Prouten v Chapman

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:

RJ de Meyrick and J Mrsic (Appellant) JE Sexton SC and OJ Dinkha (Respondents)

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

[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.]

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:

1. 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:
2. 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.
3. 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.

Judgment

1. 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):
2. 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.
3. 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.

The requirement for reasons

1. 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]

The credit finding (Ground 18)

1. 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.
2. 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.
3. 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]

The accident (Grounds 1 - 11)

1. 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.
2. 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]
3. 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]]."

The evidence

1. 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."
2. 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."
3. 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."

Analysis

1. 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.

The Incident Report and Motorcycle Photo of 19 January 2015

1. 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."

The WorkCover Certificate of 16 January 2015

1. 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.

The Root Cause Analysis of 23 January 2015

1. 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]
2. 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.
3. 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.

The physiotherapy documents of 4 and 6 February 2015

1. 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.

The Reconsideration Letter of 31 March 2015

1. 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.
2. 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.
3. 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.

Mrs Chapman's statement

1. 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.

Evidence of Mrs Prouten and Mr Green

1. 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."
2. 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.
3. 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.

Conclusion

1. 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.
2. 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]."

Duty and breach

1. 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.

Duty

1. 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.
2. 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.

Risk (Ground 12)

1. 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."
2. 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.

Breach of duty

1. 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.
2. 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]

Foreseeability (Ground 14)

1. 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.
2. 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.

Insignificance (Ground 13)

1. 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]
2. 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.

Precautions (Grounds 15 and 16)

1. 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]
2. 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]
3. 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.

Causation (Ground 17)

1. 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."
2. 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.
3. 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.
4. 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.

Conclusion

1. My conclusions may be summarised as follows:
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Endnotes

1. 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.
2. 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).
3. Yates Property Co Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 189 (Handley JA; Kirby P agreeing).
4. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (McHugh, Gummow and Hayne JJ); [2001] HCA 30.
5. Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA; Clarke JA and Hope AJA agreeing).
6. 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).

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