1 MASON P: The appellant severely injured his left arm when he fell or jumped from a swing in Emblen Park, Wagga Wagga on 19 April 1999. The respondent was sued as the occupier of the Park responsible for installing and maintaining the swing.
2 There was a compound fracture of the left radius and ulna with complete transection of the median nerve requiring a median nerve graft, and consequent disabilities. During the trial damages were agreed in the sum of $350,000.
3 There was a verdict for the defendant because the judge was not satisfied that the accident had occurred in the manner claimed by the appellant (Davis v The Council of the City of Wagga Wagga [2002] NSWSC 911). This followed a trial in which the credibility of the appellant and of his father were critical, in the absence of any corroborating eyewitness testimony or contemporaneous photographic evidence. The appellate role of this Court is therefore constrained by the principles recently expounded by the High Court in Fox v Percy (2003) 77 ALJR 989.
4 Both the appellant and his father were fairly inarticulate and were found to be unimpressive witnesses, not that it was suggested that they were dishonest.
5 The appellant was 15 when injured and 18 when he gave evidence at trial before Dunford J. He was of low intelligence and had been a poor student, except in sports. He had difficulties in reading, writing and numbers. His memory was poor. His father, who was the next friend in the proceedings, was a sole parent who was unemployed and who appears on a reading of the transcript to have had difficulties in understanding questions and giving clear descriptions of events. When asked what his father did for a living, the appellant said: "Just sits at home. He has a sore back so he can't do nothing".
6 The accident occurred on a day when there was a teachers' strike at the appellant's school. He went to Emblen Park with a friend, Richard King. The two boys sat on adjacent, identical swings that were supported by a single frame. The boys' size and strength would have extended the carrying capacity of the swing, especially since the appellant was swinging to a height estimated as in excess of five feet from the ground. I do not suggest that their actions were inappropriate, but I infer that they may well have shaken the swing more vigorously than was acknowledged by the council employee whose evidence is recorded below.
7 The two swings were supported by a single cross-bar. That cross-bar rested at its ends upon two metal bars at right angles to it. The extremities of those bars were supported by four vertical poles. The seats were rigid, apparently made of rubber, supported on either side by a chain extending to the cross-bar. The chain's links were metal, coated with a plastic-type material. The chain was affixed by what were described as S-hooks. These were metal of apparently similar thickness to the links of the chain. Unlike the chain, the S-hooks were not coated in plastic. The top loop of the S passed through the lowest link. The bottom loop of the S passed through the triangular part of a metal piece shaped like a capital A whose bases were bolted to the seat.
8 The ends of the S-hooks were meant to be crimped such that neither the chain nor the seat could be detached. Nevertheless, the evidence (discussed below) showed that the hooks could wear and stretch over time. If this happened there were two possible consequences. In extreme cases, the seat could become detached because the opened S-hook would escape the link above or the attachment below. There was also the risk that a partially opened S-hook might catch clothing, jewellery or skin.
9 One of the tasks of those responsible for the periodical inspection of Council parks was to check the state of the S-hooks. Sometimes the hooks were replaced. At other times they were clamped tight again with a tool that required two people to operate.
10 The appellant's version of the accident, in evidence, was that he noticed the cross-bar shaking as he was swinging. He thought it was going to fall. He warned his companion, who jumped off. The appellant attempted to jump off as the swing was going up, but an S-hook caught the left-hand side of the shorts he was wearing and the outside of his thigh, temporarily interrupting his jump and causing him to fall with his left forearm across the front of his body (Black 5, 32-5, 38, 39, 40).
11 The appellant was challenged in cross-examination in various ways about his account of the accident. The cross-examination culminated in the suggestion that he had simply jumped off for fun and that he had not caught his left side at all (Black 41-2). These propositions were denied.
12 The appellant did not suggest that his shorts were torn, but they were not produced in evidence. Nor did he call his friend as a witness or explain his absence. According to the appellant, the friend had jumped off the swing first, apparently just before he attempted to do so (Black 31). Whether or not he saw the critical part of the accident is unknown.
13 Hospital and medical records were tendered at the start of the trial, when the quantum of damages was in issue. At the beginning of the second day the court was informed that damages had been agreed and that the doctors did not have to be brought to court (Black 69). Some of the medical records contained histories of the accident, apparently given by the appellant, that later assumed importance in the learned trial judge's reasons. But no questions were put to the appellant in chief or cross-examination about the accounts of the accident recorded in these records.
14 The severity of the injury was such that in the week following the accident the appellant had operations on his arm, first at the Wagga Wagga Base Hospital and then at Sydney Hospital.
15 The only expert evidence was that called by the appellant, from Mr Adrian Pilton. He was an architect with specialist qualifications and wide experience in landscape architecture. Mr Pilton had designed playgrounds for public parks over many years and was familiar with safety issues involved in such work. He gave evidence on the assumption that the accident had occurred as stated by the appellant in his evidence. He expressed the opinion that S-hooks were inherently capable of coming open because of the tremendous stress placed on them in swings. This gave rise to the risk of catching clothing, rings or fingers. An S-hook was not essential, and it was preferable in Mr Pilton's view to use a component that closed and could be welded (Black 54). He accepted in cross-examination that no Australian Standard prohibited the use of S-hooks in swings.
16 Photographic and other evidence also demonstrated the capacity of S-hooks to prise open. This phenomenon was well-known to the respondent and its employees concerned with park maintenance (see the photographic evidence, the bundle of Playground Inspection Reports and the evidence of Mr Johnson).
17 The appellant's father was understandably occupied in attending to his severely injured son in the days immediately following the accident. He stayed with him at the Wagga Wagga Base Hospital and went up to Sydney with him. Mr Davis' evidence that he was told about the circumstances of the accident by his son (Black 57) is of such high probability that it should be preferred to the contrary evidence of the appellant himself (Black 6), although nothing ultimately turns on this.
18 On 26 April 1999 - a week after the accident - the father went to look at the swings. He said that he noticed that the "hooks were open" on one of the swings (Black 58, 63-4). With some difficulty, he eventually identified the particular seat he had in mind (Black 66), but there was no evidence to establish whether that he had looked at the swing from which his son had jumped or the one occupied by Richard King. Mr Davis was incapable of sketching the open S-hooks that he had observed (Black 67).
19 It follows that his evidence about the opened S-hook that he saw was ultimately of little assistance to his son's case. It should however be observed that it corroborated the appellant in the sense that he made early complaint about the hook being the cause of his injury. The father was not challenged in cross-examination about having looked for and observed an open hook on one of the swings.
20 At least two months later, after consulting a solicitor, Mr Davis returned and took photos (Exhibit G, Blue 199). He said that the hooks he had previously observed had been replaced (Black 59). They certainly appear new in the photograph. This is consistent with the evidence of the respondent's witness, Mr Johnson, as I point out below.
21 The respondent's single witness was Mr Johnson who was the parks maintenance ganger for the Wagga Wagga City Council. He had been responsible for maintaining parks in the area for seven years. Mr Johnson produced his Playground Inspection Reports for Emblen Park dated 27/4/99 and 8/6/99. He had no actual recollection of these inspections, but gave evidence of usual practice and the interpretation of his own records.
22 Mr Johnson used to conduct a "shake and grab test" to make sure that the swing was structurally sound. His inspection of the seats used to include checking S-hooks "like just to see how much longer, they have still got enough metal wear to hold and there is no wear and tear" (Black 85). Mr Johnson confirmed that hooks could wear and stretch, needing to be closed by a double handed crimping tool, and ultimately to be replaced (Black 85-8).
23 Mr Johnson's Report for 27/4/99 describes the "Swing Frame Double" as "OK". The "Swing Seat" is described as "OK … Parts Req'd" ("S-hooks replace later on are worn") (Blue 243). Mr Johnson said that this meant that the hooks would have been checked and found closed (Black 88, 103). But he agreed in cross-examination that his primary concern was to check that the "U-bolt" (ie the A shaped piece attaching the chain to the seat via the S-hooks) could not come out, throwing a rider to the ground as the swing detached from the chain (Black 91K). Mr Johnson accepted that S-hooks sometimes open (Black 102) and that it would be dangerous if S-hooks opened enough to catch the clothing of a person using the swing (Black 91).
24 Towards the end of Mr Johnson's examination in chief, senior counsel for the appellant, Mr Toomey QC, flagged the point that it had never been suggested to Mr Davis that his estimate of a one inch opening of the S bolt was incorrect (Black 90). This was noted, with nothing being done to recall the witness. This was an early warning about the Brown v Dunn issues which now lie at the forefront of this appeal.
25 Mr Johnson's Report of 8/6/99 contained no reference to the need to replace the S-hooks previously listed as "worn". As indicated, this tends to corroborate Mr Davis' evidence that he saw fresh hooks when he inspected the swings the second time, at least two months after the accident.
26 The same Report shows, against the reference "Swing Frame Double" annotations that it was "OK… Parts Req'd (Needs Welding (Bracket)). This entry in a document that was not produced on discovery until after the appellant had given evidence is said to corroborate his testimony about the shaking cross-bar. This is possibly the case, although the question whether the cross-bar was shaking strikes me as fairly marginal because it was at most the occasion for the appellant jumping off the swing. It was part of the history, without being a relevant cause of the injury.
27 Counsel for the defendant addressed first. He submitted that the trial judge would not be satisfied that the accident had happened in the way the plaintiff said it had. It was perfectly open for this submission to be made. Senior counsel had cross-examined the appellant as to his version of the accident and had put to him that he had jumped off the swing and that he had not got his shorts caught in a vertically open S-hook.
28 However, the key element in the submission was a proposition that the appellant was an inconsistent historian. In support of this, counsel took his Honour to: