[1987] HCA 7
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Buckle v Bayswater Road Board (1936) 57 CLR 259
152 ER 588
Douglass v The Queen (2012) 86 ALJR 1086
[2012] HCA 34
Dovuro v Wilkins (2003) 215 CLR 317
[2003] HCA 51
DW v The Queen (2004) 150 A Crim R 139
Source
Original judgment source is linked above.
Catchwords
[1987] HCA 7
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Buckle v Bayswater Road Board (1936) 57 CLR 259152 ER 588
Douglass v The Queen (2012) 86 ALJR 1086[2012] HCA 34
Dovuro v Wilkins (2003) 215 CLR 317[2003] HCA 51
DW v The Queen (2004) 150 A Crim R 139[2004] ACTCA 22
Fox v Percy (2003) 214 CLR 118[2006] NSWCA 187
Greenhalgh v British Railways Board [1969] 2 QB 286[2008] NSWCA 17
Lee v Lee (2019) 266 CLR 129[2019] HCA 28
Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506[1991] HCA 12
Manley v Alexander (2005) 80 ALJR 413[1994] 3 All ER 53
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323[2001] HCA 30
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55[2013] NSWCA 361
Onassis v Vergottis [1968] 2 Lloyd's Rep 403
Queensland v Masson (2020) 94 ALJR 785[2020] HCA 28
R v Barrowman (2007) 96 SASR 294[2007] SASC 28
R v Keyte (2000) 78 SASR 68
[2000] SASC 382
R v Power (2003) 141 A Crim R 203
[2003] SASC 77
Ryan v Workers Compensation Nominal Insurer (2020) 91 MVR 282
[2020] NSWCA 38
Shaw v Thomas (2010) Aust Tort Reports ¶82-065
Judgment (30 paragraphs)
[1]
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12
Manley v Alexander (2005) 80 ALJR 413; [2005] HCA 79
Mason v Demasi [2009] NSWCA 227
Masterton Homes Pty Ltd v LED Builders Pty Ltd (1996) 33 IPR 417
McGeown v Northern Ireland Housing Executive [1995] 1 AC 233; [1994] 3 All ER 53
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361
Onassis v Vergottis [1968] 2 Lloyd's Rep 403
Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28
R v Barrowman (2007) 96 SASR 294; [2007] SASC 28
R v Keyte (2000) 78 SASR 68; [2000] SASC 382
R v Power (2003) 141 A Crim R 203; [2003] SASC 77
Ryan v Workers Compensation Nominal Insurer (2020) 91 MVR 282; [2020] NSWCA 38
Shaw v Thomas (2010) Aust Tort Reports ¶82-065; [2010] NSWCA 169
Sibraa v Brown [2012] NSWCA 328
Snitzer v Becker Milk Co Ltd (1976) 75 DLR (3d) 649
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Turnbull v Alm [2004] NSWCA 173
Verryt v Schoupp (2015) 70 MVR 484; [2015] NSWCA 128
Yates Property Co Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156
Category: Principal judgment
Parties: Michelle Leanne Prouten (Appellant)
Darren Chapman (First Respondent)
Megan Rebecca Chapman (Second Respondent)
Representation: Counsel:
[2]
RJ de Meyrick and J Mrsic (Appellant)
JE Sexton SC and OJ Dinkha (Respondents)
[3]
Grieve Watson Kelly (Appellant)
McCabe Curwood (Respondents)
File Number(s): 2020/237533
Publication restriction: N/A
Decision under appeal Court or tribunal: Supreme Court
Jurisdiction: Common Law Division
Citation: [2020] NSWSC 873
Date of Decision: 17 July 2020
Before: Button J
File Number(s): 2018/004610
[4]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[5]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 7 January 2015, the appellant, a postal delivery officer, was delivering mail by motorcycle to the residents of Harper Avenue, Edgeworth. For several days, the mailbox of No 16 had been obscured by a caravan parked on the nature strip and owned by the respondents. The appellant took her usual course of turning left to round the caravan and reach the mailbox, and claimed that as she did so, she suddenly encountered an extender bed protruding from the caravan's rear, which had not been extended on previous days, and took evasive action by turning sharply to the right, resulting in the motorcycle falling to one side and causing injuries to her back, neck, and right leg. The appellant sued the respondents for damages for negligence.
Her claim was rejected in the Supreme Court on three bases: first, that the appellant did not establish that the accident occurred in the manner she alleged; secondly, that breach of duty of care was not established; and thirdly, that the appellant did not prove that her injuries were caused by the accident. The first and third bases were also informed by an 'overarching' adverse credit finding. The appellant appealed, largely on grounds concerning the adequacy of the trial judge's reasons.
Held (per Meagher and Leeming JJA; Brereton JA dissenting), dismissing the appeal: [28] (Meagher and Leeming JJA), [134] (Brereton JA).
As to the adequacy of reasons:
Per Brereton JA; Meagher and Leeming JJA agreeing: A judgment is not required to contain reasons that refer to and resolve every aspect of the evidence, and little may be required by way of reasons when a judge accepts or rejects witness evidence on demeanour-based grounds. There was no inadequacy in the judge's reasons: [4] (Meagher and Leeming JJA), [32]-[51] (Brereton JA).
As to duty:
Per Meagher and Leeming JJA: A duty of care was owed by the respondents to the appellant, derived from the respondents' use of a public right of passage as a location to park their caravan: [19]-[21].
Buckle v Bayswater Road Board (1936) 57 CLR 259; [1936] HCA 65, applied.
Per Brereton JA: The duty of the respondents, as occupiers of the relevant premises, to take reasonable care for the safety of entrants, extended to premises not under the respondents' control, but which provided access to their premises, including the nature strip. Further, parking the caravan on the nature strip sufficed to attract a duty to users of the nature strip: [109]-[111].
Turnbull v Alm [2004] NSWCA 173; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7; Snitzer v Becker Milk Co Ltd (1976) 75 DLR (3d) 649, applied.
[6]
Judgment
MEAGHER and LEEMING JJA: The appellant Ms Michelle Prouten appeals from the dismissal of her claim for damages for negligence brought against Mr Darren and Ms Megan Chapman. Ms Prouten was employed by Australia Post to deliver mail on a motorbike. She claimed that on 7 January 2015 she fell as a result of evasive action required to be taken by her when negotiating around the Chapmans' caravan, which was parked on the nature strip outside their home. The caravan was prominent and stationary, and the incident took place in daylight. Indeed, Ms Prouten said that she remembered riding around the caravan on previous days. However, on 7 January, an extender bed protruded from the rear end of the caravan, not apparent until her approach, which had not been the case on previous days, and it was the need to avoid this unexpected element of the obstacle which was the basis of her claim. The evidence was that the caravan was 4.9m long and 2.3m wide, with the bed extension of 1.14m in length and inset about 10cm from each side. The bed extended from its rear end, as Ms Prouten approached from the front of the caravan which was on her left. The following photographs of the caravan, parked on the nature strip and with the bed extended, were in evidence. The aerial photograph was taken some three years after the event, the second photograph some eight weeks after the event. Both photographs included Ms Prouten's evidence of her approximate route (indicated by a hand-drawn black line):
The primary judge heard a trial over some 8 days and produced a substantial judgment: Prouten v Chapman [2020] NSWSC 873. His Honour dismissed the proceedings for three "separate but related reasons". First, his Honour was not satisfied that Ms Prouten had established that the accident happened as alleged. Secondly, assuming that the accident happened as alleged, his Honour was not satisfied that the elements of s 5B of the Civil Liability Act 2002 (NSW) had been established. Thirdly, the primary judge was not satisfied that the asserted injuries suffered by Ms Prouten had been caused by the accident.
The primary judge added at [22] that "an overarching concern about the credibility of the plaintiff suffuses the first and third determinations summarised above". This was elaborated under the heading "Overarching adverse factual matter" at [130]-[141], following Ms Prouten's failure to disclose her extensive recreational travel subsequent to the alleged accident.
[7]
The requirement for reasons
In large part, though not exclusively, the appeal was cast as one which complained, not that his Honour's findings of fact were incorrect, but that the reasons given for them were inadequate. Thus it is appropriate to observe, at the outset, that, while the "minimum acceptable standard" for reasons is informed by the issues at trial, the nature of the evidence, the nature of the submissions, the scope of any right of appeal, and other relevant circumstances, the general scope of the duty to give reasons is to explain the decision, not to write an exhaustive treatise on every aspect of the trial. [2] It is not necessary for written reasons to expose all of the detailed reasoning involved in arriving at the final judgment. [3] A judge is not required to make express findings in respect of every matter of fact or law that has been raised in the proceedings. [4] It is "plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected". [5] Where the question is one of accepting and rejecting the evidence of a witness on demeanour-based grounds, little may be required, and there is no requirement for a judge to give a detailed explanation for a decision to prefer the evidence of one witness against that of another. [6]
[8]
The credit finding (Ground 18)
His Honour concluded that by reason of an "Overarching adverse factual matter", [7] "the credibility of the plaintiff - and to a lesser extent, those who love and support her - must inevitably be assessed to some degree adversely in these proceedings." [8] By ground 18, the appellant contends that the trial judge failed to give adequate reasons in respect of that conclusion, in failing to identify the evidence given by the appellant which was said to give rise to the credit issue; failing to refer to or consider her evidence as to her travel and disability in any detail; failing to refer to or consider the evidence of the appellant's treating and qualified medical experts as to her travel and disability in any detail; and failing to refer to or consider the evidence of Sandra Prouten (the appellant's mother) and Joseph Green (the appellant's partner) as to her travel and disability.
Although this credit finding was the fourth of the matters referred to in his Honour's judgment, that was in the context that his Honour had explained that it was an overriding concern that informed his conclusions on the first and third issues, and it is convenient to address it first, as if it were overturned that would have repercussions for the other issues.
The trial judge's adverse credibility assessment of the appellant was founded on the emergence, in the course of the trial, of evidence of extensive domestic and overseas travel undertaken by the appellant since the accident, which had not been disclosed to treating or qualified medical practitioners, which was apparently at first denied in oral evidence, and which appeared inconsistent with her claimed level of disability. In essence, it involved that:
1. the plaintiff's claim was that she was terribly disabled, and largely confined to her home. In cross-examination she denied that she had engaged in travelling long distances, which was consistent with her claimed gross disability; [9]
2. however, it emerged, only in cross-examination, that she had engaged in very extensive overseas travel - some of it at times when she claimed to be resting and recuperating. This was not revealed in her evidentiary statements, the histories she provided to medical professionals, or in her oral evidence until specifically raised in cross-examination; [10] and
3. the sheer quantity and duration of the travel involved could not be reconciled with the level of disability of which she and those who love her claimed. [11]
[9]
The accident (Grounds 1 - 11)
According to the appellant, the caravan had been parked on the nature strip, where she had encountered it on her usual route, for at least several days before 7 January 2015. On that day, on approaching the caravan from the east, she proceeded to ride around it as she had on previous days, travelling along the narrow strip that remained between the righthand side of the van (as it presented to her) and the roadway, and turning left at its far (rear) end to approach the mail box of No 16. However, on this occasion, as she reached the far end of the van and rounded it to head to the mailbox, she encountered at the last moment the extender bed at its rear, which had not been there on previous days and which she did therefore not expect. When she noticed it, she tried to take evasive action by turning sharply to the right, but the bike slid on the grass, causing it to fall to the left; she twisted in an endeavour to stop the fall, and her helmet hit the metal frame of the extension. The bike fell, and she took its weight on her left leg. To prevent herself from falling, she had to take the bike weight in an awkward position and then lift it back upright, and in doing so had to twist her back and neck. She immediately felt pain in her right leg, which had been burnt on the exhaust pipe, and she also began to experience pain in the right mid-section of her back, along with a sharp pain down the right side of her lower back and into her buttocks.
No one other than the appellant observed the accident. His Honour rejected her account, essentially on the basis that "documents brought into existence soon after the accident paint a completely different picture of what had allegedly happened." [19]
The appellant challenged his Honour's rejection of her account on various grounds, which were largely complaints about the adequacy of his Honour's reasons, including that his Honour failed to refer to or sufficiently consider various aspects of the evidence. However, ground 1 (that his Honour erred in rejecting the appellant's account of the mechanism of the accident) was a challenge to the ultimate rejection of the appellant's account as a matter of fact. In that respect, this appeal, being one governed by (NSW) Supreme Court Act 1970, s 75A, is by way of rehearing, so that this Court has the powers and duties, including powers and duties concerning the drawing of inferences and the making of findings of fact, of the court of first instance. As the High Court explained in Lee v Lee ("Lee"): [20]
"A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law [Fox v Percy (2003) 214 CLR 118 at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686 [43]; 331 ALR 550 at 558]. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" [Fox v Percy (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 687 [43]; 331 ALR 550 at 558-559] is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts [Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at 434-435 [144]; Thorne v Kennedy (2017) 263 CLR 85 at 104 [42]]. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge" [Warren v Coombes (1979) 142 CLR 531 at 551 per Gibbs A-CJ, Jacobs and Murphy JJ; see also Fox v Percy (2003) 214 CLR 118 at 127 [25]]."
[10]
The evidence
According to her mother Mrs Prouten, the appellant related the substance of her account to her on the day of the accident. In her witness statement dated 5 June 2019, Mrs Prouten said:
"25. I first heard about Michelle's accident on 7 January 2015 when she telephoned me. She told me that she had collided with a bed sticking out the back of an illegally parked caravan. She said she could not see until it was too late. She was angry about it because, she told me, she had told Australia Post about caravans parked on the nature strip there over the previous few weeks, and they were meant to contact residents about it to move them. She told me that it really knocked her, and she had to twist and hold the bike up. She sounded shaken and annoyed."
Importantly, that account included the key feature of unexpectedly encountering an extender bed at the rear of the caravan. The cross-examination of Mrs Prouten relevant to this issue was as follows: [21]
"Q. You don't, as you sit there, have a precise recollection of dates as to precisely when things happened, do you?
A. I, I can have, depending on what the things are.
Q. If someone hadn't told you what happened on a particular day, that is 7 January 2015, you wouldn't be able to remember independently the precise date that she had this incident would you?
A. Yes, I would.
Q. 7 January is imprinted in your mind, is it?
A. Yes, it is.
Q. You suggest, do you, that your daughter rang you immediately after or sometime that day?
A. No, she rang me after, that evening.
Q. That evening?
A. Yes.
Q. She didn't tell you, did she, that she had sustained any sort of injury whilst hitting an extended bed, did she?
A. Yes, she did.
Q. She did, did she?
A. Yes, because I happened to know exactly what an extender caravan is.
Q. Didn't she inform you of that sometime later?
A. No.
Q. Is it possible that your memory of precisely what she told you might be a bit confused, bearing in mind that it's four years after the event?
A. No."
According to the appellant's partner Mr Green, the appellant also related the substance of her account to him on the day of the accident. In his witness statement dated 6 June 2019, he said:
"18. I first heard about Michelle's accident on 7 January 2015 when she came home that night. She told me what had happened. She said that when she came around a caravan on her bike, that there was a bed extended from the back of it. She didn't have time to avoid it, bumped her helmet on it, and lost control of her bike. She had a burn on her leg. She complained of aches and pains all over. She was visibly shaken and distressed. This was not like her. Normally nothing much seemed to bother her."
[11]
Analysis
Essentially, his Honour considered that, although the WorkCover Certificate of 16 January 2015 and the Root Cause Analysis of 23 January 2015 were broadly consistent with the appellant's account (although pointing out that the former did not refer to any protruding extender bed, and that insofar as the latter recorded as a "key learning" that "Stretching to reach mailbox will expose delivery staff to risk", it was more consistent with the proposition that the plaintiff was claiming that she had suffered an injury while placing mail in the mailbox, as opposed to as a result of an encounter with the extended bed), [27] the account contained in the Incident Report of 19 January 2015 (Exhibit 1), supported by the Motorcycle Photo of the same date (Exhibit 2), favoured the view that at that time, the appellant's complaint was that she had been injured while attempting to place mail in the mailbox, and not as a result of any encounter with the extended bed, and in the light of that version, later versions consistent with the appellant's case were discounted.
[12]
The Incident Report and Motorcycle Photo of 19 January 2015
The Incident Report and Motorcycle Photo of 19 January 2015 were the critical documents for his Honour's conclusion. In respect of the Incident Report, his Honour observed: [28]
"[34] Importantly, there was no indication in this written incident report of a collision or near collision with the extended bed having occurred. Indeed, in my opinion the focus of the version is plainly upon the act and time of "[w]hile reaching forward to place mail in mailbox" after having ridden passed the caravan.
[35] Mr Weedon was not called by either party. The document prepared by him was tendered by the defendants, and became Exhibit 1. In the absence of any cross-examination of Mr Weedon, the thesis of counsel for the plaintiff was that there must have been a "crossed wire" between Mr Weedon and the plaintiff, and that as a result he mistakenly wrote down a version of the accident that was markedly inconsistent with what he was actually being told by her. Counsel relied upon the evidence of the plaintiff (at TT 90-91) as supporting that thesis. In a nutshell, she gave evidence that she "did not actually write this report". His submission in short was that it is not inconceivable that there was a misunderstanding between the plaintiff and Mr Weedon.
[36] That submission is not easy to accept. In my opinion, on its face Exhibit 1 is a detailed recording of what the plaintiff was telling Mr Weedon. It is noteworthy that it uses the first person singular pronoun, strongly suggestive of a contemporaneous written recording of what the plaintiff was saying to him. Two further factors supportive of that thesis are its level of detail known only to the plaintiff, and the fact that events are recounted in strict chronological order. Finally, it is not something casual or informal scribbled on a scrap of paper; rather, to the extent that it records something having allegedly gone wrong in a workplace shared between the two of them, it is a document of some significance.
[37] In the absence of any application to cross-examine Mr Weedon on behalf of the plaintiff, or any other evidence that effectively undermines the credibility of the document, I consider that I am entitled to infer that Mr Weedon was indeed contemporaneously recording what the plaintiff was telling him, in quite some detail, about the accident, 12 days after it occurred.
[38] Separately, there was no evidence placed before me that, at the time of speaking to that person, the accuracy of what the plaintiff was saying was affected by some inability to recall the details of what had happened, or by some other innocent reason not to be accurate about it.
[39] In short, in my opinion it is very significant that in the first document that recounts in detail what the plaintiff was saying had happened to her, an account is recorded that is starkly at odds with the account that is the foundation of the claim. Indeed, if the mechanism of which the document speaks is what happened - that is, the plaintiff safely negotiated around the extended bed, but subsequently lost her balance whilst stationary and in the process of placing mail in the mailbox, thereby becoming injured - that is fatal to the establishment of the claim of the plaintiff."
[13]
The WorkCover Certificate of 16 January 2015
It is of great significance that the WorkCover Certificate, which predated the Incident Report, referred to there being "no proper access to the post box due to parking of a caravan". In other words, the appellant was saying as early as 12 January 2015 - a week before the Incident Report - that the caravan had impeded her access and contributed to the accident.
[14]
The Root Cause Analysis of 23 January 2015
The Root Cause Analysis was also created by Mr Weedon, the same officer who had compiled the Incident Report. His Honour accepted that insofar as it referred to the appellant having "failed to anticipate hazard Caravan parked in front of letterbox, lost balance and over-stretched trying to hold bike from falling onto the caravan", it was broadly consistent with the appellant's account - notwithstanding that insofar as it recorded as a "key learning" that "Stretching to reach mailbox will expose delivery staff to risk" it was more consistent with the proposition that the plaintiff was claiming that she had suffered an injury while placing mail in the mailbox, as opposed to as a result of an encounter with the extended bed. [35] However, his Honour reasoned that it was created 16 days after the accident, and preceded by the Incident Report and Motorcycle Photo, and on that basis discounted it insofar as it was supportive of the appellant's account. [36]
Although, as might be expected in such a form, as distinct from an evidentiary statement, the statement "Caravan parked in front of letterbox, lost balance and over-stretched trying to hold bike from falling onto the caravan", is very concise, it unambiguously identifies the presence of the caravan as a contributing factor, as had been the case in every document created from 12 January 2015 onwards. However, if the appellant injured herself when leaning forward to place mail in the mail box, the caravan would be an irrelevance.
In treating, side-by-side, the concepts that the appellant "over-stretched trying to hold bike from falling onto the caravan" and that "Stretching to reach mailbox will expose delivery staff to risk", without recognising any inconsistency, this document tends to show that its author Mr Weedon merged the two concepts of taking action to evade the obstructive caravan and placing mail in the mail box, and did not explore the precise mechanism in sufficient detail to recognise the distinction. This also detracts from the weight to be given to his record in the Incident Report, in which the same two concepts are reflected (given the concurrent reference to the expander caravan "with sides open"), manifesting the same lack of understanding of the detail.
[15]
The physiotherapy documents of 4 and 6 February 2015
On 4 February 2015 the appellant told her physiotherapist that she was "navigating around a caravan on her postie bike when she had to suddenly give wide berth next to the caravan and the bike slid out the left causing her to reef on the handlebars with her right upper body". That is entirely consistent with her account. His Honour did not refer to this, or the subsequent physiotherapy reports which repeat it, presumably because they post-dated those of 19 January 2015 which he considered decisive. However, they significantly pre-dated the Reconsideration Letter, next referred to.
[16]
The Reconsideration Letter of 31 March 2015
The first fulsome account in the appellant's own words is to be found in the Reconsideration Letter and is entirely consistent with her case. In particular, it refers to the van having been present for some time, that on this occasion for the first time it had an expander bed extruding from the rear, which she saw only at the very last moment, in response to which she attempted to turn quickly and sharply to the right to avoid riding straight into the extended bed, when the tyre slid and the motorcycle began to fall to the left. Prima facie, it was an important piece of evidence. His Honour did not refer to it.
The appellant submitted that his Honour's failure to mention the Reconsideration Letter, or to give any reasons for discounting it, disclosed an error in the fact-finding process of the kind referred to by Meagher JA in Beale v Government Insurance Office of NSW, [37] in that "where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it". I would not accept that the mere omission of reference to the Reconsideration Letter in his Honour's reasons was indicative of error. As the respondents submit, that the trial judge did not refer to the Reconsideration Letter may be understood by his reasoning in respect of the Root Cause Analysis: that is, the Reconsideration Letter (like the Root Cause Analysis) was after the Incident Report and the Motorcycle Photo. I accept that the Reconsideration Letter was discounted on the basis that, like the Root Cause Analysis, it was preceded by the Incident Report and the Motorcycle Photo, which were more proximate in time to the event and potentially less likely to have been influenced by extraneous considerations.
However, it is implicit in the rejection of the version contained in the Reconsideration Letter on that basis that the later version in the Reconsideration Letter was a revision of the story, if not an invention. His Honour did not analyse why the appellant's story changed, if it did, from that which she ostensibly reported to Mr Weedon as recorded in the Incident Report. There is no obvious reason why it would. The respondents submitted that there was evidence indicating that the explanation for the version in the Reconsideration Letter differing from that in the Incident Report and the Motorcycle Photo was that the appellant had been informed that the incident described in the Incident Report and the Motorcycle Photo was her own fault, and that the Reconsideration Letter was an attempt to counter that perception. However, the respondents' submissions did not identify this evidence. If it was supposed to be an inference from the Reconsideration Letter, then it was not available: the Reconsideration Letter addressed the reasons for rejection of the claim, which appear to have been directed to causation of injury and to whether the injury arose in the course of employment; fault would have been irrelevant to the declinature of her workers compensation claim. If it was supposed to be an inference from the references in the Root Cause Analysis to the appellant having had conversations about safety, "stop think and do", and "permission to pause", in the context of other references to her being "highly aware of the need to be proactive in safe work practices & processes", that was a faint basis for any such inference, and in any event was unrelated to the declinature of her workers compensation claim and the Reconsideration Letter. Moreover, the declinature letter was not received until 25 March 2015, and the appellant had given accounts which implicated the caravan for the Root Cause Analysis of 23 January 2015, and to the physiotherapist on 4 February 2015. Further, the Reconsideration Letter was accompanied by photographs taken by the appellant on 2 March 2015 of the caravan on the nature strip, presumably after the Chapmans had returned from their trip - weeks before she received the declinature letter.
[17]
Mrs Chapman's statement
Mrs Chapman's statement confirms significant aspects of the appellant's evidence, including that the expander bed was opened only on 7 January 2015, although the caravan had been on the nature strip some days before then, and that the appellant had pointed out "That's where I fell". Most importantly, quite independently of the appellant, she confirms that the van had been parked on the nature strip for several days prior to the day of the accident, and that its bed had been extended on the morning of the accident to facilitate packing the van, but not previously. That Mrs Chapman would provide such corroboration could not have been known to the appellant when she provided exactly that description in the reconsideration letter. His Honour did not refer to the statement of Mrs Chapman, but it provided important corroboration of the accuracy of a number of elements of the appellant's account.
[18]
Evidence of Mrs Prouten and Mr Green
In addition, there was evidence of two other witnesses, the appellant's mother and partner, which attested to her having related to each of them, on the day of the accident, an encounter with the extender bed. His Honour gave the following reasons for rejecting their evidence: [38]
"[47] It is true that Mrs Sandra Prouten, the mother of the plaintiff ("Mrs Prouten"), gave evidence before me that, on the night of the accident, her daughter told her that she had collided with an extended bed of a caravan and sustained some injuries (TT 345.15). To be weighed against that is the fact that the evidentiary statement of Mrs Prouten was created on 5 June 2019, more than four years after that evening. She gave evidence before me on 9 August 2019, a couple of months later. Mrs Prouten gave no evidence of relying upon any written contemporaneous record of the conversation. Inevitably, in the intervening years she has been told of, and thought about, the version of the accident subsequently proffered by the plaintiff on countless occasions. The clear documentary evidence in the form of Exhibits 1, 3, and 8 must be preferred to the evidence of Mrs Prouten, even accepting, as the basis of this analysis, that she was being entirely honest as to her recollection.
[48] I apply the same analysis to the evidence to similar effect of Mr Green, the evidentiary statement of whom was created in June 2019."
Although his Honour referred to the "clear documentary evidence in the form of Exhibits 1, 3, and 8", his Honour had found that Exhibits 3 (the Root Cause Analysis) and 8 (the WorkCover Certificate) were not inconsistent with the appellant's account. His Honour must have had in mind Exhibits 1 (the Incident Report) and 2 (the Motorcycle Photo). In substance, his Honour held that, even accepting Mrs Prouten and Mr Green to have given their evidence entirely honestly, it had to be rejected in the light of the Incident Report and the Photograph.
I do not accept the appellant's complaint (ground 9) that this finding was not reasonably available in light of the oral testimony of those witnesses; the fact that they adhered to their position in cross-examination does not mean that their evidence must be accepted. Nor do I accept the submission that it was not possible to reject Mrs Prouten's evidence while accepting that she had been entirely honest as to her recollections: as his Honour explained, Mrs Prouten's evidentiary statement was made, and her oral testimony was given, more than four years after her alleged conversation with the appellant; she had no contemporaneous record of the conversation, and she must have heard her daughter's account many times in the intervening years, which might well have coloured her (honest) recollection. As the respondents submitted, it is open to reject a witness' recollection while still finding that the witness was honest, because recollections may be affected by the fallibility of human memory, unconscious bias, wishful thinking, or discussion of the events with others unconsciously altered. [39] Nor do I accept (grounds 10 and 11) that his Honour gave inadequate reasons for doing so: the reasons are entirely clear, as summarised above.
[19]
Conclusion
Although the appellant sought to present this aspect of the appeal largely as a complaint about the sufficiency of the trial judge's reasons, that complaint is not sustained. There is no escaping that what remains involved an attack on a finding of fact, and the real question is whether the trial judge erred in rejecting the appellant's account. The respondents understandably invoked the obstacles that lie in the way of an appellant who wishes to impugn findings of fact made by a trial judge based on an evaluation of credit. Invoking Queensland v Masson ("Masson"), [40] the respondents submitted that his Honour's findings were not "glaringly improbable", and were not trumped by any "incontrovertible evidence", and that even if other evidence weighed in favour of the appellant's account, it was insufficient to justify appellate intervention in a demeanour based finding that an appellate court might consider that the trial judge did not give sufficient weight to matters that the appellate court considers assists the appellant's case.
However, reference has been made above to Lee, and its confirmation that the restraint that confines appellate interference with findings of fact to those that are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", "glaringly improbable", or "contrary to compelling inferences", is confined to those factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. This was not affected by anything stated in Masson, which affirms that the restraint applies where the trial judge's decision might be affected by an impression about the credibility of witnesses formed as a result of seeing and hearing them give evidence: [41]
"For present purposes, it is enough to repeat the observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [Fox v Percy (2003) 214 CLR 118 at [26]-[29]; 77 ALJR 989] that, at least where the trial judge's decision might be affected by his or her impression about the credibility of the witness, whom the trial judge sees and hears but the appellate court does not, the appellate court must respect the attendant advantages of the trial judge. If, making proper allowance for such advantages, the appellate court concludes that an error has been shown, it is authorised and obliged to discharge its appellate duties in accordance with the statute conferring appellate jurisdiction [Warren v Coombes (1979) 142 CLR 531 at 551; 53 ALJR 293 per Gibbs A-CJ, Jacobs and Murphy JJ]. In particular cases, it may be demonstrated that the trial judge's conclusions are erroneous, despite being based upon or said to be based upon an assessment of credibility. That will be so where the trial judge's findings of fact are contrary to "incontrovertible facts or uncontested testimony" [Fox v Percy (2003) 214 CLR 118 at [28]; 77 ALJR 989 per Gleeson CJ, Gummow and Kirby JJ], "glaringly improbable" [Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ], or "contrary to compelling inferences" [Chambers v Jobling (1986) 7 NSWLR 1 at 10 per Kirby P; at 20 per Samuels JA]."
[20]
Duty and breach
It was not in dispute that the respondents were the occupiers of No 16, that Mr Chapman was the registered owner of the caravan, that on the day of the accident the caravan was parked on the nature strip, and had been for at least some days before then, and that at the time of the accident (but not on earlier days) the extender bed was extended.
[21]
Duty
His Honour accepted that the defendants owed a duty to other persons, to take reasonable care to avoid injury to those other persons by items within their ownership or possession in and around the curtilage of their home, including items that they may leave for a time on the nature strip outside their home. [42] To that extent, the existence of a duty of care was not disputed, nor could it sensibly have been. The duty of an occupier of premises to use reasonable care for the safety of entrants extends to premises not under the occupier's control, such as a sidewalk, which provide access to the occupier's premises. [43] Moreover, even if still (after Australian Safeway Stores Pty Ltd v Zaluzna [44] ) there is not liability for negligent non-feasance in respect of a public right of way, [45] the positive act of using the nature strip by parking the caravan on it would suffice to attract a duty to users of the nature strip.
The appellant sought to emphasise that the parking of the caravan on the nature strip was illegal, contrary to r 197 of the (NSW) Road Rules 2014, which prohibits the parking of vehicles on footpaths or nature strips. To my mind that is of slight significance in the circumstances: a duty of care of the kind just described would arise from the respondents' responsibility to take reasonable care for the safety of their entrants, including postal delivery officers accessing their mailbox, and from their de facto use of the nature strip - whether to park a vehicle, deposit goods for collection, or otherwise, and whether or not that use was legally permitted.
[22]
Risk (Ground 12)
His Honour summarised the relevant risk of harm as follows: [46]
"In summary: the risk of harm was that a person travelling only from east to west, and only on the nature strip, and only at a speed at least somewhat above walking pace, and only following a route that led him or her around the caravan as opposed to past it, could collide or nearly collide with the stationary bed, and suffer some injury as a result."
The appellant submitted that his Honour erred in identifying the relevant risk of harm, in characterising it too narrowly: the risk was said to arise not only from the extender bed, but from the presence of the caravan on the nature strip more generally. However, the mere presence of the caravan created no relevant risk: it was an obvious, bulky, immoveable object which anyone approaching would easily see and be able to avoid. It was only if there was some hazard that it concealed from view that there was any risk of harm, and the only relevant hazard was the extender bed, which protruded beyond the apparent and expected dimensions of the caravan. Any risk was posed only to users of the nature strip, [47] approaching from the east (as one approaching from the west would see the extender bed), [48] at such speed that they could not take evasive action, [49] who proposed not to continue straight ahead but to "round the corner" when passing the van to approach the mail box. [50] The mere presence of the van on the nature strip did not create the relevant risk; only the extender bed behind it, obscured from the field of view of someone approaching along the nature strip from the east, did so. There was no error in his Honour's identification of the relevant risk.
[23]
Breach of duty
Having formulated the duty and identified the relevant risk, his Honour considered whether the defendants had breached their duty of care by failing to take precautions against that risk, having regard to (NSW) Civil Liability Act 2002, s 5B, which provides 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.
His Honour found that the risk was not foreseeable, that it was insignificant, and that reasonable persons in the position of the defendants would not have taken precautions against the identified risk of harm, such as posting a sign at the eastern end of the caravan, created and placed there by the defendants, to the effect of "Caution! Extendable bed protruding on the other side"; packing the caravan in the rear of the premises, even though that was more difficult and inconvenient because the ground was less even there; not leaving the bed extended, even for a moment; or if the bed was to be left out, having someone there during that time to keep an eye on it and any persons proceeding from the east along the nature strip. Accordingly, no breach of duty was held to have been established. [51]
[24]
Foreseeability (Ground 14)
His Honour concluded that, for the purpose of s 5B(1)(a), the defendants did not know of the relevant risk, nor ought they have known of the risk of what his Honour characterised as "an extremely unlikely event". [52] The appellant submitted that the respondents clearly knew of and created the risk, so that foreseeability was established. This submission was founded on their knowledge that the van was parked on the strip with the bed extended, and that postal delivery officers rode their bikes along the footpaths.
The trial judge observed that the environment was that of a quiet suburban street during school holidays. [53] While true, that did not detract from the clear foreseeability that pedestrians, cyclists (at least children), and postal delivery officers on motorcycles using the nature strip would be required to navigate around the caravan which obstructed it. The foreseeability of pedestrians is manifest from the circumstance that, as depicted in the photographic evidence, there was a bus stop within metres of where the caravan was parked. The fact that it was school holidays does not diminish the likelihood of pedestrians; if anything it increases the likelihood of child cyclists, and it does not affect the daily routine of the postal delivery officer. Every Australian suburban householder is, or at least ought to be, aware that, each weekday, postal delivery officers travel on bikes or motorcycles along footpaths and nature strips, from dwelling to dwelling, to place mail in the mailbox of those dwellings. They should know that placing obstacles on the access routes used by postal delivery officers will require them to deviate around those obstacles, and they should also know that if a hazard on or near their access route is concealed from them, there is a risk that it will cause them harm. If the configuration of an obstacle is after some time changed, so that a route which has been used safely to negotiate it is no longer safe, and the change is concealed or obscured, they should know that there is a risk of harm from the changed configuration of the obstacle. Moreover, having decided to use the nature strip to load the caravan, for their own convenience, it behoved the respondents to give active consideration to those who might be affected. In my judgment, it was foreseeable that a postal delivery officer, approaching from the east on a motorcycle, to deliver mail at their premises, as she had on several preceding days when the bed was not extended, might not see the extender bed until it was too late to take safe evasive action.
[25]
Insignificance (Ground 13)
His Honour found that, for the purpose of s 5B(1)(b), while there was a risk that what occurred would happen, it was insignificant, if not remote. [54]
As the appellant submits, the requirement that the risk of harm be "not insignificant" is an undemanding one, or, in the words of Gleeson JA in Motorcycling Events Group Australia Pty Ltd v Kelly, [55] a "not particularly high" one. The fact that a risk is slight does not render it insignificant. But in my view, the risk that a person, such as a postal delivery officer, approaching from the east on a motorcycle, to deliver mail at their premises, and needing to turn left at the far end of the caravan to do so, might commit to the same trajectory as she had on several preceding days when the bed was not extended, and not notice the extender bed until it was too late to take safe evasive action, was more than slight - it was real and significant. Humans are creatures of habit, and given that a fairly sharp left-hand turn was necessary at the end of the caravan to approach the letter box, there was a high degree of likelihood that the change in configuration would not be noticed until a very late stage.
[26]
Precautions (Grounds 15 and 16)
His Honour found that:
1. for the purposes of s 5B(2)(a), there was a very low probability indeed that physical injury could occur as a result of the bed being extended from the caravan that was parked on the nature strip; [56]
2. for the purposes of s 5B(2)(b), the likely seriousness of the harm arising if any occurred was very much towards the less serious end of the spectrum. The extender bed, while made partly of metal of some mass, possessed no other risk-creating attribute - a significant proportion of it was fabric, attached to a metal frame; it was not sharp, nor spiky, nor capable of falling heavily on any person, and it was entirely stationary. [57] Thus even if an accident were to occur, it would likely be a relatively minor impact, and any consequential injuries slight; [58] and
3. for the purposes of s 5B(2)(c), the risk of harm was so remote and slight that it would be unreasonable - and in that sense, burdensome - to expect any suburban householder to undertake any such precautions as putting out a warning sign, or not leaving the extender bed extended unattended. [59]
His Honour referred to s 5B(2)(d) (social utility), but appears to have considered it neutral. [60] His Honour did not regard ss 5C(b) or (c) as relevant, but in relation to s 5C(a) observed that before holding that the caravan ought not have been packed on a nature strip with a bed extended without some form of warning or precautions, one would need to factor in the inherent burden of its more general application, which would also tell against holding that reasonable person would take any such precaution. [61]
I do not accept that the probability that relevant harm would occur if care were not taken was very low: essentially for the reasons given for concluding that the risk was not insignificant, there was a real and substantial risk of an accident occasioning some harm to the postal delivery officer. I do accept that the harm was more likely to be slight than serious; however, the risk that a postal delivery officer would be required to take last-minute evasive action and possibly fall, while riding a large motorcycle, was real, and any fall can, sometimes, produce catastrophic consequences. In my view, the relevant precaution can be reduced to not leaving the caravan with the bed extended unattended, so that, as a minimum, at least while the bed was extended there would be someone present to observe and warn users of the nature strip of its presence. Such a precaution would impose little burden on the respondents, and to the extent that it imposed any burden at all, it would be entirely reasonable as the price for using the public's nature strip for their personal convenience. Whether it was required indefinitely, or only for a day or two until there had been an opportunity for passers-by to become familiar with the new configuration, need not be explored, as the accident happened on the first day. Insofar as the inherent burden of a general proposition that caravans should not be left unattended on the footpath or nature strip following a concealed change to their configuration which might cause harm to a passer-by, that burden would be slight: all it requires is that the occupier close the extender bed when leaving the caravan, or place some warning such as a red flag in the vicinity. As to social utility, there is no particular social utility in being able to leave the extender bed extended, just mere personal convenience.
[27]
Causation (Ground 17)
The third basis on which the trial judge rejected the appellant's claim was that his Honour was not satisfied that "all of the injuries" allegedly suffered by the plaintiff were caused by the accident. [62] In this respect, his Honour said (emphasis added): [63]
"[128] In summary then, as a second contingent finding, I am not satisfied on the balance of probabilities that all of the injuries claimed by the plaintiff arise from the jolt. I should make clear that I accept on balance that she believes that she has suffered (to use that term very broadly) over the past many years, and that she herself may ascribe that suffering to the events of 7 January 2015. But I am not satisfied on balance that the jolt is the basis for all of its claimed consequences. And, even for the purposes of this contingent analysis, it is impossible with any clarity safely to ascribe some proportion of them to the event that underpins the claim, for the purposes of s 5E of the CLA.
[129] In short, even if the plaintiff had established that the accident occurred as she claimed, and even if she had established a breach of duty of care, I would nevertheless dismiss the claim on the basis that causation, as a factual matter, has not been established on the balance of probabilities."
Here, his Honour was dealing with causation in the context of liability - not the assessment of damages, on which his Honour did not embark. His Honour advanced, as a reason for dismissing the claim, that causation had not been established on balance of probabilities.
Of course, in a case in negligence, "damage is the gist of the action", without which there is no liability. But the cause of action is complete once any damage at all is incurred as a result of the breach of duty. The fact that his Honour was unpersuaded that all the claimed injuries and disabilities resulted from the accident, and that his Honour was unable "with any clarity" safely to ascribe some portion of them to the accident, does not mean that no damage resulted. In particular, his Honour accepted that the appellant suffered a burn to her leg, [64] and the fact that it resolved does not mean that it was not of itself sufficient damage to complete the cause of action.
The trial judge was entitled to doubt that the appellant had established that most of her claimed injuries and disabilities were caused by the accident. However, in my judgment it was not open to dismiss her claim on the basis that no damage at all was established.
[28]
Conclusion
My conclusions may be summarised as follows:
His Honour did not fail to give sufficient reasons for regarding the appellant, Mr Green, and Mrs Prouten as unreliable witnesses. However, notwithstanding reasonable reservations about the reliability of the appellant, the weight of the contemporaneous evidence was such that it ought to have been concluded, on balance of probabilities, that the accident occurred in the manner described by her.
Contrary to his Honour's conclusions, it was foreseeable that a postal delivery officer, approaching from the east on a motorcycle, to deliver mail at the respondents' premises, as she had on several preceding days when the bed was not extended, might not see the extender bed until it was too late to take safe evasive action; and the risk that such a person might commit to the same trajectory as she had on several preceding days when the bed was not extended, and not notice the extender bed until it was too late to take safe evasive action, was not slight, but real and significant. Having regard to that risk, the burden of not leaving the caravan unattended while the bed was extended was so slight that it is one that reasonable persons would in the circumstances have taken. Breach of duty was established.
Although the trial judge was entitled to doubt that the appellant had established that most of her claimed injuries and disabilities were caused by the accident, it was not open to dismiss her claim on the basis that no damage whatsoever was established.
Having rejected the claim on liability on three grounds, his Honour did not consider the defence of contributory negligence, nor contingently assess damages. As a consequence there must be a new trial, at least at to damages. Although the appellant primarily sought a retrial on all issues, it follows from my above conclusions that the appellant was entitled to succeed on liability, and there is no reason why she should have to re-establish that, although it will be open to the defendant to argue contributory negligence.
In my opinion, therefore, the appeal should be allowed; the judgment below should be set aside, and in lieu thereof there should be judgment for the plaintiff for damages to be assessed. The matter should be remitted to the Common Law Division for assessment of damages, on which it will be open for the defendant to argue contributory negligence. The respondents should pay the appellant's costs of the appeal. As much of the evidence at the trial was relevant to the issue of damages, the costs of the trial should be reserved to the judge hearing the assessment of damages on remitter.
[29]
Endnotes
Prouten v Chapman [2020] NSWSC 873 ("Primary judgment"). It does not appear that the parties, either at trial or on appeal, gave any attention to the circumstance that, by reason that the caravan was a "trailer" within the meaning of the (NSW) Road Transport Act 2013, it was a "motor vehicle" for the purposes of (NSW) Motor Accidents Compensation Act 1999 ("MACA"), and that an accident involving the use of a motor vehicle that causes injury to a person as a result of a collision, or action taken to avoid a collision, with the vehicle, is a "motor accident": see MACA, s 3.
Gautam v Health Care Complaints Commission [2021] NSWCA 85, particularly [18]-[19] (Leeming JA; Simpson AJA agreeing), and [62] (Payne JA; Leeming JA and Simpson AJA agreeing); DW v The Queen (2004) 150 A Crim R 139 at 147 [27] (Crispin P, Connolly and Selway JJ); [2004] ACTCA 22 ("DW v The Queen"), referring to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 (Kirby P), 269-270 (Mahoney JA) and 280 (McHugh JA) ("Soulemezis") and Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386 (Mahoney JA).
Yates Property Co Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 189 (Handley JA; Kirby P agreeing).
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (McHugh, Gummow and Hayne JJ); [2001] HCA 30.
Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA; Clarke JA and Hope AJA agreeing).
R v Barrowman (2007) 96 SASR 294 at 296 [6]-[7] (Vanstone J; Sulan J and Layton J agreeing); [2007] SASC 28; DW v The Queen at 147-148 [28] (Crispin P, Connolly and Selway JJ); R v Power (2003) 141 A Crim R 203 at 210 [57], 210-211 [59], 211 [63]-[65] (Perry J; Williams J and Bleby J agreeing); [2003] SASC 77; R v Keyte (2000) 78 SASR 68 at 80-81 [56] (Doyle CJ; Wicks J agreeing); [2000] SASC 382; Soulemezis at 280 (McHugh JA). Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 does not contradict that proposition, though it held that as a criminal trial depends on whether the evidence as a whole proves the elements of the offence beyond reasonable doubt, reasons which record no finding about the accused's evidence will be insufficient if they do not suffice to exclude the possibility that the judge simply preferred the complainant's evidence and proceeded to convict upon it, applying a standard less than proof beyond reasonable doubt: at 1090 [14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[30]
Amendments
14 September 2021 - Correct typographical error in Headnote.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 September 2021
Per curiam: The judge correctly identified that the relevant risk of harm was the risk that a person travelling at speed along a route leading them around the caravan could collide with the extender bed and suffer injury as a result. Any broader formulation based only on the presence of the caravan could not be a relevant risk, as the caravan was an obvious, bulky, and stationary object which would have been easy to see and avoid: [21]-[23] (Meagher and Leeming JJA), [112]-[113] (Brereton JA).
Per Meagher and Leeming JJA: The formulation of risk must also account for the driver taking reasonable care for their own safety. This includes the driver, when intending to negotiate a corner, appreciating that something may be concealed around the corner which will require evasive action. The risk of harm in this case would therefore only present itself to a driver committed to negotiating a very tight turn around the corner of the caravan: [22]-[23].
As to breach of duty:
Per Meagher and Leeming JJA: The risk was not one that was not insignificant. Further, while there was limited social utility in the respondents' actions, the risk of harm was so small that, on balance, a reasonable response was to do nothing. The judge correctly applied Civil Liability Act 2002 (NSW), s 5B, and on that basis the appeal must be dismissed: [24]-[26].
Bunnings Group Ltd v Giudice [2018] NSWCA 144; Sibraa v Brown [2012] NSWCA 328; Dovuro v Wilkins (2003) 215 CLR 317; [2003] HCA 51, considered.
Per Brereton JA, contra: The risk was manifestly foreseeable and not insignificant, the probability of the harm occurring was real and substantial, and while the seriousness of the harm was more likely to be slight, the potential for serious harm remained. There was no social utility in leaving the bed extended, and precautions such as closing the extender bed, placing warning signs, or not leaving the bed unattended while extended, would have imposed little burden upon the respondents. A reasonable person would have taken precautions against the risk of harm, and the judge erred in holding that there was no breach of duty: [116]-[146].
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361, referred to.
As to causation:
Per Brereton JA; Meagher and Leeming JJA not deciding: The judge accepted that the accident caused a burn to the appellant's leg. This damage, even though it subsequently resolved, sufficed to complete the cause of action, and it was not open to dismiss the claim on the basis that no damage at all was caused: [27] (Meagher and Leeming JJA), [125]-[128] (Brereton JA).
As to the factual findings:
Per Meagher and Leeming JJA: Although the better course is to proceed on the basis that there was no relevant demeanour-based finding in relation to the evidence bearing on the way the incident occurred, if any of the grounds directed to the findings of primary fact were made out, it is doubtful whether it would be open to this Court on appeal to make fresh findings to the effect that the accident happened as the appellant alleged. The better view is that, if material appellable error were made out, a retrial would be necessary: [5]-[17].
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28; Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Masterton Homes Pty Ltd v LED Builders Pty Ltd (1996) 33 IPR 417; [1996] FCA 171; Galea v Galea (1990) 19 NSWLR 263, considered.
Per Brereton JA: The judge's adverse findings were not informed by the appellant's demeanour, but by perceived inconsistencies in her evidence, thus the restraints on appellate interference do not apply and this Court can make its own factual findings. Upon a review of all the evidence, particularly the contemporaneous documentary evidence, the appellant's account should be accepted: [52]-[108].
Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, considered.
We have had the considerable advantage of reading the judgment of Brereton JA in draft. His Honour's reasons explain the factual background and in particular the evidence which bore upon the findings of primary fact. We agree with Brereton JA that, contrary to a principal submission advanced by Ms Prouten on appeal in support of grounds 2, 3, 5, 7-11 and 18, there is no inadequacy of reasons.
The respondents' written submissions stated that "although this appeal plainly requires consideration of the well-known principles discussed in Warren v Coombes ... Fox v Percy ... and recently restated in Queensland v Masson ... the appellant's submissions do not refer to those authorities or address those principles". During the hearing of the appeal, Mr de Meyrick, who appeared at first instance and on appeal for Ms Prouten, questioned whether demeanour had played a part in the rejection of Ms Prouten's case ("I'm not sure his Honour rejects anybody's evidence on demeanour grounds. I don't think that word appears at all in the judgment ..."). Mr Sexton who appeared for the respondents on appeal but not at trial maintained that that this was a case where the rejection of Ms Prouten's case on the facts attracted the heightened appellate deference to findings based on her demeanour and presentation in the witness box: see Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].
The primary judge made it clear that he considered that Ms Prouten sincerely believed that the accident in January 2015, more than four years before the trial, happened in the way she indicated, as was corroborated by her partner and her mother. In particular, his Honour noted at [49] that the version given by her at trial "has surely become imprinted upon the mind of the plaintiff". That tends to suggest that Ms Prouten's demeanour did not play a role in his assessment of the primary facts.
On the other hand, the omissions concerning Ms Prouten's extensive foreign travel, which are inconsistent with her claim of being essentially housebound, could not have been sincerely held in the same way, and her counsel made no submission to the contrary. Early in her cross-examination, the plaintiff who had said that she had travelled long distances from Newcastle to Sydney for appointments and to Chisholm about 25 to 30 minutes away and could not remember travelling a long distance otherwise, must have known that in the previous week or so she had holidayed at Port Vila in Vanuatu. At [132]-[134], his Honour recorded:
"In fact, over the past several years, the plaintiff has engaged in a great deal of overseas travel. Indeed, it is an amount of overseas travel that, I believe, an absolutely well person based in Australia would find quite physically and emotionally taxing. To go further: in the year 2018 she spent almost as much time travelling overseas as she did at home, despite the proffered proposition that she was someone whose physical activity, well-being, and enjoyment of life had been grossly curtailed by the consequences of the accident.
And yet none of that was conveyed in any of her evidentiary statements, almost none of it was revealed to treating or evaluating medical professionals, and none of it was spoken of spontaneously in cross-examination until it was revealed by questioning by senior counsel for the defendant. The same may very largely be said of her partner and her mother.
Furthermore, some domestic travel - including a holiday in the Snowy Mountains during which skiing was attempted - was undertaken in the months after the accident, at a time when the evidentiary statements of the plaintiff and her partner spoke of her requiring rest and recuperation. And yet none of that material either was spoken of, let alone detailed, until it was revealed in cross-examination."
It may readily be inferred that Ms Prouten's demeanour when confronted with the omission of her extensive travel from her statements, and its inconsistency with her claimed injuries, must have been palpable when that evidence was given. For example, after a European cruise with Ms Prouten's mother, a trip to New York for a wedding, and travel to London, Munich, Berlin and Paris had emerged in cross-examination, Mr Sexton's predecessor asked the following:
"Q. You're not in some way housebound, are you?
A. I am, yes.
Q. Housebound? You say to his Honour you're housebound, having had three overseas trips of the types you've had in the past 18 months. You maintain your position that you're housebound?
A. I have been on trips most recently since the advice of my psychiatrist - sorry, psychologist and GP and also since my pain doctor had prescribed medication to help manage my migraines and my pain.
HIS HONOUR: But he's really asking you, though, would you describe yourself, in light of these trips, as a person who is housebound?
A. Yes, I would."
Brereton JA is of the view that the adverse findings as to Ms Prouten's credit were not significantly informed by demeanour. It is true that the findings of primary fact were principally based upon an evaluation of the contemporaneous documents. On the other hand, the primary judge did not in terms exclude demeanour from his failing to be satisfied that Ms Prouten's case was made out. Further, it is clear that Ms Prouten's lack of credit informed the rejection of the claim. While the gravamen of his Honour's reasoning was addressed to the documentary records, his Honour concluded at [50] at the end of the section of his reasons on the first basis for rejecting the claim with the following:
"Finally, for reasons set out separately below with regard to the last topic sketched above at [22], regrettably I have serious concerns about the credibility of the plaintiff. That concern certainly informs this primary determination of the claim."
As was observed when the appeal was heard, there is an important distinction between the credit and the demeanour of a witness. A court can determine that a witness lacks credit but may do so on a basis that wholly excludes the witness' demeanour. An example of a very experienced trial judge (Sheppard J) finding a witness to be neither honest nor reliable, but expressly declining to base that finding upon demeanour, may be seen in Masterton Homes Pty Ltd v LED Builders Pty Ltd (1996) 33 IPR 417, where Lockhart J (on appeal) observed at 422 that:
"his Honour found that Mr Masterton's evidence was not honest or reliable. He did not reach this conclusion based on Mr Masterton's demeanour. He found that objective factors in the evidence persuaded him that, notwithstanding his views of Mr Masterton as a witness in the box (his demeanour), he nevertheless should find adversely to him."
In Galea v Galea (1990) 19 NSWLR 263 at 266 Kirby A-CJ observed:
"In many cases today, conscious of the mistakes that can be made about credibility based upon the impression of witnesses in the artificial circumstances of a courtroom, judges at first instance disclaim the resolution of factual disputes by reference to witness demeanour: see, eg Chambers v Jobling (1986) 7 NSWLR 1 at 9 and Rama Furniture Pty Ltd v QBE Insurance Ltd (Court of Appeal, 20 June 1986, unreported). The appellate court may then be in just as good a position as the trial judge to assess the probabilities from an evaluation of the evidence, weighing the inferences to be derived and considering any that have apparently been overlooked or under-estimated at first instance."
Nothing has changed in the last quarter century. Some witnesses are good at lying. Probably much more frequent are those witnesses who have come to believe the truth of their testimony, unreliable though it may be. Human memory is unstable and malleable at the best of times, and the practices and incentives of litigation exacerbate the position. For many decades judges have been conscious of the limitations of their ability to discern anything meaningful from the demeanour of a witness. In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [23]-[25], statements by Sir Thomas Bingham, Lord Devlin, Browne LJ, MacKenna J and Sir Richard Eggleston QC were collected by Ipp JA in support of the proposition that "it is no wonder that judges and jurists of the highest eminence have expressed deep scepticism about the reliability of demeanour findings." That growing appreciation of the limits of the advantage of a trial judge seeing the witness give evidence makes it more likely that the judge will attribute no or only limited reliance on demeanour. Hence the significance of attending to whether a particular finding challenged on appeal is one which is demeanour-based.
The approach to be adopted by this Court, conducting a "real review" of the evidence given at first instance and the reasons of the primary judge, is one which gives great deference to certain factual findings. That much has never been doubted, although the language used to express the distinction has varied from time to time. Today, that deference is conventionally expressed in terms of "glaringly improbable" or "contrary to compelling inferences", although that terminology merely reflects a recent formulation of more than a century's worth of decisions on how to resolve the dichotomy between the obligations of an appellate court and the appropriate measure of restraint: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29].
Most recently, it has been said in Lee v Lee at [55] that the heightened level of restraint is applied "to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence". That formulation of the task of an appellate court is not to be read as if it were a statute. One does not ask whether by "likely" is meant more probable than not, or merely a realistic possibility; nor does one ask whether by "affected' is meant that the presentation of the witness had a material contribution to the finding, or something less direct.
In a case such as the present whether there is neither express reliance upon demeanour, nor express disavowance of reliance on demeanour, what should occur? The appellate task remains to conduct a real review of the trial, giving appropriate deference where it is due to the advantages enjoyed by the primary judge. It is difficult to doubt that when Ms Prouten gave the evidence reproduced above defending her claim that she viewed herself as "housebound" despite the undisclosed extensive overseas travel, there is much that the transcript does not record. She may have created the appearance of a witness who was defensive, or resigned, or angry, or embarrassed. The primary judge expressly relied on this evidence to diminish her credibility. But it is harder to gauge whether that reliance amounted merely to the nondisclosure of extensive travel in light of a claim of substantial incapacity, or also extended to the way in which her evidence was given.
On balance the better course is to proceed on the basis that there was no relevant demeanour-based finding in relation to the evidence bearing upon the way the incident occurred. That is the force of the statement by the primary judge that Ms Prouten sincerely believed her account. While his Honour expressly relied on his adverse credit finding, that finding is best understood as based on the inconsistencies between Ms Prouten's evidence as to her injuries and her extensive travel. It may readily be inferred that Ms Prouten's demeanour when cross-examined on the non-disclosure is not reflected in the transcript, but what on a fair reading of his Honour's reasons ultimately mattered was that the primary judge was unpersuaded that he could take her at her word. That finding is one which was amply available to his Honour, but it is not one which attracts the deference accorded to a trial judge who saw the evidence being given.
To that extent, we would accept the appellant's submission. However, if any of the grounds directed to the findings of primary fact were made out, we doubt that it would be open to this Court on appeal to make fresh findings to the effect that the accident happened as Ms Prouten alleged. This Court did not see Ms Prouten, Mr Green nor any other members of her family who corroborated her testimony give evidence. Ultimately, the issue amounts to whether the relatively contemporaneous documents which are inconsistent with Ms Prouten's testimonial evidence are reconcilable with those documents which accord with her evidence, including, importantly, the "Reconsideration Letter" of 31 March 2015 which is the subject of ground 8 and to which the primary judge did not refer. We refrain from reaching a concluded view, but we doubt that this Court may reach an affirmative conclusion to the civil standard that, notwithstanding the variations in the contemporaneous documents and the amply demonstrated capacity of Ms Prouten to dissemble in her own self-interest about her physical capacity, she has discharged the onus in establishing that the accident happened as she alleged. That is to say, we incline to the view that, if material appellable error is made out, a retrial would be necessary.
However, the primary judge found against Ms Prouten on three distinct bases. Her appeal must fail unless she can overturn the conclusions reached concerning breach. These were challenged by grounds 12-16, to which we now turn.
The caravan was parked on the nature strip. This contravened the Australian Road Rules. While relevant, that does not entail that there has been an absence of reasonable care: see Kollas v Scurrah [2008] NSWCA 17 at [76]; Verryt v Schoupp [2015] NSWCA 128; 70 MVR 484 at [4] and Ryan v Workers Compensation Nominal Insurer [2020] NSWCA 38; 91 MVR 282 at [42]. Indeed, the various photographs tendered by the plaintiff of the street (admittedly, months or years after the accident) identify at least four vehicles, aside from the caravan, three of which are wholly or partly place on the nature strip and two of which are candidates for being objects which a motorcycle riding deliverer of mail would have to negotiate in the course of delivering the mail.
A "nature strip" is, in law, part of the road, vested in the applicable roads authority (in this case, presumably, the local council). In Buckle v Bayswater Road Board (1936) 57 CLR 259 at 279; [1936] HCA 65, a pedestrian had injured himself after falling in a hole "hidden by grass which grew luxuriantly at the sides of the bitumen way". What mattered in order for the footpath to be a "road" for the purposes of the law of negligence was that there was a public right of passage, as Dixon J mentioned at 286. (A close reading of the facts at 278-279 records that Garratt Road was a "chain road" and therefore some 22 yards wide, and when Mr Buckle fell, the road surface was only 18 feet wide, having been widened from an initial 12 feet.)
Thus the duty owed by the Chapmans to Ms Prouten did not turn on ownership of the nature strip. It derived from their parking their caravan on land owned by the Council over which the public enjoyed a right of way. The obviousness of the caravan to anyone using the right of way made such risk of harm as it presented a very specific one: as the primary judge found at [69], the risk was that "a person travelling only from east to west, and only on the nature strip, and only at a speed at least somewhat above walking pace, and only following a route that led him or her around the caravan as opposed to past it, could collide or nearly collide with the stationary bed, and suffer some injury as a result". The degree of generality or particularity in formulating a risk of harm can be complex and contestable. This is not such a case, because there are very few ways in which a stationary unconcealed object can cause harm to a plaintiff. Contrary to ground 12, there was no error in the formulation of the risk of harm.
As Mr Sexton emphasised, it is important when formulating the duty of care, in scenarios involving motorised vehicles travelling on roads (including nature strips) to include within a formulation that the driver be taking reasonable care for their own safety. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger: Manley v Alexander [2005] HCA 79; 80 ALJR 413 at [11]. That includes, where a driver intends to negotiate a corner, an appreciation that something may be concealed around the corner which will require evasive action. Once this element of the duty which is owed to a motorist is borne in mind, it may be doubted that the owner of a large, highly visible and stationary object, whether parked on the street or the nature strip, into which a moving vehicle collides, is guilty of negligence. The position might be different at night, or if there were some concealed hazard. At one stage in the history of the law, such collisions were apt to fall within the so-called "last opportunity rule": see Davies v Mann (1842) 10 M&W 546; 152 ER 588 and March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 (both cases where collisions occurred with stationary obstructions to the road).
However, accepting that the gravamen of Ms Prouten's case on breach was in the extension of the caravan's bed, which was different from how the obstacle had presented itself on previous days, nonetheless this aspect of the appeal falls to be determined on the importance of the driver of the moving vehicle taking reasonable care. As was suggested during argument, even if the bed had not been extended, it was quite possible for a child or a dog or a bicycle to be located immediately adjacent to the rear of the caravan. The nearby bus stop (visible on both pictures reproduced above) tends to suggest the possibility that a passenger might be awaiting the next service. In order to be taking reasonable care, the plaintiff was required to drive her vehicle on the nature strip so as to avoid the possibility of a collision with something unseen around the perimeter of the caravan. Insofar as the defendant had created a hazard, it was only a hazard to a person travelling along the nature strip who was turning quite abruptly, immediately upon travelling past the caravan. Even then, squarely visible to such a person negotiating the corner of the caravan must have been the extended edge of the bed. Only if the driver were committed to negotiating a very tight left turn around the (unextended) corner of the caravan, passing within 1.14m of its far edge (which was the maximum extension), would the risk of harm present itself.
The primary judge regarded the risk of harm as extremely low: at [70]. The question posed by s 5B(1)(b) is whether the risk "was not insignificant". That is a slightly more demanding standard than one that is far fetched or fanciful: see the decisions collected in Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [53]-[54]. When one bears in mind the difficulty in formulating, prospectively, persons using the nature strip in the manner posited, and the almost inevitable limited speed at which such persons would be travelling, and the consequent unlikelihood of serious physical damage even if a collision or fall could not be avoided, we are not persuaded that the risk is one which is not insignificant. We would reject ground 13.
Turning to s 5B(1)(c), the primary judge explained how difficult it would be for the defendants to know that leaving the caravan extended created any additional hazard. Ms Prouten gave evidence that she recalled negotiating the caravan on previous days, when the bed was not extended, and for that reason was surprised to encounter it as she did. That evidence is far from being something of which home owners in the position of the Chapmans should have been aware. We respectfully disagree that a reasonable person in their position would have taken the precaution of closing the extender bed, or placing a flag in the vicinity, or not leaving the caravan unattended. In Dovuro v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [34], McHugh J observed that the law of negligence must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community, and that "[t]o hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute."
Thus, while there was limited social utility in leaving the caravan with the bed extended and the burden of taking precautions was slight, the risk of harm was so small that we see no error in his Honour's conclusion on s 5B(1)(c). This was a case where the reasonable response to the very slight risk which might be perceived was to do nothing, no differently from the examples given in Sibraa v Brown [2012] NSWCA 328 where reasonable householders would feel no need to take precautions against harm from the presence of objects lying on their lawns, even though they may present hazards. Ground 14 does not arise and contrary to grounds 15, 16 and 19(b), we do not accept that the primary judge erred in his application of s 5B.
Ground 17 alleged error in the assessment of injuries caused by the accident. Success on that ground could, at best, only result in a retrial, given the connection between the adverse credit findings and the damages claimed by Ms Prouten. In light of the outcome of grounds 12-16, it is not necessary to address this ground.
For those reasons, the appeal should be dismissed. There is no reason for costs not to follow the event.
BRERETON JA: On 7 January 2015 at about 11.40am, the appellant Michelle Prouten was, in the course of her duties as an Australia Post postal delivery officer, riding a motorcycle in a westerly direction along the nature strip on the southern side of Harper Avenue, Edgeworth. As she approached the driveway to - and mailbox for - No 16, which was occupied by the respondents Darren and Megan Chapman, she encountered, as she had on the preceding several days, their caravan, which was parked on the nature strip. She says that as she rounded it to approach the mailbox, she encountered, suddenly and unexpectedly, an extender bed which protruded from its rear, and took evasive action which resulted in the motorcycle falling to one side, occasioning injuries to her as she endeavoured to hold its weight. She sued the respondents for damages for negligence.
On 17 July 2020, Button J gave judgment for the defendants/respondents. [1] His Honour rejected the appellant's claim for three "separate but related" reasons: first, that he was not satisfied as a matter of fact that the accident occurred as she claimed; secondly, that even if it did, he was not satisfied that negligence, in the sense of a breach of a duty of care, had been established; and thirdly, that he was not persuaded that all the injuries and disabilities of which she complained were caused by the accident. The first and third bases were also informed by "an overarching concern" about the appellant's credibility.
From that judgment, the appellant appeals to this Court.
In other words, the emergence of the evidence of the appellant's extensive travel was significant both because the fact of the travel was inconsistent with her claimed level of disability, and because she did not disclose it in circumstances where a frank witness would have done so.
The extent to which the appellant claimed to be disabled can be gleaned from the Oswestry Disability Questionnaire which she completed on 27 September 2018, in which her answers included the following: "The pain is fairly severe at the moment", "I need help every day in most aspects of self-care"; "I cannot lift or carry anything"; "Pain prevents me from walking more than 500 metres"; "Pain prevents me from sitting more than 10 minutes"; "Pain prevents me from standing for more than 10 minutes"; "Because of pain I have less than 4 hours sleep"; "My sex life is severely restricted by pain"; "Pain has restricted my social life to my home"; and (perhaps most significantly) "Pain restricts me to journeys of less than one hour".
Insofar as the appellant complains that the trial judge failed to identify the specific evidence which was said to be false, it is self-evident that what troubled his Honour was the appellant's failure to disclose, until specifically confronted with it in cross-examination, her extensive travel. Contrary to the appellant's submission, his Honour identified aspects of this, as follows: [12]
"In a nutshell, it is no exaggeration to say that the claim of the plaintiff is that she is terribly disabled. Evidence was given of the severe limitations under which she has lived for many years, and the very significant pain and suffering that she endures. Her romantic partner and her mother gave written and oral evidence to similar effect. That position was firmly put forward, and firmly maintained. In oral evidence, the plaintiff was asked whether she wished to change or update any aspect of her evidentiary statement, and she did not. More specifically, she was also asked repeatedly in cross-examination whether she had engaged in "travel[ling] long distances" (TT 151.41 and following). The proposition was denied, as one would entirely expect in conformity with this claim of gross disability."
Indeed, the appellant's submissions acknowledged that "material came out in cross-examination regarding the Appellant's overseas travel which had not been set out in her earlier evidentiary statements", and that "the Court was certainly entitled to be concerned about the evidence as to overseas travel, and the manner in which it came out in court".
The appellant submitted that his Honour failed to deal with the appellant's evidence that sought to explain or contextualise her travel; with the evidence of medical witnesses who, when ultimately informed of the appellant's travels, said that it did not affect their opinions; with that of her treating psychologist, who said that she had recommended the overseas travel; with a report of Dr Ho; and with the circumstance that when specifically asked by doctors about travel she had "readily reported it" (including in particular to Dr Zeman on 14 May 2018, when she volunteered that she had been to Qatar for ten days in October 2016), which was said to belie any suggestion that she had been deliberately misleading doctors about the travel, as opposed to merely neglecting to mention it.
However, it is not to the point that the medical practitioners, to whom the appellant's travel history was belatedly disclosed, said that it would not affect their opinions as to her disability; the point is that her non-disclosure of her travel, not only to medical practitioners but also to the court, even when specifically asked about travel in cross-examination, was indicative of a lack of candour. Nor is it to the point that it might have been recommended by a psychologist, if it was physically inconsistent with her claimed disabilities, which included that she was unfit to travel, and had not been disclosed. Nor does explanation or contextualisation of the appellant's travel in a manner that reconciles it with her claimed disabilities, even if accepted, explain away her non-disclosure of it.
Contrary to the appellant's submissions, his Honour did consider and address the circumstances that the appellant had disclosed her trip to Qatar to Dr Zeman, and that those medical experts who were ultimately (in the course of the trial) provided with the evidence of overseas travel nonetheless largely maintained their positions as to her level of disability (emphasis added): [13]
"[136] Senior counsel for the defendants submitted that that was an undoubtedly important lapse on the part of the plaintiff that could have influenced his expert medical opinion. Resisting such a proposition, counsel for the plaintiff pointed to the consultation of the plaintiff with Dr Zeman on 14 May 2018, and the fact that the plaintiff did disclose her previous trip to Qatar in October 2016. And any consequence arising from an adverse assessment of the credibility of the plaintiff was further resisted by her counsel on the basis that the medical experts were ultimately provided with the evidence of overseas travel at the hearing before me, and they nonetheless very largely maintained their positions as to her level of disability.
[137] Resolving those competing submissions: it is true, as counsel for the plaintiff submitted, that the plaintiff has mentioned to some medical professionals whom she has seen some measure of domestic and overseas travel. Even so, the paucity of references, and the glaringly incomplete picture that was presented not only to those medical professionals but also to me by way of her evidence-in-chief, is, inevitably, a matter of serious concern."
It is clear that his Honour did not regard the occasional instances in which reference had been made to travel as counteracting the overwhelming impression that it was not disclosed on many occasions when candour called for its disclosure. The disclosure to Dr Zeman, a consultant in rehabilitation medicine, who saw the appellant on behalf of the respondents on 15 May 2018, is the only recorded disclosure of travel before the trial, and even it was incomplete, since by 15 May 2018 the appellant had not only travelled to Qatar, but also (earlier) to New Zealand for ten days and New Caledonia for seven days, which emerged only in cross-examination.
Insofar as the appellant complains that in reaching the opinion that her travel could not be reconciled with her claimed disability, his Honour made no mention of the appellant's evidence as to why and under what conditions she travelled, and with what difficulties and what assistance, either by medications to "knock me out" or help from her travel companions, his Honour expressly acknowledged such considerations, though not in those precise words, and also acknowledged that there was evidence that travel had been suggested by her psychologist (emphasis added): [14]
"[138] Separately, I appreciate that overseas travel can, at one hypothetical extreme, involve climbing Mount Everest; at the other, it may involve spending languorous days at a luxurious spa. And of course there are countless permutations in between those two extremes.
[139] Nor have I forgotten that there was evidence placed before me that travel was suggested by a psychologist consulted by the plaintiff, as a way of bringing some enjoyment back into her life.
[140] Even so, in my respectful opinion, looking at the picture as a whole, the logistics of the sheer quantity and duration of the travel undertaken by the plaintiff - it is not necessary to descend to any further level of detail here, because all of it was ultimately not disputed as having taken place - simply cannot be "squared away" with the level of disability of which she and those who love her have spoken."
It is clear that his Honour was of opinion that, despite the retrospective views of some of the experts that their opinions would not have been affected by knowledge of the travel and its extent, it could not be reconciled with her claimed extreme disability. His Honour may not have referred to every piece of relevant evidence bearing on the question, but he was not obliged to do so.
Insofar as the complaint is that his Honour failed to state the precise credit finding he made, it is clear that, by reason of the non-disclosure of the travel, and the inconsistency of its nature and extent with her claimed level of disability, his Honour did not regard her as a witness of candour, and thus could not rely on her account of the accident, or of her injuries and disabilities.
The appellant also submitted that it was "quite unclear" why his Honour expressly or implicitly made credit findings against Mrs Prouten and Mr Green, and that in that respect there was a failure to give reasons.
While it is true that his Honour did not elaborate the credit findings adverse to Mrs Prouten and Mr Green, there is more than enough to make their basis clear. Mr Green and Mrs Prouten each accompanied the appellant on some of her trips. At [131], set out fully above, [15] his Honour observed that "Her romantic partner and her mother gave written and oral evidence to similar effect" - that is to say, like the appellant, Mr Green and Mrs Prouten gave evidence to the effect that she was very severely disabled. Then, in describing the non-disclosure, his Honour said (emphasis added): [16]
"[133] And yet none of that was conveyed in any of her evidentiary statements, almost none of it was revealed to treating or evaluating medical professionals, and none of it was spoken of spontaneously in cross-examination until it was revealed by questioning by senior counsel for the defendant. The same may very largely be said of her partner and her mother.
[134] Furthermore, some domestic travel - including a holiday in the Snowy Mountains during which skiing was attempted - was undertaken in the months after the accident, at a time when the evidentiary statements of the plaintiff and her partner spoke of her requiring rest and recuperation. And yet none of that material either was spoken of, let alone detailed, until it was revealed in cross-examination."
Then, at [140], which has been set out above, [17] his Honour said that the sheer quantity and duration of the travel undertaken by the plaintiff could not be reconciled with the level of disability "of which she and those who love her have spoken" (emphasis added), before concluding (emphasis added): [18]
"I regret to say that the question of the credibility of the plaintiff - and to a lesser extent, those who love and support her - must inevitably be assessed to some degree adversely in these proceedings. To do otherwise would fly in the face of the ultimately conceded evidence that was revealed in cross-examination, and not before."
Plainly, his Honour regarded the witness statements and evidence of Mr Green and Mrs Prouten as misleading, by the way in which they described the plaintiff's condition, without disclosing the travel she was undertaking.
The complaint was as to the sufficiency of his Honour's reasons. In my opinion, his Honour's reasons for regarding the appellant, Mr Green, and Mrs Prouten as unreliable witnesses were clear, and sufficient.
This passage emphasises both the duty of the appellate court to conduct a real review of the evidence and reasons, and that the restraint that confines appellate interference with findings of fact to those that are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", "glaringly improbable", or "contrary to compelling inferences", is confined to those factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence.
It is therefore necessary to review the relevant evidence, and like his Honour, I commence this more or less chronologically.
Again, the account so related included the key feature of unexpectedly encountering an extender bed at the rear of the caravan. He too was challenged about this in cross-examination: [22]
"Q. Sorry, I'll start at paragraph 18, if you go back to paragraph 18? Do you have a precise recollection now as to precisely when Ms Prouten first told you about her accident and what she said precisely?
A. Yes, I do.
Q. And when do you say she spoke to you firstly about the accident?
A. When she arrived home that afternoon.
Q. If you turn to paragraph 18, if you look at the paragraph, you describe: "She said that when she came around the curve on her bike there was a bed extended from the back of it, she didn't have time to avoid it, bumped her helmet on it and lost control of her bike." Do you see that?
A. Yes.
Q. She didn't tell you that on the night of the accident, did she?
A. She told me, as the statement said, when she came home that night.
Q. Isn't that something that she told you sometime later? Indeed, sometime later in February 2015?
A. No - no.
Q. You say that's the version she gave to you that night, is that what you're suggesting?
A. Yes.
Q. Are you sure it was that night?
A. Yes, as the statement says, on 7 January.
Q. And did you write anything down at the time or anything like that?
A. No."
The first document created after the incident was an "Absence Notification" apparently completed by the appellant's supervisor, recording receipt of notification on 9 January 2015 at 5.30pm that the appellant was absent that day, "sick", with "sore back". The option "Work related" was answered in the negative, which on any view was incorrect. On 12 January 2015, the appellant completed a "Leave Application", which stated that the reason for her absence on 9 January 2015 was "strained back muscles". It contained no account of the accident.
Next came a WorkCover Certificate of Capacity of 16 January 2015, apparently completed by Dr Kulasekara of the Lake Macquarie Family General Practice, who was consulted by the appellant, which became Exhibit 8 in the trial ("the WorkCover Certificate"). It records that the appellant was first seen by the practice on 16 January 2015; that she stated that the date of injury was 7 January 2015; that her injuries were consistent with her description of the cause; and, in response to the question "How is the injury/disease related to work?":
"while delivering post, trying to prevent the bike falling on her - hurt her back (due to no proper access to the post box due to parking of a caravan - postal delivery hazard)."
The certificate stated that the appellant had capacity for some type of employment from 16 January to 30 January 2015, for three hours on the bike and two hours sorting, five days a week; and that her lifting/carrying capacity was 5kg. It is to be noted that this document contains a reference to the caravan impeding access, though not specifically to an extender bed, and describes it as a postal delivery hazard.
The next document, which assumed prominence in the trial judge's reasoning, was an incident report, completed on 19 January 2015 - twelve days after the incident - by Peter Weedon, the appellant's line manager, which was Exhibit 1 in the trial ("the Incident Report"). It appears to be an online form, in which answers were entered in response to questions. It recorded that the incident occurred on 7 January 2015 at 11:40am. The incident type was classified as "Minor Injury". In response to the question "Summarise what happened", it recorded "Attempting to stop M/cycle falling I strained my lower back". To the question "Provide a detailed description of what happened", it stated "While delivering post, trying to prevent the bike falling - hurt back". In response to the question, "What is the exact work process undertaken at the time of the Incident, where applicable", the following is recorded:
"Delivering mail to 16 Harper st Edgeworth after negiliating [sic] past an "expander" caravan which had the sides open. While reaching forward to place mail in mail box I fell to the left. I attempted to stop M/cycle from falling and in doing so felt pain in my lower back. I received a minor burn to my right calf muscle from the exhaust pipe. I was wearing 3/4 pants on this day."
Later in the form, the incident description was again stated as "While delivering post, trying to prevent the bike falling - hurt back". However, under the heading "Contributing Factors", in response to the question "What do you know about the contributing factors", it was stated: "Open expander type caravan which restricted access to the mail box." The judge accurately observed that there was no reference in this form to a collision or near collision with the extended bed having occurred; however, there was specific reference to the "expander type caravan" with "sides open" as a contributing factor.
The appellant was cross-examined about the contents and creation of the Incident Report, as follows: [23]
"Q. You participated in an interview or question and answer with someone from your employer, Mr Weedon on 19 January or shortly after 19 January, didn't you?
A. Yes.
Q. You knew that the purpose of that was so that he could understand what you say you said was occurring, don't you?
A. What - I'm sorry, what - could you rephrase that?
Q. You knew at the time that he was asking you questions and recording what you were saying that he was asking those questions so that he could understand what you were asserting happened to cause your injury?
A. He was filling out the form, yes.
Q. You knew he was doing that for a reason, didn't you?
A. Yes, to note that, that I'd had an accident at work.
Q. His task was to note just that you'd had an accident, but to have you explain to him precisely what occurred, do you agree with that?
A. No.
Q. Do you agree that your employer would've been interested to know how you hurt yourself, bearing in mind you were making a complaint to them that you'd been hurt at work and couldn't work?
A. He was doing paperwork.
Q. It was more than paperwork, wasn't it?
A. No.
Q. It was paperwork so that he could record what you say happened?
A. He was doing paperwork to record the incident.
Q. As you reported it to him?
A. I didn't report - get to report exactly what happened. He just wrote down on three lines that I'd had an accident.
Q. You know that's not true don't you?
A. No, that is true.
Q. You've seen the documents haven't you?
A. I've seen all the documents, yes.
Q. Yes, and you know that he records that he spoke to you and asked you a series of questions, yes?
A. He sat there in front of a computer and went through each question and filled it out, and then he said he will get back to me and make, make sure that I've - the P450 was in.
Q. He wrote down on his computer what you were telling him, isn't that right?
A. No.
Q. He was asking you questions as to what occurred, wasn't he?
A. Some of them were yes and no answers. I didn't get a chance to, in detail, fill anything out or tell him anything. He just said he needed to fill this form out, and so I just sat there while he filled it out."
After the account of the incident contained in the form was put to her, she was asked: [24]
"Q. Is that what you told Mr Weedon at the time you reported the incident on 19 January 2015?
A. I told Mr Weedon what happened, and that's it. I just told him what happened, and he then wrote down whatever he wrote down.
…
Q. Is that an accurate recording of what you told Mr Weedon on the day?
A. Partially.
Q. What part do you say is inaccurate?
A. I would say that the part where I was delivering mail is inaccurate, because it didn't happen when I was delivering mail. It was happening while I was attempting to deliver mail."
Also created on 19 January 2015 was another document which loomed large in his Honour's reasoning, a photograph which became Exhibit 2 ("the Motorcycle Photo"). It was taken by an Australia Post employee, Ms Burroughs, and depicts the plaintiff astride her motorcycle at the mailbox at 16 Harper Avenue, with the cycle front-on to the mailbox. The appellant disputed that the photo depicted her in the position where she had told her employer she was when she felt a problem in her back: [25]
"Q. That's a photograph taken by your employer of you in the position that you told them you were when you felt a problem with your thoracic spine, isn't it?
A. No."
She gave the following explanation of the photograph: [26]
"Q. You agree that Sarah Burrows attended with you at the scene as part of the investigation into what you say occurred?
A. She met me at the scene to take a photo of the area where the caravan was parked, that's what was doing - happening that day.
Q. You understood that was part of your employer's investigation into the circumstances of your accident or complaint, don't you?
A. No, it was under - I was under the impression it was for them to take information because they were supposed to be sending a letter to the people who lived there to let them know that they are not allowed to park a caravan there, especially because it's dangerous."
Another photograph, taken on the same occasion, which was not referred to by his Honour, depicts the nature strip and the location where the caravan had been parked.
For reasons which will become apparent, it is appropriate at this point to refer to a statement by the second respondent Mrs Chapman, dated 17 September 2018, which had been served by the respondents, but was tendered in the appellant's case at trial. In it, Mrs Chapman confirmed that the caravan had been parked on the nature strip for "a couple of days" prior to 7 January 2015, having been moved from its usual parking place at the rear of the house, which was on uneven ground (making it difficult to pack the caravan there), as they were preparing the caravan for a trip. She continued:
"10. On the morning of 7 January 2015 I opened the caravan and pulled out the bed. I did this because it makes it easier for us to pack up the caravan and I was putting the sheets on the bed that day.
11. I was at home the whole day on 7 January 2015. I did not hear any commotion outside on this particular day. I was also not informed by anyone that an accident had occurred. No one knocked on the door to inform me of the situation.
12. At the end of the day, I returned to the caravan and packed the bed up. I always make sure I pack the bed away at night because it gets damp if you leave it open at night.
…
14. I was first notified of the incident approximately one week later. I recall that Darren and I were on our trip when my mother called me. My mother had been in the area and noticed people hanging around the front of the premises. My mother told me that a woman had said 'that is where I fell'. I did not hear anything further about the incident until I received a letter in the mail from T D Kelly & Co Solicitors dated 17 January 2017."
It may reasonably be inferred that the occasion to which Mrs Chapman refers, when she was first notified of the accident, was in fact 19 January 2015, when the photographs were taken by Ms Burroughs and the appellant was present. That is consistent with no caravan being there on that occasion, as the Chapmans were away on their trip. The evidence does not disclose how long the Chapmans were away, but they must have returned by 2 March 2015, when the caravan was once again on the nature strip, where it was on that day photographed by the appellant. Mrs Chapman's evidence is important, because it is completely independent of the appellant, and it confirms that the bed was extended on (and not before) 7 January 2015; and that on 19 January 2015, when the two photographs were taken, the appellant at some stage said something like "That is where I fell".
The next document is one entitled "Root Cause Analysis - Gathering Facts", which was also apparently completed by Mr Weedon, on 23 January 2015, and became Exhibit 3 ("the Root Cause Analysis"). It too appears to be an online form. It does not include a specific request for an account of the accident, but in the context of identifying the contributing factors asks "Further detail/comments - For each contributing factor ask the following - Why was this a contributing factor? - Why did this happen? - What allowed this to happen?", in response to which it was stated:
"Failed to anticipate hazard
Caravan parked in front of letterbox, lost balance and over-stretched trying to hold bike from falling onto the caravan"
In a section headed "KEY LEARNINGS: What should the business learn (and pass on) from this incident?", it was recorded:
"Stretching to reach mail box will expose delivery staff to risk
Permission to Pause should be used to select the safest & lowest risk methods of delivery"
Although in the reference to "Stretching to reach mail box" there is similarity with the description in the Incident Report, this document still clearly identifies the caravan as a contributing factor, and that it was in "trying to hold bike from falling onto the caravan" that the appellant overstretched.
Next, on 4 February 2015, the appellant, on referral from Dr Kulasekara, saw a physiotherapist, who made handwritten clinical notes, which recorded:
"Current 3hrs bike
2hrs sorting + admin
managing but uncomfortable"
A sketch described pain in the region of the right thoracic spine and buttock. As to current history, the note recorded:
"On bike, trying to navigate around caravan, bike slid out slightly to the left + rotated with it, then had to rotate to right + pull bike up - (P immediately into R spine, (P ankle + knee from sliding out to left."
Notably, this refers to "trying to navigate around caravan", which was replicated in a report by the physiotherapist of 6 February 2015:
"Michelle presented complaining of right sided thoracic pain which is the result of a workplace injury that occurred on 7th January 2015. Michelle states that she was navigating around a caravan on her postie bike when she had to suddenly give wide birth next to the caravan and the bike slid out the left causing her to reef on the handlebars with her right upper body. She felt immediate pain and is now struggling with sharp pain and an ache."
The same description was repeated in another report by the physiotherapist of 30 March 2015.
On 31 March 2015, the appellant wrote a letter, addressed to the "Reconsideration Officer Australia Post NSW", in response to advice she had received 25 March 2015 that her claim for compensation had been disallowed; this letter became Exhibit J ("the Reconsideration Letter"). In it, she gave the following account of the incident:
"A caravan had been illegally parked and fully closed (no Expanda bed out) in this area for approximately 2 weeks leading up to and during Christmas and I had been navigating around the van on the right hand side to get to the mail box.
On the 7th of January 2015 I approached the right hand side access to ride around the caravan to get to the mail box at 16 Harper Street Edgeworth. On this day the van had a bed extruding from the caravans rear (it was an Expanda Jayco caravan -a bed expands out from within the caravan at the rear end of the van) I only saw this protrusion at the very last moment, this caused me to attempt to turn quickly and sharply to the right to try and avoid riding straight into the extended bed, it was at the height of my head and could have caused me serious head injuries if I had not taken avoiding action.
As I turned the front wheel of the C110 Honda motorcycle the tyre's slid causing the bike to start falling to the left side I responded by putting my left leg down and holding the entire weight of the bike preventing it from falling onto me. I managed to awkwardly pull the bike back up to an upright position and not tumble onto the left side. In doing so I felt a strain and pulling sensation down my entire right side of my back, I also hit my helmet on the side of the bed and suffered an exhaust burn on my right calf muscle.
(see appendix 1 Photos of Caravan parked)"
The appendix comprised a series of photographs of the caravan, parked on the nature strip, taken by the appellant on 2 March 2015, apparently after the Chapmans had returned from their trip.
The declinature letter was not in evidence, but in the Reconsideration Letter the appellant quotes excerpts from it, from which it is evident that the declinature letter referred to a claim form (which was not in evidence) and the Incident Report. In refuting the claims officer's conclusion that it was not established that the injury arose out of or in the course of employment, the appellant stated:
"Fact: I was involved in an incident on the 7th of January resulting in a collision with an 'illegally parked Expanda caravan' while attempting to complete my duties as a Postal officer.
Fact: I obtain an injury as a result of attempting to prevent a Honda C110 motorcycle from falling on me as a result of attempting to deliver Mail to a premises on my dedicated postal Run.
Fact: Australia Post employ me as a PDO motorcycle delivery officer."
I do not accept the complaint (ground 4) that his Honour erred (at [37]) in placing the onus upon the appellant to seek to cross-examine Mr Weedon, in drawing an inference adverse to the appellant in those circumstances, and in drawing an inference that was not reasonably available on the evidence. The Incident Report, and the Motorcycle Photo, were tendered by the respondents, were admissible as business records, and as such were evidence of the truth of the previous representations contained in them. The respondents were not obliged to call Mr Weedon to ask him to corroborate the matters he recorded in the Incident Report. His Honour did not "place an onus" on the appellant to seek to cross-examine as its author, but legitimately observed that no such application had been made. The purpose of (NSW) Evidence Act 1995, ss 166(f) and 167, is to remedy unfairness to an opposing party arising from the receipt of business records without any opportunity to cross-examine the maker of a previous representation, by providing that a party may make a reasonable "request" to another party for the purpose of determining a question that relates to a previous representation, or the authenticity, identity, or admissibility of a document, including to call as a witness the person who made the previous representation. That no such request is made may be a reason to be more confident in the accuracy the business record. [29] His Honour did not err in this respect.
However, while it is true that the Incident Report contains a description of the mechanism of the accident which is inconsistent with the appellant's account, in that it states that the fall occurred "while reaching forward to place mail in mail box", after negotiating past the caravan, it specifically refers to having to negotiate past "an expander caravan which had the sides open". This points to the caravan - and the fact that its expander bed was opened - being considered relevant, as something that had contributed to the accident. The fact that it refers to "the sides open" in the plural is indicative that the writer's understanding was imperfect, but illustrative that the appellant was saying that that the caravan, and its extended bed, were contributing factors.
His Honour was of opinion that the photograph was important, adding force to the view that as at 19 January 2015, the appellant's version was as recorded in the Incident Report: [30]
"To the contrary, I think that the photograph is important. In my opinion, the taking by Ms Burroughs of the photograph of the plaintiff astride the postie bike and placing mail in the mailbox of the defendants, combined with the absence of evidence of any photograph taken on the same occasion of the plaintiff astride her postie bike near the southern gutter of the street, some distance diagonally east of the letterbox (in other words, where the jolt must have occurred, on the case for the plaintiff), and further combined with the document prepared by Mr Weedon, strongly supports the following thesis. At the time the photograph was taken, the complaint of the plaintiff conveyed to Ms Burroughs was that she had been injured whilst performing the action of attempting to place mail in the mailbox, and not as a result of any collision or partial collision with the extended bed."
I do not accept the complaint (ground 7) that the trial judge erred in failing to consider the appellant's oral evidence regarding the creation of the Motorcycle Photo and in failing to give adequate reasons for finding that the Motorcycle Photo supported the proposition that she told the person who took it that she had been injured whilst attempting to place mail in the mailbox and not as a result of any collision or partial collision with the extended bed. His Honour expressly referred to the submissions on her behalf that the photograph was created for the purpose of making a report that identified the caravan as a motorcycle hazard so that the defendants could be informed that it should be removed, and was of no great moment, being simply a photograph of the plaintiff astride the postie bike at the mailbox of No 16, which provided no further explanation of the circumstances of the accident. His Honour cross-referenced those submissions to the transcript of argument, which in turn referred to the appellant's evidence on which they were based. [31] His Honour's reasons for finding that the Motorcycle Photo strongly supported the proposition that the appellant told Ms Burroughs that she was injured whilst attempting to place mail in the mailbox and not as a result of any collision or partial collision with the extended bed appear at [43] of the judgment and are extracted above. [32] In essence, those reasons were the very existence of a photograph depicting the appellant in a position astride the postie bike and placing mail in the mailbox, its consistency with the account in the Incident Report, and the absence of evidence of any photograph being taken on that occasion of the appellant in a position where on her case the accident occurred. Those reasons were adequate: they clearly show why his Honour reached the conclusion he did.
However, whether the finding was correct is another matter. First, although there is an undoubted consistency between what the Motorcycle Photograph depicts and what the Incident Report describes, the photo does not show the appellant "placing mail in the mailbox of the defendants", as his Honour described it. Secondly, and more importantly, his Honour referred to the "absence of evidence of any photograph taken on the same occasion of the plaintiff astride her postie bike near the southern gutter of the street, some distance diagonally east of the letterbox", where on the plaintiff's version the episode occurred, and thus inferred that the appellant had conveyed to Ms Burroughs that she had been injured whilst performing the action of attempting to place mail in the mailbox, as photographed, and not as a result of any collision or partial collision with the extended bed. However, as has been noted, there was in fact another photograph taken on that occasion, depicting the nature strip and the location where the caravan had been parked. The existence of the second photograph, of the nature strip showing where the caravan had been located, in fact tends to support the appellant's understanding that the purpose of the photographs taken on 19 January 2015 was "to take a photo of the area where the caravan was parked" and "to take information because they were supposed to be sending a letter to the people who lived there to let them know that they are not allowed to park a caravan there".
The Incident Report was prepared by a supervisor, albeit with the appellant's input, in order to comply with reporting obligations; the account in it is the author's interpretation of what the appellant said. Contrary to the respondent's submissions, the appellant did not deny that she was the source of the information recorded in the document by Mr Weedon, but she said, in effect, that it was imperfectly recorded. The Incident Report was prepared for enterprise incident reporting purposes, not to be a full record of the appellant's account. While it may be that not all the strictures applicable to histories in medical reports are relevant, [33] for similar reasons some caution is required in acting on apparent inconsistencies between such a report, in which someone else has recorded a summary of what the appellant has said, and the appellant's own testimony, especially where the latter is also corroborated by relatively contemporaneous documents in her own words, such as the reconsideration letter. As stated in King v Collins, [34] the omission of particular material in a documentary record "must be assessed against the purpose and nature of the documentary record, the circumstances in which it was created and by whom." I do not accept the respondents' submission that this does not apply to the Incident Report "because Exhibit 1 contained a detailed description of the accident, that is, it did not omit a particular detail about the accident, rather it contained an account which the trial judge thought was "starkly at odds with the account that is the foundation of the [appellant's] claim"."
That is not to say the Incident Report is without significance: it was close in time to events, it was created at a time when other influences on recollection and reliability may not have been influential, and it derives some support from the Motorcycle Photo. However, it has to be seen not only in the context of its purpose and manner of preparation, but also in the light of the ambiguity created by its own reference to the appellant having to negotiate past "an expander caravan which had the sides open", which identifies the caravan and extended bed as something that was mentioned and relevant, and in addition in the light of the other evidence, as discussed below.
However, the rejection of their evidence in this respect depended predominantly if not wholly on the Incident Report and the Motorcycle Photo. As already indicated, I do not give them the same significance. Moreover, there is a high degree of objective probability that the appellant would tell her mother and her partner that she had had an accident when she next spoke to them; and in light of the fact that she plainly referred to the caravan impeding access at the time of the WorkCover Certificate on 16 January 2015, and that the Incident Report of 19 January 2015 refers to an Expanda caravan "with sides open", it is highly likely that she would have referred to the "illegally parked caravan" in speaking to them. And even if one disregards their evidence, in my view the contemporaneous documentary evidence still weighs heavily in favour of the appellant's account.
It does not appear to me that his Honour's findings of credit, at least so far as they concerned the appellant, were significantly informed by demeanour - or, in the words of Lee, by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. Rather, they were based on perceived inconsistencies between her evidence and her prior statements. The judgment was not expressly based on demeanour, and while the judge had the advantage of seeing and hearing the witnesses, he did not expressly refer to any observations derived from it. His conclusion adverse to the plaintiff's credibility was based on the perceived inconsistency of her account with two contemporaneous documents; it was founded on the content of her evidence, rather than on the manner in which it was given.
In those circumstances, the strictures in cases such as Masson do not apply, and this Court is in as good a position as his Honour to draw the relevant conclusions. In that context, the question is not whether his Honour's conclusions were glaringly improbable or contrary to incontrovertible evidence, but whether they were incorrect. For the reasons just given, I am satisfied that, notwithstanding that there had to be reservations about the reliability of the appellant, the weight of the contemporaneous evidence was such that it ought to have been concluded, on balance of probabilities, that the accident occurred in the manner described by her.
In my judgment, the real risk of harm to a person such as a postal delivery officer, especially in the day or days immediately following the change in configuration of the caravan, as manifested in this case, was such that the burden of not leaving the van with bed extended unattended, so that there was someone present to observe and warn those using the nature strip who might unexpectedly encounter it, was so slight that it is one that reasonable persons would in the circumstances have taken.
It follows that in my judgment breach of duty is established.
Primary judgment at subheading preceding [130].
Primary judgment at [141].
Primary judgment at [131].
Primary judgment at [133].
Primary judgment at [140].
Primary judgment at [131].
Primary judgment at [136]-[137].
Primary judgment at [138]-[140].
See above at [38].
Primary judgment at [133]-[134].
See above at [44].
Primary judgment at [141].
Primary judgment at [24].
(2019) 266 CLR 129 at 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28.
Tcpt, 9 August 2019, pp 344(44)-345(25).
Tcpt, 9 August 2018, pp 318(29)-319(11).
Tcpt, 6 August 2019, pp 70(36)-71(40).
Tcpt, 6 August 2019, p 72(26)-73(15).
Tcpt, 6 August 2019, p 69(19)-(21).
Tcpt, 6 August 2019, p 70(24)-(34).
Primary judgment at [44].
Primary judgment at [34]-[39].
See Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79 at [83]-[84], [87] (Brereton JA).
Primary judgment at [43].
Primary judgment at [41]-[42].
See above at [87].
Mason v Demasi [2009] NSWCA 227 at [2] (Basten JA); Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] (Basten JA).
[2007] NSWCA 122 at [36] (Basten JA; Mason P and Santow JA agreeing).
Primary judgment at [44].
Primary judgment at [45]-[46].
(1997) 48 NSWLR 430 at 443 (Meagher JA).
Primary judgment at [47]-[48].
Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431 (Lord Pearce; Lord Wilberforce agreeing).
(2020) 94 ALJR 785 at 800 [78] (Kiefel CJ, Bell and Keane JJ), 812 [119] (Nettle and Gordon JJ); [2020] HCA 28.
Masson at 812 [119] (Nettle and Gordon JJ).
Primary judgment at [56].
As to responsibility for a sidewalk, see Turnbull v Alm [2004] NSWCA 173; Snitzer v Becker Milk Co Ltd (1976) 75 DLR (3d) 649.
(1987) 162 CLR 479; [1987] HCA 7.
As was held in McGeown v Northern Ireland Housing Executive [1995] 1 AC 233 at 242 (Lord Keith of Kinkel; Lord Goff of Chieveley, Lord Mustill and Lord Lloyd of Berwick agreeing); [1994] 3 All ER 53, citing Greenhalgh v British Railways Board [1969] 2 QB 286 at 294-295 (Widgery LJ); [1969] 2 All ER 114.
Primary judgment at [69].
Primary judgment at [60].
Primary judgment at [62].
Primary judgment at [63].
Primary judgment at [66].
Primary judgment at [71]-[97].
Primary judgment at [72]-[76].
Primary judgment at [67].
Primary judgment at [77].
(2013) 86 NSWLR 55 at 87 [153] (Gleeson JA; Basten JA and Meagher JA relevantly agreeing); [2013] NSWCA 361; see also Sibraa v Brown [2012] NSWCA 328 at [49] (Campbell JA; Hoeben JA and Tobias AJA agreeing); Shaw v Thomas (2010) Aust Torts Reports ¶82-065 at 64,320 [44] (Macfarlan JA; Beazley JA and Tobias JA agreeing); [2010] NSWCA 169.