Guides Australia Inc v McMartin

THE CIRCUMSTANCES 12 The appellant at all material times leased the Guide Hall from the Council. The terms of the lease were consistent with the admission made by the appellant and it is unnecessary to refer further to it. 13 On 21 December 1999 Lions was holding a function at the appellant's hall. The respondent and her husband drove to the function. After the car was parked they walked towards the hall. 14 The cement pathway leading to the door of the hall was obstructed by a vehicle or vehicles and the respondent and her husband walked across a grassed area surrounding the hall. 15 Whilst doing so the respondent fell. She gave evidence: "Q. And what were the circumstances of that fall? A. I went down like a rock, straight down. My foot went into a hole and I seemed to crash down on top of it, it was stuck." 16 The respondent's right ankle was injured. She was immediately taken home by her husband and then to her family doctor. 17 In the Statement of Claim the respondent alleged negligence by the defendants in failing to provide any warning of the concealed hole in the lawn, failing to take any steps to remove the hole from the lawn, failing to properly supervise or inspect the premises in order to ensure that it was safe and in failing to maintain the lawn and access areas outside the hall.

THE PRIMARY JUDGE'S DECISION 18 The judgment was given immediately after the hearing which had extended over three days. I omit references to the defendants other than the appellant. 19 The Judge noted the concession that the appellant was the occupier of the premises at the time of the accident. He recorded that the Court had the benefit of a view of the location of the fall in Douglas Street Taree. 20 His Honour referred to the approach of the respondent and her husband to the hall and noted her evidence that a van was parked on the concrete pathway leading to her going up a grass embankment on to the lawn outside the hall and crossing the lawn towards a group of twenty or thirty people, whom the Judge inferred were Lions Club members. He continued: "Mrs McMartin said she had gone about ten feet across the lawn, which appeared to have been mowed recently, that is to say within a day or two beforehand, and she observed that it was very grassy area compared to its present day coverage. Mrs McMartin said she fell; she went down like a rock. Mrs McMartin said her foot went into a hole, it got stuck. It was her right foot. She screamed. It hurt a lot. She was in a lot of pain in her right ankle. It was all consuming and excruciating. She estimated the other guests were about one and half to two metres away from her when she fell. She said she was looking where she was going but she could not see the hole for the grass. After she fell Mrs McMartin could not get up and had to be picked up and assisted away from the scene. She said this was at about 6.20pm. It was daylight saving, so visibility was good." 21 Judge Rolfe then noted the cross-examination of the respondent as to the truck being in fact on the lawn. He concluded on the evidence that the respondent was mistaken as to the truck or van being on the pathway but said that he was satisfied on the evidence of other witnesses that there were in fact another vehicle or vehicles on that path. He then said: "I do not regard the fact that the plaintiff did not say anything about the van in a statement that she had made previously as vital, given the suddenness of what occurred, the pain she was in at the time and so on. Mrs McMartin was, in my assessment a very honest witness and in particular she quite frankly said that she did not see the hole and, because of the pain and suffering she was in at the time, Mrs McMartin did not look down to examine the hole and that obviously must have been the case at the time. Mrs McMartin reiterated that she was watching where she was going before the accident occurred. Mrs McMartin said she was looking straight in front of her and that she had said hello to another person who was in the group that she was approaching before she had the fall." 22 His Honour then turned to consider the evidence of a number of witnesses. In view of some of the grounds of appeal it is necessary for me to record his Honour's comments in relation to them and their evidence in some little detail. 23 The Judge referred first to Mr Thomas Ellis a retired grazier who attended the function and saw Mr and Mrs McMartin arrive in their car and park it. Although Mr Ellis did not actually witness he heard the respondent yell out, "Keith, Keith, my ankle". His Honour continued: "He saw Mr McMartin trying to help her up. Mr Ellis and a couple of others went to assist and he helped her up." 24 His Honour then said: I regard Mr Ellis as a very reliable witness, who gave his evidence honestly, in a very straightforward manner, and I found him convincing. He said he inspected the area where the plaintiff had fallen. The lawn had been mowed, in his assessment, either the day before or two days before that. He said the grass looked quite green and fresh and both of those things are consistent with what the plaintiff said. Mr Ellis said that right where the plaintiff had been lying after the accident, there was a depression in the ground, about three or four inches wide and about the same depth. It ran parallel to the street. It was some metres long and varied in depth. It had grass growing over it. Importantly, Mr Ellis said that you could not see the depression in the ground easily if you walked towards it. The top of the grass in fact appeared to be level." 25 The Judge accepted Mr Ellis's evidence that there were some vehicles on the pathway although, not it would appear, the van. He went on: "Mr Ellis further said that it only when you got to within two metres of the depression that you could see it. Now the important thing about Mr Ellis's evidence is that he made these observations at the time. He has not gone back to the scene but in the way in which he gave his evidence I am satisfied that he had a very good recollection of what he observed at the time." 26 His Honour later said: "The point about Mr Ellis's evidence is that although he said the depression was obvious, and Mr Crittle relied on that in his submissions, the important part about the evidence is that Mr Ellis was only saying that the depression was obvious once you more or less got very close to it. He said within one or two metres of it. And also he made it quite clear that when he was giving his evidence about that, that he was making an observation after the accident had occurred and he was specifying looking down. He was looking for the hole or the depression that had caused the plaintiff's accident. He said he was curious. He said the depression was highlighted because it was greener than the area around it." 27 Judge Rolfe observed that Mr Keith McMartin, the respondent's husband, gave evidence consistent with her evidence. The Judge said that he accepted Mr McMartin as an honest witness but thought that he was a little confused as to the circumstances of the accident. He noted that Mr McMartin said that the grass was green and quite grassy and that when the respondent stumbled over and nearly pulled him down he looked down at her foot which was stuck in a hole below the surface of the grass. He noted that Mr McMartin thought that the respondent's foot seemed to be below the ground level and there was some sort of hole or depression in the ground and he did not see the depression all that clearly. The Judge went on: "That is what I mean by saying his evidence was slightly confused and I am not being in the least bit critical and I have had much more regard to what Mr Ellis said because he was an independent bystander, who went back to the location immediately after the accident occurred and made those mental observations about which he gave clear evidence to the Court concerning the circumstances of the accident." 28 The President of the Lions Club Mr Barrie gave evidence that it was his pantechnicon or van which was parked adjacent to the hall and said that it was on the grass. His Honour accepted this and thought the respondent and her husband were mistaken about its location. He noted that Mr Barrie said that he did not see any other vehicle on the driveway but did not understand him to be disputing that that may have been the case. The Judge said: "that is why I have accepted Mr Ellis's evidence about that". 29 The Judge noted that Mr Barrie did not witness the accident but heard about it about an hour later and that, when he went back the next day to do a clean-up, he had a look around. The Judge continued: "He said he saw a couple of depressions, but nothing that one would call a hole. He admitted the surface was uneven." 30 His Honour then said: "As far as Mr Barrie is concerned, I do not regard him as a reliable witness in terms of his observations. I am not suggesting for a moment that he was not being truthful and as honest as he could be. The point is he has not been back to the hall since the accident occurred. He was not asked anything about the circumstances of the accident until some 12 months after it had occurred, although he understood that a statement had been taken from him at the time over the phone. He had not seen it since. He had not, as far as I could understand his evidence, and I so infer, seen the statement since and used it to refresh his recollection and in fact he conceded that [t]he had only been asked to come to Court about a week ago. In my assessment of Mr Barrie, I do not think he was looking all that carefully for the location of the accident and I do not think he did as thorough a job, in that respect, as Mr Ellis, therefore I prefer Mr Ellis's evidence to that of Mr Barrie and I do not find Mr Barrie's evidence of assistance to the Court." 31 His Honour then dealt with some material tendered and I should, having regard to the submissions that were made in respect of this matter, set out in full what he said: "I should interpolate here that in evidence as part of Exhibit "C" is material from the Lions Club which contains the following statement: 'Those trying to help her up (meaning the plaintiff) noticed that her foot seemed trapped in some sort of hole in the grassed area outside the hall'. I am not going to decide this case on the basis of something that is contained in documents produced by the Lions Club. However, I do note that what is contained in that material is consistent with what Mr Ellis had said. Although Mr Crittle sought to convince me that that had to be considered in the context of cross-claims being either on foot or in the wings, the fact of the matter is the Court can infer, particularly having regard to the nature of that organisation, Lions Australia, that no-one would put material in a document like that, unless they believed it to be true. I do not, as I have said, and I want to reiterate, regard that material as critical in my determination of the question of liability but it is something that I have taken into account." 32 His Honour then dealt with the evidence of Mr Stevens in the following terms: "Mr Stevens did the lawn mowing around the Guides hall in 1999. He kept saying, during his evidence, 'to the best of my memory' and I am not being critical of him at all about it, but the point is he was only asked two days ago about the circumstances of the accident. I do not consider Mr Stevens' evidence about his lawn mowing activities of assistance to the Court, bearing in mind the passage of time which has occurred since the accident in question. The fact that some of his children may have been playing in that vicinity from time to time is neither here or there. He says, to the best of his recollection, he did not see a hole but he really was not ruling out the possibility that there may been one." 33 His Honour then dealt with the evidence of Kim Godwin in the following terms: "Kim Godwin, was a girl guide leader and the hall secretary in 1997. Her evidence was that the Gumnuts, the Brownies and the Guides, all part of the local girl guides association, used the hall on a regular basis. It is true that no accident or incident had been reported to her prior to this incident. That is not to say that somebody did not have a fall and did not report it. It also does not exclude the possibility that someone may have fallen over and was not injured and did not report it and her evidence about no complaints being made has to be considered from that perspective. Again, the problem I have with Miss Godwin's evidence is that she said, when she gave it today, that she was put in the position of having to cast her mind back to the state of the lawn five years ago and I do not consider that what she said has any real bearing on the position. The fact that she does not recall any hole of depression being there does not determine the outcome of this matter." 34 His Honour then referred to the handing up by Mr Crittle of a number of Court of Appeal and other cases including Brodie v Singleton Shire Council (2001) 206 CLR 512 and, as to these, said: "However, I am not persuaded that those cases are the relevant ones for the Court to be guided by because they are cases concerning footpaths. This is not a footpath case. This is a case about occupier's liability." 35 His Honour went on: "The Guides Australia Inc. the second defendant, owed the plaintiff a duty to take reasonable care to avoid a foreseeable risk of injury. As Heydon J emphasised in Wilkinson v The Law Courts Limited (2001) NSWCA 196, drawing from the High Court's decision in Jones v Bartlett (2002) 205 CLR 166: 'The duty of care owed by an occupier is to take such care as is reasonable in the circumstances.'" 36 His Honour went on: "That does not mean in the context of this case that the Girl Guides had an obligation to produce a bowling green surface or anything like it. That would be an absurd proposition. But what does flow from what Heydon J demonstrated, and from what was said in Jones v Bartlett , is that the Girl Guides Association had a duty of care to ensure that there was no hole or depression in the lawn which would amount to something which was quite hazardous or which was a concealed danger. The existence of something of this sort meant there would be a foreseeable risk of injury on the part of persons such as the plaintiff and it was reasonably probable that an accident of this sort could or would occur. I am comfortably satisfied that the second defendant breached its duty of care to the plaintiff as a lawful entrant to the area occupied by failing to ensure that the hole or depression in which she fell was not there in the first place. I am satisfied that the hole was a hazard or depression which was both concealed and dangerous. I have come to this conclusion, having heard the whole of the evidence, but in particular having in mind the evidence of Mr Ellis and I have expressed my opinion earlier in this judgment about that evidence. I am satisfied that the risk of this type of incident occurring was not insignificant. I am also satisfied that there was a strong likelihood of there being serious harm done if precautions were not taken to fill in the depression as turned out to be the case. In coming to these conclusions, I have taken into account the use to which the hall and its surrounds were put. The Court may easily infer from the evidence of the witnesses, and in particular what Mr Ellis said, that a hole such as the one in which the plaintiff fell, or depression, if one wishes to call it that, could easily have been filled in with earth and grass would have grown over it. That would have been a small step in terms of making the lawn safe to walk on. I am satisfied that a reasonable person, in the position of the second defendant, would have taken those precautions. I should also add that it follows from my findings that I do not regard the risk in this case as an obvious one and I make that comment bearing in mind the provisions of the Civil Liability Act." 37 Turning to the question of contributory negligence his Honour noted that Mr Crittle had submitted that the plaintiff was not looking where she was going and said: "I am satisfied that the plaintiff was in fact looking where she was going. Again I have taken notice and have had regard to what Mr Ellis said about the difficulty in observing the depression in the ground. I am satisfied that the plaintiff was not guilty of contributory negligence" 38 His Honour found that the respondent was entitled to succeed in her claim against the appellant.

THE GROUNDS OF APPEAL 39 The Amended Grounds of Appeal on the issue of liability are as follows: 1. The learned Trial Judge misdirected himself as to the legal considerations informing the nature and content of the duty of care owed by the Appellant by disregarding considerations arising out of Ghantous v Hawkesbury Shire Council (2001) 206 CLR 5121 and subsequent cases, in particular the decision of this Court in Bathurst City Council v Cheeseman [2004] NSWCA 308 applying such considerations in cases of occupiers liability.

2. The learned Trial Judge erred in finding negligence on the part of the Appellant without having regard to ideas of obviousness and the common place nature of the risk discussed in Standing v Richmond River Shire Council (2002) Aust.Torts Reports 81-679 and similar cases. 3. The learned Trial Judge erred in failing to determine the question of negligence by reference to the provisions of Part 1A Civil Liability Act 2002 Divisions 1 to 4, ss5B, 5C, 5D, 5F, 5G. 4. The learned Trial Judge erred in failing to find the Plaintiff guilty of contributory negligence.

5. In determining questions of primary fact going to both liability and damages, the learned Trial Judge misused his forensic advantage by: (a) excessively intervening in the questioning of the witnesses; (b) misconstruing the effect of the evidence of Thomas Ellis; (c) discounting the evidence of Raymond Barrie, Mark Stevens and Kim Godwin; (d) using Exhibit "C" as corroborative of the Respondent's claims; (e) failing to give effect to the obvious disparity between the Plaintiff's presentation in Court and at the view on the one hand, and her performance in videos on the other."

Ground 5 40 It is convenient to deal first with this Ground as should it fail the findings of the Judge that the hazard was concealed, was dangerous, not insignificant and not obvious provide the background of fact against which the other grounds are to be considered. 41 Mr Campbell accepted that it was beyond the power of this Court to disturb these factual findings unless the appellant could establish that the case fell into the exceptional category where it could be said that the trial Judge had failed to use or misused the forensic advantage of having seen and heard the witnesses giving their evidence in the atmosphere of the trial. 42 He further accepted that this was not a case, such as State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 169 ALR 588, in which it could be established that the trial judge's findings were negated by uncontrovertible evidence. 43 Mr Campbell relied rather upon a combination of factors which he stated in address as excessive questioning on the part of the Judge and the dismissal of the evidence of Mr Barrie, Mr Stevens and Ms Godwin. 44 Paragraph (d) of Ground 5 relating to the use of Exhibit "C" was, however, still referred to and I shall deal with it later. 45 Mr Campbell did not press paragraph (e). It is not clear whether he still relied upon paragraph (b). However, as to the suggested misconstruction of the effect of the evidence of Mr Ellis I am content to say that in my opinion the view the Judge took as to the effect of that evidence was open to him and supported by it. 46 In Galea v Galea (1990) 19 NSWLR 263 at 281, 282 Kirby A-CJ, as he then was, set out "guidelines" which emerged from cases considering undue judicial intervention. They may be summarised, omitting reference to the cited material, as follows: "1. The test to be applied is whether the excessive judicial questioning or perjorative (sic) comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: ….. 2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: ….. 3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion": …… 4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: ….. 5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones ( Jones v National Coal Board [1957] 2 QB 55), namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: ….. 6. The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek ( Tousek v Bernat (1959) 61 SR (NSW) (2003)) at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: ….." 47 Before turning to the questions as to which complaint is now made it is appropriate to note that Judge Rolfe was sitting alone to hear a case in a busy country list with the parties represented by experienced Counsel. But one objection was taken to a question asked by the Judge and he did not pursue that question. 48 Quite apart from any issue of waiver, to which I do not consider it necessary to go, the absence of objection by experienced Counsel strongly suggests that, in the context of the trial, nothing unfair or untoward occurred. 49 Throughout the respondent's evidence in chief and cross-examination the Judge asked a modest number of questions. No complaint is now made as to those questions; nor in my opinion could any complaint be sustained. 50 The written submissions noted that his Honour asked fourteen questions of Mr Ellis in chief. No complaint is made as to any of them. I note that at one point where the Judge asked a question he added: "Are you able to answer that question? Don't speculate. If you can't answer it say so, if you can tell me." 51 Objection is now taken to a number of interventions during the cross-examination of Mr Ellis and I should refer to them shortly. 52 After reference to Mr Barrie's van the following evidence was given:

`"Q. It was parked in the lawn adjacent to the building wasn't it? A. That was one of them, yeah, yes, two of them and the other one was on the path I think. Q. Well I suggest to you there was no vehicle on the path, I suggest to you that the only vehicle that was there was Ray Barrie's and that it was parked beside the building adjacent to the building on the lawn wasn't it? A. That one there all afternoon, it was there when I got there, yeah. HIS HONOUR; Q. Was there one on the path as well? A. I think there was more than one." 53 Mr Crittle's question was a multiple one and, having regard to what Mr Ellis had just said, the Judge was entitled to clarify the answer. 54 A question by the Judge: "Go on Mr Ellis tell us. There was something on the driveway" is objected to as it might well be if it stood alone. However, shortly before the following evidence had been given: "Q. That's right. And there was no truck on the driveway was there? A. Well there was something on the driveway. The driveway was ….." 55 Mr Crittle then interrupted the witness. There followed an exchange as to whether Mr Ellis was answering the question. The Judge ruled that he was and invited him to continue, taking him to what he had said, obviously as a starting point to continue his answer. Such an occurrence is unexceptional and by no means uncommon where an answer is interrupted. 56 The following evidence and exchange appears from the transcript: "HIS HONOUR: Q: You gave evidence that the depression was obvious to the eye once you got within one or two metres of it, correct, did I understand you correctly to say that? A. Yes, when I looked for it. Q. That's right, that's what I wanted to ask you. So you made a point of looking for it. Anything arising out of that Mr Crittle? CRITTLE: I'm sorry your Honour, I just missed your Honour's question. I apologise. HIS HONOUR: I was just asking - I repeated to Mr Ellis what I understood his evidence was which was that he said he could - the depression was obvious once he got within one or two metres of it to the naked eye and then he then said without me asking another question, but I was going to ask him this, but I was looking for it?" 57 It was objected that the Judge had asked the question to re-establish Mr Ellis's evidence. However, it was not suggested that his question did not accurately state what the witness had said and it was a preliminary step to asking a further question. In the event the Judge did not have to ask the question as Mr Ellis volunteered the answer. The issue was a relevant one and there is no basis for concluding that had the Judge asked the question he would have done so in a leading or otherwise inappropriate form. Had he done so the opportunity to object would have been available. 58 At the Judge's invitation Mr Crittle further cross-examined Mr Ellis, substantially as to the size and length of the depression. Mr Ellis said that he did not look to see how long it was. The following evidence was then given: "HIS HONOUR: Q. Well when you said before you were looking for it, do I take it that you were - when you say you were looking for it what do you mean by that? A. Well I was just curious to see what hurt her leg, that's all." 59 Again the issue was relevant and the question was put, albeit not without a stumble, in a non leading form. Counsel were invited to ask further questions if they wished. Both declined. 60 Judge Rolfe did ask Mr Barrie a number of questions relating to damages in a form which was inappropriately leading. However, there was no objection, which suggests, as indeed does a reading of Mr Rich's cross-examination, that, in so far as the questions were leading, they largely reflected the effect of Mr Barrie's earlier evidence. 61 After Counsel indicated that they had concluded their questions for Mr Barrie his Honour said: "No I haven't finished yet." 62 This is an infelicitous expression. However, a trial Judge, especially one sitting alone, is entitled to pursue a topic particularly where, as Judge Rolfe was meticulous in doing, Counsel are offered the opportunity to ask further questions. 63 In the event Mr Crittle objected to the question the Judge asked and the Judge withdrew it. As observed earlier this was the only such objection and the Judge acted upon it. 64 The evidence continued: "HIS HONOUR: …… Q. I'll simply ask you this Mr Barrie, is it possible you may have missed seeing a hole in the lawn the next day? Is that a possibility? I'm not being critical Mr Barrie, I'm just asking you? A. Yeah must be." 65 This was, in my view, an unfortunate question; however, it was one that left it open to Mr Barrie to assert that it was unlikely or even impossible that he had missed seeing the hole. 66 Mr Crittle further re-examined: "CRITTLE. Q. Well for what reason did you examine the area the next day? A. To satisfy my own curiosity I suppose. Q. As to what? A. To see if I could find a hole. Q. Did you find one? A. Not that I could see. That was adjacent to the truck. HIS HONOUR: Q. So it's possible you didn't scour the whole lawn is what you're saying? A. There's not a lot of lawn there. Q. No, no but you didn't scour the whole lawn, is that right? A. No HIS HONOUR: Anything arising out of that Mr Crittle. CRITTLE. Q. When you looked in the area where you'd been told something? HIS HONOUR: No I reject that question. That doesn't assist. CRITTLE. Q. Why didn't you scour the whole lawn? RICH: I object to that your Honour he's answered that question. OBJECTION. QUESTION ALLOWED CRITTLE: Q. Why didn't you scour the whole lawn? A. Can I show you on that drawing? HIS HONOUR: Q. No, no just answer the question? A. Oh. CRITTLE: Q. Why didn't you scour the whole lawn? A. I checked the lawn adjacent to where my truck was. Q. Why didn't you look at the whole of the lawn? A. Well I don't think there'd be much left." 67 Again I think the language of the Judge's questions unfortunate, although Mr Barrie had appeared to limit the area of his observation to "adjacent to the truck" which may or may not have covered the area where the respondent fell. 68 It is to be noted that when Mr Rich objected to Mr Crittle's question his Honour allowed it. 69 The written submissions rely upon the Judge's ruling that Mr Barrie answer the question put to him. On the face of it the question could be answered without the complication of referring to a drawing. Mr Crittle did not seek to pursue any fuller answer with its use. 70 It is material in considering the complaint of undue interference that the Judge did not ask any questions of Mr Stevens. 71 It was put that the Judge had made a critical comment about Mr Stevens. What happened appears as follows: "CRITTLE: Would that be an appropriate time for the ajournment? HIS HONOUR: Yes I was just waiting for Mr Barry (sic) (as said) to go. Mr Crittle I think frankly these things have swings and roundabouts in them but Mr Barry(sic) had been approached years after the event. How his evidence can assist the Court. (sic) CRITTLE: That was Mr Stevens your Honour. HIS HONOUR: Mr Stevens, I beg your pardon. Mr Barry (sic) has made concessions about his recollection. There's the letter from the Lion's Club as well. I'm not pre-judging, I'm just giving you an indication of you know, the difficulties that I can see in this case. I just think it's worthwhile for the parties to have another go at it, trying to resolve the matter out of Court, so I'll take the morning tea adjournment now and come back at 11.55". 72 Such a statement implies, as the Judge said, no pre-judgment but is a reference to difficulties which the Judge saw at that stage. 73 During the cross-examination of Ms Godwin the following evidence was given: "HIS HONOUR: Q. If someone fell over on the lawn, you wouldn't necessarily have known about it unless perhaps they injured themselves, correct? Someone could have a fall? A. Yeah. Q. And you wouldn't have found out about it? A. Not necessarily, no." 74 The question would have been better left to Counsel or at least asked in a non leading way. However, it was, in the circumstances of this case, no more than a statement of the obvious. 75 The trial in this matter extended over three days. There were almost 150 pages of transcript. Whilst, as I have indicated, I am troubled by some of the questions asked and the way in which they were expressed I do not consider, in the context of the trial as a whole, that it has been established that there was a miscarriage of justice or a denial of a fair hearing. In particular I do not think that it has been shown that Judge Rolfe had closed his mind to further persuasion before the end of Counsel's addresses. 76 In my opinion paragraph (a) of Ground 5 has not been made out. 77 The issues arising from paragraph (c) are to be considered in the light of the evidence in the case as a whole. The submissions point to the suggested anomaly of preferring one witness to three and also of accepting Mr Ellis and not the other witnesses. 78 Judge Rolfe made it clear that he considered that Mr Ellis stood in a different position to the others. He was there when the accident happened, he went to see what had caused it immediately and he knew, unlike Mr Barrie, precisely where to look. 79 Add to that circumstance the very good impression that Mr Ellis made upon the Judge as a witness of truth and reliability and the task of saying that other witnesses, multiple or not, should be preferred is a difficult one indeed. 80 It is put that the Judge should not have given weight to the circumstance that Mr Barrie had not been back to the site, however, that is clearly a relevant matter for the Judge to consider. He had not been asked to consider the matter for some time after it occurred and that also is relevant. The Judge had heard and seen both Mr Ellis and Mr Barrie give evidence. He formed the view that Mr Ellis had looked more carefully at the time and that was clearly a decision open to him. 81 The Judge had been careful to say that he accepted Mr Barrie's truth and honesty. The somewhat unfortunate phrase "I do not find Mr Barrie's evidence of assistance to the Court" does not carry pejorative overtones but simply records that the Judge prefers Mr Ellis's different account. 82 Mr Stevens gave evidence that the first time that he knew that anything had happened at the hall was two days before he gave evidence. His use of the phrase "to the best of my memory" referred to by his Honour was used, amongst other issues, in relation to a critical question: "Q. Had you ever seen a hole in that area during the time you'd been mowing it? A. Not to my memory no." 83 It is anything but surprising that the Judge preferred Mr Ellis's evidence that he had seen a hole on the night of the fall. 84 Much was made of suggested different treatment by the Judge of Mr Ellis's use of reference to the length of time that passed, the phrases "I think" and "by my memory, it's a fair while ago" and others. However, upon examination it is to be seen that these phrases relate to surrounding and peripheral circumstances and not to the principal matter of what he saw and observed of the depression or hole in the grass. 85 It was put: "To say that Mr Stevens 'really was not ruling out the possibility that there may have been (a hole)' misconstrues the nature of the task of assessing the evidence. The Defendant carried no onus to exclude possibilities." 86 With respect this submission is itself a misconception. Questions of onus do not arise, generally at least, on the evaluation of particular pieces of evidence but rather in respect of the issue to be determined on all the evidence. 87 I do not consider that it has been established that the Judge was inappropriately dismissive of Mr Stevens' evidence. 88 There is criticism of the Judge's view of Ms Godwin's evidence, some of it falling into the "nitpicking" variety. I am content to say that in my opinion it was open to the Judge to deal with Ms Godwin's evidence as he did. I am not persuaded that he was wrong to do so. 89 I do not consider paragraph (c) of Ground 5 has been made out. 90 Paragraph (d) refers to the use as corroboration of the document Exhibit "C". It was submitted that the document should not have been admitted. 91 Although the language used is somewhat equivocal, I think the better view is that Judge Rolfe was recording that the document lent support to the view which he had reached but that he would have reached the same view without the document. 92 If that be right the admission of the document is immaterial for present purposes. In any event Mr Campbell conceded during oral submissions that the ground of objection taken by Mr Crittle at the trial could not be sustained. It is not to the point that other valid grounds of objection may well have been available for, as was also conceded, they were not taken at the trial. 93 I do not consider paragraph (d) of Ground 5 has been made out.

94 Whilst I have dealt with each of the paragraphs of Ground 5 separately I should note that Mr Campbell relied upon their cumulative effect as establishing the claimed misuse of the Judge's forensic advantage. I do not consider that submission to have been made good.

Grounds 1 and 2 95 In oral submissions Mr Campbell said: "It is apparent that the trial judge treated this hole or depression as a trap or hidden danger and to that extent of course Ghantous would have nothing to say (about) how the negligence issue is to be resolved." 96 I should note that Judge Rolfe referred to Mr Crittle handing up Brodie, however, it was clear that this was a reference to two cases heard together Brodie and Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512, of which the latter is the more relevant to the issues in this matter. 97 If, as I have concluded, Judge Rolfe was entitled to find as he did, questions as to whether this matter is to be correctly characterised as an occupier liability case (as his Honour did) or as a pedestrian case on public land (Ghantous) or as a pedestrian case on private land (Bathurst City Council v Cheeseman (2004) NSWCA 308) do not arise for consideration. Nor, indeed, does the question as to whether there is any relevant distinction between such cases. 98 Likewise, on his Honour's findings the issues referred to in Ground 2 do not arise. 99 Although not expressly raised in the grounds of appeal, Mr Campbell did contend that Judge Rolfe had incorrectly stated the duty owed by the appellant even on the basis of the facts found by his Honour. 100 The point was dealt with in both written and oral submissions and I should also consider it. 101 The Judge said that the appellant: "….had a duty of care to ensure that there was no hole or depression in the lawn which would amount to something which was quite hazardous or which was a concealed danger." 102 His Honour also said that the appellant: "….breached its duty of care to the plaintiff as a lawful entrant to the area occupied by failing to ensure that the hole or depression in which she fell was not there in the first place." 103 Mr Campbell submitted that a duty to ensure that reasonable care is taken only arises where the duty is non delegable or personal. Such a duty, he put, did not fall upon the appellant. Ms Katzmann of Senior Counsel, who appeared with Mr Rich of Counsel for the respondent, did not challenge this proposition. She submitted that properly understood Judge Rolfe was not asserting the existence of such a duty. 104 In considering this question it is relevant to note that this was an ex tempore judgment delivered after a trial which had extended over three days. In Maviglia v Maviglia [1999] NSWCCA 188 Mason P said at [1]: "An ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them." 105 Ms Katzmann drew attention to the quotation from Jones v Bartlett (2002) 205 CLR 166 which refers to such care as is reasonable in the circumstances. She pointed out that, in referring to the absence of a requirement that a bowling green surface or anything like it be provided, the Judge was clearly directing his mind to questions of reasonable care. 106 In my opinion, Judge Rolfe did in substance find that the appellant acted unreasonably. His statement that the appellant "had a duty of care to ensure that there was no hole or depression" was not in my opinion an inaccurate statement as to the content of the appellant's duty, which plainly was a duty to exercise reasonable care; but rather, it was a statement of a conclusion as to what the exercise of reasonable care required in the circumstances of this particular case. In so far as it suggests an elevation of a duty of care into something like strict liability, it is no more than an infelicitous expression. 107 The last paragraph is an adaption of a paragraph from a judgment of Hodgson JA in Telstra Corporation Ltd v Bisley [2005] NSWCA 128 at [24]. In that case infelicitous use of language brought the formulation of the appropriate duty into question in a broadly similar way. 108 In my opinion grounds 1 and 2 including the extension with which I have just dealt are not made out.

Ground 3 109 Judge Rolfe established at the outset of addresses that the matter was one governed by the provisions of the Civil Liability Act 2002 (the Act). 110 During his address Mr Crittle took the Judge to the particular provisions of that Act upon which he relied and made submissions in relation to them. 111 After the Judge had dealt in his judgment with liability and before he turned to damages the following occurred: 'CRITTLE: Would your Honour just excuse me for one minute. I'll get my instructing solicitor to sit at the Bar table? HIS HONOUR: Yes, sure. I think I have dealt with all of the submissions that Mr Crittle made on liability. Is there any submission that he had made that I have not dealt with? RICH: Not from my recall, no your Honour. HIS HONOUR: I now turn to the question of damages." 112 I do not consider the fact that Mr Rich answered, in the circumstances, precludes the view, which I take, that the appellant was given an opportunity to point to any issue, including ones arising under the Act, with which the Judge had not "engaged". No such issue was then raised. 113 To my mind there is much force in Ms Katzmann's contention that the substantial thrust of the appellant's argument relies upon provisions of the Act which were not raised by Mr Crittle at trial and are not now available to the appellant. (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418). 114 It is necessary to set out the provisions of the Act upon which Mr Campbell relied and also those upon which Mr Crittle relied at the trial. 115 Sections 5B, 5C and 5D are in Division 2 of Part 1A, entitled "Duty of Care" and are as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.

5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Sections 5D and 5E are in Division 3 of Part 1A, entitled "Causation", and are as follows:

5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

116 Sections 5F, 5G and 5H are in Division 4 of Part 1A, entitled "Assumption of Risk" and are as follows: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

5H No proactive duty to warn of obvious risk (1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection." 117 Section 5S is in Division 8 of Part 1A, entitled "Contributory Negligence" and is as follows: " 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. 118 Mr Crittle referred to the Act and took his Honour to Division 4 and, in particular, ss 5F, 5G, 5H and 5S. He did not make submissions relating to the earlier divisions of Part 1A. 119 I do not, as I have said, consider the appellant entitled to rely upon the points taken in relation to the Divisions other than Division 4. However, I am also of the view that they have not been made good. 120 It was put that if the Judge had regard to the terms of s 5B(1)(b) and 5B(2) he would have had regard to the evidence of Ms Godwin in determining whether the risk was not insignificant and the probability that harm would occur if care was not taken. 121 There is nothing to show that the Judge did not have regard to Ms Godwin's evidence for what it was worth. Given his finding as to the nature of the hole, there is nothing in that evidence to suggest a finding other than one satisfying the requirements of the section. 122 It was put that the Judge did not consider the social utility of the Scouting movement including the Guides pursuant to s 5B(2)(d). There was no explicit reference to the social utility of the Guides' activities but there is nothing to suggest that the Judge did not accept and act on the basis that the Guides' activities had substantial social utility (see Bisley at [23]). No issue was raised by Mr Crittle on this aspect or evidence tendered. 123 Turning to Division 4 it was put that had the Judge had regard to s 5F(1) and the objective standard referred to therein he would have found the depression (hole) an obvious risk. His Honour's finding owed nothing to subjective factors and was clearly based on an objective approach. 124 Towards the end of his judgment on liability Judge Rolfe said: "I should also add that it follows from my findings that I do not regard the risk in this case as an obvious one and I make that comment bearing in mind the provisions of the Civil Liability Act ." 125 It was put that this reflected mere "lip service", that phrase used with appropriate courtesy, to the Act and reflected a process whereby a decision was made on pre-Act principles and then restated in the language of the Act. I do not accept that submission. 126 I see nothing to suggest that the Judge did not have the Act's provisions in mind. As he said "it follows from my findings". Having regard to the importance Mr Crittle attached to the issue of obviousness it was appropriate that the Judge should make a specific finding. It is to be remembered also that Mr Crittle had in his address drawn the Judge's attention to the section dealing with that topic.

127 Shortly before the Judge had said: "I am satisfied that the risk of this type of incident occurring was not insignificant. I am also satisfied that there was a strong likelihood of there being serious harm done if precautions were not taken to fill in the depression as turned out to be the case. In coming to these conclusions, I have taken into account the use to which the hall and its surrounds were put."

128 I see no basis for considering this passage to be mere "lip service" but rather the application of, amongst other things, the requirements of s 5B. 129 Mr Campbell did rely upon the flow of the judgment and submitted that parts of it reflected afterthought, both in relation to liability and damages. However, a judgment, particularly an ex tempore one, is not a chronological account of the Judge's thought processes. Amongst other things a judgment is an account of the Judge's reasons. It is not necessary and often not practical for every aspect to be referred to in the precise order in which the Judge considered it. I do not accept the submission. 130 In my opinion Ground 3 is not made out.

Ground 4 - Contributory Negligence 131 Judge Rolfe found that the hazard was not obvious and was concealed. He found that the respondent was looking where she was going. In my opinion he was entitled to so find. Once he had done so he was entitled to find that the respondent was not guilty of contributing negligence. It has not been shown that he was wrong to do so.

CONCLUSION ON LIABILITY 132 In my opinion none of the grounds of appeal related to liability have been made out and the appeal as to liability should fail.

DAMAGES 133 The Court did not consider it necessary to hear from Ms Katzmann on the issue of damages. The challenge to the amount awarded can, I consider, be dealt with quite shortly. 134 It appears from the Short Minutes of Order of 22 October 2004 that the verdict was in the sum of $223,621. The ex tempore judgment of the 20 October 2004 left certain matters of calculation to be dealt with by the parties. Accordingly, some components were not precisely quantified in the judgment, however, this is of no consequence for the purpose of dealing with the challenges to the amount awarded. 135 Judge Rolfe accepted that the respondent suffered in the fall a major lateral ligament tear of the right ankle which, over time, required surgery on two occasions and has left her with significant impairments in respect of her family, social and working life. The injury, its treatment and consequences, his Honour accepted, has involved considerable pain and distress and continues to do so. 136 Judge Rolfe accepted that the use of crutches necessitated by the injury and the operative treatment thereafter, occasioned an injury to the respondent's right shoulder which further incapacitated her and caused continuing pain, impairment and distress and required treatment by, amongst other things, anaesthetic nerve blocks in the shoulder and neck. 137 An important feature of his Honour's judgment was the finding he made as follows: "I regard the plaintiff as an honest and straightforward person. I do not think she was exaggerating." 138 The Judge thought the respondent's claimed restrictions supported by other witnesses and also by the restriction in the use of her right arm which he observed in a video showed by the appellant in support of its contention that the respondent was exaggerating her condition. 139 The activities depicted in the video, which showed the respondent engaging in Lions Club concerts, were, it was put to this Court, destructive of his Honour's finding and indicative of a greater capacity in the respondent than she was prepared to admit. Mr Campbell did not request this Court to view the video but relied upon the matters which emerged during cross-examination based upon it. 140 His Honour dealt with a similar submission at trial when he said: "I interpolate here that one has to have regard to what was seen in the videos of the Lions Club concerts. It is true that the plaintiff was active in those concerts, but the point is, and this is my assessment of her, that she is a community minded and orientated person. She and her husband had been involved with those concerts for many years. She had put a lot of effort into those concerts and the fact that she may have enjoyed performing and appeared to be enjoying herself is a credit to her being able to push herself to that limit to give pleasure to other people, and no doubt it assisted her in the way in which she had been able to deal with the consequence of this accident." 141 The relevance of the Judge's comment that the respondent "is a community minded and orientated person" in this passage was challenged in the written submissions. However, it is a matter relevant to an assessment of the respondent whether she was, as she claimed, although not in these terms, a person "able to push herself to the limit to give pleasure to other people." 142 I should observe that in cross-examination the respondent also pointed out that her restrictions varied during the day and otherwise from time to time. There is ample evidence to support that contention. 143 Mr Barrie's evidence led the Judge to observe: "He said that she was a very active participant in all of the concerts conducted by the Lions Club here in Taree prior to the accident and the diminishment in the amount of physical activity that she had after the accident was obvious to him. That is an independent piece of evidence but it is consistent with the way in which I have assessed the plaintiff myself." 144 In my view there is no proper basis for this Court to interfere with his Honour's finding as set out above and the issue of damages should be approached on that basis. (Abalos v Australian Postal Commission (1990) 171 CLR 167, Fox v Percy (2003) 197 ALR 201). 145 It is convenient to deal with a submission relating to his Honour's observation that "Dr White has said that there was a fracture of the outer part of the ankle." Dr White was the treating orthopaedic surgeon. 146 Dr White initially reported that "he understood" that there had been such a fracture. Where this understanding came from is not clear, nor is it clear whether there was a fracture. Dr White later reported that x-rays confirmed "a small avulsion fracture of the lateral malleolus". Mr Campbell dismissed this as "recapping", however, it suggests to me that the doctor may well have seen an x-ray or x-ray report to that effect. The matter was not pursued at trial no doubt because it was of little consequence whether there was a fracture or not. The significant injury on all the medical evidence was the ligamentous damage. The error, if it were one, is of no moment. 147 Mr Campbell challenged what he referred to as the Judge's "split the difference" approach, putting that it failed to apply a proper application of principle to the judicial task of assessing damages. 148 The issue arose in this way. Mr Crittle, and Mr Rich followed, sought to assist his Honour by submitting that particular percentages or amounts were the appropriate ones to award. Mr Campbell submitted that an examination of those figures, as they appeared from the addresses, and the judgment showed that the Judge had not applied an independent mind but had merely "split the difference" between the parties' submissions. 149 Before turning to the particular matters, I should make the observation that the circumstance that a sum awarded falls at or towards the middle of a range of figures put by experienced counsel by no means establishes that the Judge had not applied an independent mind. It is a feature of the forensic process that experienced counsel will seek to retain credibility by proposing realistic outcomes and that whether they are high or lower in the appropriate range will reflect the interests of their clients. It is thus anything but surprising that the result at which the Court arrives often lies at or about the middle of that range. 150 In dealing with the respondent's claim for non-economic loss in accordance with the Act Judge Rolfe noted that Mr Crittle suggested a finding of twenty seven per cent of a most extreme case and Mr Rich a finding of between thirty five per cent and forty per cent. His Honour's finding was thirty one per cent. 151 His Honour was dealing with a matter of assessment and judgment where there is no one correct answer. It is apparent that he considered the range proposed by Mr Rich somewhat higher than the facts supported and the figure proposed by Mr Crittle somewhat lower. He did not in fact engage in a mathematical splitting of the difference. That would produce a figure of 32.25 per cent. I am quite unconvinced that Judge Rolfe pursued an inappropriate approach to the determination of this finding. 152 A somewhat similar attack of a "Solomon like approach" was made upon the assessment of past economic loss. Mr Crittle had suggested $10,000, Mr Rich $10,000 plus $15,000. His Honour's finding was $15,000. 153 In a context in which, as Mr Campbell conceded in address, a broad brush approach was appropriate the Judge's finding of $15,000 involved much more than the submission suggests. 154 The respondent at the time of her injury and after worked for a doctor. At a time which it is unnecessary to specify the doctor moved his practice and that employment was no longer available to her. 155 Mr Crittle submitted that up to that time $10,000 was the appropriate figure but that there should be no further allowance up until the date of trial because the work would not have been available to her quite independently of her injury. 156 Mr Rich accepted $10,000 as the appropriate amount for the earlier period but submitted that but for her injury the respondent could have found more employment than she was in fact able to secure and should be compensated accordingly by an allowance of, he suggested, $15,000. 157 The Judge accepted Mr Rich's submission as to some loss but considered the figure of $15,000 too high and allowed $5,000. I can see no error in so approaching the matter. There was an issue to be resolved and the Judge resolved it. 158 Mr Campbell challenges the allowance of gratuitous services for six hours per week for a period before the trial and for a further period thereafter. 159 A report of Dr Davis tendered by the respondent supports such an allowance in terms. There is evidence in a report of Dr Tarrant tendered by the appellant that would support a different view, albeit it does not deal directly with the issue. 160 Dr Davis's report was not objected to on the ground of inadequacy (Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705) that Mr Campbell now relies upon, or at all, and the doctor was not required for cross-examination. 161 In my view it was open on the evidence for the Judge to find as he did and I do not consider that he was wrong to do so. 162 Mr Campbell challenged Judge Rolfe's finding which he expressed as follows: "I am comfortably satisfied, on the basis of her evidence and the evidence of the plaintiff's treating doctors, that the shoulder problem was a knock on effect and thereby caused by the original accident. It was a knock on effect as a result of the problems that the plaintiff had with the crutches." 163 Apart from submitting that "causation in relation to the shoulder problems wasn't particularly clear" Mr Campbell relied upon the fact that the respondent used Canadian crutches, which did not extend to the shoulder, rather than the more usual shoulder length crutches and the opinion of Dr Tarrant. 164 An MRI of 8 May 2002 was consistent with a full thickness tear of the anterior supraspinatus tendon. 165 Dr White expressed the view in a report of 16 October 2003 that the respondent's problem with her shoulder "due to her crutches" was an impingement syndrome "which I understand was due to the use of the crutches after her ankle injury". He also expressed the view that it had resolved and should not leave her with a permanent disability. 166 The respondent's evidence does not support resolution of the problem. Dr Davis in his report of 22 October 2003, which was not challenged by cross-examination, said: "She also developed a tear of the right rotator cuff which can be related to the use of crutches, particularly around May of 2001, following post operative ankle infection and I believe that there is a nexus between the injury and the incident of 21 December 1999". 167 In a further report of 9 July 2004 Dr Davis expressed the view that the respondent had suffered a thirty five per cent permanent impairment of her right upper limb. 168 The contention that Canadian crutches, as opposed to ordinary crutches, would not cause "an impingement syndrome" or rotator cuff tear was never put to the respondent's witnesses or raised at the trial. It is certainly possible, indeed I think likely, that it could have been met by evidence had it been raised. 169 The respondent had given evidence: "Q. And did you start, I think in about May 2001, to notice something about your arm? A. Yes, it was while I was using the crutches, it just became sorer and sorer and -- Q. What did you notice? HIS HONOUR: Q. Which arm was it? A. It was my right arm. RICH. Q. And whereabouts-- A. In my shoulder. Q. And did the pain build up gradually or did it come on straightaway? A. No, I felt oh my arm is sore, I'm not used to these crutches, but I had to use them, and a day or so later I'd think oh, I wish this would go away, I wish it would stop aching, paining. So the only time I wasn't using crutches is when I was sitting down or lying down. Q. And I think you went and you were still suffering from infection at that stage, in your leg, is that right? A. Yes. Q. And you-- A. It was during the time that Dr Cook had said 'no weight on your foot at all' that the pain in my shoulder got very, very bad." 170 She then gave evidence as to the treatment she was given for her shoulder including anaesthetic nerve blocks and continued: "Q. -- foot? Your right shoulder, how is your right shoulder now? A. It's better than it was but nowhere near as good as it should be, or what it used to be, I can't do things I used to do but -". 171 Dr Tarrant, who examined the respondent for the appellant on 12 September 2003 reported in respect of the shoulder difficulty as follows: "I accept that she had some shoulder pain although feel that she has an attritional rupture of her rotator cuff and her shoulder pain can't really be related to an injury that occurred almost 4 years ago whereby there was a 1½ year lag between injury and onset of shoulder symptoms." 172 Although Dr Tarrant refers to the respondent's use of Canadian crutches it would seem, so far as his report goes, that he did not consider whether the use of the crutches could or would have materially contributed to the attritional rupture to which he refers. It would not seem that he had a history of the onset of the pain such as referred to in the respondent's evidence. 173 In my view it was well open to the Judge to reach the conclusion he did in relation to the shoulder. I do not consider that he has been shown to be wrong in so doing. 174 Mr Campbell submitted that Judge Rolfe had fallen into error in that he did not deal with the issue of damages in accordance with the provisions of the Act. 175 Subject to what follows I reject that submission. A reading of the addresses and the judgment shows that Counsel and the Judge were very aware of the need to apply the then relatively new Act. It is not to the point that the Judge did not refer to every provision that might be relevant; he dealt with the issues raised by Counsel in their addresses. 176 Whilst dealing with future economic loss the Judge discussed with Counsel, both during address and in his judgment, the application of s 13 of the Act. That section provides: " Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 177 It is apparent that the Judge and Counsel had some difficulty with the provisions of the section. This is not surprising. In Parks v Penrith City Council [2004] NSWCA 201 at [2], Giles JA described the meaning and effect of the section as most obscure. Cripps AJA at [8] and McLellan AJA at [52] made remarks to similar effect 178 Mr Crittle submitted that the provision of a "cushion" was the appropriate way to deal with future economic loss. Such an approach has been held to be available without infringing s 13. (Parks at [5] and Kmart Australia v McCann [2004] NSWCA 283 at [62].) 179 In dealing with future economic loss the Judge and Counsel said: "In terms of the plaintiff's claim for future economic loss, Mr Crittle submits that a cushion is the appropriate way to approach it. I agree with him. He suggests a figure of ten thousand dollars based on a loss of sixty dollars a week for four years, and applying the tables and discounting it by fifteen per cent. Mr Rich on the other hand, submits that an award should be made for a period of four to five years but in his submissions he is asking the Court to calculate that on the basis of a loss of two hundred and fifty dollars a week. It seems to me that the answer lies somewhere in between. I allow the plaintiff a hundred and twenty dollars a week for four years and I will ask the parties to do the calculation for me, using the tables and discounting that figure by fifteen per cent. CRITTLE: Your Honour wants the vicissitudes incorporated in that? HIS HONOUR: Yes. In coming to that conclusion I have had regard to the provisions of s 13 of the Act and I am just looking at s 13 subs 2 which talks about the Court referring to the percentage possibility of those events occurring but for the injury. Neither of you has particularly addressed that in those calculations that you have put before me. Do you know how I should deal with that Mr Crittle? ………. HIS HONOUR: Yes, no just what I am saying is that under s 13 subs 2, it says: (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. What I am saying is neither you nor Mr Rich has addressed me on that. CRITTLE: No. I must say your Honour, we had the same problem with a case last week and no-one was able to work out what they are getting at. HIS HONOUR: Is there anything you can say to assist me on that? RICH: Your Honour I don't know if I can nominate a percentage, except to say that in my submission it would be a very high percentage in view of her work history, her expressed attitude and background. I would have been suggesting that it was a ninety five per cent plus chance that she would have worked for at least that period of time. HIS HONOUR: Yes. In coming to the conclusion that I have had (sic) I have assumed that there was at least a seventy per cent chance of the plaintiff being able to obtain work and I have borne that in mind in arriving at the dollar figure per week, with reference to which the plaintiff's loss is to be calculated in accordance with the judgment that I have made." 180 It is arguable that his Honour has stated his assumptions and allowed for vicissitudes as provided for in subs (2) and (3) (see Macarthur District Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145 Hodgson JA at [5]). 181 On the other hand, a cushion arrived at by calculation of a weekly figure over a given period and discounted by fifteen per cent seems at odds with the concept of a cushion as discussed, for example, by Giles JA in Parks at [5].

182 On one view of it the respondent has been disadvantaged by the combination of the "usual" fifteen per cent discount (see Ardizzone at [13]) with the thirty percent allowance taken into account in fixing the weekly figure for the chance of the respondent not "being able to obtain work". 183 However, it is unnecessary to reach a concluded view on these matters. In State of New South Wales v Zerafa [2005] NSWCA 187 (Spigelman CJ and Tobias JA agreeing) I adopted the view of Giles JA, with whom Ipp and Tobias JJA agreed, in The Nominal Defendant v Lane [2004] NSWCA 405 at [67] as to what follows if s 13 is not complied with by a trial judge. 184 In that case Giles JA speaking of s 126 of the Motor Accidents Compensation Act 1999, which is in identical terms to s 113, said: "Section 126 is presumably intended to promote intellectual rigour, but if the result could have been reached failure to comply with it should not bring a new trial or a reassessment. 185 The evidence in this case well supported the award for future economic loss made by his Honour. If he was in error in respect of compliance with s 13, a new trial or reassessment would be neither necessary nor appropriate. 186 It should be observed that if there was an error it was one in applying the law and not a failure to consider and apply the law as was the situation in Electricity Commission of New South Wales v Yates [1993] 30 NSWLR in which case a new trial was ordered. Mr Campbell relied upon that case, however, the principle there discussed did not extend to the present situation. That view is supported by the passages in Lane to which I have just referred. [184] 187 I am not persuaded that the appellant has established that there should be a retrial or reassessment of the damages awarded.

COSTS 188 The Judge found for the Council and Lions and ordered the respondent to pay their costs. He also ordered that the appellant indemnify the respondent as to the costs paid by the respondent to the Council up until 16 February 2004. That is the date of a letter from Guides' solicitors making the concessions earlier mentioned. 189 Ms Katzmann informed the Court during her address that she did not wish to make submissions in answer to the Ground of Appeal challenging the order that the appellant indemnify the respondent as to the costs paid by her to the Council (the Bullock order). I should, nonetheless, say why I propose that that order be set aside. 190 Judge Rolfe explained his reasons for making the order as follows: "I have made that Bullock order in those terms on the basis that it should have then been clear to the plaintiff's solicitors that the party against whom they should have proceeded at the hearing should only have been the Guides Australia Inc. Prior to that I am satisfied that the conduct of the second defendant was such that it was appropriate for the plaintiff to join the first defendant because of, in particular, the provisions of the lease of the hall between the Council and Guides Australia Inc as a consequence of which it may have been argued by the second defendant that the responsibility for the upkeep of the lawn and so on, and the prevention of the danger and hazard, fell on the first defendant as opposed to the second defendant." 191 In Gould v Vaggelas (1985) 157 CLR 125 Gibbs CJ said at 230: "In my respectful opinion, the true position was clearly stated by Blackburn CJ in Steppke v. National Capital Development Commission (1978) 39 LGRA 94 p.100 when he said that 'there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful Defendant was reasonable, namely that the conduct of the unsuccessful Defendant has been such to make it fair to impose some liability on it for the costs of a successful Defendant.' " 192 In Stevedoring Industry Finance Committee v Gibson (2000) 20 NSWCCR 417, [2000] NSWCA 179 Mason P at 466 quoted with approval a summary of the relevant principles governing Bullock orders enumerated by Asche CJ in Lackerstein v Jones (No 2) (1988) 93 FLR 442 at 449 as follows: "1. It must be seen to have been reasonable and proper for the plaintiff to have sued the successful defendant. 2. The causes of action against two or more defendants need not be the same but they must be substantially connected or dependent the one on the other. 3. While it is essential to find that the plaintiff has acted reasonably and properly that alone is not sufficient. The court must find something in the conduct of the unsuccessful defendant which makes it a proper exercise of discretion. 4. Finally, in considering whether to make such an order, the court should, in the exercise of its discretion balance overall two considerations of policy: the first, that an unnecessary multiplicity of actions should not be forced on litigants, so that a plaintiff who acts reasonably in joining two or more defendants should not be penalised or lose the fruits of his victory in costs on the basis that he should have either elected or taken separate actions; secondly, that an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful. " 193 In the Stevedoring Industry case the primary Judge had found that the party against whom the order had been made had sought to lay the blame upon other defendants for the plaintiff's injury. 194 In this case Judge Rolfe has not referred to any evidence which establishes or indeed suggests that the appellant was seeking to place responsibility upon the Council. 195 Mr Rich submitted that the three defendants (at trial) having the same solicitors supported the order made by the Judge and referred to an observation by the Judge apparently to that effect. During an exchange between the Bench and the Bar on this issue the Judge said: "HIS HONOUR: The problem you have got Mr Crittle is that you are representing everybody and one of the things one has to take into account is if there has been any conduct on the part of the defendants which would cause the plaintiff to join everybody and the fact that there is one representation for all defendants, I think is factor that I ought to take into account. And certainly making a Bullock order as far as the Council is concerned." 196 His Honour did not refer to this approach in giving his reasons for making the Bullock order set out above. [190]. Probably because, upon examination, it is not a valid one. The Statement of Claim named all three defendants and separate Defences were filed on behalf of each of them by three different solicitors. The subsequent arrangements that one solicitor act for all could not have initiated the joinder of all three. 197 Mr Rich pointed out that the decision as to costs was a discretionary one and, I would add, one not lightly to be interfered with. However, if the Judge has not considered a matter that should have been considered then the order may be set aside. 198 In this case it is apparent that the Judge accepted that the conduct of the Council in entering into the lease pre-injury satisfied the requirement that there must be some conduct of the defendant which makes a Bullock order a proper exercise of discretion. 199 However, whilst that conduct or, rather, the terms of the lease may well have made it reasonable and proper for the respondent to have sued the Council, it is not conduct in dealing with the consequences of the injury and the subsequent claim that makes it fair to impose liability on the appellant in the way ordered. 200 In my opinion his Honour's findings and reasons did not have regard to requirement (3) in Asche CJ's formulation. The evidence did not support a finding that would satisfy that requirement. 201 I consider that his Honour's discretion miscarried in so far as he made a Bullock order and I propose that that order be set aside.

COSTS OF THE APPEAL 202 The appeal has succeeded in part, albeit only as to a minor matter. Ms Katzmann has submitted that the appropriate costs order remains that the appellant should pay the respondent's costs of the appeal. However, the matter was dealt with in written submissions by both parties and it was not until Ms Katzmann was called upon to address that it was indicated that no submissions would be made. In those circumstances I propose that the appellant be ordered to pay ninety five per cent of the respondent's costs of the appeal.

PROPOSED ORDERS 203 I propose the following orders:

2. Order of Judge Rolfe that the appellant indemnify the respondent in relation to the costs ordered to be paid by the respondent to the Greater Taree City Council set aside.

4. Appellant to pay ninety five per cent of the respondent's costs of the appeal. **********

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