashford DCJ, however, did not explain what influence, if any, these matters had on her finding that the fraying of the rope caused it to break.

42 Mr Gow had had extensive experience in the ski industry and management of ski fields. He was experienced in the management of risks attendant upon the operation of ski fields and in the safety measures undertaken by the industry in this regard. The judge noted that Mr Gow expressed the opinion that:

“[Had there] been a breakage of the towing rope … such sudden failure would have been more likely due to an overstressing event of the rope, cutting or damage caused by a T and rope over the haul cable [sic] or vandalism as to fraying, such events having more likelihood of damaging the load bearing core than fraying during the short operating season.”

43 According to Mr Gow, the two primary mechanisms of towing failure were a breaking of the rope between the spring box and the T-connection piece or a failure of the T-bar stem shaft, usually at the junction point of the shaft and the seat. He said that failures of this kind, although rare, could occur when the seat digs into the snow and becomes caught, when the T-bar strikes a solid object such as a lift tower, when T-bars travelling in opposite directions become entangled, when a T-bar “flips over the haul cable” and vandalism. These events usually result in bending or tube distortion and overstressing of the rope.

44 Doppelmayr (the manufacturer of the ski equipment), in its manual, gives a number of possible causes for towing ropes breaking. These include “excessive wear of the towing cable in the area of the T-bar connection piece, eg due to hard impact on the T-bar catcher”.

45 Vandalism on ski fields is well-known, and vandals have damaged ski equipment, particularly ropes, in the past. Mr Turel said in this regard that usually “young people and pocket knives and cigarette lighters have been the problem”. He said that vandals had, in the past, cut the rope, “just above the T”. The Doppelmayr manual warns of “damage to the towing cable, caused by improper behaviour of skiers (such as with knives or matches)”.

46 Ashford DCJ made no reference to vandalism as a possible cause of the rope breaking, nor did she indicate how she resolved the conflicting evidence of Dr Samson and Mr Gow. It is indeed not at all clear whether her Honour recognised that there was a conflict and whether she did in fact resolve it.

The fraying of the rope within the T-connection piece

47 When Dr Samson inspected the Brumby T-bar three years after the accident, he found that fraying had occurred inside the T-connection piece of a T-bar unit (not the unit that the respondent had been using when he fell). The fraying he found was about 5 mm above the knot in that part of the rope that passed through the tube at the top of the T-connection piece. The tube would ordinarily conceal fraying in that area. Dr Samson observed fraying only of the sheath. He saw no evidence of fraying of the inner core.

48 Dr Samson said that the fraying he so observed was caused “no doubt due to contact with the whole wall inside the T-connection piece particularly at its lower end entrance”. He also said that it was caused by “a relatively sharp edge … of the hole at the bottom with which the rope is in contact”. Dr Samson concluded:

“[S]evere fraying of the towing rope occurs in this design of the towing system, which requires frequent maintenance for safe operation”.

49 Mr Turrel agreed that fraying of the rope could occur inside the T-connection piece.

50 Mr Gow was asked whether fraying could occur inside the T-connection piece. He replied:

“Well, in that section it is the least likely location on that component, on a T-bar, to fray because to fray a rope you must have movement of that rope. You must have abrasion, you must have movement of the rope against some other component part and once the knot is pulled tight in that then you must have either some transverse or vertical movement of the rope within that shaft and it doesn’t occur or it would occur to such a minor extent that it is not an area that you would expect fraying.”

51 Later, in cross-examination, Mr Gow agreed that fraying inside the T-connection piece was something that one would “least expect”. He said that this view was based on his knowledge of ropes and the fact that “to abrade a rope you must have friction with some other component and that means movement, and there is no movement in that section”.

52 Doppelmayr makes no reference in its manual to fraying within the T-connection piece.

53 It might have been open, on this evidence, for Ashford DCJ to conclude that fraying could occur within the T-connection piece. It might, also, have been open to her Honour to conclude that, in this case, fraying in fact occurred in this area. But such a finding would have required her Honour to weigh the evidence of Dr Samson against that of Mr Gow, to decide on the value to be attributed to Mr Bozic’s apparently fleeting look at the T-bar when he did not observe any rope (giving rise possibly to an inference that a piece of broken rope was concealed within the T-connection piece) and to have regard to the other relevant evidence. Her Honour should also have considered the other possible causes of breakage in the light of all the evidence in the case. There is no sign from the judge’s reasons that she undertook this process, or any part of it. Nor is there any sign that her Honour did decide that the rope broke in the area within the T-connection piece.

The need to inspect the rope within the T-connection piece and the time that such an inspection would have taken

54 Dr Samson, in his report dated 19 May 2005, said:

“Careful inspection of 35 T-connection pieces at the bottom of the ski lift run would take approximately 15 minutes, a short time for a weekly inspection.”

55 This proposition was put to Mr Gow in the following exchange:

“Q. If a lift maintenance person had to inspect the rope inside the head of a T would you agree with me to inspect say 30 spring box mechanisms each with a T on it, to inspect that part of the rope where it was knotted in the beginning inside the T shaft of the head, that would take no more than 15 to 30 minutes?
A. For each one?
Q. No, no, for the whole lot?
A. I disagree. You have to move the lift each time and that takes two personnel, you have to move the lift each time to a designated location and that takes time – no, you’re talking about a fairly complex operation which would tie up some hours to do it properly.
Q. Assuming for the moment that someone was pressing the button to take the T around to the other lift maintenance fellow, how long would it then take for him to pull out the rope, inspect it and put it back.
A. It would take a few minutes for each one plus movement of time and that sort of thing. But to do a regular function like that you should have an identified need and again if I was operating the Brumby T-bar I would not consider that to be reasonable inspection process because that’s not an area of wear.

56 Dr Samson said that every item on the ski lift, which could be dangerous and be a hazard, should be checked according to the Doppelmayr requirements. He said:

“They have tens of years of experience with these things.”

The Doppelmayr manual refers expressly to the need to replace end knots at least once a year and to replace towing cables after three years “at the latest”. The manual makes no reference to inspecting the part of the rope that passes through the T-connection piece (although it does say that the towing cable should be checked for wear, particularly “at the T-connection piece”).

57 Dr Samson’s evidence was that a satisfactory system would be to inspect the part of the rope that passes through the T-connection piece on a weekly basis. The judge found that such an inspection should have been made “daily”. No witness gave evidence to this effect.

58 Mr Greenwood submitted that inspecting each T-bar would involve pulling the T-bar down from the overhead cable, supporting the T-bar in a position to enable the rope to be pulled out, using pliers to pull out the rope, examining it and then letting it go, and then advancing the line so that the operator could perform the same tasks with the next T-bar. He pointed out that sometimes the knot and the washer would be jammed in the tube and it might take a couple of minutes or more to extract it with the pliers.

59 Assuming that, on average the process would take three minutes a T-bar and there were 35 T-bars, it would take two men (one to operate the overhead cable and the other to examine the rope) about an hour and forty-five minutes to inspect the rope within the T-connection piece. Should the process, on average, take five minutes, the overall period would be close to three hours. The appellant operated about another 24 similar towing lines, and the time that would be taken to inspect the ropes within the T-connection pieces on those lines would also have to be taken into account.

60 As I have noted, Ashford DCJ found that “[f]rom the evidence”, a daily inspection “would cause little inconvenience cost or expense” and that “clearly [it was] a simple exercise” that would take “a very small amount of time”. This is not a finding “from the evidence”. It is a finding that would have to be made after resolving the conflicting evidence on the issue. There is no sign in her Honour’s reasons that she did seek to resolve the conflict.

Errors in fact-finding

61 In Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1835, [130] Hayne J said:

“Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact-finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”

62 Ashford DCJ gave no reasons for not accepting the evidence that supported the appellant’s contention that the cause of the accident was the T-bar becoming damaged. The reasons she did give are open to the inference that she did not have due regard to this evidence at all.

63 Her Honour made the bald finding that the rope frayed and broke at the area of fraying. No reasoning explained how these findings were arrived at.

64 Ashford DCJ gave no indication that she had regard to the maintenance that had been carried out on the rope shortly before the accident. Her erroneous finding that there was no system for checking each T-bar for frays each morning suggests that she did not.

65 There was no indication from her Honour’s reasons that she considered whether the rope broke within the T-connection piece. There was no indication that she weighed the evidence of Dr Samson in this regard against that of Mr Gow, that she considered Mr Bozic’s testimony, or had regard to other possible causes of breakage.

66 Her Honour made no reference to the conflict between Dr Samson’s evidence and that of Mr Gow relating to the reasonableness of inspecting the rope within the T-connection piece. This conflict had to be resolved before a decision could properly be made as to the rope inspections that should have been carried out.

67 Her Honour said that it appeared from the evidence that inspections of the rope within the T-connection piece would be simple exercises that would take a very small amount of time and cause little inconvenience cost or expense. There was, however, a sharp conflict in the evidence on these issues. While, at an early part of her reasons, the judge referred to some of Mr Gow’s evidence, she said nothing about the part of his evidence relevant to this issue. This gives rise to the inference that she did not consider it.

68 The judge decided that the rope within the T-connection piece should have been inspected on a daily basis when no witness supported this proposition.

69 I would add that most of the judge’s reasons were taken up with setting out parts of each witness’s testimony, apparently selected at random. No real attempt was made to connect the evidence described with a particular issue in the case. As I have indicated, important pieces of evidence have not been set out and it is not clear whether her Honour had regard to the absent evidence when making her decisions. Moreover, basic primary findings of fact have not been made.

70 These matters constitute substantial errors in fact-finding. The appeal must succeed. The parties indicated that they desired this Court to resolve the case itself, but in the absence of the necessary findings of fact on disputed issues it is unfortunately unable to do so.

71 I propose the following orders:

(a) The appeal is upheld.


(b) The judgment and verdict of the trial judge is set aside.

(c) The respondent to pay the appellant’s costs of the appeal.

(d) The matter is remitted to the District Court for retrial.

(e) The respondent to have a certificate under the Suitor’s Fund Act 1951 (NSW) if otherwise qualified.

72 TOBIAS JA: I agree with Ipp JA.

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21/09/2006 - Typos (2) corrected in Cover Sheet. - Paragraph(s) N/A