(c) failure to deal with the accident report and the page from the incident register recording that Mr Cartwright observed the activity of a swimming lesson and that Ms Carthew was having a dividing lesson.
18 It has been said on many occasions that the content of reasons depends on the circumstances of the particular case. It is not necessary to refer to all the evidence in the proceedings to indicate which of it is accepted or rejected, or to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. And, as was said in Soulemezis v Dudley (Holdings) Pty Ltd at 281 -
"In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough."
19 It may be that particular evidence, beyond the credibility of witnesses, is important or critical to the finding of fact. If it is not referred to, it may be inferred that it was not duly considered and the reasons may be deficient: Beale v Government Insurance Office of New South Wales (1997) 44 NSWLR 430 at 443. If it is referred to but without any analysis of the evidence from which it can be seen why, having regard to it and the other evidence, the judge came to the finding of fact, again the reasons may be deficient: illustrations are Sinha v Health Care Complaints Commission [2001] NSWCA 206 and Fitzgibbon v The Waterways Authority [2003] NSWCA 294. In the first of these cases it was held that reasons were insufficient when the evidence of one witness was accepted without proper regard to unchallenged conflicting evidence of another witness. The nature of the evidence must be assessed, see Mifsud v Campbell (1991) 21 NSWLR 725 at 728 -
"Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge - as the defendant's denial of having consumed alcohol - may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal."
20 I do not think there is any substance in Ms Carthew's complaints in the first two respects.
21 The judge was alive to the whole of the evidence of Ms Carthew, and the transcript references which he identified included her evidence of her discussions arranging with Mr Quinn for the lesson and with Ms Krohn to take over her post as receptionist. That evidence fell with the unreliability, as assessed by the judge, of Ms Carthew's evidence. The judge gave reasons for the view he took of the reliability of Ms Carthew's evidence, and it was not suggested that it was not open to him to take that view. More expansive reference to the evidence in question was not required.
22 The judge referred specifically to Ms Krohn's evidence that she filled in at the receptionist desk at 6 pm when Ms Carthew requested it. He did not refer specifically to her evidence of speaking to Mr Quinn. Again, however, it was not necessary for him to do so when he accepted the evidence of Mr Quinn in full, as he was entitled to do for the reasons he gave. Ms Krohn's evidence also fell with the judge's necessarily implicit view that Ms Krohn should not be accepted in preference to Mr Quinn, and although not expressly stated I would understand from his mention of the cross-examination of Mr Deggens that the judge thought Ms Krohn's evidence compromised by her frequent conversations with Ms Carthew.
23 The accident report and the page from the incident register aside, the judge's findings of fact turned upon the credibility he ascribed to Ms Carthew and Ms Krohn on the one hand and Mr Badger and Mr Quinn on the other hand. It was apparent why the judge considered that Ms Carthew suffered her injury in the circumstances described by the latter. The circumstances were quite different from those in, for example, Sinha v Health Care Complaints Commission.
24 There is more to be said for Ms Carthew's complaint in the third respect. The judge did not refer to the accident report and the page from the incident register. Was this evidence of such importance that the reasons were inadequate in failing to explain why, notwithstanding what Mr Cartwright recorded, the judge accepted the evidence of Mr Quinn?
25 Ms Carthew submitted that the accident report and the page from the incident register had been overlooked in the judge's fact-finding, because the judge had said (see para [10] above] that he would analyse the evidence "of the two people who were there during the instance … ". There were more than two people there, it was said, because Mr Cartwright was there as well as Ms Carthew and Mr Quinn: therefore Mr Cartwright had been overlooked. I do not agree. The reference to the two people who were there was apt for the immediate participants, Ms Carthew and Mr Quinn. It did not have to include the bystander, Mr Cartwright.
26 It remains that the accident report and the page from the incident register were not mentioned. It can readily enough be seen, in my opinion, why the judge would have not have thought that they weighed against his acceptance of the evidence of Mr Quinn. Mr Quinn was a witness who the judge had seen and heard, and who impressed him favourably. The records relevantly stated that Mr Cartwright observed a swimming lesson or a diving lesson, which was consistent with the evidence of Mr Quinn because there was a lesson, the lesson conducted for the three children in which Ms Carthew intervened. It was not known where Mr Cartwright was positioned when he saw what he recorded and, for all that appeared, to his observation there was a lesson involving Ms Carthew when in truth there was a lesson involving the three children in which Ms Carthew intervened.
27 The judge did not express this reasoning, but I do not think that, in the circumstances, the accident report and the page from the incident report were so critical that failure to refer to them would breach the principle that justice must be seen to be done. The reason why they would not be of weight against the judge's view of Mr Quinn as a credible witness was open to be inferred, although unstated. Ms Carthew knew from the reasons why the judge found as he did, and inadequacy of reasons is not demonstrated by pointing to evidence which on ready analysis does not really count against the finding made.
28 In my opinion, the appeal should be dismissed with costs.
29 SANTOW JA: I agree with Giles JA
30 IPP JA: I agree with Giles JA.