Geyer v Redeland Pty Limited

Judgment 1BEAZLEY P: This is an appeal from a decision of Rothman J dismissing the appellant's claim for damages arising out of a work injury: see Martin Geyer v Redeland Pty Limited t/as Barbehire and Sydney Site Services Pty Ltd [2012] NSWSC 245. The appellant was injured on 17 September 2004 when he fell down approximately 15-20 stairs as he was leaving a social work function whilst in the employ of the second respondent, Sydney Site Services Pty Limited (Sydney Site Services). The function had been catered for by the first respondent, Redeland Pty Limited t/as Barbehire (Redeland). The evidence was that there were about 250 people at the function. The appellant's case was that he had lost his footing on the stairs when he was bumped by a person coming up the stairs. He contended that the person was part of the catering staff employed by, or under the direction or control of, Redeland. 2Rothman J, at [61], dismissed the claim against Redeland, as he was not satisfied that the person who bumped the appellant was a catering employee. Rothman J also held, at [88], that the appellant had failed to establish that Sydney Site Services had breached its duty of care as there was nothing about the stairs that involved negligence in either requiring or allowing employees to use them. 3His Honour held, at [93], that should liability have been established, he would have found the appellant to be 25 per cent contributorily negligent for the accident. His Honour also provisionally assessed the damages to which the appellant would have been entitled had he succeeded in establishing liability.

Issues on the appeal 4By his amended notice of appeal, the appellant has raised the following issues for determination: (1) Whether the trial judge erred in his analysis of the probability relating to the identity of the person who had caused the appellant's fall: amended notice of appeal ground 1; (2) Whether the trial judge failed to have regard to relevant evidence, including evidence which would have affected his analysis of the probabilities relating to the identity of the person who caused the appellant's fall: amended notice of appeal ground 2; (3) Whether the trial judge's failure to have regard to the relevant evidence was affected by a delay of 9 months in giving judgment: amended notice of appeal ground 3; (4) Whether the trial judge erred in failing to make an express finding that the first respondent was negligent: amended notice of appeal ground 4. 5Grounds 2 and 3 may conveniently be considered together and logically should be considered first. Grounds 1 and 4 are consequential upon the appellant succeeding on one or more of the other grounds of appeal. 6The appellant did not appeal against the dismissal of his claim against Sydney Site Services. 7Redeland, by a notice of contention, contended that: (1) There was no negligence on the part of the person what was said to have caused the injury to the appellant; (2) Section 5B of the Civil Liability Act 2002 was not satisfied in that the risk of injury was insignificant. 8Redeland did not pursue its cross-appeal regarding the trial judge's provisional assessment of contributory negligence and damages. Accordingly, an order should be made dismissing the cross-appeal.

The evidence 9On the day of the accident, the appellant was attending a work function to mark the end of construction at a site near Circular Quay. The function commenced at 11 am, with appetisers served at that time and a main course at 12 noon. Drinks, including alcohol, were served from 11 am to 3 pm. The appellant did not consume any alcohol and left the function at 3 pm. 10The appellant said that he left the party by a stairwell, which was on the north-east corner of the courtyard. He said that as he commenced to descend the stairs, someone came from around the corner at the bottom of the stairs and commenced to ascend the stairs. He said he had to think quickly, because, it appears, he assessed there was little room for them both on the stairs. The appellant's evidence was that he said to the man coming up the stairs, "Wait, I will go back up", but that the man "just kept on coming up at a speed up the stairs". The appellant said: "I tried to sort of move to let [the man] pass, but he collided with me on my [left] shoulder." 11The appellant said he then fell "straight down the stairs ... feet first". In cross-examination, when asked whether he was "leaning back against the wall" or "trying to pass" the other person, the appellant said he "was trying to get around him on the wall sort of thing". The appellant was also challenged as to whether the other person bumped him or whether he bumped the other person. He denied the latter but accepted that they had "both bumped together". 12The appellant's earliest formal account of what had occurred, was in his affidavit, dated 22 September 2009, sworn in response to Redeland's pleaded limitation defence: see Limitation Act 1969, s 50C. In his affidavit, the appellant deposed that the caterers "all had black pants with white shirts and the waiters on the main table had their heads covered in a handkerchief style covering". The appellant also deposed in that affidavit that he knew the person who bumped him was a caterer because "he was dressed like the other caterers and was carrying a big load on his left shoulder". 13The appellant's evidence at trial varied as to the description of the caterers and of the person who bumped him. In his evidence in chief, he initially stated that the caterers "wore white shirts with black overalls" and that some of them had a "handkerchief over their head". He described the person who bumped him as wearing a black apron and white shirt, but he could not remember what colour trousers they were wearing. He said that he had seen the caterers at the function wearing that sort of clothing. In cross-examination, the appellant agreed that the first time that he had described the person who bumped him as wearing an apron was during his evidence in chief. He said that he had only remembered that over the previous weekend. He said, however, that he "always knew the shirt". He could not, however, "picture the pants" the person was wearing. He described the person as being of "Islander appearance". 14The respondent tendered in evidence a screen shot of its website and a coloured photograph of its staff, which, as I understand it, was also on the website. The screen shot showed a black plastic bin, or tub, containing alcohol and drinks. A photograph depicted two males, carving meat on a spit. Both were wearing white jackets and black aprons. The aprons had a yellow stripe across the top and a printed image above the word "BARBEHIRE" in reasonably large yellow lettering. One of the men was of Islander appearance. The appellant's reference to the apron and the person being of "Islander appearance" was particularly significant, as it reflected what was apparent from the photograph, namely, catering staff wearing an apron, one of whom was of Islander appearance. 15On further cross-examination regarding the person wearing an apron, the appellant said: "Q. And you saw on the Barbehire's website there's a photo of a man wearing an apron? A. Yes. Q. Is that what caused you to recall that you say the person was wearing an apron? A. No, but when I seen the man it was straight away. Q. You hadn't recalled prior to looking at the website that this person was wearing an apron, had you? A. No, because it was so quick. I always knew that it was a white shirt. ... Q. Well, you remember the white shirt, you don't remember the pants and you've checked the website and that led you to recall that he was wearing an apron. Is that right? A. Yes." 16The appellant also said that the person who bumped him was carrying a black tub on his left shoulder, although he conceded in cross-examination that, prior to his evidence in chief, he had never suggested that the person was carrying a black tub. He said, however, that he was "certain it was a black tub". He said that he had always stated that he "thought it was a keg or a platter or something" but was now "certain it was a black tub ... because of the shape. I thought the keg was of the shape". He said a keg was "what you buy beer in" and later described it as being "on pallets ... in the freezer". He was asked: "Q. Mr Geyer, are you saying in 2004 you understood a keg was something you walk into the bottle shop and see it sitting there and you can just purchase it? A. Yes." 17The appellant admitted that he had found out on the Friday before the hearing that Redeland claimed that none of the catering staff had carried a keg at the function. In re-examination, the appellant clarified that when he referred to a "keg" he meant "boxes of tinned beer ... like beer served in a bottle shop". 18The evidence of the appellant's brother, who had also attended the function, was that the caterers wore a uniform of black pants and a white shirt. This description of the uniform was confirmed by one of Redeland's chefs, Mr Sun, and by Mr Combe, Redeland's Managing Director. Mr Sun agreed that the caterers, wearing black and white, were distinctive, as compared to the labourers attending the function. He agreed in cross-examination that the wait staff should have been issued with vests. Mr Combe said wait staff would be given an apron "if required". 19Mr Lambert, the other chef engaged at the work function, said that he and Mr Sun as a general rule "wore black pants with either a white or black chef's jacket or coat and no hat". He said that the caterers wore "black trousers or skirts and white shirts". He said the caterers were also "issued with Barbehire black vests and name tags when they first attended the site". Mr Lambert said that he did not remember any of the caterers "wearing white hats or scarves at this particular function". Mr Lambert could not recall any of the catering staff being of Islander appearance. 20The evidence revealed that the appellant had not immediately identified the person who bumped him as a member of Redeland's catering staff. Diane Kissun, the appellant's wife, gave evidence that on the day of the incident the appellant told her "[s]omeone pushed him down the stairs" and that he could not remember who had caused him to fall down the stairs. She later stated that she couldn't remember who the appellant had told her had pushed him, as opposed to the appellant being unable to remember who had done so. 21Likewise, there was an absence of any reference in the medical reports to the presence of another person on the stairway. Dr Edema, a general practitioner whom the appellant consulted on 23 September 2004, issued a Workers Compensation Medical Certificate, dated 23 September 2004. In the section of the form entitled "Cause of injury as stated to me by this worker", Dr Edema wrote "slipped when walking down stairs". Counsel for the appellant suggested that the appellant told the doctor about the accident, but did not specifically talk about how it occurred. Dr Ng, whom the appellant consulted on 27 September 2004, recorded that the appellant "fell down stairs ... did not hit back on steps ... twisted back holding rails in attempt to break fall". 22The notes of Dr Woo of 23 May 2005 recorded that the appellant "fell off last 8 steps of 40". The notes contained the following observation: "caterer carrying food bumped him > fell". However, in his oral evidence Dr Woo explained that his description of the accident was an amendment to his notes entered shortly before 21 November 2009. Up until that point in time, despite treating the appellant for approximately four years, Dr Woo had not heard that the appellant's fall had been caused by being bumped by a caterer. 23However, there was a reference to a caterer on the stairs in the Report of Accident forms completed shortly after the accident. In an "Incident Notification" form (the date of which is unknown, but which appears to have been generated online on 23 September 2004), the injury was described in the following terms: "As [the appellant] was coming down stairs he stopped and turned slightly to let a caterer come up the stairs and slipped with a bit of a jolt - he did not fall and initially was not in a lot of pain but over the weekend his back started to hurt and by Wednesday he went to the Doctor and did not go to work." 24In the Employer Report of Injury, signed by the Sydney Site Services Administration Manager on 12 October 2004, the circumstances or accident causing injury were described as follows: "[The appellant] was going downstairs and turned to allow a caterer more room coming up the stairs and slipped slightly" 25There was an investigation in the evidence as to the likelihood that a member of the catering staff would be carrying a tray or other bulky item up the stairs at the time of the accident as well as into the possibility that a person unconnected with Redeland may have been using the stairs at that time. Both Mr Lambert and Mr Sun denied that they had carried anything up the stairs on which the appellant fell and denied that they had bumped him. They also disputed that any of the catering staff would have been carrying anything up the stairs at that time of the afternoon. Mr Combe supported this evidence. Ms Combe also denied she had been on the stairs. Their evidence was as follows. 26In his statement prepared prior to the hearing, Mr Lambert said that the: "... only things that would have been carried off site on any workers shoulders would possibly have been the spits but this would have been at the end of the function and meant the person concerned was carrying them downstairs, not up." 27Mr Lambert said that the caterers were responsible for cleaning up the function and that the rubbish and the set up materials would be transported back to the catering vehicle. He said that the "rubbish would have gone into plastic bags". He said they took along "a number of extra bags for rubbish". Mr Lambert also explained that red crates were used to carry the "cutlery and the plates and everything in" and black bins were used for "putting ice in for the drinks". He was asked: "Q. And if you ran out of bags what you do is take down the extra bottles in the black bins or red bins or whatever bins you were using on that occasion? A. We would have any leftover drinks in the bins, yes. Q. If you had a number of other leftover drinks you would take them down in the bins, unload it and bring them back, one assumes? A. I couldn't say. If we had the things full we wouldn't have had extra bins and we wouldn't have had any place to store them." 28Mr Lambert said that he had observed people at the function bringing back "pre-mixed UDL cans", cartons of beer and spirits to the function. There was no challenge to this evidence, which was elicited during the course of cross-examination. Accordingly, the appellant's attack on this evidence on appeal on the basis that Mr Lambert had not mentioned it prior to giving his evidence can be put aside. 29Mr Sun denied that the caterers would have been carrying alcohol up the stairs at that time in the afternoon. He said that if alcohol was to be served after 3 pm, it would have to be recorded by Redeland and there was no such record. Mr Sun could not think of any reason why the catering staff would be carrying a large object up the stairs at that point of time. Rather, as they were packing up, things would be being carried downstairs. He also pointed out that Redeland's van was parked adjacent to a different set of stairs to those that the appellant fell down. It should be noted in this regard, that the appellant agreed that when he had seen the catering van earlier that day, it was parked adjacent to the wide stairwell, and nowhere near the stairs on which he fell. 30Mr Sun also gave evidence that in addition to Redeland's staff, approximately five workers from Worldwide Workers had been engaged. In addition to their waitering duties, Mr Sun said that they helped set up and clean up and that their main role was to carry chairs and tables. Mr Sun also said that there were workers from the tent hire and boxing hire company at the function but that he had not had anything to do with them. Mr Lambert referred to "entertainment" being provided but it is not apparent whether this was a reference to the boxing exhibition. He said that the entertainment had nothing to do with Redeland. 31Mr Combe gave evidence that Redeland had an alcohol supplier and there was no reason why further alcohol would be brought by Redeland employees to the function after 3 pm. Mr Combe said that Mr Sun and Mr Lambert were responsible for supervising the activities of the Worldwide Workers' staff but were not responsible for giving them any training, for example, in the manner in which they walked up and down stairs. He said that Redeland relied upon Worldwide Workers to provide suitably trained caterers. 32Ms Combe, the daughter of Redeland's Managing Director, was working at the function as a waitress. Ms Combe was unaware of the incident until she received a fax from the appellant's solicitors in June 2009. She said that she had only been asked to work on the day of the function when two of the seven caterers from Worldwide Workers who were booked to attend failed to turn up for work. She also referred to other persons on site being involved in setting up a boxing ring and marquee tent who were not associated with Redeland. She denied being the caterer who allegedly collided with the appellant. In any event, the appellant did not identify the other person on the stairs as a female.

Reasons of the trial judge 33The essential question in respect of Redeland's liability was whether there was sufficient evidence to identify the person who bumped the appellant on the stairs as being a member of the catering staff engaged by Redeland. The appellant gave a description of the person who bumped him by reference to what he was wearing. As is apparent from the review of the evidence set out above, Redeland called the chefs who had been engaged for the function, Mr Sun and Mr Lambert and Redeland's Managing Director, Mr Combe, and his daughter, Amber Combe, also gave evidence. 34The appellant gave a description of the person who had bumped him, although there were variances in that description, both in what he had told persons after the accident and in the history he gave to various medical practitioners. The appellant had accessed Redeland's website shortly prior to the hearing. The website depicted its catering staff in uniform. Rothman J, although accepting, at [51], that the appellant was "telling the truth as to who and what he believed he saw on the day", held that it was evident from the cross-examination of the appellant that his recollection of the identity of the unidentified man was "vague and affected by what he saw on the Barbehire website". "Barbehire" was the trading name for Redeland. 35His Honour said, at [52]: "Considering the evidence of the four [Redeland] employees (but bearing in mind that the burden of proof is on the balance of probabilities), the person travelling up the stairs cannot be identified as an employee of [Redeland] or part of the catering staff." 36As I understand this comment, it was a statement of the effect of Redeland's evidence and was not a finding of fact by his Honour. Rothman J further observed, at [53], that "[i]t is notorious that the effect of a recent visual depiction of person (or likeness) has an unconscious affect on the memory". This was a reference to the appellant's evidence of having accessed Redeland's website and observing how its staff was depicted. His Honour reiterated, at [55], that whilst he accepted the appellant was being truthful, his viewing of material on the website had affected his memory. 37His Honour, at [58]-[60], considered that on the evidence, there were competing hypotheses as to the identity of the person on the stairs who bumped the appellant. Those hypotheses were that the person on the stairs was: a member of the catering staff; an attendee at the party bringing in additional alcohol at the time when it was known that the caterers would not be providing any more alcohol; or an employee of a local hotel or wine merchant delivering additional alcohol to the party. 38Although his Honour accepted, at [57], that the existence of other possibilities was not sufficient to relieve Redeland from liability, he considered, at [61], that any one of these three possibilities fitted the description given by the appellant of the person who had bumped him. His Honour concluded that although the strongest possibility was that the person concerned was a member of the catering staff, "the strength of that possibility" did not render the likelihood greater than all the other possibilities. Thus, the likelihood of the person on the stairs being a member of Redeland's catering staff was not greater than 50 per cent. It followed, on his Honour's reasoning, that he was not satisfied, on the balance of probabilities, that the person who bumped the appellant was a catering employee.

Consideration of the grounds of appeal 39The appellant, in ground 1 of his appeal, challenged the trial judge's conclusion, and his method of reasoning to his conclusion, that he was not satisfied on the balance of probabilities that the other person on the stairs was a member of the catering staff for whose conduct Redeland was responsible. The appellant submitted that although his Honour correctly found, at [61], that the unidentified individual who bumped the appellant was dressed like one of the catering employees, he erred in finding that it was equally probable he could have been a person other than a member of the catering staff. 40However, in order to determine whether his Honour erred in the analysis of the probabilities relating to the identity of the person who had caused the appellant's fall (ground 1), it is first convenient to analyse the evidence and to ascertain what evidence the trial judge purportedly overlooked (ground 2) and the extent to which delay had an impact on his Honour's understanding of the evidence (ground 3). The determination of ground 4 will depend upon the outcome of the first three grounds of appeal.

Ground 2: Did his Honour fail to have regard to relevant evidence? 41Whilst the appellant accepted as correct the finding, at [61], that the unidentified individual was dressed like one of the catering employees, he submitted that his Honour erred, at [51]-[55] of his reasons, in his analysis of the appellant's recollection of the person who knocked him. As there was no direct identification of the person who bumped the appellant, the argument was focussed on the appellant's recollection of how that person was dressed. The appellant contended that his Honour erred in considering that the person could have been someone other than a member of the catering staff. The appellant submitted that that consideration was not open, because there was clear evidence that other attendees weren't wearing black trousers and white shirts. 42Notwithstanding the terms in which ground 2 of the notice of appeal was formulated, the appellant did not identify any particular evidence as having been overlooked by his Honour. Rather, as argued, the challenge was directed to the evidence as to the identity of the person who bumped the appellant, which the appellant submitted was sufficient to establish that the other person on the stairs was a member of the catering staff. The appellant also submitted, in response to the criticism that his evidence was inconsistent, that he was an "unsophisticated plaintiff" and "embarrassed by what happened". Counsel for the appellant also submitted that it was only after the appellant consulted his solicitors on 18 November 2008, for the purpose of enquiring about his workers compensation entitlements, that he was required to give attention to the detail of the circumstances of the accident. 43Redeland's response to this issue was threefold. 44First, Redeland submitted that the appellant's evidence only established that the other person on the stairs was wearing a white shirt. Secondly, Redeland contended that it had established that the person who bumped the appellant was not a member of the catering staff, it having adduced evidence that it was highly unlikely that any of the catering staff would either have been on those steps or carrying anything up any stairs at that time. Thirdly, Redeland submitted that given the inconsistencies in the appellant's evidence, which, Redeland contended was, in any event, affected by what he saw on the website, the appellant had not established that it was a member of the catering staff who had bumped him on the stairs. The respondent submitted that in the context of what the appellant could remember, his Honour's focus on the influence of the website was appropriate. This latter submission also fed, in part, into ground 1 of the appeal. 45It appears from his Honour's reasons, at [56] and [61], that he accepted that a person was travelling up the stairs as the appellant was going down. His Honour, at [61], also accepted that it was "someone dressed like one of the catering [staff] on account of earlier descriptions". Unfortunately, his Honour did not make any express findings as to which part of the appellant's description he accepted, whether it was of a person wearing a white shirt, or of a person wearing a white shirt and a black apron. 46Although his Honour's finding lacks the particularity to which I have referred, that is most likely because he could not be satisfied that the appellant accurately recalled what the person was wearing. However, the criticism of the judgment to which ground 2 of the appeal is directed is his Honour's failure to have regard to relevant evidence. It was contended that had he had regard to such evidence, that would have affected his analysis of the probabilities relating to the identity of the person who caused the appellant's fall. 47In my opinion, notwithstanding the generality of the finding to which I have referred, ground 2 has not been made out. His Honour reviewed the evidence, including that of the appellant and the evidence of the other witnesses. The appellant's description of what the other person was wearing was no more detailed than the three possibilities to which I have referred, all of which were dealt with by his Honour: see at [33]. His Honour, also at [33], referred to the differing evidence the appellant gave as to what the person was carrying. In addition, at [35]-[50], his Honour also dealt with the evidence of each of Redeland's witnesses. As I have indicated, the appellant did not identify any aspect of the evidence that was overlooked by his Honour. 48It follows that I would reject ground 2.

Ground 3: Was the trial judge's failure to have regard to the relevant evidence affected by delay? 49The appellant submitted that an explanation for the trial judge's failure to sufficiently deal with the relevant evidence was the unsatisfactory time delay of nine months between the hearing and judgment. Whilst in written submissions the respondent submitted that the appellant failed to identify the important parts of the evidence which the trial judge overlooked due to delay and that there was no basis for this ground of appeal, the manner in which the appeal was conducted suggested that the argument was that the trial judge "forgot" the evidence relating to the identity of the person who had caused the appellant's fall: see ground 2. 50My rejection of ground 2 makes ground 3 moot. I would add that the appellant did not identify any way in which the delay impacted upon his Honour's fact finding. Ground 3 should also be rejected.

Ground 1: Did the trial judge err in his analysis of the probability relating to the identity of the person who caused the appellant's fall? 51That leaves for consideration the issue raised in ground 1. The appellant was required to satisfy the tribunal of fact, on the balance of probabilities, that the other person on the stairs was a member of Redeland's catering staff: Evidence Act 1995, s 140(1). It was not suggested that there was anything about the claim that required the Court to have regard to the factors specified in s 140(2), or to use the language of the common law, this was not a case to which the Briginshaw standard applied: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. 52The appellant submitted however that the trial judge's approach, in examining alternative possibilities to exclude the probability which was most likely, was erroneous. In support of this submission the appellant referred the Court to Strong v Woolworths Limited [2012] HCA 5; 246 CLR 182 where the plurality stated at [34]: "Woolworths' submission that it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited must be rejected. It was incumbent on the appellant to prove that it was more probable than not that Woolworths' negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited. The point was illustrated by Hayne JA (as he then was) in Kocis v SE Dickens Pty Ltd. His Honour posited a case in which reasonable care required the occupier of premises to carry out inspections at hourly intervals. Assume that no inspection is made on the day the plaintiff slips on a spill eight hours after the premises opened for trading. If there is no basis for concluding that the spill is likely to have occurred at some particular time rather than any other time, the probability is that that the spill occurred in the first seven hours of trading and not in the hour preceding the plaintiff's fall. As Hayne JA observed, a plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. The determination of the question turns on consideration of the probabilities." (citations omitted) (emphasis added) 53In Jones v Dunkel [1959] HCA 8; 101 CLR 298 Dixon CJ, at 304, observed: "In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind." 54A finding on the balance of probabilities involves a finding of a probability greater than 50 per cent. Whether or not a court is so satisfied will depend upon the whole of the evidence. Relevantly, a plaintiff bears the onus of satisfying a tribunal of fact, on the balance of probabilities, that a defendant was negligent. The evidence may give rise to more than one possibility, but in that circumstance, the principle is the same. For the plaintiff to succeed, the tribunal of fact must be satisfied on the balance of probabilities of facts that will establish liability in the defendant. 55This was explained in Bradshaw v McEwans (1951) 217 ALR 1 at 5, in a passage quoted, inter alia, by Dixon CJ in Jones v Dunkel as follows: "Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise ..." (citations omitted) 56However, in Jones v Dunkel, at 305, Dixon CJ observed: "But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied." 57In a related submission, the appellant submitted he had adduced significant evidence of the negligence of the respondent and that the factual onus shifted to the respondent to prove that the other person was not their employee or agent. The appellant referred to Strong v Woolworths at [47]-[60]. The appellant submitted that this onus required Redeland to lead reliable evidence that the other person on the stairs could have been someone other than a member of the catering staff. The appellant submitted the respondent "failed to discharge this burden", so that his own evidence remained more persuasive. 58This submission either failed to adequately grasp the principles that govern the requirements of proof in a particular case: see Strong v Woolworths at [47]-[60] per Heydon J, or alternatively, reflected a belief in the strength of the appellant's evidence, unmitigated by a consideration of the strength of Redeland's evidence. There may well have been aspects of both of these matters involved in the submission. This was not a case where material evidence was peculiarly within the defendant's knowledge: Strong v Woolworths at [65]. In a case of that type, a plaintiff may succeed by adducing slight evidence. The defendant then faces a tactical decision as to whether to adduce evidence to explain the plaintiff's evidence: De Gioia v Darling Island Stevedoring & Lighterage Company Ltd (1941) 42 SR (NSW) 1 at 4; Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 at 970; Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367. Rather, this was a case where both the appellant and Redeland adduced evidence of the likelihood of a person on the stairs being a member of the catering staff. 59As I have said, the appellant was required to adduce evidence sufficient to satisfy the trial judge that the other person on the stairs was a member of the catering staff. Had the appellant's evidence in chief been the only evidence, it would have been open to his Honour to have been satisfied he had established the identity of the person as a member of the catering staff. However, there was an attack upon the appellant's evidence in cross-examination, particularly as to his recollection of what the person on the stairs was wearing. His clear recollection was of a white shirt. He later said the person was wearing an apron. The challenge to the evidence as to the person wearing an apron was based upon the appellant having looked at Redeland's website. In this regard, the appellant submitted that it was not open to his Honour to have regard to the "notorious ... effect of a recent visual depiction" on memory: see judgment at [53], at least without the benefit of expert evidence that that was the case. However, his Honour did not make this observation unassisted by principle. Rather, at [54], he drew upon the observations in criminal cases relating to identification evidence: see Ward v R [2012] NSWCCA 21, where McClellan CJ at CL reviewed the relevant authorities. 60In Alexander v The Queen [1981] HCA 17; 145 CLR 395 at 400, Gibbs CJ, in relation to identification of an accused person by a witness, said: "... it would be unfair and improper to show to a witness, before the identification parade was held, a single photograph of a person who was said to be the suspect, and it would be unsafe to act on evidence of identification given in those circumstances: R v Russell [1977] 2 NZLR 20 at 27." 61Stephen J at 409 in Alexander said: "Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace the original memory. Any subsequent identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting." 62In R v Blick [2000] NSWCCA 61; 111 A Crim R 326 at [28], Sheller JA held (James J and Dowd J agreeing): "... unfortunately, to show Mr Smail a group of photographs in which only one was of a man with a goatee beard, when that was an identifying factor in Mr Smail's mind, is, in my opinion, little better than showing him only one photograph, the photograph of the appellant. The prejudice to the appellant was both unfair and very considerable because it placed firmly in the mind of Mr Smail the photographic image when he came to make his statement and to give evidence at the trial." 63This phenomenon has been described in the authorities as the "displacement effect" and evidence given following such viewing to be "worthless": see Alexander at 414 per Stephen J. See also Mason J in Alexander at 426. There are numerous authorities of the New South Wales Court of Criminal Appeal to the same effect: see R v Carusi (1997) 92 A Crim R 52 at 55 per Hunt CJ at CL (Newman J and Ireland J agreeing); R v Skaf [2004] NSWCCA 37 at [80]; Aslett v R [2009] NSWCCA 188 at [55]-[56] per Kirby J (Beazley JA and Johnson J agreeing). See also R v Agkul [2002] VSCA 222 at [26]-[27]; [2002] 5 VR 537. In Skaf, at [80], the Court of Criminal Appeal described the displacement effect in the following terms: "The displacement effect refers to the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier observation of the person in the flesh; and that that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person." 64The cases to which I have referred related to the question whether a warning should be given to the jury in respect of identification evidence, or whether, in a criminal trial, the prejudicial value of the identification evidence outweighed its probative value. Those questions did not arise in in this case. Nonetheless, these decisions do represent a long line of authority that recognises the shortcomings of identification evidence and the risk that such evidence can be affected by a person's viewing of photographic evidence. Whilst this line of authority comes from the criminal law, identification evidence can be an issue in criminal or civil proceedings. In my opinion, the notion of the displacement effect can be relevant in either, although there will be differences in application, having regard to different standards of proof and the particular issue to which the identification will relate. 65In my opinion, his Honour was not in error in concluding, at [55]: "... the effect of visiting the website shortly before giving evidence affected [the appellant's] 'memory' of the person involved ..." 66In any event, this finding was consistent with the appellant's own evidence. The appellant accepted that he had always recollected that the other person was wearing a white shirt. Although he denied that he only remembered the person was wearing an apron because of what he had seen on the website, he did admit that "it came to [him]" and that when he saw the man in the picture, "it was straight away". As I understand the evidence, this meant that having seen the website, he immediately remembered the person on the stairs was wearing an apron. Under further cross-examination, he accepted that it was checking the website that led him to recall that the person was wearing an apron. The same can be said about the appellant's identification of the person as being of Islander appearance and as carrying a black tub. 67Accordingly, the appellant's cross-examination significantly undermined his identification of the person as a member of the catering staff. In addition, there was a substantial body of evidence that supported the probability that the person was not a member of the catering staff. Or, to put the matter in the converse way, there was a substantial body of evidence that negatived the probability that the person was a member of the catering staff. 68That evidence was as follows. First, whilst Mr Sun and Mr Lambert were wearing aprons, they each gave evidence that they were not the person on the stairs. Secondly, the evidence was the wait staff wore black trousers or skirts and a white shirt and, it would seem, black vests. No one gave evidence that, on this occasion, the wait staff wore aprons. Thirdly, on the evidence, it was highly unlikely that the catering staff would have used the stairs upon which the appellant fell, because the catering van was located near a different set of stairs. Fourthly, there was no reason for the catering staff to be carrying anything up the stairs. At the time the accident happened, the catering staff were packing up and, accordingly, things were being carried down to the catering van. Fifthly, Redeland stopped supplying alcohol at 3 pm. Sixthly, Redeland had its own alcohol supplier and, therefore, would not have purchased additional supplies from a nearby outlet. Accordingly, it was improbable that a member of the catering staff would have been using the stairs for bringing alcohol or other goods into the function at the time of the accident. It perhaps should be noted that it was not suggested that the catering staff were bringing more food to the function at that time. Next, as a matter of its business practice, the chefs were required to record if additional alcohol was required at a function. There was no record of that additional alcohol had been brought in. Finally, Mr Lambert gave evidence that he saw attendees bringing alcohol into the function. 69It needs to be noted that the only other evidence that supported the appellant's case that it was a member of the catering staff who bumped him was the evidence of Mr Sun that the builders labourers who attended the function were dressed in a distinctly different way from the catering staff. However, that evidence did not support an inference that 250 or so persons at the function were, or were dressed as, builders labourers. In particular, there was evidence that there were other service personnel present, being those who were setting up the marquee and who were involved in the provision of the entertainment. A description of a person wearing a white shirt is a very general description, particularly in the absence of any identification of the trousers the person was wearing. Given the appellant's evidence that he could not remember the colour of the trousers the person was wearing, the appellant's brother's evidence that the waiters were wearing white shirts and black trousers did not strengthen the probability that it was a member of the catering staff on the stairs. 70In my opinion, the evidence adduced by Redeland compellingly pointed to the person on the stairs not being a member of the catering staff. In those circumstances, it was open to his Honour to find the appellant had not established, on the balance of probabilities, that it was. Indeed, the weight of the evidence was such that I am of the opinion that this was the conclusion at which his Honour, on proper evaluation of the evidence, should have arrived. 71For that reason, the challenge to his Honour's reasoning at [58]-[61] is strictly academic. But in any event, I do not consider that his Honour was in error in his reasoning process in those passages, although, for the reasons already given, I do not agree that on all of the evidence, the strongest possibility was that the person who bumped the appellant was a member of the catering staff. Leaving that to one side, however, as his Honour stated, there was more than one possibility as to who the person might have been. Opinions as to the strength of each of the possibilities could vary as between different fact finders. His Honour took a particular view. I have disagreed with one aspect of that view. However, the essential finding of his Honour was that he was not satisfied on the balance of probabilities that the person was a member of the catering staff. There was no error in that conclusion. Accordingly, I would reject ground 1.

Ground 4: Did the trial judge err in failing to make an express finding that the first respondent was negligent? 72It follows from my conclusion that there was no appellable error in respect of the first three grounds of appeal, ground 4 must fail.

Notice of contention 73It also follows from the rejection of the grounds of appeal that there is no need to consider the notice of contention.

Conclusion 74Accordingly, the appeal should be dismissed. I propose the following orders: (1) Appeal dismissed with costs; (2) Cross-appeal dismissed with costs. 75WARD JA: I agree with Beazley P and with the additional observations made by Emmett JA. 76EMMETT JA: The appellant, Mr Martin Geyer, suffered injury when he fell down a flight of stairs in September 2004 when leaving a work function attended by about 250 people. While descending the stairs Mr Geyer was bumped by a person ascending them. As a consequence, Mr Geyer fell down the stairs. Mr Geyer claimed the person who bumped him was an employee of the first respondent, Redeland Pty Limited (Redeland), who catered for the function. He claimed that that person breached his duty of care to Mr Geyer and that Redeland was vicariously liable as that person's employer. 77Mr Geyer commended proceedings against both Redeland and his own employer, Sydney Site Services Pty Limited (SSS). The primary judge dismissed the claim against Redeland because he was not satisfied, on the balance of probabilities, that the person who bumped Mr Geyer was a Redeland employee. His Honour also held that SSS did not breach its duty in either requiring or permitting its employees to use the stairs. 78While the primary judge held that Mr Geyer had failed to establish the liability of either of the defendants, his Honour also held that, if liability had been established, he would have found Mr Geyer was 25 per cent contributorily negligent. His Honour also assessed the damages on that basis. 79Mr Geyer has now appealed from the dismissal of the proceedings against Redeland. Mr Geyer did not appeal against the dismissal of his claim against SSS. 80The primary ground of appeal was that the trial judge failed to have regard to relevant evidence and erred in his analysis of the probability as to identity of the person who caused Mr Geyer to fall. While Redeland filed a cross-appeal concerning the assessment of contributory negligence and damages, the cross-appeal was not pursued. However, Redeland relied on a notice of contention that the trial judge erred in finding that the other person on the stairs was negligent. 81I have had the advantage of reading in draft form the proposed reasons of the President for concluding that Mr Geyer's appeal should be dismissed. While the primary judge's reasoning concerning the identity of the other person on the stairs is not persuasive, there was ample material upon which that conclusion could be based, in particular, the evidence given by Redeland employees, referred to by the President, that there was no reason why a Redeland employee would have had occasion to use the stairs. I agree with her Honour's conclusions for the reasons given by her Honour. I also agree with the orders proposed by her Honour both in relation to the appeal and the cross-appeal, which was not pursued by Redeland. 82I am fortified in my conclusion that the appeal should be dismissed by the view that I have formed in relation to the notice of contention. The mechanism of Mr Geyer's fall is by no means clear. Mr Geyer said that he had descended only five steps when he first saw the other person, whom Mr Geyer identified as a male, who was then approximately 20 steps further down and travelling upwards with a large or heavy load on his left shoulder. Mr Geyer told the person that he would go back up. There would clearly have been ample time for Mr Geyer to go back up the five steps while the other person was climbing 20 steps with a large heavy load on his shoulder. It appears that Mr Geyer did not do so. Rather, he backed against the wall, away from a railing on the other side of the stairs and, as the other person passed him, he was bumped. He then said that he slipped. That was repeated on several occasions. 83The nature of the contact by the other person with Mr Geyer is by no means certain. In all of the circumstances, I am not persuaded that there was any breach of duty of care on the part of the other person on the stairs, whoever that person was. However, as indicated above, that question is hypothetical and it is not necessary to express a final view on it.

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