Sutherland Shire Council v Dietz

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.