Sutherland Shire Council v Dietz - [2004] NSWCA 53

NEW SOUTH WALES COURT OF APPEAL

CITATION: Sutherland Shire Council v Dietz [2004] NSWCA 53 revised - 11/03/2004

FILE NUMBER(S):
40955/02

HEARING DATE(S): 18 December 2003

JUDGMENT DATE: 11/03/2004

PARTIES:
Sutherland Shire Council (Appellant)
Sandra Dietz (Respondent)

JUDGMENT OF: Meagher JA Tobias JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4773/01

LOWER COURT JUDICIAL OFFICER: Garling DCJ

COUNSEL:
Mr J E Maconachie QC/Ms V Heath (Appellant)
Mr B M J Toomey QC/Mr I D Cullen (Respondent)

SOLICITORS:
Ebsworth & Ebsworth (Appellant)
Paul A Curtis & Co (Respondent)

CATCHWORDS:
NEGLIGENCE - EVIDENCE - personal injuries suffered by respondent when she fell into an open drain from which grate had been removed - whether trial judge's conclusion that Council breached its duty of care "glaringly improbable" - failure to consider evidence - where case determined upon a basis not put to appellant's witness - failure to give proper reasons for rejecting evidence - whether respondent nevertheless established sufficient prima facie case - D

LEGISLATION CITED:

DECISION:
1. Appeal allowed. 2. Verdict and judgment in the Court below set aside. 3. Verdict and judgment to be entered for the appellant. 4. Respondent to pay the appellant's costs of the appeal, the trial and the arbitration in the Court below and, in respect of the appeal, to have a certificate under the Suitors' Fund Act if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40955/02
DC 4773/01
MEAGHER JA
TOBIAS JA
McCOLL JA
Thursday, 11 March 2004

SUTHERLAND SHIRE COUNCIL v Sandra DIETZ

Facts
The respondent was injured on 24 March 2000 when she fell after putting her foot into an open drain in a pathway located in the Menai District Community Facilities Complex at Menai. After the fall the respondent observed a council employee covering the drain with a grate. It transpired that the drain was usually covered by the grate. The respondent brought negligence proceedings against the Council. Her case was that the council employee had, at some time prior to the accident, removed the grate in order to clean the drain and had not placed any warning around the open drain. The Council denied anyone on its behalf had removed the grate. It educed expert evidence that the drain was designed and constructed to be self-cleansing.
Garling DCJ did not accept the Council’s denial of responsibility. His Honour concluded that the only reasonable inference open was that the council employee removed the grate for the purpose of cleaning the drain, had not replaced it and had neglected to warn people. He awarded the respondent $87,669.00 in damages.
The Council was given leave to appeal. It argued that his Honour erred in finding that it had breached its duty of care to the respondent.
HELD per McColl JA (Meagher JA and Tobias JA agreeing) allowing the appeal:

Garling DCJ’s conclusion that a council employee removed the grate was glaringly improbable. It was reached in circumstances where the trial judge failed to consider all the evidence and determined the case upon a basis which was not put to the appellant’s witness: Warren v Coombes (1979) 142 CLR 531; Fox v Percy [2003] HCA 22, (2003) 197 ALR 201, (2003) 77 ALJR 989; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842, 62 ALR 53; Chambers v Jobling (1986) 7 NSWLR 1; Davis v Council of the City of Wagga [2004] NSWCA 34 referred to.
Garling DCJ failed to give proper reasons for rejecting the council employee’s evidence: Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 referred to; Zaronias v Papaiani [2002] NSWCA 207 distinguished.

The advantage the trial judge enjoyed by having seen the council employee give evidence was not sufficient to explain or justify his Honour’s conclusion as to the reliability of his evidence: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 per McHugh J referred to.
The evidence that the drain was designed and constructed to be self-cleansing was sufficient to displace any prima facie case the respondent may have established that anybody on behalf of the Council would have removed the grate: De Gioia v Darling Island Stevedoring & Lighterage Co Limited (1941) 42 SR (NSW) 1; Hampton Court Limited v Crooks (1957) 97 CLR 367 referred to.
Orders:
1. Appeal allowed.

2.            Verdict and judgment in the Court below set aside.
3.            Verdict and judgment to be entered for the appellant.
4.             Respondent to pay the appellant’s costs of the appeal, the trial and the arbitration in the    Court below and, in respect of the appeal, to have a certificate under the Suitors’ Fund Act if otherwise qualified.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40955/02
DC 4773/01
MEAGHER JA
TOBIAS JA
McCOLL JA
Thursday, 11 March 2004

SUTHERLAND SHIRE COUNCIL v Sandra DIETZ

Judgment

MEAGHER JA: I agree with McColl JA.
TOBIAS JA: I agree with McColl JA.
McCOLL JA: Sutherland Shire Council (the “Council”) was granted leave to appeal from the judgment of his Honour Judge Garling delivered on 23 September 2002 in which he found the Council liable in negligence for an injury sustained by the respondent on 24 March 2000.
The respondent was injured at about 10.45 am on that day when she fell after putting her foot into an open drain in a pathway located in the Menai District Community Facilities Complex at Menai.
After her fall the respondent observed a Council employee, a Mr Duncan, covering the drain with a grate, which, it transpired, ordinarily covered it. The respondent’s case was that Mr Duncan had, at some time prior to her accident, removed the grate in order to clean the drain, had not placed any warning around the open drain and while it was open, she had stepped into it. The Council denied that Mr Duncan, or anyone on its behalf, had removed the grate. Mr Duncan denied he had removed the grate. The Council said the grate had been removed by someone for whom it was not responsible, most probably vandals.
Judge Garling did not accept Mr Duncan’s denial. He concluded that the only reasonable inference open was that the drain was being cleaned by Mr Duncan, who removed the grate for the purpose of cleaning it, had not replaced it and had neglected to warn people. He awarded the respondent $87,669.00 in damages and ordered the appellant to pay her costs on an indemnity basis.
The appeal is confined to the issue of liability.
Issues on appeal
The appellant relied upon the following grounds of appeal, all but the last of which turn upon the essential issue as to whether or not his Honour was correct in finding that the Council had breached its duty of care to the respondent. The grounds of appeal were:
(a)that his Honour erred in finding that the Council breached any duty of care to the plaintiff;
(b) that his Honour erred in finding there was an available inference that the Council’s employee Mr Duncan removed the drain grate;
(c) that his Honour relied on irrelevant matters, failed to take into account relevant evidence and mistook the evidence on matters relevant to his decision;
(d)that his Honour failed to give any or proper reasons for rejecting the evidence of Mr Duncan and Mrs Lisk;
(e)that his Honour wrongly rejected the evidence of Mr Duncan and Mrs Lisk;
(f) that his Honour reversed the onus of proof;
(g)that his Honour erred in finding that the Council owed any relevant duty of care to the plaintiff in that the hazard was one that could have been avoided by the plaintiff taking reasonable care.
The appellant sought orders upholding the appeal, setting aside the verdict and judgment in the Court below, the entry of verdict and judgment in its favour and an order that the respondent pay the appellant’s costs of the appeal, the trial and an arbitration which apparently took place in the proceedings prior to the hearing before Garling DCJ.
Statement of the case
On 24 March 2000 the respondent was walking along the pathway passing between a number of community facility buildings near the Menai Town Centre. The pathway was located between two legs of Allison Crescent. There was a clock tower with four archways allowing access on each side to community buildings midway along its length. The pathway was 3m wide and constructed of a concrete base with border tiles around exposed aggregate infill panels. At the western edge of the clock tower there was a 300mm wide box drain with a 360mm wide grated cover set in a steel frame. The drain ran across a pathway and was bounded on each side by a row of tiles. Photographs of the area were tendered. Garling DCJ found they depicted an “excellent path”.
The respondent was walking along the pathway with an acquaintance, Ms Hart, who was walking slightly behind her using a walking stick.
The respondent’s account of the accident was simple: she was walking along the path, her foot went into the open drain, she fell and injured herself. She said that there was a structure (presumably the clock tower) which cast a shadow across part of the area where the grate should have been. Although Garling DCJ did not make an express finding to this effect, it appears that he accepted that the shadows obscured the respondent’s ability to identify the fact that the drain was open rather than forming a part of the path along which she had been progressing immediately prior to the accident. The respondent realised, after she fell, that the drain did not have a cover. She looked around to see whether she could see a cover and was unable to see one anywhere. She also observed that the drain was clear of any debris and saw mud and “scraping marks”. She also saw a pile of mud and a few leaves on one side of the drain on the pathway.
Ms Hart also looked around after the accident and could not see a grate. She observed the drain to be “an open drain with muddy inside but it was cleanish” and that there was “a clod of mud or something with leaves on the right hand side”.
After the accident the respondent and her friend went to a nearby Community Health Centre and asked a woman, who it later transpired was a Mrs Lisk, to report the accident. The respondent and her friend were in that building for approximately five minutes or less. When they emerged they saw the council employee later identified as Mr Duncan on his knees with a grate, dropping it into the drain into which the respondent had stepped. The respondent and Ms Hart both gave evidence of a conversation which they said occurred with the workman. The respondent told the workman she had fallen down in the drain and asked where the grate had come from. The workman then said he had found the grate and indicated towards an area which appears to have been some distance away from the drain. Ms Hart said she had previously looked at the area the workman had indicated and had not seen the grate there.
The respondent and her husband returned to the area in the afternoon and photographed the drain into which she had stepped and the pathway along which she had walked prior to the accident. Two of the photographs depict what appears to be a small amount of mud and possibly some other debris on one side of the drain. The respondent gave evidence that the mud as depicted in the photograph was dry and flattened out compared to the morning when she had fallen.
The respondent said that prior to her fall she had seen the workman who replaced the grate in the adjacent parkland. She said he was almost next to his vehicle which was about 30m up the pathway. He was picking up papers.
Mr Duncan, the workman in question, was employed by the Council as a labourer/driver. He had worked in that position for approximately eight years prior to the accident. He had been employed by the appellant for almost twenty-eight years at the time of the accident, thirty years at the time of the hearing.
Mr Duncan gave evidence redolent of a routine of compelling ordinariness.
On Monday and Friday of each week he was responsible for picking up all the rubbish and cleaning the three bins in the area of the pathway. The area he was responsible for cleaning extended for nearly an acre. It was not his responsibility to pick up debris. That was the responsibility of other maintenance employees of the appellant. It was not his job to clean drains.
He said that the job he had to do at Menai was one of the last jobs of the day. He was to knock off work at 1 pm on the day in question.
On that day he said that he arrived in the area of the pathway, parked his car, got his pick up stick and started picking up rubbish. He said that as he was going around his area he noticed the grate over the drain was missing. He found it on the grassed area. He marked one of the photographs which had been tendered with the position in which he said he found the grate. Garling DCJ observed that although it was difficult to gauge the distance, probably the most significant observation which could be made in relation to the mark Mr Duncan placed on one of the photographs was that, according to Mr Duncan, the grate was lying on the grassed area which the respondent would have walked past immediately prior to the accident.
Mr Duncan said he had not worked near the drain before he saw the grate was missing. He said that he pulled the grate along the ground to put it back into the drain. He said he did not lift it because it was “a bit heavy”.
He said he had never seen the grate off the drain before and that he had not removed it.
Under cross-examination he denied cleaning the path in which the drain was located. He could not remember a conversation with the respondent and her friend. He did not deny it happened.
The proposition that, contrary to this evidence, he had removed the grate from the drain was put to him with ritualistic formality in the following passage of cross-examination:
Q.You see sir, I put it to you that in fact on 24 March 2000 you removed the grate in order to clean the drain?
A.           Well I don’t clean the drain for starters.
Q.           Do you agree with that or disagree with that?
A.           I disagree what you said, I do not clean the drain.
Q.           I put it to you that you removed the grate?
A.           I did not remove the grate and I do not clean the drain.
He said that two people had to lift the grate and that he had not lifted it, rather he had pulled it across the grass, across the grate area and then dropped it into the drain.
At the respondent’s request, Mrs Lisk reported the fact that the drain was uncovered to the Council. Later that day a Mr McGrath, an electrician employed by the appellant, went to the area. He found the grate was intact. His building works’ co-ordinator had told him to make the grate secure and he sought to do that by knocking some galvanised washers in the gap between the grate and the wall of the drainage pit. He tried to lift the grate out of the drain and found that he struggled to lift it 25 centimetres. He described it as “fairly heavy”.
The respondent tendered an expert’s report prepared by a Mr Burn, an engineer. He inspected the drain and the grate and observed that the grate had been fixed against vandalism by two standard steel flat washers. He concluded that it required considerable pressure with a large screwdriver to dislodge the washers and lift the grate. He concluded that the use of the washers was a practical solution preventing the easy removal of the main panels of the grate.
The appellant tendered an expert’s report prepared by Mr Abbott, also an engineer. It was admitted without objection. He described the grate as being 3m x 360mm and weighing 55kg. He said it would most likely take two or more youths to lift and remove the grate.
He said that the drain was designed to be self-cleansing, thus negating the need for regular maintenance except at pits. He said it was standard practice in the design and construction of gravity flow stormwater and sewer drainage systems to lay the pipes or gutters with sufficient fall to ensure they were self-cleansing. He said that the subject drain had a grade of 1 in 43 or 2.3% which was more than adequate to perform the self-cleansing function. He said that the design of the grated drain was in line with current public works practice. He concluded the grate was removed by persons unknown but considering its weight “it was most likely two or more adult persons”.
Neither expert was required for cross-examination.
Reasons of the trial judge
The trial judge identified two issues which he said he had to resolve.
The first issue was whether a Council employee working in the vicinity of the drain had removed the grate to clean it, and had not placed any warnings in or around the open drain, with the consequence that whilst the grate was removed the respondent had stepped into the drain. He noted that there was no direct evidence of the allegation that a Council employee had removed the grate to clean the drain.
The second issue the trial judge identified was the respondent’s alternative case that if the grate had been removed by vandals then the Council had breached its duty to her because it should have secured the grate in such a manner that it could not have been easily removed.
The Council’s response to that issue was to say that while it may have been preferable to have fixed the grate more securely, having regard to the weight of the grate and the fact there had been no previous incident involving it, the case should not be decided with the benefit of hindsight.
The trial judge resolved the case by finding in the respondent’s favour on the first issue. He did not consider the second issue. The respondent has not complained about that fact. She has not filed any notice of contention.
The trial judge delivered his judgment on the day the evidence was taken. It appears to have been ex tempore. It is repetitive and, at times, appears confused. The following account of the judgment is recounted in the order in which it was delivered.
The trial judge recounted the short facts of the case. He accepted that the grate was long and reasonably heavy. He found that the grate had been totally removed from the drain and that it was not in the vicinity of where the respondent had her accident.
After referring to the encounter between the respondent, Ms Hart and Mr Duncan, and Mr Duncan’s statement that he had “found the cover nearby”, the trial judge commented:
“All that adds up to a fairly strong inference to support the plaintiff’s case.”
He then recounted Mr Duncan’s evidence, noting the period which had elapsed before he had been asked to turn his mind to the incident, the fact that he had no memory of speaking to the respondent and Ms Hart, his evidence that he did not clean drains, and his recollection of replacing the drain cover.
The trial judge accepted that in order to resolve the case he had to determine whether he could infer that Mr Duncan had removed the grate in order to clean the drain. He concluded that the only reasonable inference open was that the drain was being cleaned by Mr Duncan, who removed the cover for the purpose of cleaning it, had not replaced it and had neglected to warn people. He came to that conclusion for what he described as a “large number of reasons” which I set out below.
The trial judge first concluded that the respondent and Ms Hart were excellent witnesses whose evidence he could accept without difficulty. After the accident they both observed that whilst the drain was clear of leaves there was mud and in one case scrape marks leading to the clear inference, in his Honour’s view, that the drain had been cleaned. The trial judge concluded that the evidence of what he described as “clumps of mud and debris” outside the drain, was consistent with the drain being cleaned. While his Honour touched, albeit lightly, on the possibility that the drain was clear of leaves because there were no leaves in the vicinity, he rejected that in preference to “the clear inference that it had been cleaned”.

Next, the trial judge referred to the weight of the grate and the fact that it would have been difficult for it to be lifted. He referred to Mr Duncan as “a large man … obviously a person who had worked outside for at least ten years who would have been able to and did, put or drag the drain back into place and therefore would have been capable of removing it”.
He also referred to evidence that the respondent had told Mrs Lisk that the grate had been lifted for the purpose of cleaning and that was “clearly … in her mind”. What reference that observation had is not readily apparent.
Next, his Honour referred to “the high point, there is Mr Duncan, an employee of the defendant, putting the drain cover back in place”.
The trial judge then sought to explain how it had come about that Mr Duncan was putting the drain cover back into place within five minutes of the accident. His Honour’s process of reasoning at this stage is not entirely clear and is best set out in full:
“I have to ask myself why that suddenly happened. If he was not cleaning it, if he had been there, and he had been there because the ladies observed him, why did that suddenly happen? He did not say in his evidence that he had seen the fall or that anyone had told him what had happened but he was, within a very short time, replacing the cover. His actions are totally consistent, in my view, with a person who was cleaning the drain who had left the cover off whilst doing something else and had realised that suddenly had to be put back on. His actions in my view and his evidence were totally consistent with a person not accepting the blame for what may have happened. In addition to that, neither of the ladies saw the drain cover close to the area of the drain. It is unlikely that the drain cover would have been off for any extended period of time.” (Emphasis supplied)
His Honour then, as I understand the structure of his judgment, reviewed the appellant’s case.
The trial judge rejected the Council’s hypothesis that the drain cover had been removed by vandals. He appears to have done so on the basis that had vandals removed the drain cover, that would have been done either in darkness or in the early hours of the morning and that, having regard to the time at which the accident happened (some time between 10.30 and 11.00 am), it was highly unlikely that no one would have done anything about the open drain in the meantime.
He also observed that there was no evidence of signs of any other type of vandalism, queried why this particular heavy drain cover would be taken up and observed that there had been no previous reports of vandalism to the grate. Finally, he concluded:
“So for it to be vandals, then it would have had to, in my view, have occurred at such a time when there were not many people in the area. It would have had to be a very isolated incident of vandalism which seemed to have no purpose at all and would seem to me to be totally unlikely.”
The trial judge then weighed up the evidence to which he had referred. He considered it was possible that vandals could have removed the drain cover and that no one had noticed over an extended period of time. He said it was possible Mr Duncan may have been correct to say it was not his job to clean the area.
The trial judge dismissed these possibilities without elaboration. He concluded that he was satisfied that the only reasonable inference open on the evidence was that the grate was removed by Mr Duncan for the purpose of cleaning the drain, that he had not put it back, had not warned anyone about the obvious danger and “he could have easily done all of these things.”
The trial judge made passing reference to the two experts’ reports but concluded neither was of much assistance.
Turning to the issue of contributory negligence, the trial judge concluded that the hole was in the middle of the shadows, that the respondent had been “walking along in the normal manner and doing everything she should do.” He found that there was no contributory negligence. The Council does not challenge that finding.
Assessment of witnesses
The trial judge accepted the respondent and her friend Ms Hart as excellent witnesses who were very sure of their evidence and gave it in a straightforward and acceptable manner. He had no doubt about the accuracy of their evidence.
His findings about Mr Duncan were more equivocal and somewhat inconsistent. While he acknowledged that Mr Duncan was trying to do his best when he gave his evidence, he concluded he was a “far from impressive witness”. He noted that Mr Duncan had not been asked about the incident for some years after it occurred. He had no memory of speaking to the respondent and Ms Hart although he did remember replacing the grate. He concluded that he was not a witness with a good memory. He accepted that it was possible that Mr Duncan was correct in saying it was not his job to clean the area. However, when he assessed all the evidence he said he did not accept the accuracy of Mr Duncan’s evidence apart from his broad statement. He did not identify any particular respect in which he found Mr Duncan’s evidence wanting.
The appellant’s submissions
The appellant submitted that the Court of Appeal was in as good a position as the trial judge to determine what inferences, if any, could and should be drawn from the established facts and unchallenged or uncontroverted evidence and to determine the sufficiency of proof offered by the respondent: Warren v Coombes (1979) 142 CLR 531; Jones v Dunkel (1959) 101 CLR 298.
Mr Maconachie QC who appeared for the appellant submitted that the trial judge’s findings were glaringly improbable because it was illogical to suggest that:
(a)Mr Duncan would undertake an activity which was not within his duties;
(b)Mr Duncan, had he removed the heavy grate, would have moved it so far away from the drain that it could not be seen by the respondent and her friend;
(c)If Mr Duncan had removed the grate, he would not have left it as close as possible to the drain;
(d)He would have removed the grate, not completed whatever task it was that caused him to remove the grate in the first place, moved far away from the drain and start another activity before returning to replace the grate.
In addition, Mr Maconachie QC submitted that it was not open to the trial judge to find that Mr Duncan had removed the grate and that, in effect, his denial was an attempt to avoid blame in circumstances where that case had not been put to Mr Duncan in cross-examination.
The appellant submitted that there should be a verdict entered in its favour because Mr Duncan’s evidence was inherently reasonable, probable, consistent with the objective facts and the respondent’s observations of him on the day. Once Mr Duncan’s evidence was accepted, the appellant submitted, the respondent’s primary case failed.
The appellant’s written submissions challenged the trial judge’s reasons on a number of bases. It submitted that the inference he drew that Mr Duncan removed the grate to clean the drain was not open to him, that he made errors in fact finding, that he reversed the onus of proof, that he overlooked or wrongly rejected Mr Duncan’s evidence and that he failed to give proper reasons.
The inference was not available
The appellant submitted that the trial judge’s conclusion that Mr Duncan had removed the grate to clean the drain failed the test of logical coherence and reasonableness required before an inference is available: Gurnett v Macquarie Stevedoring Co. Pty Limited (1955) 55 SR (NSW) 243 at 248 per Street CJ with whom Ferguson J agreed; Fabre v Arenales (1992) 27 NSWLR 437 at 448 per Mahoney JA with whom Priestley and Sheller JJA agreed. It was submitted that the “facts” on which the trial judge relied did not achieve that degree of positive suggestion required before mere possibility can pass from the “realm of conjecture” into the “realm of inference”: Jones v Dunkel (1959) 101 CLR 298 at 306-7 per Kitto J.
The appellant further submitted that Mr Duncan’s evidence that he found the grate and replaced it was reasonable, probable and consistent with the objective facts and was such that the trial judge was not entitled to reject it without there being clear reasons for doing so: Holman v Holman (1964) 81 WN (Pt 1) (NSW) 374 at 278 per Sugerman J; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431-432, 441 ff; Jones v Bradley [2003] NSWCA 81 at [125].
The appellant also submitted that the trial judge’s conclusion did not sufficiently accord with human experience of how people are apt to act for an inference to that effect to be available: see Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 222-227 per Mahoney JA; Jones v Dunkel (1959) 101 CLR 298 at 306-307 per Kitto J; R v Ryan (NSWCCA, unreported, 15 April 1994, BC9402482 per Mahoney JA with whom Gleeson CJ and Wood J agreed at 5).
Further, even if Mr Duncan’s evidence of finding the grate could be disregarded, the respondent’s case that he removed the grate did not rise above mere possibility (see Cofield v Waterloo Case Co. Limited (1924) 34 CLR 363) and was, on all the other evidence, inherently improbable.
The appellant then submitted that accepting the hypothesis that Mr Duncan removed the grate to clean the drain required the trial judge to conclude that a Council labourer of many years’ experience undertook difficult work that was not his job, work that required a significant and senseless detour from the economical performance of his usual duties, work that was more than one man could readily or safely undertake, work that was apparently unnecessary and that if undertaken in the manner the trial judge found, was performed with an additional degree of arduousness entirely unexplained on the evidence.
Accordingly, the appellant submitted that the evidence advanced to support the respondent’s case did not rise above the merely equivocal. It submitted that if proper significance was accorded to the trial judge’s finding that the grate was not in the vicinity of the drain, the proposition that the drain was being or had been cleaned became extremely improbable. The appellant submitted that if the grate had been removed in order to enable the drain to be cleaned, the natural and probable course would be to move the heavy, awkward grate as little as possible by placing it partly over or immediately next to the drain so it could be dragged back into place with the least possible additional effort. The appellant submitted that there was no apparent reason why the grate would be removed from the area of the drain which would be consistent with the drain being cleaned.
Penultimately, the appellant submitted that the presence of the scrape marks in the drain, to which the trial judge accorded significance, was equally if not more likely explained by events other than manual cleaning, including the action of debris washing through and out of the drain in its normal operation, the grate being dropped into and dragged out of the drain in the course of its removal by persons unknown or that somebody had stepped into the drain prior to the respondent and left shoe marks.
Finally, the appellant submitted that the small clumps of dirt and leaves next to the drain did not support the inference the trial judge drew. It was submitted that the amount of mud and leaves found adjacent to the drain would not have blocked it and would have been a most improbable impetus for cleaning it. The appellant also submitted that the clumps may have come from the drain or elsewhere, and if from the drain, may have come loose from the grate when it was removed, or from a person scraping retained mud from their shoe after inadvertently stepping into the drain.
In short, the appellant submitted that Mr Duncan’s appearance at the scene was better explained by diligent attendance to his duties than inane excursions from them.
Errors in fact-finding
The appellant criticised the trial judge’s finding of facts. In particular, the appellant submitted that the trial judge erred in finding that Mr Duncan replaced the grate within five minutes of the accident. The appellant pointed out that the evidence of both the respondent and Ms Hart was that they remained at the scene of the fall while the respondent recovered sufficiently to be helped up by a passer-by who waited until the respondent was ready to be assisted up and continued walking, that the respondent was there for “some time” before she was helped up and that the “five minute period” to which the trial judge had referred was the period during which the respondent spoke to Mrs Lisk before returning to the scene.
The appellant thus submitted that the trial judge was in error in finding that Mr Duncan had replaced the grate within five minutes of the accident. The appellant submitted that the trial judge’s finding that, in effect, the events had occurred in quick succession, was material to his reasoning process, including the manner in which he dealt with Mr Duncan’s evidence, his rejection of vandalism as an explanation for the removal of the grate, and the ultimate conclusion he reached.
The appellant further submitted that the trial judge’s failure to refer to Mr Duncan’s evidence of finding the grate and replacing it appeared to overlook the significance of his critical finding that the grate was not in the area of the drain.
The appellant also submitted that the trial judge relied upon a number of either equivocal or unfavourable facts in drawing an inference favourable to the respondent’s case. In addition to those to which I have already referred, the appellant pointed to:
(a)the trial judge’s reliance upon the fact that Mr Duncan would be able to remove the grate; it was submitted that mere capacity to remove the grate did not support a positive finding that he had in fact done so;
(b)Mr Duncan’s statement about finding the grate; the appellant submitted that the trial judge wrongly saw the explanation of finding the grate Mr Duncan gave on the day of the accident as supporting the respondent’s case, when it relevantly corroborated Mr Duncan’s evidence to the same or similar effect;
(c)the fact that the grate was heavy and difficult to lift; the appellant submitted that this fact did not support the cleaning theory and when taken with other evidence, including Mr Duncan’s denial that he removed the grate and the fact that the grate was designed to be self-cleansing, was strongly against it.
The appellant finally submitted that to the extent that the trial judge’s conclusion appeared to have been influenced by his acceptance of the respondent and Ms Hart’s credibility, he took into account an irrelevant matter, as no part of their evidence was relevantly in contest on the question of who removed the grate nor was their evidence logically capable of supporting the probability, as opposed to the mere possibility, of the cleaning theory.
Reversal of onus of proof
The appellant also complained that by treating the issue as one of deciding between potentially competing inferences, favourable and unfavourable to the respondent’s case, the trial judge had reversed the onus of proof as his inquiry became not whether the respondent had discharged her onus of proof but whether the “competing inference”, that vandals had removed the grate, could or should be accepted. The appellant thus submitted that the trial judge proceeded as though it was necessary for him to make a positive finding that vandalism had taken place before it could be found that the appellant had not been negligent.
Overlooking/wrongly rejecting Mr Duncan’s evidence/failure to give proper reasons
The appellant then complained that the trial judge overlooked or wrongly rejected Mr Duncan’s evidence and failed to give proper reasons. In particular, the appellant complained that the trial judge had not referred to Mr Duncan’s evidence of how he came to find the grate in the course of carrying out his usual rubbish collection duties. The appellant thus submitted that the trial judge’s failure to refer to this evidence implied that his Honour had overlooked it, referring to Mifsud v Campbell (1991) 21 NSWLR 725 at 728; cf Jones v Bradley [2003] NSWCA 81 at [123] – [126], [131].
The appellant criticised the trial judge’s assessment both of Mr Duncan’s motives and his actions in a number of respects. First, the appellant said that the trial judge’s conclusion that Mr Duncan’s actions were “totally consistent with a person not accepting the blame for what may have happened” had never been put to Mr Duncan. The appellant submitted there was no evidence that Mr Duncan had any motive to lie on oath. Moreover, the appellant submitted that the suggestion of intentional untruthfulness was inconsistent with the trial judge’s earlier finding that Mr Duncan was “no doubt trying to do his best”.
The appellant also submitted that the trial judge’s interpretation that Mr Duncan had been cleaning the drain, had left the grate off while doing something else and realised suddenly it had to be replaced, was not only never put to Mr Duncan but was also contrary to a reasonable view of the evidence. The appellant submitted that the trial judge gave no reason why Mr Duncan would undertake the task at all in the circumstances or in the exceedingly arduous and illogical manner postulated.
The appellant then submitted that the evidence Mr Duncan gave about where he had parked his car and how he had commenced his rubbish collection duty was not contradicted, and that the trial judge had given no reason as to why Mr Duncan would have walked 30 metres to clear a drain, left the job incomplete and returned to his point of origin to start or continue a normal or different duty. It submitted that that proposition was quite improbable.
The appellant criticised the trial judge’s statement that Mr Duncan was a “far from impressive witness” on the basis that the trial judge gave no reasons as to why he formed that view or how it affected his assessment of the evidence. The appellant complained that the trial judge did not refer to Mr Duncan’s demeanour as having any adverse bearing on his view of the evidence and drew attention to the statement made about Mr Duncan immediately prior to the criticised statement, namely that Mr Duncan was “no doubt trying to do his best”.
The appellant also submitted that the trial judge’s statement that he did not accept the “accuracy” of Mr Duncan’s evidence cast no further light on how that proposition affected the trial judge’s conclusion that Mr Duncan had removed the grate. The appellant submitted that accuracy was irrelevant either to Mr Duncan’s evidence of the scope of his duties and his invariable practice, and his recollection of finding and replacing the grate in the course of his rubbish collection duties.
Mrs Lisk’s evidence
As to ground of appeal 7, the appellant submitted that the trial judge had given no proper reason for rejecting Mrs Lisk’s evidence of the admission allegedly made to her by the respondent that she was “not looking”. The appellant submitted that the admission was relevant to whether the appellant owed and breached any duty of care: Burwood Council v Byrnes [2002] NSWCA 343.
The respondent’s submissions
The respondent dealt with the seven grounds of appeal in three topics:
(a)whether the trial judge erred in finding there was an available inference that Mr Duncan removed the drain grate by taking into account irrelevant matters and not taking into account relevant matters;
(b) whether the trial judge reversed or disregarded the onus of proof;
(c)whether the trial judge wrongly rejected the evidence of Mr Duncan and Mrs Lisk and/or failed to give any proper reasons for rejecting that evidence.
Was the trial judge’s inference available?
I do not believe I do the respondent’s written submissions an injustice if I state that, when dealing with the first topic as to whether there was an available inference that Mr Duncan removed the grate, the respondent basically recounted the manner in which the trial judge approached the determination of whether or not he could infer that Mr Duncan had removed the grate.

Having undertaken that exercise, the respondent submitted that the trial judge’s factual findings were open to him on the evidence and were used by him in the context of determining a circumstantial case where he had rejected the only direct evidence relating to the removal of the grate. Although the respondent did not specify the direct evidence the trial judge had rejected I infer it was Mr Duncan’s evidence that he did not remove the grate.
The respondent submitted that it was open to the trial judge with his advantage of observing Mr Duncan in the witness box to reject his evidence, referring to Devries v Australian National Railways Commission [1992] HCA 41, (1993) 177 CLR 472 at 479; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306.
Was Mr Duncan’s evidence overlooked?
The respondent submitted that the appellant’s argument that the trial judge had not considered Mr Duncan’s evidence of how he found the grate because it was not extensively referred to was not correct. The respondent submitted the trial judge had “clearly considered and rejected that evidence” and referred to the underlined passage I have set out earlier in this judgment. The respondent referred to Abalos v Australian Postal Commission [1991] HCA 47; (1990) 171 CLR 167 at 178-179 per McHugh J, and submitted that a failure to refer to some of the evidence did not indicate the trial judge had failed to discharge his duty.
The respondent also submitted that once the trial judge accepted the evidence of the respondent and Ms Hart and rejected Mr Duncan’s evidence, the necessity for formulating reasons had passed. The respondent submitted that the “evidence preferred” was not absurd or self contradictory and that the trial judge was not under any obligation to sift through all the evidence before him and explain at length why he rejected each item that was conceivably inconsistent with his decision. The respondent referred to Zaronias v Papaiani [2002] NSWCA 207 at [7] to support this submission.
Accordingly, the respondent submitted that in the light of the trial judge’s findings, Mr Duncan’s evidence was not inherently reasonable and probable and was inconsistent with the objective facts as found by the trial judge.
Whether the trial judge wrongly rejected the evidence of Mr Duncan and Mrs Lisk and/or failed to give any proper reasons for rejecting that evidence
The respondent submitted that the trial judge was correct to reject Mrs Lisk’s evidence. She also submitted that his conclusion that Mr Duncan replaced the drain cover within a “very short time” of the accident did not show error. She referred to evidence that she was only away from the scene of the accident for “no more than 5 minutes” before encountering Mr Duncan replacing the grate to support the trial judge’s conclusion in this respect.
In his oral submissions, Mr Toomey QC on behalf of the respondent submitted that this was a circumstantial case in which the trial judge’s conclusion that Mr Duncan had removed the grate was open to him. He submitted that that inference could be drawn from the following circumstances:
(a)          the grate was missing from the drain;
(b)the drain was located in an area for which the Council was responsible;
(c)          the respondent and her friend saw a Council worker nearby;
(d)although there was evidence the drain was designed to be self-cleansing, there was no evidence that it was operating in that manner at the time of the accident;
(e)the presence of mud and leaves near the drain supported the inference that it had been cleaned out;
(f)the respondent and her friend’s observations of scrape marks in the drain which they inferred meant that that somebody had tried to clean out the drain;
(g)the fact that the leaves near the drain must have come from it because there were no trees nearby;
(h)the fact that Mr Duncan’s evidence was not believed;
(i)the fact that there was no evidence from the Council as to how the grate could have been removed nor was there any evidence of the system which was in place, presumably in connection to cleaning the drain;
(j)           Mr Duncan had in fact replaced the grate;
(j)           the trial judge found Mr Duncan was unreliable.
Consideration
I am conscious of the constraints which bind an appellate court asked to review the findings of a trial judge based solely on the record of the hearing, especially in circumstances where, on one view, it is possible the trial judge’s conclusion depended upon Mr Duncan’s credibility: Fox v Percy [2003] HCA 22; (2003) 197 ALR 201; (2003) 77 ALJR 989.
Nevertheless, as was said by Gleeson CJ, Gummow and Kirby JJ in their joint judgment in Fox v Percy at [25] (footnotes omitted):
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect"... In Warren v Coombes, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in ... operation".
In some cases, described as “quite rare” in the joint judgment in Fox v Percy (at [29]), “although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is "glaringly improbable" (Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57) or "contrary to compelling inferences" in the case (Chambers v Jobling (1986) 7 NSWLR 1 at 10). In such cases “the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses [and] making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion.”: Fox v Percy (at [29]).
Having, I believe, given due weight to the trial judge’s conclusion, I am unable to agree with it. This is one of the “rare” cases in which, in my view, the trial judge’s conclusion that Mr Duncan removed the grate to clean the drain was glaringly improbable. Moreover it was reached in circumstances where the trial judge failed to consider all the evidence and determined the case upon a basis which was not put to the appellant’s witness.
I turn first to the matters upon which the trial judge relied to reach his conclusion.
The drain had been cleaned
The first was his Honour’s conclusion that the observations made by the respondent and her friend were consistent with the drain having been cleaned.
That may be so. However, the trial judge made no reference to the unchallenged expert evidence that the drain was designed to be self-cleansing and that its pipes and gutters had been designed and constructed with sufficient fall to ensure it operated in that manner. That was Mr Abbott’s expert opinion. His report also stated that “the subject drain has a grade of 1 in 43 or 2.3% which is more than adequate”. It requires little extrapolation to infer that Mr Abbott’s reference to adequacy was a reference to the drain operating as designed so as to be self-cleansing. The fact that the drain was self-cleansing meant that when one removed the grate which covered it, it may, for reasons entirely consistent with its ordinary function, bear the appearance of having been cleaned. The fact it bore that appearance did not, in my view, support the inference that the grate had been removed in order to clean it.
Mr Abbott’s evidence, in my view, was powerfully supportive of three propositions: first, that the appellant had a system in place in relation to cleaning the drain. The drain cleaned itself because of its design and construction. It did not require manual cleaning. Secondly, albeit more indirectly, Mr Abbott’s evidence supported Mr Duncan’s evidence that it was not his duty to clean the drain. There was no need to prescribe manual cleaning of a drain which was self-cleansing. Finally, the fact the drain was self-cleansing meant that, absent extraordinary circumstances as to which there was no evidence, there would be no need for a council worker, such as Mr Duncan, even if it was not his duty to clean the drain, nevertheless to embark upon that exercise.
As to Mr Toomey QC’s submission that while there was evidence that the drain was designed to be self-cleansing, nevertheless there was no evidence it was functioning in that manner on the day of the accident, Mr Maconachie QC submitted that the respondent had never challenged the proposition that the drain was not functioning as designed on the day in question. I accept that submission.
The trial judge’s reliance upon the respondent informing Mrs Lisk that the grate had been lifted for the purpose of cleaning is neutral if not irrelevant and certainly not probative of the fact that the drain had been manually cleaned. It may well have been the respondent’s view but, in the light of the matters to which I have referred above, her observations of the drain were equally consistent with the proposition that the drain was functioning in the self-cleansing manner for which it had been designed and, according to Mr Abbott, constructed.
The trial judge’s failure to take the design and functioning of the drain as a self-cleansing unit into account substantially undermines the first premise upon which he relied to reach the conclusion that Mr Duncan had removed the grate in order to clean the drain.
The presence of mud and leaves adjacent to the drain did not support the inference the drain had been manually cleaned. To most familiar with the task of cleaning, it strains credulity to believe that had the drain been cleaned of mud and leaves, the debris removed would have been left adjacent to the drain in what otherwise appeared from the photographs which were tendered to have been an immaculately maintained pathway.
Mr Duncan was physically capable of moving the grate
The trial judge next relied upon the weight of the grate. It might be accepted that Mr Duncan was sufficiently strong to move the grate. After all, after he found it he replaced it over the drain. However, the trial judge never considered that had Mr Duncan, contrary to his duty, decided to remove the grate in order to clean the drain, it was highly improbable that he would drag it so far away from the drain itself that it was not observed by either the respondent or her friend after the fall. As the appellant submitted, it was inherently more probable that had Mr Duncan removed the grate in order to clean the drain, he would have left it as close as possible to the drain so as to keep, to the minimum, the labour involved in the exercise.
Mr Duncan replaced the grate soon after the respondent’s fall
This was “the high point”, according to the trial judge, of his conclusion that it was Mr Duncan who had removed the drain cover. I have already set out the passage in which the trial judge reached that conclusion. His Honour’s inference that Mr Duncan was replacing the grate after having previously removed it to clean the drain appears to have been based on the underlying premise that there was no rational reason why Mr Duncan would have been in the vicinity of the drain so soon after the plaintiff’s fall.
It is singular in reaching this conclusion the trial judge made no reference to Mr Duncan’s evidence concerning his bi-weekly duties in the area, the limit of his duties (namely that they did not include cleaning the drain or any drains) and that he had come upon the grate in the ordinary course of those activities. None of that evidence had been challenged in cross-examination. Indeed, to the extent that Mr Duncan’s evidence had been “challenged” it must be said that challenge was, at best, perfunctory. It certainly did not provide the platform on which the trial judge could erect the theory of the case he adopted in order to determine it in the respondent’s favour.

I accept that the trial judge found that Mr Duncan replaced the grate very soon after the respondent’s accident. However there was an abundance of evidence, not referred to and apparently not considered by the trial judge, as to why that might have occurred. Mr Duncan was carrying out his duties nearby. The respondent’s evidence was that prior to her fall she had passed Mr Duncan along the path – he was apparently about 30 metres away. She saw him picking up papers, precisely the activity Mr Duncan said it was one of his duties to perform in the park. Mr Duncan said he saw the grate was missing as he carried out his normal duties, looked around and found it and dragged it back to the drain. There was no reason to reject that evidence.
Mr Toomey QC sought to support the trial judge’s conclusion on the basis that it was rational to reject Mr Duncan’s explanation that he found the grate and put it back over the drain because Mr Duncan had said he saw the grate in a position where one of the other witnesses said it had not been. Leaving aside the fact that the trial judge did not refer to that matter in his judgment, the fact that Mr Duncan recalled seeing the grate in a position where one of the other witnesses could not recall it is not, in my view, a rational basis to support a conclusion that Mr Duncan had removed the grate. There is simply no connection between the two propositions.
Mr Duncan’s evidence concerning the circumstances in which he located the grate was not challenged, save indirectly in the cross examiner’s proposition that he had removed the grate in order to clean the drain. Mr Duncan’s evidence that he was undertaking his ordinary duties in the park and found the drain in the circumstances I have set out above provided a rational explanation for the relatively short period which elapsed before Mr Duncan placed the grate in place.
On either party’s case, the grate was returned to the drain by Mr Duncan. The fact that, as the trial judge found, it was returned within “a very short time” after the accident does not provide a basis for inferring that he returned it, in effect, because of a consciousness of guilt.
The trial judge’s reasons disclosed no rational basis upon which the lapse of time on which his Honour relied could constitute the “high point” in inferring that Mr Duncan had removed the grate in order to clean the drain.
The avoidance of blame theory
Finally, I turn to the trial judge’s conclusion that Mr Duncan’s actions were “totally consistent with a person not accepting the blame for what may have happened”. That conclusion was based on a theory of the case which was never put to Mr Duncan. The respondent submitted that it was in this passage of his judgment that the trial judge “clearly considered and rejected the evidence” that Mr Duncan had not removed the grate. I beg to differ. The trial judge did not refer to, let alone consider, Mr Duncan’s evidence in that passage. Further, in my view it was simply not open to his Honour to rely upon a proposition never put to Mr Duncan to infer that he had removed the grate and left the drain unguarded, thus posing a clear danger to those passing along the path: see Davis v Council of the City of Wagga [2004] NSWCA 34 at [34] ff.
Other matters
The only other matters upon which the trial judge appears to have relied to support his conclusion were the fact the grate was not located near the drain, his inference that it was unlikely that it would have been left off “for an extended period of time”, coupled with his speculation that if vandals had removed it they would have done so in the dark. He also opined that “it would have had to be a very isolated incident of vandalism which seemed to have no purpose at all and would seem to me to be totally unlikely.”
It is difficult to understand this opinion. Random irrational acts are the essence of vandalism. Although I accept the appellant’s submission that the trial judge appears to have become distracted by the vandalism theory and, in effect, used it to reverse the onus of proof, his conclusion about its probability seems to me, in any event, to have been bizarre.
Credibility
I acknowledge that it was open to the trial judge, with his advantage of observing Mr Duncan’s demeanour, to reject his evidence. However the only demeanour based observation he made was that Mr Duncan was a “far from impressive witness”. That, with respect, is not a helpful observation. To the extent that it was developed by the trial judge, it appears to have related to the fact that Mr Duncan did not recall the respondent and her friend and their conversation. It might be recalled that the conversation amounted to an exchange in which the respondent said she had fallen in the drain, asked where the grate had come from and been told by Mr Duncan that he had found it some distance away.
But the fact that Mr Duncan did not have a memory of the respondent and her friend and their conversation did not afford rational grounds to reject his evidence. Mr Duncan had, apparently, not been asked about the incident until shortly before the trial. He did not deny the conversation – he merely said he could not recall it. The fact that he did not have a good, or indeed any, memory of a conversation which occurred some two and a half years before, did not afford a rational basis for rejecting his evidence that he had not removed the grate. It was not a conversation in which he was alleged to have made any admission.
The only other explicit basis upon which the trial judge was critical of Mr Duncan was his remark that he did not accept the accuracy of Mr Duncan’s evidence. As the appellant submits, he gave no details of the matters he found to be inaccurate; nor did he state how any perceived inaccuracy could support the inference that Mr Duncan removed the grate.
In my view the advantage the trial judge enjoyed by having seen Mr Duncan give evidence was not sufficient to explain or justify the trial judge’s conclusion as to the reliability of his evidence: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 per McHugh J.
Failure to give reasons
In my view, the appellant was justified in its complaint that the trial judge failed to give proper reasons for rejecting Mr Duncan’s evidence. Apart from his passing reference to Mr Duncan being a “far from impressive witness” to which I refer in more detail below, the trial judge gave no indication as to why he did not accept Mr Duncan’s account.
An appeal court derives no assistance in its attempt to understand why a trial judge drew an inference determinative of the case if the trial judge does not explain why he rejected critical evidence supporting the opposite conclusion. This Court should not be left in the position where it must speculate from the trial judge’s collateral observations concerning his view about Mr Duncan’s desire to exculpate himself, this being the basis upon which he found that Mr Duncan had in fact removed the grate: see Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 701 – 702, 713; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 280 per McHugh JA.

The respondent’s submission that Zaronias v Papaiani [2002] NSWCA 207 supports the proposition that the trial judge was not under any obligation to sift through all the evidence before him and explain at length why he rejected each item that was conceivably inconsistent with his decision is misconceived.
In Zaronias v Papaiani Meagher JA (with whom Foster and Ipp AJA agreed) said (at [7]) that where evidence was not absurd or self contradictory, the trial judge was not obliged to sift through all the evidence before him and explain at length why he rejected each item that was conceivably inconsistent with his decision. Zaronias v Papaiani concerned a trial judge’s acceptance of a witness’s evidence that he had told the deceased approximately 10 to 15 minutes before the accident which caused his death, that he was not needed on site. The evidence the appellant asserted the trial judge should have referred to before he accepted that account was “some evidence” that the time which elapsed between the conversation and the accident was 25-30 minutes. Meagher JA said (at [7]) “generally speaking”, once the trial judge accepted the witness’s account of the period which elapsed between the two events, and in circumstances where “it simply does not matter”, he was under no obligation to explain why he did not accept the 25-30 minute evidence.
This case is entirely different. The trial judge’s conclusion did not depend upon preferring evidence which contradicted Mr Duncan. It depended upon him rejecting Mr Duncan’s uncontradicted direct testimony in order to draw inferences adverse to the appellant’s case. In such circumstances, in my view, he was obliged to explain why he did not accept that testimony and why, instead, he preferred to draw an inference which determined the case in the respondent’s favour.
Can the respondent’s verdict be sustained?
The trial judge never explicitly rejected Mr Duncan’s evidence that he did not remove the grate. That rejection must be inferred from his conclusion that Mr Duncan did remove the grate. However, rejecting Mr Duncan’s denial of having removed the grate, as Mr Toomey QC accepted, did not entitle the trial judge to conclude that Mr Duncan did in fact remove the grate. It meant only that there was no evidence on the subject: Jack v Smail (1905) 2 CLR 684 at 695-6, 698; Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 684, 694; Broken Hill Proprietary Co Limited v Waugh (1988) 14 NSWLR 360 at 366; Hobbs v C T Tinling & Co Limited [1929] 2 KB 1 at 21.
Rejecting Mr Duncan’s evidence left the trial judge, as Mr Toomey QC conceded, with a circumstantial case. Mr Toomey QC submitted, nevertheless, that the verdict could be sustained because of the circumstances I have outlined in the section dealing with the respondent’s submissions.
I have dealt with most, if not all, of these matters in dealing with the trial judge’s reasons. However Mr Toomey QC also submitted that the case fell within the principle in De Gioia v Darling Island Stevedoring & Lighterage Co Limited (1941) 42 SR (NSW) 1 at 4 that where the facts were peculiarly within the knowledge of the defendant and it was difficult for the plaintiff to produce them, then “very slight evidence pointing to [the] existence [of facts essential to the plaintiff’s case] may be treated as sufficient to justify a jury in holding that they do exist.” He submitted that it had been incumbent upon the appellant to dispel the inference that it had been negligent.
Much the same point as Jordan CJ made in De Gioia v Darling Island Stevedoring & Lighterage Co Limited, was made by Dixon CJ in Hampton Court Limited v Crooks (1957) 97 CLR 367 at 371 where he observed that “a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it.”
In De Gioia v Darling Island Stevedoring & Lighterage Co Limited Jordan CJ also pointed out that if a prima facie case had been made out only if some evidence remained unexplained, and the defendant furnished an explanation by evidence which could not be treated as genuinely in dispute and which reasonable men could not reject, then what appeared to be a prima facie case no longer existed in point of time.
In this case, assuming, contrary to what I have already said, that the trial judge was entitled to reject Mr Duncan’s statement that he had not removed the grate, there was evidence from the Council which, in my view, was sufficient to displace any prima facie case the respondent may have established. That was the evidence that the drain was designed and constructed to be self-cleansing. That evidence was not disputed. There was no reason for it to be rejected. It sufficiently dispelled any inference that anybody on behalf of the Council would have removed the grate.
Duty of care
The appellant’s final ground of appeal complained that the trial judge erred in finding that the Council owed any relevant duty of care to the plaintiff in that the hazard was one that could have been avoided by the plaintiff taking reasonable care. This ground of appeal was not addressed in the appellant’s written or oral submissions, except indirectly to the extent that the appellant complained that the trial judge wrongly rejected the evidence of Mrs Lisk. The evidence to which this ground of appeal related appears to be Mrs Lisk’s evidence that the respondent told her she was “not looking”. The appellant submitted that the admission (which the trial judge doubted) was relevant to whether the appellant owed and breached any duty of care.
Having regard to the fact that I would uphold the appeal on the basis that the trial judge erred on the issue of breach and in light of the fact that the complaint about the finding of a duty of care appears to have been effectively abandoned by the appellant, I do not propose to consider this aspect of the appeal further.
Conclusion
The trial judge’s conclusion that it was Mr Duncan who had removed the grate and, in such circumstances left no appropriate warning or replaced it within sufficient time, was glaringly improbable as, too, was his Honour’s conclusion that the appellant was negligent.
In my view the appeal should be allowed.

Orders

I would make the following orders:
1.            Appeal allowed.
2.            Verdict and judgment in the Court below set aside.
3.            Verdict and judgment to be entered for the appellant.
4.Respondent to pay the appellant’s costs of the appeal, the trial and the arbitration in the Court below and, in respect of the appeal, to have a certificate under the Suitors’ Fund Act if otherwise qualified.

**********

LAST UPDATED: 11/03/2004