31 The judge began his consideration of the evidence of the three eye witnesses and Mr Hutchinson's opinion by observing that the issue was one of fact, namely, what was the state of the ground onto which the respondent fell? His Honour noted then that the respondent relied upon the evidence of his mother, Ms Veering and Ms Hodson, and that the effect of their evidence was that the ground where the respondent fell was hard and bare, save for some pieces of bark. He observed that their evidence was the only direct evidence concerning the state of the ground at that time and that they had not been challenged in their evidence on the basis of partiality or concoction; simply on the basis that they were exaggerating. His Honour said that he considered that the three women were telling the truth and that he was confirmed in that view by the photographs. He considered that the photographs taken by the respondent's mother supported her evidence and that the Casconsult photographs showed uneven soft fall which was not inconsistent with her evidence. The judge said, however, that because photographs tend to be misleading he found to be more significant the Council inspection reports dated 21 January 1999 and 26 May 2000, the latter date being approximately one month after the event, and in particular that each report recorded that 100 mm of soft fall was required to be added. As against all that evidence, the judge observed, the Council had not called any witness to give direct evidence about the state of the surface at the relevant time - even though it had been put to the respondent's mother in cross-examination that two such employees would be called - and the Council had not led any evidence to account for the absence of those persons from the witness box. The judge referred to the fact that the Council had called Mr Hunter, who was at the relevant time in charge of the persons whose job it was to inspect and carry out maintenance work on the playground, who gave evidence of the Council systems in place for regular inspection, reporting, maintenance and aeration of the soft fall. But, as the judge observed, Mr Hunter did not give evidence of any report of deficiencies or difficulties or any explanation of why, if deficiencies were reported and rectified on a regular basis, there was a 100mm deficiency recorded in both of the 1999 and 2000 annual inspection reports. The judge then turned to the Council's reliance on Mr Hutchison's opinion that the area onto which the respondent fell would have had 200mm of soft fall. He noted that Mr Hutchinson advised local government authorities on safety and other issues concerning playground facilities, and that Mr Hutchinson's opinion was based on an inspection not carried out until 2002, and evidently his Honour considered that Mr Hutchinson's opinion was not sufficient to overcome the effect the evidence of the three eye witnesses. As the judge put it, the opinion was not the only occasion where Mr Hutchison had revealed a lack of objectivity. The judge concluded on the basis of his analysis of the evidence that the ground on which the respondent fell was hard and bare.
32 It was submitted for the Council that it was not open to draw that conclusion. As the Council would have it, this court is in just as good a position as the judge to determine the effect of the photographs and, according to the Council, the photographs show clearly that the ground at the point of impact was covered with soft fall. In the Council's submission, the judge was bound to reject the testimony of the eye witnesses and, in the absence of their testimony, Mr Hutchinson's opinion held sway.
33 I reject that submission. On any analysis the opinion was no more than a guesstimate of what might have been and it was dependent on Mr Hutchinson's assertion that he had "a fair idea of how long soft fall takes to settle, disburse and even the colour of the soft fall, as it ages on the ground, is different from when it goes onto the ground as it wears". The way in which Mr Hutchinson responded to questions in cross-examination bears out that he lacked objectivity, quite apart from his admission that he was unquestionably on one side of the fence. The Council had two employees with direct knowledge of the condition of the ground at the time of the accident, and the Council chose not to call them. It was therefore properly to be inferred that anything which they might have said on the subject would not have assisted the Council,[16] and the two Council inspection reports mentioned by the judge were consistent with the conclusion that the surface had been substandard at the time of the accident.
34 I agree that this court may be in just as good a position as the judge to view the photographs, and to form conclusions as to what they appear to show. [17] Having looked at them, I also accept that some of them appear to show that the ground at the point of impact was covered with tan bark or something like it. But, as the judge rightly said, photographs can be misleading and, in any event, the task for the judge was not just to interpret the photographs but also to assess whether the photographs so damaged the credit of the eye witnesses that their testimony should be rejected. Since the judge saw the witnesses give evidence, and was thus far better placed than us to carry out that assessment,[18] I am not persuaded that his Honour erred in the fashion alleged.[19] The position here may not be the same as in Pledge v Roads and Traffic Authority[20] for, among other reasons, the trial judge in that case had the benefit of a view which was treated as part of the evidence, and the evidence of the eyewitness was unopposed. But there are similarities. They support the conclusion that there is insufficient basis for preferring what appears to be revealed by the photographs to the evidence of eyewitnesses whom the judge held to be truthful. Like the judge, I consider that the contents of the Council's inspection reports point strongly in favour of their evidence.
35 Finally on this aspect of the matter, it is plain that the judge did not overlook Mr Hutchinson's opinion or fail to explain why he rejected it. His Honour specifically referred to the opinion and explained that because of its nature and what his Honour perceived to be its lack of objectivity, he preferred the direct evidence of the three eye witnesses (which his Honour thought to be supported to some extent by the photographs and more fully by the Council's inspection reports of 21 January 1999 and 26 May 2000). The Council submitted that it was incumbent on the judge to explain his reasoning in greater detail. But I disagree. The degree of detailed reasoning required to be provided in support of a determination depends upon the nature of the determination, the complexity of the issues, whether the issues are of fact or law or mixed fact and law and the function to be served by giving reasons, namely, that the parties may know the basis on which the matter has been decided and to enable a court of appeal to determine whether there has been error[21]. In a simple case like this there is not a great deal which is required. The determination involved a straightforward question of fact of which the determination turned on acceptance or rejection of the testimony of the eye witnesses and the weight to be accorded to Mr Hutchinson's expression of opinion. The judge explained with tolerable clarity the evidence of the eye witnesses and the nature and limitations of Mr Hutchinson's opinion and why his Honour accepted and preferred the former to the latter.
Negligence
36 At trial the Council conceded that it was under an obligation to take reasonable care to maintain a soft fall surface under the equipment to a depth of at least 200mm in accordance with Australian Standard AS/NZS 4422:1996 "Playground Surfacing - Specifications, Requirements and Test Method". It submitted, however, that it had discharged that duty by putting in place a system which aimed to maintain the depth of the soft fall at 250mm. The judge rejected that submission. The judge found that the existence of the system was established in Mr Hunter's evidence and was confirmed by the contents of the inspection reports. But his Honour held that the system had not been applied with reasonable care. The Council contends that his Honour's reasoning was erroneous. It submits that the evidence, particularly the inspection reports, established that there was at least 150mm of soft fall at the position where the respondent fell. It contends that there was not sufficient evidence to establish that it was negligent in failing to guard against the sort of risk which befell the respondent.
37 In my opinion there was sufficient evidence to establish negligence. The judge's finding of fact was that the surface at the point of impact was hard and bare. I have already explained why I consider that it was open to the judge to make that finding. The entries in the inspection reports were not inconsistent with that conclusion. It is true that the reports were annual inspection reports, in one case made months before and in the other case made months after the date of the accident, and Mr Hunter gave evidence that repairs were made to the soft fall surface from time to time between annual inspections. But Mr Hunter was unable to provide or at least chose not to provide any more detail than that. That being so it was open to conclude that the area at the point of impact was hard and bare at the date of the impact even if it were covered with 150mm or some other depth of soft fall at the date of the next annual inspection. I agree that that the Standard of 200mm of cover was not necessarily critical. It may be that the Council would not have been adjudged negligent if there had been 150mm cover at the point of impact on the day of the accident.[22] But that was not the case. On the facts as found, the surface was hard and bare and, in the absence of evidence from the gardener and the townman,[23] the inference was open if not irresistible that it was due to lack of reasonable care.
Causation
38 The Council next contended that the judge erred in finding that the Council's negligence caused or materially contributed to the respondent's injuries. It argued that the judge failed to make reference to the limited objective of the relevant Australian standard and to the evidence of a relevantly qualified expert, Dr. Ronald Summers. The point as the Council would have it is that the Standard exists to protect against head injuries and there is no satisfactory evidence that 200mm or any other amount of soft fall would have significantly reduced the risk of long bone injuries of the kind which the respondent suffered. Indeed it says that Dr Summers gave uncontradicted evidence to the contrary.
39 In my opinion that submission suffers from a number of defects. To begin with, the judge did notice that the Standard was primarily directed to the prevention of head injuries, His Honour said that: