Application of principles
158 The evidence given at trial led her Honour to conclude that the pothole was present "for some months, at least from February in the year of the plaintiff's accident": Judgment at [36]. That finding derived from evidence given by Mrs Roman's daughter who lived in Princes Street and to whom Mrs Roman was paying a visit at the time of the accident. The finding was not challenged. (It seems unlikely that the pothole was in a static condition throughout that period, but there was no evidence as to its progression.)
159 Mrs Roman's daughter had lived in Princes Street for approximately 12 months before the accident. She was asked whether she had seen cleaning activities in the street and gave the following evidence (Tcpt, 22 July 2005, p 7):
"Q. What would you see?
A. There was a street sweeper.
Q. Male or female I suppose I should …
A. I think it was male.
Q. How often did he come?
A. I would see, I would see him approximately twice a week I'd say."
160 The evidence of Ms Roman was a little vague in many respects, and the cross-examination was fairly cursory. Her evidence about seeing a street sweeper, apparently on more than 60 occasions over the 8-9 month period in question, and apparently during a period when she was working (Tcpt, pp 9 and 12) was not challenged. The Council officer who supervised the street cleaning, Mr James Wetherill, gave evidence in cross-examination (Tcpt, 27 October 2005, p 29) as follows:
"Q. I want you to assume that it's the case that that pothole was there from at least February 2001 to the date of this accident in October; eight months or so. During that time, that gutter would have been swept how many times, Mr Wetherill?
A. According to the schedule which is adhered to, it would have been swept either eight or nine times, depending on the week that you're telling me it was first observed during that period."
161 Ms Roman's evidence of sweeping occurring twice a week was not put to Mr Wetherill, but the trial judge "preferred" the observations of Ms Roman: Judgment at [23].
162 The Council also called Mr Robert Godbier, who was the engineering overseer with the Council for approximately 15 years until the end of August 2001. His duties were "the general maintenance for roads, kerb and gutter, footpaths, stormwater drains …": Tcpt, 27 October 2005, p 7. He was also familiar with Princes Street, as his residence was 75 yards from the street and he gave evidence that he had walked the footpaths on a daily basis for many many years: Tcpt, p 9. He gave evidence that his recreational walks in the year prior to 16 October 2001 took him up or down Princes Street about twice a week: ibid. He gave the following specific description of his activities (Tcpt, pp 10-11):
"Q. In your walking up and down Princes Street, did you ever notice a pothole in that location that I have just described to you, that is, the northern side of Princes Street, between Blues Point Road and the laneway?
A. No, I didn't.
…
Q. Do you, from time to time, get reports from the crews working under you, or did you get reports from crews working under your control?
A. Yes we did.
Q. What sort of reports did you get from them?
A. They were mostly verbal from the street sweepers. Anybody that didn't have anything to do with that particular job, concreting or stormwater drainage maintenance, would report that there was either a blocked drain, tripped in the footpath, or anything, or a pothole on the road, and we would put [it] on the list and when we moved into that particular precinct, we would attend to it.
Q. Did any person under your control or who worked for you ever tell you about a pothole in Princes Street, in this location that I've been asking you about?
A. No."
163 In cross-examination he was asked if he had checked Council records before giving evidence and said that he had not, because he was no longer working for the Council: Tcpt, p 11. He was asked:
"Q. But you can say, without even looking at those records, can you, that nobody told you about a pothole in Princes Street in the location you've been asked to assume? Nobody told you. You've got a memory of that. Is that right?
A. Yeah. I've got a memory and I can't remember anything like that, no.
Q. Do you think your memory might be defective?
A. I don't think so."
164 He was then asked if the way to test his memory would have been to look at the Council records and said that he thought they would have been given to him, had there been anything there: pp 11-12. He therefore assumed that there was nothing in the records. The cross-examination continued:
"Q. You don't pretend to remember, do you, four or five years back as to where particular potholes were, in particular streets?
A. No.
Q. You've got no idea, do you?
A. No."
165 It is common ground that there was no document or other computer record held by the Council which recorded the existence of the pothole. Indeed, there appears not to have been a record of it even at the time that it was filled in. Accordingly, on the test set out above, and in the absence of a written record, the knowledge of the Council would at least have included the knowledge of Mr Godbier. On the Council's case, he had no knowledge of the pothole at the relevant time; on the Respondent's case, he had no recollection. Accordingly, the Respondent sought to argue that it was open to the trial judge to "infer" that he had had actual knowledge at the relevant time, but had now forgotten. However, with respect, the rhetorical question relied upon, "You've got no idea, do you?", and the answer in the negative, was hardly the full scope of his evidence. It was the conclusion of a general cross-examination about remembering "where particular potholes were, in particular streets". But Princes Street was not any street in the municipality. As the following cross-examination made clear, he traversed the northern footpath twice a week. The cross-examination continued:
"Q. And, because of your responsibility and training, you'd be looking out for potholes, wouldn't you?
A. Yes.
Q. As well as that, seven to ten times a year, you'd conduct a formal inspection of that street. Is that right?
A. Yes.
Q. Is it right that you'd do that yourself? This is you, doing the inspection, seven to ten times a year?
A. Yes."
166 He also gave evidence of the difficulty of seeing potholes in the gutter, because of the intensity of parking in the street, but agreed that the pothole in the photograph which he was shown was "a pretty bad pothole" and the questioning continued:
"Q. If you saw that pothole, it would be something that you'd put on your list of defects to repair. Correct?
A. Correct."
167 The effect of this further cross-examination was to establish a level of improbability that Mr Godbier had actual knowledge of the pothole between February and September 2001. It was not suggested to him that it might not have been repaired even had he seen it: rather it was suggested that if he had had knowledge of it, it would have been repaired. The fact that it was not repaired tended to undermine the suggestion that he had actual knowledge of it.
168 The Council also called Mr Steven Stathis, who was, at the time of the trial, the infrastructure maintenance manager with the Council. He took over responsibility as works overseer from Mr Godbier in August-September 2001: Tcpt, 27 October 2005, p 17-18. He also gave evidence that he had no knowledge of the pothole on the northern side of Princes Street: p 19. He was not cross-examined as to that evidence. He did, however, give evidence that the computer records had been checked with respect to the hole and no record found either prior to October 2001 or prior to it being patched, some ten months later: Tcpt, pp 23-24.
169 Finally, of present relevance, the Council called Mr Colin Marr who was an insurance and risk manager with the Council. He had made a search of the computer records for complaints by members of the public, a few days after receipt of the statement of claim and found no information concerning a pothole in Princes Street fitting the description of that involved in the accident: Tcpt, 22 July 2005, p 32. In cross-examination, he was asked the identity of the Council's works overseer in October 2001 and identified a Mr Warren Stahlhut: Tcpt, p 35. However, he then stated:
"From discussions with him he was involved in works gangs at that time. He wasn't an overseer at that time."