Australian Capital Territory v Badcock

Function of appellate courts 5 The Territory's first complaint in this Court was that the Supreme Court misunderstood its function and undertook the wrong exercise. The appeal is said to be by way of a rehearing: Rothwells Ltd v Entity Group Ltd [1990] 101 FLR 460 at 462. By section 9(3) of the Supreme Court Act 1933 (ACT), the Supreme Court, having regard to the evidence taken at first instance, has power, on appeal from a Master, to draw inferences of fact for itself. Relying upon Warren v Coombes [1979] 142 CLR 531, the Territory contended that rather than analyse and reach conclusions on the Master's findings, as the Territory suggested was done by the Supreme Court, it should have made its own findings. Because section 27 of the Federal Court of Australia Act 1976 (Cth) is to identical effect, this Court was asked to follow the same course. 6 The principle derived from Warren v Coombes is well known. At 552-3 Gibbs ACJ, Jacobs and Murphy JJ said: … if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that he was wrong, they must discharge their duty and give effect to their own opinion. … [they are] obliged to reach [their] own conclusion as to the inferences to be drawn from the primary facts found by the learned trial judge. The Territory argued that the Supreme Court did not carry out these obligations in this case. 7 In the Supreme Court, Chief Justice Miles, while acknowledging that minds may differ on whether negligence had been established, his Honour concluded at paragraph 15: However, in my view, no error has been found in the Master's reasoning, or his findings of fact, and I would not be prepared to find positively that he was in error in his ultimate assessment of the Territory's conduct as negligent. 8 On the issue of contributory negligence, the Chief Justice found that the plaintiff failed to take reasonable care for her own safety and proposed an apportionment of 20% for this failure. 9 Justice Gallop agreed with the Chief Justice on the Territory's negligence. On contributory negligence, his Honour said at paragraph 24: While minds might differ about whether it is negligent for a lady of the plaintiff's maturity to fail to keep a proper lookout for raised pavers, which she knew to be in the vicinity and to be unsafe, I agree with the observation of Higgins J that failing to notice an obvious hazard was properly considered by the Master. Having done so, the Master was right to conclude that the defendant had not established that the plaintiff had been guilty of contributory negligence. In other words, the defendant has not established that the Master was plainly wrong in that conclusion. 10 Justice Higgins said that if the area had been inspected prior to the plaintiff's injury, "as it should have been", some uplift in the pavers would have been perceived and identified as hazardous. According to his Honour (paragraph 64): It was open to the Master to conclude on this evidence that an uplift of 20 mm would be regarded as a hazard to such an extent as to warrant an "urgent" response. 11 Justice Higgins said (paragraph 77) that this question is a matter of fact requiring the balancing of various factors. He went on (paragraph 80): Whilst it is a factual question not dependant on disputed primary facts, hinging on the credibility of witnesses in the traditional sense, it is a fine value judgment. The Master did have an advantage in the first hand observation of the witnesses and the exhibits … And (paragraph 81): Although those advantages would not save a judgment plainly flawed nor make the judgment unexaminable, I cannot conclude that the Master erred in deciding as he did. He concluded (paragraph 82): … the evidence is capable of supporting the Master's conclusions. I do not consider that error has been shown. 12 On the contributory negligence issue, Justice Higgins said (paragraph 85): It was certainly open to the Master to accept, as he did, that it was not reasonable to expect a plaintiff faced with a number of hazards, individually obvious, to notice and avoid each of them. His Honour concluded (paragraph 87): In my view, the Master was right to conclude that the defendant had not established that the plaintiff had been guilty of contributory negligence. 13 On the Territory's argument, these and similar extracts from the judgments of the Supreme Court demonstrate that their Honours did not properly perform the function mandated by Warren v Coombes for appeal judges conducting a rehearing. In the notice of appeal, the errors were said to be the implicit findings that the Territory had to establish 'error' by the Master or that he was 'plainly wrong'. It was also said there that it was erroneous for the Supreme Court to have held that the Master had an advantage over the Court in determining the issues of liability. Their Honours, it was said, should have reached their own conclusions on these matters. 14 In my opinion, those contentions are not sustainable as they misrepresent what their Honours were in fact saying and unacceptably elide the principles to emerge from Warren v Coombes. As often occurs, the separate liabilities for negligence and for contributory negligence in this case were very much intertwined. In fact one of the Territory's contentions, at trial and subsequently, has been that if there was a duty of care, it was discharged and that the plaintiff's fall was all due to her own carelessness. Thus, contrary to the efforts of the Territory to argue that the only issue was the scope of its duty, there were significant issues of credit and witness assessment involved in the case, for example as to the plaintiff's account of the scene and thus the risk of injury, and her assertion that she took all reasonable care for her own safety. 15 In addition to the elements identified by the Territory in argument, Warren v Coombes decided that where the fact-finding exercise depends, even in part, upon the credit of a party or witness - meaning in a case such as this the acceptability in particular of the plaintiff's account of what actually occurred - an appeal court will normally not superimpose an alternative view of the facts on that formed by the trial judge unless it is shown that the trial judge misused the advantage of first hand observation of the evidence as it was given. In my experience, this advantage is considerable and is not always able to be precisely defined or enunciated. It is not necessary to describe the advantage by reference to now widely discredited notions of "demeanour" or to what is sometimes called "the whites of the eyes" test. It is often nothing more, but nothing less, than an impression or feeling about the accuracy of a particular witness' description of the events in question. Sometimes it is more even though it might not be reflected in the printed transcript. In this case, although the Territory did not contest that the plaintiff fell, there was a real dispute over whether the fall was due to its negligence or the failure of the plaintiff to look where she was putting her feet. In those circumstances, the Master's acceptance of the plaintiff's assertion of the danger and her own lack of culpability was important, and may have been crucial, in his decision in the matter. 16 On the other hand, where the first instance factual findings were derived by inference from primary uncontested facts, an appeal court is well able to draw its own inferences while according due weight and respect to the trial judge's own findings: see also Dawson v Westpac Banking Corporation [1991] 104 ALR 295 at 304 (Mason CJ), 306 (Deane J) and 315 (McHugh J). 17 This dichotomy was addressed by the High Court in a copyright case, SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] 159 CLR 466. At 478 Gibbs CJ, with whom Mason J agreed, said that in matters of impression, particular respect and weight should be given to the decision of the trial judge unless some error in his judgment has been demonstrated. No such error was demonstrated in the judgment of [the trial judge]. 18 This Court has often expressly applied this passage, including in Turbo Tek Enterprises Inc v Sperling Enterprises [1989] 23 FCR 331 at 350; Allsop Inc v Bintang Ltd [1989] 15 IPR 686 at 701; and Pacific Dunlop v Hogan [1989] 23 FCR 553 at 581. In Commissioner of Taxation v Chubb Australia Ltd [1995] 128 ALR 489, an appeal from Justice Beazley's view that certain of Chubb's safes were not taxable because they were ordinarily used for household purposes, Justice Hill, with whom Justice Tamberlin agreed, said at 502: In my view it was therefore open to her Honour to find in respect of those goods held to fall within the Item that they were of a kind ordinarily used for household purposes. The finding involved a question of judgment based upon a consideration of the description and in some cases, photos or drawings of the relevant safe. No error is apparent in her Honour's judgment, although it is possible that minds could differ as to the outcome in a particular case. The question is thus whether this Court on appeal should interfere with the findings of a trial judge, in a case such as the present, where the decision was not based upon observations of witnesses but the conclusion depends on impression and no error of law has been demonstrated. Justice Hill went on at 503: The [Warren v Coombes] principle should not, of course, be taken too far. To paraphrase what was said in [that case], albeit in a slightly different context, an erroneous decision should not be upheld, nor should demonstrated error be perpetuated. However, while that case made it clear that it is the duty of an appellate court to decide both fact and law for itself, subject to the case where the trial judge has had the advantage of observing the witnesses, it nevertheless recognises that the appeal court should give 'full weight' to the decision of the trial judge and only where the appeal court considers that that judgment was wrong must they give effect to their own judgment. Justice Burchett said at 491 (detailed references omitted): I agree that the principle stated in [Edwards Hot Water Systems] cannot relieve the Court of the duty expounded in Warren v Coombes and reaffirmed by Mason CJ (with the agreement of Deane and McHugh JJ) in Dawson v Westpac Banking Corporation but it does give guidance in respect of the performance of that duty in a case where the decision at first instance depended on a matter of impression not readily susceptible of precise analysis. To my mind, the principle could not pre-empt the Court's consideration of the [matters] in question here, but it does require the Court to refrain from any nitpicking reconsideration of the way Beazley J decided the precise level at which to draw the line between the categories. 19 Judged against the principles to emerge from those expressions of view, with which principles I respectfully agree, and even if issues of credit are entirely excluded, the Supreme Court did not depart from their due obligations in the way they approached the Master's factual conclusions. When their Honours spoke of "no error" by the Master and said that he was not "plainly wrong" -- albeit that such words, often used in other contexts, are susceptible of misunderstanding in this context -- they were expressing agreement with the Master's conclusions. If no error is shown to an appeal court, exercising its duties of analysis and independent assessment as required by Warren v Coombes, the appeal court has come to the same conclusion as at first instance.

No duty of care 20 The Territory's second attack on the judgment of the Supreme Court was that in the circumstances of the case there was no duty of care to eliminate the rise in the paver. It was said that rather than being a hazard to passing pedestrians, it was simply a matter of some unevenness which ordinary pedestrians might expect to find in a public carpark. The duty does not, it was argued, require the Territory to protect pedestrians from all uneven surfaces especially if not exceptional in size and if manifest and obvious. It was so obvious, the Territory said, that the plaintiff had noticed it, even on the day of her accident. 21 The applicable scope of the duty of care by public authorities was considered in some detail in Romeo v Conservation Commission of the Northern Territory [1998] 192 CLR 431. Romeo was a young woman who fell at night 6˝ metres from the top of a cliff onto a beach in a nature reserve while she was intoxicated. There was a carpark surrounded by a low log fence about 3 metres from the edge of the cliff. Between the carpark and the cliff edge was open space covered with low vegetation. The woman fell at a point where there was a gap in the vegetation. There was no fence or other barrier at the edge of the cliff. The presence of the cliff was obvious. The area was one of natural beauty. The cliff was about 2 kms long. At 478-9 (paragraphs 122-4), Justice Kirby discussed the principles for assessing the appropriate scope of the duty of care: Scope of the duty It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion. The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. However, that expression of the duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants. While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety. For example, it would be neither reasonable nor just to impose upon a body such as the Commission an obligation to erect secure climb-proof fencing along the entire elevated headland of the reserve against the risk of injury suffered by the occasional visitor bent on suicide. In judging the measure of the duty which is owed regard will certainly be had to any particular statutory obligations or powers enjoyed by a public authority. But where, as here, the statutory duties are stated in general and permissive terms, the scope of the duty of care imposed by the common law will be no more than that of reasonable care. Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just. In considering whether the scope of the duty extends, in a case such as the present, to the provision of fencing or a wire barrier, it is not sufficient to evaluate that claim by reference only to the area of the Dripstone Cliffs. An accident of the kind which occurred to the appellant might have occurred at any other elevated promontory in every similar reserve under the control of the Commission to which members of the public had access. The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct. It must never be forgotten that, in defining the measure of the duty of care, a court is not only determining an element essential to the ascertainment of the rights of the particular parties. It is also giving expression to the standards which occupiers of land or premises generally must reach, and possibly insure against, in case similar mishaps befall them. 22 His Honour adopted the test enunciated by Mason J in Wyong Shire Council v Shirt [1980] 146 CLR 40 at 47-8, viz. the fact-finder must ask whether a reasonable person in the defendant's position would have foreseen that the conduct complained of involved a risk of injury to the plaintiff or to a person in a similar position. If it did, it is then necessary to determine what response to the risk was reasonably appropriate for the defendant. This assessment will involve "balancing out" such matters as the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action, and any other of the defendant's responsibilities which might conflict with doing so. Justice Kirby explained these concepts (paragraphs 128-130): Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be "balanced out" before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that the risk of a mishap such as occurred was so remote that "a reasonable man, careful of the safety of his neighbour, would think it right to neglect it". It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness. Although it is true, as the appellant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier's assessment that the risks of harm were negligible. As to the expense of taking alleviating action, it is increasingly recognised that courts must "bear in mind as one factor that resources available for the public service are limited and that the allocation of resources is a matter for" bodies accorded that function by law. Demanding the expenditure of resources in one area (such as the fencing of promontories in natural reserves) necessarily diverts resources from other areas of equal or possibly greater priority. Whilst this consideration does not expel the courts from the evaluation of what reasonableness requires in a particular case, it is undoubtedly a factor to be taken into account in making judgments which affect the operational priorities of a public authority and justify a finding that their priorities were wrong … even in so-called operational decisions, which are subject to court assessment, it is necessary to evaluate more than simply the cost of preventing the particular accident. Inherent in the suggestion of the obligation of prevention is the cost that would be incurred in the measures necessary to prevent all equivalent accidents of a like kind and risk. In the reference to "other conflicting responsibilities" regard may be had to consideration such as the preservation of the aesthetics of a natural environment and the avoidance of measures which would significantly alter the character of a natural setting at substantial cost and for an improvement in safety of negligible utility. 23 Justice Higgins distinguished Romeo on the facts. He said (paragraphs 45-46): [Romeo] involved the approach to a natural coastal cliff. Admittedly it was foreseeable that visitors to the area would approach the cliff edge. The risk of one of them doing so in the dark and whilst intoxicated, though foreseeable, was considered slight, though the consequences of a fall could be severe. The counter-measures to avoid the risk were not regarded as appropriate or required. Effectively, it would have required fencing off the approach to the cliff edge. That would have been environmentally inappropriate. Additionally, the cost of such fencing, to be effective, would have been quite prohibitive. It would be similar to an attempt to reduce drownings at beaches by fencing them off from the public. 24 I respectfully agree with his Honour. The existence of the danger prevailing on a natural coastal cliff was obvious and not brought about or increased by the actions or inactions of the Commission. The area was not, as Justice Kirby pointed out at 477 (paragraph 120), a suburban park or, his Honour might have added if he had been hearing this case, a busy city walkway. A person walking on what is obviously a pedestrian area, designed, installed or permitted to be used for that purpose, need not be permanently on the lookout for hazards on a step by step basis: see Webb v South Australia (1982) 43 ALR 465 at 467, lines 5-11, per Mason, Brennan & Deane JJ, or behave in the same way as would be expected on approaching the edge of a natural coastal cliff. A variation in the height of the pavers in an area such as existed here created an edge which is more hazardous than undulation or uneven surfaces in a nature reserve. 25 As regards the "magnitude of the risk", it is axiomatic that a person falling on concrete pavers will most likely sustain injury, particularly if of advancing years. As for the "probability of the occurrence", it is clear from the evidence that once the paved surface was uneven, it created a 90 degree edge which was demonstrably more likely to cause sudden tripping, falling and injury than a flat if uneven surface. Likewise, in my view, Franklins Selfserve Pty Ltd v Bozinovska [1998] NSWSC 456, a decision of the New South Wales Court of Appeal which applied Romeo, is also distinguishable on the facts. The case involved a shopper in a supermarket who, to bring down a product on an upper shelf beyond her normal reach, stood on a wire or steel mesh basket intended to hold merchandise for sale and not as a stepping platform. 26 The Territory's argument that it was not necessary to warn about the raised pavers "as the very obviousness of them supplied its own warning" strikes me as having a sizeable element of contradictory ambivalence. On the one hand, the Territory said that the rise in the pavers was so slight, and so expensive to fix, that it could not reasonably be required to remove it. On the other hand, the rise was said to be so obvious that no duty of care to fix, fence or warn about it attached. If these contentions can stand together, I reject them both. As explained by the Master in his reasons for judgment (at paragraphs 17-19), there was no evidence of any great "expense, difficulty and inconvenience of alleviating action" to rectify the problem which led to Mrs Badcock's injury. Rather, the Master had the benefit of evidence from the Territory's officer Leigh Grant Palmer that it had signs, which could be simply erected, to alert the public to potential danger and that such signs would cost between $100 and $300 depending on how the sign was to be affixed and for how long. The Master also had the evidence of an expert witness Paul Scholtens, called in the plaintiff's case, that appropriate remedial action would have been half a day's work in removing the uplifted pavers and sand bedding, adjusting the gravel base course, and pruning the offending tree roots. 27 Moreover, any claim that the Territory had made a reasonable response to the risk posed by raised pavers in the carpark where the plaintiff was injured, was severely diminished by the complaint it received of the incident on 22 February 1994, recorded as: "Paver has been lifted by tree root location opp Donaldson St pathway goes through carpark on the third … refuge is where the paver is. An old lady triped [sic] over this." This complaint related to an area near where the plaintiff fell but nothing of substance was done, or done effectively, to remove the risk of injury. Thus, as the Master correctly found, the Territory was clearly aware of the specific risk that raised pavers could cause and yet no remedial action of the kind taken 11 months after the plaintiff's fall, when the risk and danger were the same, was taken prior to her fall. A public authority does not make a reasonable and proportionate response to a recognisable risk of injury by waiting for two falls by persons of advancing years in the same place and for the same reason before taking remedial action. In fact the Territory waited for three.

Duty of care discharged 28 The Territory's third argument was that if there was a duty of care, it was discharged. It pointed to the evidence that it had a system in place for the identification and rectification of hazards. The maintenance program recognised, quite arbitrarily, that when a rise in a paver reached 25 mms, it called for repair. It said that the rise involved in this case was so minor and so much to be expected that it was not necessary to attend to it. It called for a finding that the rise was no more than 15 mms, probably less, and said that the failure of the Supreme Court to make this finding manifested appellable error because it was a matter of inference from the evidence on which the Court was in no different a position than the Master who found the discrepancy in levels to be 10-20 mms. 29 The Supreme Court did not accede to the request to vary the Master's finding because their Honours could find no basis or reason to do so. Justice Higgins said, correctly in my view, that 20 mms was an available finding on the evidence and was accepted to be of significant proportions and a "potential pedestrian hazard". Chief Justice Miles and Justice Gallop did not specifically deal with the matter except, as earlier indicated, by not finding that the Master's assessment was "plainly wrong". None of their Honours was declining to consider the matter afresh. All were saying that as they had not formed the view that the Master was wrong, they were not prepared to substitute a different view. 30 In my opinion, the evidence was sufficient to ground the Master's findings in the matter. It was not shown to the Supreme Court or to this Court to have been wrong. Approaching the matter myself, I would not be willing or able to make a different finding. The Territory's argument is rejected.

Contributory negligence 31 The Territory finally contended that because the plaintiff knew that raised pavers existed in the area, she could and should have avoided the danger. The plaintiff said in evidence that whilst she endeavoured to avoid one area of risk of which she was aware, she fell at another. This evidence was accepted; indeed it does not seem to have been challenged. It presents a most unsatisfactory situation for the Territory. Pedestrians walking on open public land available for the purpose are not meant to do an "Irish jig" around dangerous hazards in order to avoid them all. Nor are they required to watch every step they take. 32 Hughes v Hunters Hill Municipal Council [1992] 29 NSWLR 232 was a personal injury case involving a pedestrian on a footpath which the plaintiff knew was dangerous. Relying on the reasons in Webb where the High Court decided that obvious dangers did not exclude a foreseeable risk of injury giving rise to a duty to protect a reasonable pedestrian, the New South Wales Court of Appeal held that the risk included that the pedestrian might be in a hurry such as might prevent as careful a watch for danger as might otherwise be undertaken: Mahoney AP at 239 D-E; see also his Honour's remarks at 237 F-G. 33 The Territory's argument in this connection gave rise to either another inherent contradiction or a submission of irrelevance. While contending that the danger was both manifest and obvious, it said nevertheless that it was no greater than would ordinarily be expected in public footpaths. If both positions can stand, which I doubt, they do not together establish contributory negligence. On the evidence, paver uplift is a known and real danger for pedestrians. Whilst people walking in public areas must take general care for their own safety, they cannot be required to assess, as they proceed, which particular paver irregularity may cause them injury and which probably will not. In public areas they are entitled to rely on the areas' custodians to remedy or otherwise protect them from all recognisable risks of injury. 34 In my view, the Master was correct to hold that these arguments, even if factual, did not mean, when put with the rest of the evidence, that the plaintiff was the author of all or some of her own misfortune. Justice Higgins, with whom Justice Gallop agreed, was correct to agree that this was so.

Conclusion 35 The appeal should be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 22 OF 1999

ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF

JUDGES: EINFELD, HILL, DRUMMOND, TAMBERLIN & HELY JJ

HILL J: 36 I have read in draft the judgments of members of the Court and agree with orders proposed by Einfeld J and his Honour's conclusions both on negligence and contributory negligence. 37 Although I would conclude that there was no failure on the part of Gallop and Higgins JJ to apply the principle in Warren v Coombes (1979) 142 CLR 531, 552-553 there are statements in their Honours reasons, referred to by Hely J, which cause some concern and I agree with his Honour that Warren imposes no requirement that the appeal court conclude the primary decision was "plainly wrong" or treat the decision as correct simply because there was some evidence to support it. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 22 OF 1999

ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF

JUDGES: EINFELD, HILL, DRUMMOND, TAMBERLIN & HELY JJ

DRUMMOND J: 38 I agree with the order proposed by Einfeld J for the reasons given by his Honour. 39 Even if the case should be dealt with on the basis that the task for the Full Court of the Supreme Court of the Australian Capital Territory was to determine the proper inferences to be drawn from the findings of primary fact made by the Master in circumstances in which no significant issue of credit was involved, I do not consider that the judges of the Full Court failed to apply the principles in Warren v Coombes (1979) 142 CLR 531. There, at 551, Gibbs ACJ, Jacobs and Murphy JJ dealt with the role of an appeal court charged, as was the Full Court of the Supreme Court of the Australian Capital Territory, with conducting an appeal by way of rehearing where the critical question is the proper inferences to be drawn from established facts. Their Honours said:

"… Shortly expressed, the established principles are, we think, that in 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."

40 Even though the appellate court in such a situation is, in general, "in as good a position as the trial judge to decide on the proper inference", their Honours accept that the decision of the trial judge is not to be simply ignored by the appeal court: it must, in deciding upon the proper inference to be drawn, "give respect and weight to the conclusion of the trial judge". This formula appears constantly in the cases dealing with the proper function of a court charged with conducting an appeal by way of rehearing. It appears in the passages in Edwards v Noble (1971) 125 CLR 296 at 318 and Coghlan v Cumberland [1898] 1 Ch 704 at 705, relied on by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 at 615 in his summary of the position, in a judgment containing the most recent detailed review of the role of such an appeal court. 41 If any sensible meaning is to be given to them, these words must be read as imposing a fetter on that court's power to reach its own conclusion without regard to the inference drawn by the trial judge: before substituting its own view for that of the trial judge, the appeal court must be satisfied there is justification for doing so, ie, that there is some reason for saying that the trial judge's conclusion on the undisputed facts was wrong. 42 This is but a reflection of the fact that the process for the curial resolution of disputes is by a trial at which testimony must, in general, be given orally and then by an appeal from the decision at trial by way of rehearing on the written record as a vehicle for correcting any errors of fact or law by the trial judge, not by two discrete trials, the one before a single judge on oral testimony and the second before an appeal panel of judges on the written materials. There is a clear distinction between a hearing de novo (a term which also aptly describes a new trial) and an appeal by way of rehearing: see Harris v Caladine (1991) 172 CLR 84 at 124 - 125. 43 When the reasoning of Miles CJ and Higgins J on the issue of the appellant's negligence is examined, reasoning with which Gallop J agreed, their Honours, in my opinion, can be seen to have said nothing more than that, after having evaluated the evidence for themselves, they were not satisfied that the ultimate conclusion reached by the Master was wrong. Where the ultimate inference drawn from undisputed facts is one upon which reasonable minds may differ or one involving a fine value judgment, as Miles CJ and Higgins J respectively described the position, it is even clearer that that approach is entirely consistent with Warren v Coombes. This is not to say that, in such a case, the trial judge's conclusion has something like the same degree of immunity from interference on appeal as does a judgment involving the exercise of a judicial discretion, only that it will be more difficult for the appeal court to satisfy itself that the view of the trial judge was wrong: see Edwards v Noble at 318 - 319. 44 In dealing with the attack on the Master's intermediate conclusion that the pavement represented an unreasonable hazard at the relevant time, Higgins J, in the course of his reasoning, said "the evidence is capable of supporting the Master's conclusions". He cannot be understood, in view of the context in which he made this comment, as having treated his role as limited to determining whether the Master's conclusion was against the evidence or the weight of the evidence. He was, I think, saying nothing more than that having evaluated the evidence for himself, he was not satisfied that the Master's conclusion could be said to have been wrong. 45 Similarly, on the issue of the respondent's contributory negligence, Higgins J evaluated the evidence for himself and held that the Master was right to conclude that contributory negligence was not established, an approach that is, for the reasons given, in accordance with Warren v Coombes. 46 In the brief reasons he gave for rejecting the attack on the Master's conclusion that the respondent was not guilty of contributory negligence, Gallop J added the comment "in other words, the defendant has not established that the Master was plainly wrong in that conclusion". If it were accepted that his Honour's use of the word "plainly" here shows that he regarded the Master's conclusion as entitled to special deference, that would be inconsistent with Warren v Coombes. But where his Honour prefaced that comment with the statement that "the Master was right to conclude that the defendant had not established that the plaintiff had been guilty of contributory negligence", ie, that he agreed with the Master's conclusion, I do not think the use of this one word can be understood as showing that his Honour departed from proper principle in dealing with this part of the appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 22 OF 1999

ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

JUDGES: EINFELD, HILL, DRUMMOND, TAMBERLIN & HELY JJ

REASONS FOR JUDGMENT TAMBERLIN J: 47 I agree with the conclusions reached by Einfeld J in his judgment and with the orders proposed by his Honour. 48 I have read the observations of Hely J and I am in agreement with them. In particular, I consider that the majority judgment in Warren v Coombes (1979) 142 CLR 531 at 552, makes it clear that in a case of negligence, where the primary facts are not in question, it is not correct to treat the decision of the primary decision-maker as the equivalent of a jury verdict. In such a case the function of the appellate Court is to consider the judgment of the primary decision-maker and decide whether there was error in drawing the inference of negligence. As the majority there pointed out, the duty of the appellate Court is to draw the inference it considers correct in the circumstances. There is no additional requirement to reach a conclusion that the primary decision was "plainly wrong" or to treat it as correct simply because there was "some evidence to support it". I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 22 OF 1999

ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HELY J: 49 I have had the advantage of reading the reasons for judgment of Einfeld J in draft form. I am unable to agree, with respect, with his Honour's view that there were significant issues of credit involved in this case. The Master accepted that the respondent was a totally frank and honest witness, and the Supreme Court was as able to draw inferences or conclusions on the basis of her evidence, as was the Master. 50 I agree with his Honour's exposition of the principles which guide an appellate court in the discharge of its functions. I also agree that Chief Justice Miles analysed the evidence for himself and arrived at conclusions as to the appellant's negligence upon the basis of that evidence which filled in gaps which had been left in the reasoning process of the Master. 51 There are, however, statements in the reasons for decision of Gallop and Higgins JJ which suggest a failure to apply the principle in Warren v Coombes (1979) 142 CLR 531, 552-553 and cf Moran v McMahon (1985) 3 NSWLR 700, 716, 722. That principle does not require the appellant to establish that the Master was "plainly wrong" (per Gallop J), nor is it necessarily sufficient that the evidence "is capable of supporting" the Master's ultimate conclusion of negligence (per Higgins J). That is particularly so in a case where, as Miles CJ and Higgins J have pointed out, not all of the steps in the process of reasoning leading to a conclusion of negligence have been exposed by the Master. 52 Miles CJ found that, on the probabilities, the appellant failed to comply with its own standards of inspecting the "more trafficked" paved pedestrian areas in Canberra (of which the site of the accident was one) about once a year, with an annual assessment of particular sites that needed repair. The Chief Justice concluded that the Territory failed to inspect the site in the year prior to the respondent's accident, and that this failure was both unreasonable and causal of the respondent's injury. 53 I agree with this view. Einfeld J says that nothing was done to address the rectification of the pavement as a result of the complaint of the incident on 22 February 1994. However, the Master [15] and Higgins J [41] drew no conclusion as to what, if anything was done in response to the February 1994 complaint. Miles CJ [3(2)] says that the evidence was that sand and pavers were used in response to the complaint (and this is supported by the endorsement on the complaint form at AB 193). I am not conscious of any evidentiary foundation for a positive finding that nothing was done by the appellant in response to this complaint. Subject to this qualification I agree with Einfeld J's conclusion that negligence on the part of the appellant was established. 54 I agree with his Honour's conclusion on the issue of contributory negligence and with the orders which his Honour proposes. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Counsel for the Applicant: Mr R. E. Williams QC and Mr P. A. Walker

Solicitor for the Applicant: ACT Government Solicitor

Counsel for the Respondent: Mr A. J. Bellanto QC and Mr C. M. Everson