(a) the severity of the injuries;
(b) the nature of the injuries;
(c) the position of the appellant when discovered;
(d) markings on the concrete, and
(e) the position of dislodged belongings, and
(f) the configuration of the area.
86 It is convenient to deal together with the severity and nature of the injuries, (a) and (b). These were the subject of numerous medical reports and are not in dispute. They are sufficiently described by her Honour in discussing the issue of damages at [81]:
"There was no dispute that the plaintiff suffered a very serious closed head injury. He remained in post-traumatic amnesia for 23 days after the accident, accepted to be indicative of a very serious traumatic brain injury. The plaintiff suffered from head injuries, a fractured right wrist and a broken front tooth. The head injury was to the right side and there was bruising to the right side of his face. The plaintiff was noted to have had a haemorrhage from the nose and a haematoma to the right eye. There was tissue swelling around the right orbit of the eye and a probable fracture of the floor and medial wall of the right orbit. He had a small abrasion to the left knee and a 2 centimetre abrasion to the right knee. The ambulance report noted that his extremities were cold but his trunk was warm."
87 The seriousness of the superficial facial injuries is revealed in the photographs tendered in evidence. In relation to the brain damage, Dr Conrad noted in a report of 3 November 2005 that "CT scans showed considerable brain damage with haemorrhagic contusions of right frontal lobe and temporal lobes": at p 1. He described the plaintiff as having "sustained a very severe head injury, associated with obvious organic brain damage": Report, p 2.
88 The Court was not assisted with any useful expert evidence as to the nature of a fall onto concrete which might have achieved that result. However, commonsense would suggest that injuries of such severity are more likely to be caused by a fall from 1.5 metres than by stumbling when seeking to traverse the sloping wall of the drain.
89 Dealing together with (c) and (d), the appellant lost both blood and urine at the time of the injury, the location of which is revealed in the photographs tendered in evidence. A stained area was approximately 2.7 metres from the foot of the vertical wall. Although the evidence is sparse, it appears that the dark stain was the result of blood, which, it may reasonably be inferred, came from the appellant's face and head. If the appellant fell from the wall, it would appear that the fall was not directly down, but forward, so that he came to rest for a period sufficient to allow the pooling of blood at the point of the stain, approximately a metre beyond his body length from the wall. (While the wall was 1.5 metres high, the ground sloped away just in front of the wall so as to create a drop of 1.9 metres from the top of the wall to the blood stain: report of William Bailey, mechanical and biomedical engineer, p 10.) While Mr Bailey suggested that the distance from the wall was inconsistent with the appellant having tripped over the wall and fallen, no attempt was made to explain why the staining was thought to be consistent with falling on the sloping sides of the drain, which appear to have been further away from the stain than was the wall. On the other hand, the position of the stain suggested that, if the appellant did fall over the wall, he did so whilst moving down the hill, rather than while standing still and losing his balance.
90 In relation to the (e), there appear to have been some personal belongings, including the dog leads, deposited on the ground a metre or so beyond the blood stains. Superficially, that would suggest an unexpected fall, with the leads, held in his hand, being projected forward. However, little weight can be given to that evidence. For example, although it appears likely that the dogs were off the lead at the time of the accident, as they were found off the lead when the appellant was discovered, it is difficult to know exactly how the leads would have come out of his grip, assuming that he was holding them in his hand when he fell. It is quite possible that they were dislodged later, possibly by a an ambulance officer. It is also possible that they were moved from their original position before the photographs were taken. The evidence is silent as to these matters. It is not possible to obtain much assistance from the position of the leads.
91 A further factor, (f), is the configuration of the drain. The vertical wall was at its higher end and extended for a length which does not appear to have been identified in the evidence but which the photographs and measurements in evidence suggests was about 10 metres. The stains appear to have been roughly in the middle of the drain, which had sloping sides. At the lowest point in the vicinity of the accident, the drain may have been almost two metres deep. One side of the concrete drain appears to have been slightly higher than the other, or at least the wall of the drain on that side was somewhat steeper than on the other. On the south side, the slope was relatively shallow. On the north side, the slope was steeper, at the lip, but quickly became similar to the shelving on the other side. The position of the blood stain would appear to be some 4-5 metres from the relatively steeper slope on the north side of the drain. If the appellant did not fall from the vertical wall, it would seem that he must have stumbled going down the steeper slope, heading across the drain from north to south. If he did that, he was heading away from his home. Assuming he did not see the drain (which would have required a deviation of only a few metres from his assumed direction to head above the wall) he would have presumably stumbled for several metres before losing his footing completely and falling. It is not impossible that he would have fallen in a manner which resulted in him landing on his face, but it is unlikely. The nature of the injuries are more consistent with an unprotected and unanticipated fall from a height greater than body height.
92 Disregarding the ambulance officers' report, I would infer that the appellant was more likely to have fallen from the wall than to have stumbled down the sloping side of the drain, contrary to her Honour's finding at [76]. Further, because of the distance of the stain from the top of the wall, it is more probable that he fell over the wall in the course of his movement down the hill rather than fell when standing on the wall and losing his balance. Again, that conclusion is inconsistent with her Honour's finding at [76].
93 On a reconsideration of the material in evidence at trial, and again disregarding the ambulance officers' report, I would have been comfortably satisfied that, on the probabilities, the appellant fell over the wall when moving down hill, and without seeing the drain. (That, I accept, is inconsistent with the reasoning of the President recorded in the first judgment, with which I agreed.)
94 My conclusion is confirmed by the ambulance officers' report. The critical line in the section headed "Patient History" is -
"? Fall from 1.5 metres onto concrete".
95 I would be satisfied on the probabilities that this constituted an inference drawn by the ambulance officers who signed the report, based on their observations when they attended at the scene of the incident at 7.09 on the morning of 18 July 2002. I agree with the President that the opinion so expressed is unlikely to have been based on anything said by the bystanders, who found the appellant. I would be comfortably satisfied that the opinion was based on the observations of the physical position of the appellant, his state of consciousness, the unlikelihood that he had moved far voluntarily or involuntarily, the existence of the stain (which may have suggested to them that he had been in the same position for a period of time), the nature of his injuries as they perceived and recorded them and the surrounding environment.
96 I do not read the document as posing a question: I would treat the question mark, coming at the beginning of the line (not the end) as indicating a degree of uncertainty or doubt. It is not possible to be sure how great their doubts or uncertainties were, other than to say that they nevertheless deemed the opinion worth recording and did not suggest any alternative.
97 The cause of the injuries would not have been unimportant to the ambulance officers. They knew that the appellant had suffered a significant head injury from his level of consciousness, the observable superficial injuries, his response to stimuli and his Glasgow Coma Score. An assessment of the appellant's condition by relevant medical officers at the hospital, particularly in relation to the potential seriousness of the head injury, might well take into account the cause of the injury. A record of the most likely cause was therefore, in all probability, a matter of some significance to the ambulance officers who prepared the report.
98 That report therefore gives significant additional support to the view that a fall from the wall, in the manner described above, was not merely more likely than other competing possibilities, but was the probable cause of the injuries.
99 I do not obtain assistance from the second Ambulance Service document headed "Retrieval record". That document is inaccurate in a number of respects. It stated that the appellant was found at 7.20am, which was an approximate time and differed from that recorded by the ambulance officers who attended at the scene. It also described the appellant as "unconscious", which appears to have been less precise than the assessment of the ambulance officers at the scene. The reference to "approx 1 and half m drop from edge" may well reflect information supplied in the first report, but it gives it no greater credibility or weight. It is not necessary to rely upon the line, "police investigated site - no evidence of fight", as the possibility of a fight was not given serious consideration by the trial judge and was not relied upon by way of notice of contention.
100 There remains a question as to the time of the accident. The trial judge was satisfied that the top of the wall at the head of the wide drain was hazardous and that the Council was in breach of its duty of care to persons crossing the park at night in leaving it in its unprotected condition.
101 The fact that the plaintiff fell over the wall without seeing it, as concluded above, does not necessarily mean that the breach of duty was the cause, or the sole cause of the injuries suffered.
102 The ambulance report indicates that a vehicle was "booked" at 6.57am. The ambulance was on the scene within 10 minutes. The officers recorded that the plaintiff's extremities were "cold to touch" but his trunk "warm". Perhaps because this description was too imprecise to be of significance, no medical evidence was called to indicate how long he may have been lying in the drain, before he was discovered.
103 On 18 July 2002 the sun rose in Lithgow at 7am. This time was not referred to in the evidence, but was referred to in submissions and was a matter of which her Honour could take notice. Although the plaintiff was discovered before sunrise, it does not necessarily follow that the accident occurred in the dark. On the other hand, it was agreed that the plaintiff had set out with the dogs at 3.30am, when there was likely to have been some three hours of darkness, before significant pre-dawn lightening.
104 There was evidence from the father of his partner (Mr Peter Spurling) that the weather was "a bit on the cold side and it was a clear night": Tcpt, 28/03/07, p 192. It is not in dispute that the plaintiff had drunk a significant amount of alcohol on the previous evening and night and had been noisy when he left his home to go for a walk with the dogs. Given the period of time for which he away, and the absence of any suggestion that he had visited any person in that time, it is more likely that the injury occurred whilst it was dark than after it had started to become lighter. Further, given the danger involved in the construction of the drain, with the lip being concealed by plants and there being no warning or fence around it, the inference that it was dark when the accident occurred obtains support from the circumstances of the accident, as found above.
105 Further, the likelihood that the plaintiff would have been somewhat less inebriated after walking with dogs on a cold clear winter's night in Lithgow, after two or more hours, also supports the inference that the accident occurred whilst it was dark.
106 In my view, it was incorrect for her Honour to say that there was "no evidence which would permit a finding that he approached the drain when it was dark, rather than at some later time when it was lighter": at [77]. Although there is a paucity of evidence from which to draw an inference, in my view the circumstances set out above support the inference that, on the probabilities, the fall occurred during hours of darkness.