Hudson v State of New South Wales

Judgment 1MEAGHER JA: On 3 March 2008 the applicant suffered a fracture of the fifth metatarsal bone in her right foot whilst playing hide and seek with friends during a lunch break at her school at St Marys. She was nearly 11 years old at the time. By her mother as tutor, she brought proceedings against the respondent for damages for negligence in respect of that injury. 2In a judgment delivered on 17 April 2012, S J Gibb DCJ dismissed that claim on the basis that the applicant had not proved that the negligence alleged caused her to lose balance and land awkwardly on her right foot, resulting in her sustaining the fracture. Had her Honour held the respondent liable, she would have entered judgment for the applicant for $16,302.54 (non-economic loss $10,500; out-of-pocket expenses $1,285.40; future out-of-pocket expenses $4,517.14) with the possibility of an additional award of $5,000 as a "buffer" for future economic loss. 3The applicant seeks leave to appeal from that judgment. By her draft notice of appeal, she contends that the primary judge erred in failing to find that her injury was sustained as a result of the respondent's negligence, that the award of damages for economic loss was "manifestly unreasonable" and that the award of non-economic loss involved error. 4The respondent seeks leave to cross-appeal from the primary judge's holding that, if causation had been established, it followed that there had been a breach of duty on its part. That application is only pressed if the applicant is granted leave to appeal. 5The principles which this Court applies when considering whether leave to appeal should be granted are not controversial. Ultimately, regard must be had to the interests of justice which are not limited to a consideration of matters which arise directly between the parties. Ordinarily it is only appropriate to grant leave to appeal in proceedings which involve issues of principle, questions of general public importance or where it is reasonably clear that there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34]; Lee v New South Wales Crime Commission [2012] NSWCA 262 at [12]. 6The applicant says that she suffered her injury in the following circumstances. She was running through a space between a toilet block wall on her left-hand side and a tree on her right. The distance from the wall to the tree was between 1.2 and 1.5 metres. As she ran past the tree and lifted her left foot to take a stride, she felt a tug on the inside of her left foot which cast her off balance causing her to land awkwardly on her right foot and sustain the fracture. Her evidence was that as she ran, the right side of her body and right foot were about 30 centimetres from the trunk of the tree. The applicant's evidence as to that distance included her using her hands to show how far the space was between her right side and the tree. 7In that trunk there were three or four nails. There were factual issues as to the height of those nails above ground level and as to how far they protruded out from the trunk. The applicant said that the nails were about 30 centimetres above ground level. The primary judge found that they were about 8 to 10 centimetres above ground level; relying on a photograph taken the next day and the evidence of Mr West, the school principal, and of the school's "maintenance man", Mr Clark, who also took the photograph. The applicant's evidence was that she did not see what caught her left foot and that she did not see the nails until after her fall. She said that she then saw that the nails were "sticking out from the tree" by about 9 centimetres. A photograph taken by Mr Clark on the following day shows the nails bent flat against the tree trunk. That was also the evidence of Mr West and Mr Clark as to what they observed on the day after the accident. 8The primary judge rejected the applicant's evidence that one of her friends had kicked the nails flat against the tree trunk. That evidence was that one week or so after the accident she had shown the nails to her friends and that they had kicked them in with their feet. She also said that one of her friends had told her on the phone two days or so after the accident that he had kicked the nails in. None of these other students was called to give evidence. A conclusion that the nails were flattened two days or so after the accident was inconsistent with the photographic and other evidence. The primary judge accepted that evidence and found that the nails were bent flat into the tree trunk at the time of the accident. 9The primary judge concluded that the applicant did not trip or lose balance because her left foot had somehow come into contact with a nail or nails in the trunk of the tree. Her Honour did so for two reasons. First, on the applicant's version of events, her left foot must have been more than 30 centimetres away from the trunk of the tree because the tree was on her right and her right side and foot were approximately 30 centimetres from the tree. That being her evidence, it was not possible that in the action of running, her left foot could have come into contact with the nails, assuming that they were protruding from the trunk. Secondly, the nails were bent flat into the tree trunk at the time of the accident and, notwithstanding that they were bent in the direction from which the applicant was running, could not have caused the applicant to trip or lose balance. 10The applicant argues that these conclusions were wrong. She submits that there was "substantial evidence at the trial both from the plaintiff and her mother and Mr West and Mr Clark which made it glaringly improbable that" she fell for any reason other than that she caught her foot on one or more of the nails. That submission is made without any reference to the underlying evidence or the reasons why it made the primary judge's conclusion glaringly improbable. For that reason alone it cannot be accepted. A number of other matters may be said in response to the submission. First, the applicant's mother did not see the incident and could only give hearsay evidence as to what happened. Secondly, the evidence of Mr West and Mr Clark was consistent with the findings of the primary judge as to the position of the nails in the trunk and as to whether they were bent flat or not. Thirdly, the applicant's version of events was at least "glaringly improbable". Fourthly, the primary judge did find (contrary to the applicant's submission) that there were "many reasons why [the applicant] might find herself a bit off balance in her stride". She was running on a bark-chipped area near a tree. That area had sticks on it and there were small bumps. On the applicant's evidence, another girl running in the same area had fallen over simply because she stopped abruptly. 11The applicant also says that the reasoning of the primary judge contains an "important internal inconsistency". It is pointed out that her Honour accepted the applicant's evidence that her right foot or side was about 30 centimetres from the tree but rejected as "an exaggeration" her estimation of the distance of the nails above ground level. This submission does not advance the applicant's position. Even if the applicant's evidence in that respect was accepted, it would not cast any doubt on the correctness of the finding that she did not trip or lose her balance because her left foot came into contact with the nails in the tree trunk. Furthermore, the primary judge's rejection of the evidence as to the height of the nails above the ground was not based merely on an assessment of the applicant's reliability as a witness. It was based on the existence of the photographic evidence and oral evidence of Mr West and Mr Clark. 12The applicant has not shown even that it is reasonably arguable that the primary judge was wrong in her conclusion as to causation. That being the case, the interests of justice require that leave to appeal be refused. That makes it unnecessary to consider the respondent's application for leave to cross-appeal. 13The following orders should be made: (1) Summons for leave to appeal dismissed. (2) Summons for leave to cross-appeal dismissed. (3) Applicant pay the respondent's costs of the summons to appeal and of the summons seeking leave to cross-appeal. 14BARRETT JA: I agree with Meagher JA.