Adequacy of reasons
42 Mr Cranitch SC, who appeared with Mr Inglis for the appellant on appeal but not at trial, complains both that the primary judge erred in failing to examine all the evidence relevant to the question whether the respondent had breached its duty of care - so that there was an "error in the process of fact finding" - as well as that the primary judge failed sufficiently to expose the reasons for his decision in a manner which would facilitate appellate review: see Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [129] - [130] per Hayne J (with whom McHugh J at [26]) and Gummow J (at [27]) agreed; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 259 per Kirby P.
43 Mr Cummings, who appeared for the respondent on appeal but not at trial, accepted that it was incumbent upon the primary judge to expose his reasoning process, but argued that his Honour was not obliged to spell out every detail of the reasoning process he had pursued, nor to sift through all the evidence and analyse everything which was conceivably inconsistent with his findings and conclusions. He relied on Zaronias v Papaiani[2002] NSWCA 207 at [7] per Meagher JA.
44 Mr Cummings also argued that the primary judge had not simply accepted the respondent's submissions without explaining why he did so. He submitted that he had made "short, but pivotal factual findings which disposed of the conflict between each parties' position, which his Honour had carefully spelt out in his judgment".
45 The appellant's written submissions identified examples of evidence, arguably supportive of her case, which she submitted the primary judge had not dealt with adequately, if at all, in his reasons. Those matters included the evidence that the respondent had identified trip hazards in the area where she fell since at least 20 July 1998, that other people had tripped in the vicinity of the lip prior to the appellant's accident, that the respondent had retained money from Bomac to rectify trip hazards but had failed to rectify the lip over which she tripped, that the respondent identified the lip as a trip hazard after her fall and took immediate measures to repair it, that the personnel were, and "had been at all times", available to rectify the defect and that the area in which the accident occurred was a "high traffic area" with a traffic volume of up to 500 people per day.
46 Mr Cummings argued there was no evidence the respondent had identified trip hazards in the area where the appellant fell prior to her accident, that to the extent there was evidence of stumbles in the vicinity of the lip prior to the accident, those constituted a "vanishingly small percentage of footpath users" and that the lip had been rectified after the appellant's accident because there had been a trip on it and it was relatively easily fixed. Mr Cummings contended that, in this light, the matters the appellant contended the primary judge had failed to consider adequately were not inconsistent with his Honour's findings. Accordingly, the question as to whether he should have dealt with them in his reasons fell away.
47 Adequacy of reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA.
48 The primary judge was not obliged to spell out every detail of his process of reasoning (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182), however he was obliged to expose his reasons for resolving a point critical to the contest between the parties: North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ; Soulemezis at 270 per Mahoney JA, at 280 per McHugh JA. This obligation lay upon him to enable the parties to identify the basis of his decision and the extent to which their arguments had been understood and accepted: Soulemezis at 279 per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 at [129] it was necessary that the primary judge " 'enter into' the issues canvassed and explain why one case was preferred over another".
49 Zaronias v Papaiani does not detract from these obligations. In that case Meagher JA (with whom Foster and Ipp AJJA 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 and explain at length why he rejected each item 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 that caused his death, that he was not needed on site. The appellant asserted that before the trial judge accepted that account he should have referred to "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 minutes evidence.
50 In my view, the appellant's submission that the primary judge's reasons were inadequate should be accepted.
51 First, his Honour's pithily expressed conclusions did not do justice to the issues posed by the appellant's case: see Moylan v Nutrasweet Co [2000] NSWCA 337 at [61] per Sheller JA.
52 The appellant had argued below that the fact the lip had been created by the respondent as part of the recent reconstruction works and had not been repaired during rectification works out of monies retained from the contract for such purposes distinguished her case from other footpath cases. The evidence Mr Cranitch submitted the primary judge had not dealt with adequately went largely to this case.
53 Although the primary judge made passing reference to some of the evidence upon which the appellant relied, he gave no reasons for apparently according it little or no weight. Significantly, his Honour failed to address the theory of the appellant's case, turning as it did on the respondent's role in creating and failing to rectify the trip hazard she had encountered. This omission leads to the inference that he failed to examine all the material relevant to the question whether the respondent had breached its duty of care (see TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [150] per Spigelman CJ) - so that there was an "error in the process of fact finding".
54 Secondly, his Honour failed to expose his reasons for resolving the breach of duty point in a way that would enable the appellant, in particular, to determine whether her arguments had been understood and why they had been rejected. Finally it is not possible to discern why his Honour preferred the respondent's case and rejected the appellant's. His reasons do not, therefore, facilitate appellate review.
55 The second ground of appeal should be allowed.
56 The parties agreed that if this conclusion was reached this Court could decide the issue of liability (see Beale at 444) to which I now turn.