Sutherland Shire Council v Dietz

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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:

  1. Garling DCJ’s conclusion that a council employee removed the grate was glaringly improbable. It was reached in circumstances where the trial judge failed…

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Details
Case
[2004] NSWCA 53
Decision Date

CaseChat Overview and Summary

Sutherland Shire Council appealed a decision of the trial judge who found the Council liable for negligence after the respondent, Ms. Dietz, fell into an open drain. The dispute centred on whether the grate had been removed by a Council worker, Mr. Duncan, and whether the Council had breached its duty of care to ensure the safety of the public.

The appellate court was required to determine whether the trial judge's conclusion that the Council had breached its duty of care was "glaringly improbable." Specifically, the court considered whether the trial judge had failed to properly consider the evidence presented by the appellant, particularly the testimony of Mr. Duncan, and whether the case had been determined on a basis not put to the appellant's witness. The court also examined whether the trial judge had given adequate reasons for rejecting evidence and whether the respondent had established a sufficient prima facie case.

The court reasoned that an appellate court is obliged to conduct a real review of the trial judge's reasons and is in as good a position as the trial judge to draw inferences from undisputed facts. The court found that the trial judge's conclusion that Mr. Duncan had removed the grate and subsequently failed to provide adequate warning or replace it was "glaringly improbable." The court noted that the trial judge had failed to give proper reasons for rejecting Mr. Duncan's evidence, had not put certain critical assessments of Mr. Duncan's actions to him, and had made findings that were not supported by the evidence or were contrary to a reasonable view of it.

Consequently, the appeal was allowed, the verdict and judgment in the court below were set aside, and a verdict and judgment were entered for the appellant, Sutherland Shire Council. The respondent was ordered to pay the appellant's costs of the appeal, the trial, and the arbitration.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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. 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.

Ratio Decidendi

Legal Principle Established

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".