15 A statement furnished by Mr Graham to his solicitors, tendered in re-examination apparently to rebut an express suggestion of recent invention, states: (Blue 104) "It was as I was walking through the sliding doors that I lost my footing on a metal cover which had been placed over the door runners. I stumbled forward then tripped on scaffolding pipes which were erected and I fell down." The statement further states: "It was smooth and shiny metal. I lost my footing walking over the bridge. It should have been made of checker plate steel, which would have given me much better grip as I walked over it." Her Honour also referred to the histories in numerous medical reports, and found that the accounts in them varied to some degree. Her Honour said, after reviewing the accounts in medical reports (Red 64C):
Having been taken to these inconsistencies, the plaintiff said that he had in fact tripped on scaffolding, but he believed that he had also told the doctors who he had consulted that he had lost his footing having stepped on the metal cover, tripped and slipped on it, lost momentum and tripped over the scaffolding whilst trying to trying to recover his balance. He denied that his evidence concerning movement of the metal deck was a matter of recent invention.
16 Her Honour then reviewed the statements about the events in the Statement of Claim and Particulars of Negligence (Red 3-4), which made no reference to movement in the metal cover, but alleged that the surface of the passageway was smooth and slippery, and alleged "Failed to ensure the surface of the said passageway was not slippery and uneven due to the presence of the metal cover and scaffolding pipes."
17 Her Honour then made these observations (Red 64U-65F), to part of which I referred earlier:
Thus, all of the evidence and the complaints made in the statement of claim, insofar as they relate to the metal cover, are directed at the plaintiff having slipped, tripped, or lost his footing on the metal cover. There is nothing in these materials referring to instability of the metal cover as the cause of the trip, slip or loss of footing. The plaintiff's evidence to the court was that he did not in fact trip or slip on the metal cover. He said he saw the cover and in fact stepped on it, believing it to be stable. At the most, he said that he lost his footing because of instability in the metal decking.
18 The materials which the Trial Judge examined include some which are of kinds which are usually poor sources for evidence dealing with the credibility of a witness, either as to capacity for recollection or sincere truthfulness. Histories given to medical examiners are characteristically extremely brief, and are given on occasions when it is not the purpose of the patient to establish fully in the minds of the medical examiners all the relevant circumstances of the injury. It is not the purpose of the medical examiners to ascertain and record all the relevant circumstances, and the patient has no opportunity to check or correct what the medical examiners have noted. It is not often that such materials have any weight for testing credibility.
19 Similarly pleadings and particulars are more the responsibility of the solicitors who prepare them than of the client they represent, although the client's instructions should have some influence. Statements by a client in instructions to his or her solicitors, and statements by the solicitors on behalf of the client in instructions to an expert witness have greater call on attention. The possibility of misunderstanding can clearly be seen and is greater than the possibility of misunderstanding when a witness speaks his or her evidence in an open court before a Judge. The Trial Judge was aware of these shortcomings and mentioned them particularly in relation to the medical reports (Red 65F-M); her Honour gave more weight to the pleadings and particulars, and to the instructions to Mr Tozer and to Mr Graham's statement to his solicitors (Red 65M-V). Her Honour did not use the information from these various materials as the basis for some positive finding about what caused the injury and said (Red 65R):
Having regard to those materials, I am led to the conclusion that the plaintiff's evidence at its best is a reconstruction of events or, alternatively, that an added feature of recent invention has been inserted into his evidence; namely, that relating to the instability of the metal cover.
It is not credible, in my view, that a feature of the incident so vital to the circumstances of the plaintiff's fall and subsequent injury would remain apparently unrecorded until the plaintiff's evidence was given at the date of the hearing. The evidence is therefore not accepted. However the plaintiff's injury occurred, I am not persuaded that it was as the result of instability in the metal cover.
20 That is to say, it was the complete absence in all these sources of any reference to the floor's being caused by instability of the metal cover that contributed to her Honour's reasoning and conclusion. When her Honour expressed the conclusion that Mr Graham's evidence at its best was a reconstruction of events or alternatively that evidence relating to instability of the metal cover was an added feature of recent invention, it should be understood that her Honour's reference was principally to the effect of Mr Graham's evidence as stated at Red 65 - that he did not in fact trip or slip on the metal cover, and that he saw the metal cover, stepped on it believing it to be stable and lost his footing because of its instability. At a later point (Red 66) referring back to this conclusion her Honour spoke of it as "… my rejection of his evidence on causation."
21 Her Honour did not make any express finding, adverse or otherwise, about Mr Graham's demeanour while giving evidence. Her Honour had a full opportunity to observe Mr Graham and consider the effect of his evidence; his evidence took up much of two hearing days in February 2004. There was one later hearing day on 15 April 2004 when some submissions were received, and judgment was given on 5 May 2004, after appropriate opportunity for consideration. Mr Graham underwent two searching cross-examinations and the transcript of his evidence shows that he is articulate. As well as being taken, by three different counsel, to the circumstances of the accident and injury in detail, he was taken through evidence on other subjects which might well have had a bearing on the conclusion as to his credibility, including his work history before and also after his injury, his earnings and income tax affairs, the impact of injuries on him, about which there were some matters in issue, and other aspects of his life circumstances; and there are a number of passages in his evidence which could reasonably be regarded when assessing his credibility.
22 In my view, notwithstanding the absence of express reference or analysis of their effect, these passages must have had some influence on the Trial Judge's conclusion rejecting Mr Graham's evidence on causation, and they put her Honour in a position of considerable advantage over myself with access only to the written record. There is nothing in evidence with the nature of incontrovertible facts or uncontested testimony which does or could demonstrate that the Trial Judge's conclusion rejecting Mr Graham's evidence on causation was erroneous. Within the principle restated in Fox v. Percy (2003) 77 ALJR 989 at 993 to 995 [20] to [31] (Gleeson CJ, Gummow and Kirby JJ) there are in my opinion no grounds upon which the Court of Appeal should set aside her Honour's finding on the issue of causation.
23 On appeal Senior Counsel for Mr Graham put an argument in which it was contended that acceptance or rejection of Mr Graham's evidence about causation of his injury, particularly the evidence to the effect that he saw the metal cover and in fact stepped on it, believing it to be stable and that its instability led to his trip and fall, is not essential for establishing the causation of his injury, and that what is essential to establish causation appears from her Honour's five findings. It was contended that it should and could only have been found as a fact that instability of the metal cover was a contributing cause of his fall if her Honour's findings are taken with the simple fact that Mr Graham tripped or slipped on the metal cover.
24 This invokes a line of reasoning often related to discussion by Dixon J in Betts v. Whittingslowe (1945) 71 CLR 637 at 649 of the facts of that case; what is involved is not a principle of law but a line of reasoning on causation for consideration by the tribunal of fact. A strong and, I would think, the highest available version of this line of reasoning was expressed by Gaudron J in Bennett v Minister for Community Welfare (1992) 176 CLR 408 at 420-421:
And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed [See, for example, Duyvelshaff v Cathcart and Ritchie Ltd and Quigley v Commonwealth, where was an onus on a plaintiff employee to establish what he would have done if different working conditions had been provided.], generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect [McGhee v National Coal Board [1972] 1 WLR 1, per Lord Wilberforce at 6,7, where it was said that in the circumstances of that case the defendant bore an onus to that effect. But cf Wilsher v Essex AHA [1988] AC 1074, per Lord Bridge of Harwich at 1087, 1090, where the issue of causation in that case and the remarks of Lord Wilberforce in McGhee were analysed in terms consistent with an inference arising from the evidence in the plaintiff's case in chief with a resultant evidentiary onus on the defendant. Also note the debate in Canada on a possible shift in the onus of proof, seemingly resolved in the manner indicated by Lord Bridge in Wilsher by the Canadian Supreme Court in Snell v Farrell (1990) 72 DLR (4th) 289, at 301.], or that the injury would have occurred even if the duty had been performed [See Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 and British Road Services Ltd v AV Crutchley and Co Ltd [1967] 2 All ER 785.], it will be taken that the breach of the common law duty caused or materially contributed to the injury.
Bennett v. Minister for Community Welfare and much other learning on this subject were considered in TC by his tutor Sabatino v. State of New South Wales [2001] NSWCA 380 by Mason P at [53] to [74]. See too Seltsam Pty Ltd v. McGuiness (2000) 49 NSWLR 262 at 278-280 (per Spigelman CJ).
25 There is no sign in the Trial Judge's careful reasons that any such line of reasoning was put before her for adjudication. A finding that engagement of Mr Graham's foot with the unstable metal cover actually took place is necessary to initiate consideration of this line of reasoning. There is in the judgment no factual finding concluding affirmatively that Mr Graham's fall was caused by or involved tripping or slipping on the metal cover. To my reading the Trial Judge's conclusion at Red 65 is that "the plaintiff's evidence to the Court was that he did not in fact trip or slip on the metal cover."
26 There are other difficulties related to this line of reasoning. One difficulty is that this line of reasoning is often or usually associated with negligence consisting of omissions rather than positive acts (although the distinction can be very elusive). Another difficulty is that the line of reasoning relates to reaching findings on the facts, and it is difficult to say that a positive conclusion on negligence is so plainly required that it would be an error correctable on appeal not to have reached it by drawing an inference. Considerations which are difficult to elucidate or even to identify fully relating to credibility of or confidence in Mr Graham and to the tribunal's understanding the events overall should enter into a decision to draw such an inference, and represent difficulties for a conclusion that a failure to draw the inference is erroneous. However a conclusion may be so clearly required as to require correction on appeal; as Dixon J appears to have done in Betts v. Whittingslowe.
27 At the trial Mr Graham embarked on proving that the cause of his fall was the instability of the metal cover when he trod on it, the basis of his case was clear and distinct, and it failed, and in my opinion he should not now be allowed to present his case on another basis which was not examined when the opportunity to adduce evidence existed.
28 There were further submissions relating to the apportionment of liability between the defendants, their rights against each other and the assessment of damages. In my opinion these issues do not call for decision.
29 In my opinion the Court of Appeal should make the following order:
Appeal dismissed with costs.
30 HISLOP J: I agree with Bryson JA.