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Judges: Penfold, Burns and Cowdroy JJ

Date: 19 May 2014

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

IN THE SUPREME COURT OF THE ) No. ACTCA 53 – 2012

) No. SC 214 of 2008

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ELLIOT JAMES LAWRENCE STONE

Appellant

AND: THE OWNERS – UNITS PLAN 1214

First Respondent

NECTARIA NOMINEES PTY LTD

DEBRA PTY LTD

HAWKSBERRY NOMINEES PTY LTD

Second Respondents

Judges: Penfold, Burns and Cowdroy JJ

Date: 19 May 2014

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. Just after midnight on 23 March 2005 police attended the driveway of the Lakeview Square car park, Emu Bank, Belconnen after receiving an anonymous telephone report of a male lying on the ground in that vicinity. Upon arrival police saw a male person, subsequently identified as the appellant, unconscious on the ground. He was bleeding from his head, nose and mouth. A later examination of the appellant revealed he had suffered severe injuries, including a fractured skull, a fractured cheekbone, a fracture to the left mandible and fractures of the anterior and medial walls of the left maxillary sinus.

2. On the evening of 22 March 2005, the appellant’s birthday, he visited friends at a unit in the Miramar Apartments, of which the first respondent was the registered proprietor. As a consequence of his injuries the appellant had limited memory of the events which occurred after he left his friend’s apartment. The driveway on which the appellant was found unconscious by police was jointly owned by the second respondents, and was located on land adjoining the Miramar Apartments. The place where the appellant was found was on the North East corner of Lakeview Square, adjacent to its border with the North West corner of the Miramar Apartments.

3. In that area there is a significant difference between the levels of the two properties, with the Miramar Apartments being at a higher level than the driveway of the Lakeview Square car park. Between the Miramar Apartments and Lakeview Square are two retaining walls, fairly close to each other. The total height of the two retaining walls, that is, the drop from the top of the higher retaining wall to the place where the appellant was found unconscious, was about 3,070 mm.

4. The appellant claimed that he suffered injuries in a fall from the Miramar Apartments to the driveway of the second respondents’ property. He claimed that the fall was a result of the respondents’ negligence.

5. Before the primary judge the appellant was unsuccessful. The primary judge entered judgment for the respondents and ordered the appellant to pay the respondents’ costs of the proceedings. The appellant now appeals from that decision. Before we turn to the grounds of appeal, it is convenient to set out the pleadings in the first instance proceedings, and the findings of the primary judge. THE HEARING AT FIRST INSTANCE The pleadings

6. The fact that the first and second respondents were the registered proprietors of the adjoining parcels of land on Emu Bank was not in issue. The appellant contended that on 22 March 2005 he was an invitee at the premises of the first respondent, the Miramar Apartments. He alleged that as he was attempting to leave the premises of the first respondent he “fell from a retaining wall on the premises of the [second respondents] and adjacent to the premises of the [first respondent] thereby suffering injury, loss and damage”. The first and second respondents did not admit these allegations.

7. The appellant further pleaded that he fell as a result of the negligence of the defendants. The particulars of the first respondent’s negligence were: a. Failing to ensure the property was safe and without hazard; b. Failing to fence common property in the area in which the fall occurred; b. Failing to provide adequate warning of the hazard; c. Failing to provide adequate lighting in the area; d. Failing to take any or any adequate action to ensure that the premises were safe for persons such as the [appellant]; e. Failing to take all reasonable steps to remove or minimise any hidden or other danger of which it was aware or ought reasonably to have been aware. The particulars of negligence pleaded against the second respondents were: f. Failure to fence the retaining wall on its premises; g. Failing to take any or adequate action to ensure premises were safe from hazard; h. Failing to take all reasonable steps to remove or minimise any hidden or other danger of which it was aware or ought reasonably to have been aware.

8. The respondents denied the allegations of negligence. The case presented by the appellant was that he left a path running in a generally north/south direction on the first respondent’s property, adjacent to its border with the second respondents’ property, and walked a short distance through some foliage in a westerly direction before falling from retaining walls into the driveway of the second respondents’ property. As at 22 March 2005 there was no fence or other barrier impeding movement from the pathway near the western border of the first respondent’s property to the border of the two properties where the retaining walls were situated. The findings of the primary judge

9. In his written submissions in support of this appeal, the appellant accepts that most of the “primary findings of fact” made by the primary judge are uncontroversial. As such, we will recite the essential facts as found by the primary judge. The appellant

10. The appellant was born in New Zealand in 1978. His schooling in New Zealand, and later in Australia was unsettled. He has a criminal history commencing early in his life with several offences being recorded by the courts. His crimes included theft, assault and on one occasion unlawful possession of firearms. He commenced use of cannabis while he was still at school. He commenced using heroin from his early 20s. He also used cocaine and amphetamines, including ecstasy, speed and crystal methamphetamine or ice. He sometimes mixed the drugs he used. The primary judge found that he was addicted to heroin, if not other substances. The appellant denied that he suffered from alcoholism or that he had a drinking problem, but he did agree that at times he drank to excess.

11. At the time that he received his injuries he was unemployed and had no permanent place of abode. The respondent’s properties

12. Both properties have north facing frontages to Emu Bank, with the first respondent’s property, Miramar Apartments, sited to the east of Lakeview Square. Before development, both properties had an upward gradient from north to south. Lakeview Square was the first of the sites to be developed, being constructed as a commercial development and car park around 1990. Miramar Apartments is a residential complex constructed in about 1994. It comprises 72 one, two and three bedroom apartments. The driveway and car park area on Lakeview Square was excavated to the Emu Bank level. The slope to the east of Lakeview Square was retained by a retaining wall, referred to in evidence before the primary judge as Wall A. This wall was 2,070 mm high and approximately 0.44 mm to the west of the eastern boundary of Lakeview Square. At the time of the construction of this wall, the site to the east of Lakeview Square was vacant.

13. The Miramar Apartments were built on the adjoining parcel of land, which rose steeply from north to south. On its Southern boundary was Chandler Street. As part of the construction works a second concrete retaining wall, referred to in evidence before the primary judge as Wall B, was built on the boundary between the two properties and above Wall A. Wall B was 1100 mm high from the top of Wall A. The Western face of Wall B was approximately 610 mm east of the western face of Wall A. Pedestrian access to the Miramar Apartments was provided at various points by way of steps and foot paths descending from Chandler Street to Emu Bank.

14. Between the western-most building on the Miramar Apartments site and its boundary with Lakeview Square were a staircase, footpath (the relevant footpath) and a second staircase leading to Emu Bank. To the west of this access was an area of landscaping planted with trees and shrubs. On each side of the two sets of steps was a balustrade and hand rail. The distance from the western edge of the footpath to Wall B, the boundary between the two properties, was 2.2 m. Of this distance, about 600 mm immediately to the west of the footpath was level with the footpath. Beyond that 600 mm the land then sloped to Wall B, although there was no evidence of the angle of the slope. The land was then terraced at the level of the top of Wall A. There was no fence or balustrade on Wall A or Wall B on 22 March 2005. There was no handrail on the western edge of the footpath. The events leading up to the appellant’s injury

15. As the primary judge noted, the evidence of the events leading up to the appellant’s injury was confused. Although she did not specifically say so, the primary judge appears to have accepted the following evidence concerning the events leading up to the appellant’s injury.

16. On 21 March 2005, the appellant won a substantial amount of money, said to be between $1000 and $1400, playing poker machines at a club. By the time he left the club, at 1:00 am, he retained about $1000 of that win. He was at the club with his stepbrother Justin, and friends Manoah and Jose. After leaving the club they went to a hotel and took a room for the night.

17. At some time the following day, Manoah drove the appellant to a shop where he purchased a clutch kit for his car, costing about $200. This was packed in a telephone directory sized box and weighed about 10 kg. The appellant, his stepbrother and friends later went to a different club where the appellant again played poker machines. He was unable to recall how much he lost, but later said that he was not surprised that police found only $50 in his wallet after his injury.

18. The appellant and his companions left the club and went to an apartment at Miramar Apartments occupied by a woman named Amanda. The appellant did not remember the time at which they arrived but said it was after dark. He had little memory of the events at the apartment. At the apartment he argued with Manoah, and he remembered that he almost fell and knocked over an item of furniture. He remembered that Amanda insisted that he leave. The appellant left with Justin. After leaving, they argued when they were standing on a walkway at the foot of some stairs. The appellant told Justin to “piss off”. He did not know how Manoah and Jose got home. He remembered that the walkway led to the main road, the lake and the vicinity of the Hungry Jacks food outlet. From this description it may be taken that the walkway led to Emu Bank.

19. The appellant remembered nothing more until he recovered consciousness in hospital four days later.

20. It is beyond dispute that the appellant was intoxicated on the evening of 22 March 2005. The appellant accepted that he had injected heroin approximately 24 hours before the incident. He also recalled injecting amphetamines. He remembered that he drank from a 750 ml bottle of vodka while at Amanda’s apartment. Whilst his companions on the evening of 22 March 2005 were not called to give evidence, statements made to the police by Justin, Manoah and Amanda were tendered in the proceedings before the primary judge. Those statements suggested that the appellant had consumed alcohol throughout the day on 22 March 2005 and had injected further heroin at about 5:00 pm that day.

21. Amanda, the owner of the apartment the appellant visited at Miramar Apartments, told the police that the appellant and Justin argued at her apartment. She asked them to leave. She said the appellant appeared to be extremely drunk. She said that 30 minutes after they left she went to bed and was woken by Justin, who knocked on a glass sliding door. He told her that something had happened to the appellant. She told him to leave.

22. A woman by the name of Rachel was staying temporarily at Amanda’s apartment on 22 March 2005. She returned to the apartment at 9:00 pm and was introduced to the appellant and his three companions. She then went to bed. At 11:00 pm she was woken by the sound of two males shouting, whom she identified as the appellant and Justin. They appeared to be intoxicated and she told them to leave. The evidence of the scene where the appellant was found

23. When police arrived at the driveway to the car park of Lakeview Square just after midnight on the morning of 23 March 2005 they found the appellant lying face down on the driveway a short distance from Wall A, with his legs pointing in an easterly direction (towards Walls A and B) and his head pointing in a westerly direction. The appellant was found with his arms beside his body and with his palms facing up. There was a pool of blood around his head, which trickled away for a distance of 2.2 m to the West across the driveway, towards the second respondents’ building. There was no evidence of the distance of the pool of blood from Wall A. A number of photographs were taken at the scene by police, unfortunately most of those which showed the appellant in situ are of very poor quality. At the time that police arrived the blood around the appellant’s head had not congealed. There were two patches of blood bearing the pattern of tyre marks to the south of the rivulet of blood. There were two further areas of blood described by an AFP forensics officer as “small smears” to the south-east and one metre from the main pool of blood. The AFP forensics officer agreed that the position of the tyre marks suggested that a tyre passed through the rivulet of blood that flowed from the appellant’s head, and turned one full circumference to leave two equidistant marks. She considered that the marks were left by a car, the tyre pattern being too wide to have been left by a motorcycle and too narrow for a truck or larger vehicle. No blood spray patterns were observed at the scene.

24. There was a break in the vegetation between the relevant footpath and Lakeview Square adjacent to the position where the appellant was found. This break could allow access from the footpath to the top of the retaining walls, although there was no evidence of it having been so used. No dirt or vegetation was found on the appellant’s shoes. The clutch plate, which the appellant had with him when he left Amanda’s apartment, was never located. The primary judge’s decision

25. There was no direct evidence of the mechanism by which the appellant sustained his injuries. The primary judge considered a number of scenarios potentially raised by the circumstantial evidence. She considered the possibility that the appellant had sustained his injuries through a fall from the retaining walls between the properties of the two respondents, the possibility that the appellant sustained his injuries in a motor vehicle accident and the possibility that he sustained his injuries through an assault upon him. Based upon the testimony of experts, her honour concluded it was unlikely the appellant sustained his injuries in a motor vehicle accident. It was, of course, the appellant’s case that his injuries were occasioned when he fell from the retaining walls. With respect to the appellant’s case, the primary judge said at [130]: Ultimately, there were two aspects of the evidence that persuaded me that I could not accept that the plaintiff’s injuries were the result of a fall from the retaining walls. They were the absence of evidence of other injuries and the mechanism by which it was necessary that he fall in order to limit his injuries to substantial head and facial fractures.

26. Interestingly, the appellant’s pleaded claim was that he fell from a wall on the second respondents’ property. The evidence before the primary judge appears to have established that only the lower retaining wall, Wall A, is on the second respondents’ property. The higher retaining wall, Wall B, is on the first respondent’s property. There can be no doubt, however, that the appellant’s case before the primary judge was conducted on the basis that he fell from Wall B, without any objection by the respondents. As such, we will address the case as conducted by the appellant before the primary judge.

27. The primary judge found that the more probable cause of the appellant’s injuries was a single blow of significant force from a weapon, such as a baseball bat. The grounds of appeal

28. The appellant appeals from the orders of the primary judge on the following grounds: a) That Her Honour erred in limiting the evidence that the [appellant] could give; b) That Her Honour erred in finding that the [appellant’s] injuries were more probably the result of some form of assault that a fall; c) That Her Honour made findings of fact without referring to evidence as to the positioning of the [appellant’s] jacket; d) That Her Honour erred in not finding, as a matter of fact, that the [appellant] had last been seen at the top of the relevant walkway between Chandler Street and Emu Bank.

29. At the hearing of the appeal counsel for the appellant advised the court that grounds a) and d) were in the alternative, depending upon how one interpreted rulings on evidence made by the primary judge. We will return to this later.

30. The second respondents filed a Notice of Contention contending that the following questions of fact or law were incorrectly decided by the primary judge: a) That the place where the appellant was found at the foot of the retaining walls and the position in which he was found were both factors that were consistent with a fall and that the evidence brought the appellant to the point where it was established that a fall from the retaining walls was possible. b) That it was improbable the appellant’s injuries were the result of an impact with a motor vehicle, or impact with the ground after being hit by a motor vehicle. c) That the second respondent owed the appellant a duty of care, in the circumstances. d) That the second respondent was negligent arising out of the condition that existed on the boundary of the property at the time of the appellant’s injury. e) That the appellant was contributory [sic] negligent to the extent of the 50%. f) That the second respondent was 25% responsible for the risk created when the first respondent site was constructed. The first respondent also filed a Notice of Contention contending in the same terms as paragraphs a), b), c), d) and e) of the first respondents’ notice, but also alleging that the primary judge erred in finding that “the First Respondent was 75% responsible for the risk created when the First Respondent’s site was constructed”. The nature of this appeal

31. It is clear from the reasons of the primary judge that her decision to reject the appellant’s claim was not based upon any assessment of the witnesses’ credibility, and in particular the credibility of the appellant. This appeal is in the nature of a rehearing on the evidence which was before the primary judge. This court may in certain circumstances receive fresh evidence on the hearing of such an appeal, but no application was made to lead fresh evidence in this appeal. The nature of such an appeal was examined by the High Court in Fox v Percy (2003) 214 CLR 118, where, in a frequently quoted passage, the plurality (Gleeson CJ, Gummow and Kirby JJ) said at [22]–[23] and [25]: The nature of the “rehearing” provided in these and like provisions has been described in many cases... The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal. The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgement which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.… Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses and should make due allowance in this respect”. [Citations omitted]

32. The plurality then quoted from the decision of the majority in Warren v Coombes (1979) 142 CLR 531 at 551: [I]n 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. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

33. In the case of Abalos v Australian Postal Commission (1990) 171 CLR 167 McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed, said concerning the nature of such an appeal at 178: In S.S. Hontestroom v S.S. Sagaporack [1927] A.C. 37 at p. 47, Lord Sumner pointed out that: “not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own views of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions offact should, as I understand the decisions, be left alone.” Consequently, where a trial judge has made a finding of fact contrary to the evidence of the witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v Thomas [1947] A.C. 484, at p. 488.

34. The primary judge had the additional advantage, compared to this Court, of having conducted a view of the area. Section 54 of the Evidence Act 2011 (ACT) provides that a court may draw any reasonable inference from what it sees, hears or otherwise notices during a view. In Pledge v Roads and Traffic Authority (2004) 205 ALR 56, Callinan and Heydon JJ, with whom McHugh ACJ, Kirby and Hayne JJ agreed, said, concerning the equivalent provision in the Evidence Act 1995 (Cth) at [49]: Even before the enactment of the Evidence Act, appeal courts customarily accorded significance to a demonstration or view at first instance. Ground of appeal a): The primary judge erred in limiting the evidence that the appellant could give. Ground of appeal d): The primary judge erred in not finding, as a matter of fact, that the appellant had last been seen at the top of the relevant walkway between Chandler Street and Emu Bank.

35. It is convenient to deal with these two grounds together. We understand that the appellant’s primary position is that the primary judge admitted the evidence to which these grounds refer. If this is correct, the appellant says that the primary judge should have found, as a question of fact, that the appellant had last been seen before he sustained his injuries on the relevant footpath adjacent to the top of Wall B. Such a finding would, of course, have been a finding of fact significantly supporting the inferences raised by the appellant directed towards establishing that he fell from the retaining walls into the driveway of Lakeview Square. If, contrary to the appellant’s primary position, the trial judge did not admit the evidence to which the appellant refers, the appellant says that the trial judge was in error in not doing so.

36. To deal with these grounds it is necessary to briefly refer to the evidence which the appellant sought to place before the primary judge, and the rulings made by the primary judge. In the course of his opening before the primary judge, senior counsel for the appellant, Mr Purnell SC, said: Now, the plaintiff, we anticipate, will say that when he left Amanda’s unit he left with his stepbrother Justin and they commenced walking towards the path, the top of which I’ve just taken your Honour to in Tab 10 [the pathway adjacent to Wall B]. And he will say, we expect, that the plaintiff and Justin commenced to walk down the stairs or some of the stairs. That an argument then broke out between he and Justin. Justin then went back up the stairs and the plaintiff continued down the stairs and at the bottom of the stairs decided to urinate. He will then tell your Honour that he went into the bushes, shrubs, to the left of those stairs and then the next thing he knows is that he is in hospital.

37. At the conclusion of the appellant’s opening, counsel for the second respondents sought a short adjournment. When the proceedings resumed counsel for the second respondents took objection to the appellant giving evidence or calling evidence to the effect that he had a recollection of being on the pathway adjacent to Wall B and that he had a recollection of leaving the path and going into the shrubs to urinate. In support of that objection counsel for the second respondents took the primary judge to a request for particulars directed to the appellant dated 29 April 2008 to which the appellant, on 24 June 2008, provided the following answers to the following questions: 1. What time did the plaintiff arrive at the premises of the first defendant? The plaintiff can not recall. 2. At precisely what time did the plaintiff leave the premises of the first defendant? The plaintiff can not recall. We rely on the Australian Federal Police report. 3. Indicate by diagram or otherwise the path which the plaintiff took to gain access to the premises. The plaintiff can not recall. ... 6. Please indicate by diagram or otherwise the path taken by the plaintiff upon leaving the premises. The plaintiff can not recall. We rely upon the Australian Federal Police report. ... 10. By what means did the plaintiff propose to travel when he left the premises of the first defendant? Foot. 11. To where was the plaintiff travelling when he left the premises of the first defendant? The plaintiff can not recall precisely. He believes that he may have been intending to go to a club to play the poker machines. ... 12. Indicate by diagram or otherwise the precise path taken by the plaintiff from the point at which he left the first defendant’s apartment building to the point where he was found after his fall. The plaintiff can not recall. We rely on the Australian Federal Police report. 13. Indicate with some precision the mechanism by which the plaintiff fell from the retaining wall? The plaintiff can not recall. We rely upon the Australian Federal Police report.

38. In addition, by letter dated 16 June 2008 the appellant was asked to provide particulars of his consumption of alcohol and/or other drugs prior to sustaining his injuries. His responses indicated that he could not recall what alcohol he had consumed and in what quantities and could not recall what drugs he had consumed and in what quantities. Counsel for the second respondents told the primary judge, without objection, that the Australian Federal Police reports relevant to this incident “repeatedly say that the plaintiff had no recollection of events”.

39. Counsel for the second respondents also took her Honour to the histories given by the appellant to a number of medical practitioners. Associate Professor Gordon Stewart, in a report dated 9 July 2009, recorded: “Mr Stone says that he has no recall of his fall but states that he fell off a 3-metre wall which should have had a fence and landed on his head. His last recall prior to the injury was standing at an alleyway.”

40. In a report dated 27 July 2009, Dr Ron Brooder recorded: “Mr Stone has no recall of the details of events immediately surrounding the incident that had occurred on 22 March 2005. Mr Stone’s only recall of the events of the evening was that he had been standing on an elevated walkway at night after having celebrated his birthday.”

41. In a subsequent report dated 22 October 2011, Dr Brooder said: “Essentially, Mr Stone has only limited recall of the details of events surrounding the incident on 22 March and his only recall of events that evening was that he had been standing on an elevated walkway after having celebrated his birthday. His next recall of ongoing events had returned approximately four days later whilst in The Canberra Hospital.

42. In a reported dated 20 July 2010, Dr Virginia Pascall recorded: “Mr Stone said that he remembers being in an alley way or walkway on the night in question and then, in a ‘split second’, woke up in the hospital and it was 4 days later.”

43. Dr Wendy Roberts, a neuropsychologist, in a reported dated 15 October 2010 recorded: Mr Stone told me this accident occurred on 22 March 2005. When asked what he can actually remember he told me that it was “his birthday and I can definitely remember I had money and woke up with $50 and had obviously blown all the money. It’s a bit of a blur. I think I had drugs that day”... He told me that his last memory was being “at this girl’s house and that I was friends with and we were partying for my birthday. I think I was a little bit drunk and had an argument with two mates and told them to piss off. I was on my own when I fell off a wall in a walkway and it was 3 m high. There was no fence.”

44. Dr Casikar, in a report dated 12 June 2012, reported: “He remembers having an argument with his friends and he got out of the car and was standing by the wall. He does not remember the events after that.”

45. From the particulars provided to the respondents by the appellant prior to the commencement of the hearing, the case which the appellant proposed to present was that he had fallen from the top of the retaining walls to the driveway of Lakeview Square, thereby occasioning his injuries. He had not provided any particulars of where he was in the grounds of the Miramar Apartments after leaving Amanda’s apartment, or what path he took through the grounds of the Apartments to reach, he says, the top of Wall B. In his answers to particulars the appellant claimed to have no memory of these matters.

46. Mr Purnell told the primary judge: Your Honour, when the particulars were sent out they were our instructions. What I opened up [sic] was given to us for the first time on Tuesday, it was repeated yesterday and again this morning. I suppose I would have an obligation to say this is what my instructions were on Tuesday but, your Honour, I wasn’t sure that I was going to get the same instructions on Sunday.

47. Counsel’s opening was made on Monday, 9 July 2012, so that it may be inferred that the Tuesday referred to was 3 July 2012.

48. The primary judge indicated that she was “disinclined” to allow the appellant to present his case as opened “if this case is to proceed”, as the respondents and their experts had not had an opportunity to consider the material the appellant now sought to lead. Her Honour also noted that the evidence “would have to be unreliable in the extreme, Mr Purnell, unreliable to the point where what is the point at this stage?”. Mr Purnell then sought a few moments, presumably to consult with the appellant and his instructing solicitors, before saying to the primary judge: “Our options were obviously to seek an adjournment with cost penalties and replead the case. That wouldn’t, of course, get rid of the problem of different stories… So we will press ahead with the case.”

49. Some further discussion then took place between Mr Purnell and the primary judge. The primary judge indicated that she was not going to exclude the histories given by the appellant to the various medical practitioners, but that she proposed to exclude evidence given by the appellant as to “urination”. She proposed to do that when the issue arose in the appellant’s case.

50. In the course of his evidence in chief the appellant was asked whether he remembered where he went after he left Amanda’s apartment. Counsel for the second respondents objected. Senior counsel for the appellant said: “I thought your Honour had made a ruling about what was going to happen with this, that I’m entitled to lead the evidence and then you would rule in relation to it.” The primary judge said: “All right. We’ll hear what he has to say.” The appellant then gave the following evidence: MR PURNELL: Like I said again, you remember leaving with Justin?‑‑‑Yes. Do you remember where you went with Justin?‑‑‑Yes. Where did you go?‑‑‑I went ‑ we came out and went, like, up towards the right, up towards that alleyway, walkway, where the stairs are. Did anything happen when you were up in that area?‑‑‑And like ‑ because me and Justin were like, staying together at the time and we were ‑ at that time I didn't have my own place, so we were, like, all over the place, so like, he was, like, asking me, "Where are we going?" because my friends had driven off in their car and that. So I was like ‑ I know I was a bit upset about something, so I told my stepbrother, like, just to buzz off, you know, like. Do you remember the exact words you used to him?‑‑‑I think I told him, like, "piss off", you know, like, "Leave me alone," yes. Do you remember where it was that you said that to him?‑‑‑Yes. Where was that?‑‑‑It was in that walkway, at the bottom ‑ ‑ ‑ Which walkway is that?‑‑‑At the bottom of the stairs there, at the Miramar Apartments. Where does that walkway go? Do you remember?‑‑‑It comes from Miramar Apartments, goes down and you can go to, like, Hungry Jacks or out to that main road there, or the lake. So after you told Justin to piss off and leave you alone, what happened next that you remember?‑‑‑And then I just remember ‑ remember telling him, yes, "Piss off," and then I'm pretty sure I was going to hang a leak and walked to the left and then that's all I can remember, yes.

51. Counsel for the second respondents then renewed his objection, to which the primary judge said: “I just want to hear what he has to say and then I’ll tell you which parts I’m excluding.” Subsequently, the appellant was shown a photograph of the relevant footpath and was asked whether, when he was with his stepbrother Justin, he was “anywhere in relation to what’s shown on that photograph”. Counsel for the second respondents objected. Mr Purnell accepted that any response by the appellant would be “subject to your Honour’s final ruling at some stage, whatever that’s going to be.” The appellant then testified: “I’m pretty sure I was at the bottom of the stairs, the bottom of the rails there, and told him to piss off and so he pissed off back up the stairs.” He then agreed with the proposition, put to him by Mr Purnell in leading form, that when he referred to a walkway he was referring to the walkway shown in that photograph, being the relevant footpath.

52. After the appellant concluded his evidence in chief, the primary judge made her ruling: I will limit the evidence to this: he remembers being on the walkway at some stage – on a walkway at some stage. There has been no evidence prior to today that he remembered leaving the apartment. So I won’t admit that. And I won’t admit the evidence concerning urination.

53. Senior counsel for the appellant found himself in the position that he was provided with instructions, shortly prior to the commencement of the hearing, different to those which his instructing solicitors had received previously concerning the crucial issue of what occurred after the appellant left Amanda’s apartment and before he was located injured in the driveway to Lakeview Square. The particulars previously provided by the appellant formed part of the pleadings. To the extent that the appellant sought to move beyond those particulars, he proposed presenting a case which had not been pleaded. Mr Purnell recognised this, and correctly identified two potential options for dealing with that difficulty. The appellant could seek to amend the pleadings, with the likely result that, if the application to amend was granted, the hearing would be adjourned and costs would be awarded against his client. The alternative was to proceed with the case as pleaded. The appellant chose the latter course. The primary judge was then called upon to determine what evidence adduced by the appellant was consistent with the case as pleaded, and what evidence was not so consistent. Her Honour made that ruling at the end of the appellant’s evidence in chief. The effect of the ruling was that the evidence given by the appellant concerning his movements after leaving Amanda’s apartment was excluded, except to the extent that he testified to a memory of standing on a walkway.

54. In our opinion, the primary judge was correct in ruling as she did. The proposed evidence departed from the case which, up to that point, had been pleaded by the appellant. Senior counsel for the appellant accepted that was so, and a forensic choice was made to proceed with the case as pleaded.

55. If we are wrong in this opinion, we make it clear that, as a question of fact, we would not accept the impugned evidence given by the appellant. In our opinion, that evidence is highly unreliable. The appellant sustained his injuries in March 2005, but it was not until July 2012 that he purported to have a memory of relevant events after leaving Amanda’s apartment. It is not clear what parts of the histories reported by the medical practitioners were recollections of the appellant and what parts were based upon his understanding that his legal claim was based on the proposition that he had fallen from the retaining walls. In our opinion, the evidence the appellant gave concerning his movements after he left Amanda’s apartment was so unreliable that it could not have affected the outcome of this case, even if it had been admitted.

56. A consequence of the rejection of the appellant’s evidence as to his movements after leaving Amanda’s apartment was that his case could not succeed. The appellant’s case is that the topography of the landscaped area between the relevant footpath near the western boundary of the Miramar Apartments and the retaining walls constituted a “trap”. It was described in these terms by the appellant’s senior counsel on the appeal. The scenario presented by the appellant is that he left the path, entered the bushes, lost his balance because of the slope towards Lakeview Square and fell from the unfenced top of Wall B.

57. Without the evidence excluded by the primary judge, the appellant’s scenario is pure speculation. Even if it were accepted, for the sake of argument, that the probable cause of the appellant’s injuries was a fall from Wall B, and that reasonable persons in the position of the respondents would have erected a fence at the top of Wall B, this is insufficient to establish liability on the part of the respondents for the appellant’s injuries.

58. There is nothing to the suggestion the primary judge failed to make a finding that the appellant was last seen on the walkway next to the retaining walls. Even if his evidence that he was there was accepted, there was no evidence at trial from any other witnesses that he had been there. The appellant’s step-brother, who might have provided such evidence, was not called by any of the parties. In those circumstances, were the evidence of the appellant admitted and accepted, there would still have been no evidence of him having been seen on the walkway, only his own evidence that he was there. It cannot be an error of the primary judge to not have found that the appellant was last seen on the walkway because there is no evidence of anyone having done so upon which her Honour could have based such a finding. Furthermore, a finding that, on the evidence, the appellant had last been seen on the walkway would not have taken matters much further unless any such sighting had been made very shortly before he was found on the driveway. A sighting an hour earlier would have proved nothing.

59. In order to establish liability on the part of the respondents, the appellant had to prove more than a fall from the top of Wall B. He had to prove that the fall was caused by the negligence of the respondents, or one of them. In the absence of evidence of his movements in the period of nearly one hour after he left Amanda’s apartment until he was found unconscious in the driveway of Lakeview Square, it is impossible for the appellant to establish the cause of his fall. We accept that the appellant does not need to establish the precise cause of his fall, but he does need to demonstrate that it resulted from the respondent’s negligence: Minogue v Rudd [2013] NSWCA 345. There is simply no evidence from which it may be properly inferred that the appellant came to be at the top of Wall B in the way he now suggests. The evidence establishes that there were a number of paths, walkways and stairs within the Miramar apartment complex. The evidence could not establish which path or walkway the appellant remembers being on after he left Amanda’s apartment. Similarly, there is no evidence of the appellant’s movements in the period of nearly one hour before he was found unconscious. If he did fall from the top of Wall B he may, for example, have climbed to the top of the wall, or he may have come to the position from where he fell by one of a number of different routes. He may even have jumped from the wall. The appellant was highly intoxicated on a cocktail of alcohol and drugs, so that no assumption can be made that he was acting rationally.

60. In their Notices of Contention, the respondents contend that the primary judge was in error in concluding that the place where the appellant was located at the foot of the retaining walls and the position in which he was found were circumstances consistent with the appellant having fallen. In our opinion, her Honour was correct. Both circumstances were consistent with a fall, in the sense that a fall could explain both the place where the appellant was located and the position in which he was found. The expert evidence did not suggest otherwise, and neither does logic or commonsense. But to say that they are consistent with a fall is not to say that they are only consistent with a fall, or that they are only consistent with a fall which occurred for the reasons urged by the appellant. The respondents also contend that her Honour was in error in finding, at [118], that “the evidence brought the plaintiff to the point where it was established that a fall from the retaining walls was possible”. Taken out of context, this statement may be interpreted as suggesting that the primary judge was making a finding as to the evidence of the appellant’s location in the grounds of the Miramar Apartments prior to him being injured. We are satisfied that this is not the case. This finding is found in the primary judge’s reasons under the heading “Topography”, and was in effect a rejection of a submission advanced by the respondents that the topography of the grounds at the top of the retaining walls made the appellant’s hypothesis of how he came to fall an unlikely one. Her Honour’s comment is simply a statement that the evidence did not rule out the possibility of a fall from the retaining walls.

61. If there had been evidence to establish that the appellant was injured in the way he claimed, we think the primary judge was correct to find that the respondents would have been liable in negligence, notwithstanding the appellant’s degree of intoxication. It was foreseeable that someone using the relevant footpath may leave it where there was a break in the vegetation. Such a person, intoxicated or not, may not appreciate that the ground to the west of the path remained level for only 600 mm before sloping to the top of Wall B, particularly at night. A loss of balance and a fall from the top of Wall B occasioning injury would be, in those circumstances, foreseeable. The evidence before the primary judge, however, did not establish that this is what occurred.

62. These grounds must fail. Ground of appeal b): The primary judge erred in finding that the appellant’s injuries were more probably the result of some form of assault than a fall. Ground of appeal c): The primary judge erred by making findings of fact without referring to evidence as to the positioning of the appellant’s jacket.

63. It is, again, convenient to consider these grounds together. The primary judge concluded that the appellant’s injuries were more likely the result of an assault upon him than a fall from Wall B. She gave reasons for making this finding. First, there was the absence of evidence of other injuries which one might have expected had the appellant fallen from Wall B. Secondly, her Honour considered the possible mechanism for a fall from Wall B resulting in only the injuries sustained by the appellant to be unlikely. In order to understand her Honour’s reasons, it is necessary to consider the evidence of Dr Collins, a consultant forensic pathologist retained by the appellant, and the evidence of Professor Duflou, a forensic pathologist retained by the respondents.

64. Dr Collins provided a report dated 19 October 2009. After examination of photographs of the scene and incomplete medical records of the appellant Dr Collins concluded that the appellant had sustained at least the following injuries when he was found on the driveway of Lakeview Square: (i) multiple, irregular, predominantly graze-like abrasions and bruises, involving left side of face, ear and left lateral neck, with associated facial swelling; (ii) scattered abrasions over dorsal and, particularly, palmar aspect of hands; (iii) multiple skull and facial fractures involving, inter alia, left maxilla, left orbital floor, squamous and petrous parts of left temporal bone, left zygomatic process and right side of the mandible; (iv) closed head injury.

65. In Dr Collins’ opinion all of the injuries were caused by the application of blunt force trauma to the left side of the appellant’s head and hands. The skull fracturing was extensive, and required significant or severe force to produce. Such a degree of force could not be generated by a simple fall to the ground from an erect position but could result from a fall of approximately three to four metres. Dr Collins said that the possibility that the appellant had been assaulted prior to falling to the ground could not definitely be excluded. The constellation of injuries made it highly unlikely that they resulted from a motor vehicle accident. On the evidence available to him, Dr Collins said “It is my robust opinion, that the entirety of [the appellant’s] injuries as identified by me is consistent with having been caused by falling from the adjacent wall on to the bitumen and there is no evidence to indicate that they were sustained by a motor vehicle collision or during an assault.”

66. After being provided with records from the appellant’s admission to the Canberra Hospital on 23 March 2005 Dr Collins provided a further report dated 28 December 2009. He noted that the clinical examinations performed by various medical practitioners during the appellant’s initial assessment and treatment contained only minimal additional documentation in relation to any skin and soft tissue injuries, and therefore no further progress could be made in determining their most likely mechanisms of causation. However, despite this lack of forensic detail, Dr Collins remained of the firm view that the appellant’s injuries were consistent with a fall from the adjacent wall on to the driveway. He considered that in the absence of injuries to the thorax, abdomen and lower legs of the appellant, and also apparent absence of damage to his clothing, the likelihood that the appellant’s injuries were sustained during a fall was markedly increased compared with the possibility that they were occasioned by being struck by a motor vehicle or by being involved in a physical assault.

67. The respondent’s pathologist, Professor Duflou, provided a report dated 17 October 2010. Based upon the medical records and the photographs of the appellant provided to him, Professor Duflou considered the appellant had sustained the following injuries: (a) Extensive abrasion (grazing) with associated bruising to the left side of the face, including the left cheek, left jaw, the left forehead, the pinna of the ear and the left side of the neck; (b) Fracturing of the left base of the skull, consisting of a fracture of the left petrous temporal bone extending into the left mastoid air cells and the middle cranial fossa; (c) A fracture of the left zygoma; (d) Fractures of the anterior and medial walls of the left maxillary sinus; (e) Bleeding from the left ear; (f) Fracture of the right mandible; and (g) Various cranial nerve palsies secondary to the injuries.

68. Professor Duflou noted that police who attended the scene at Lakeview Square examined the appellant and saw no sign of grazing on the palms of his hands. Professor Duflou noted that a medical practitioner, Dr Hollis, performed a detailed examination of the appellant commencing at about 2:25 am on 23 March 2005 but described no injury to the appellant’s upper limbs. He noted that photographs of the appellant’s hands, taken some time after surgery, showed some minor discolouration of the palm of the appellant’s right-hand and possible focal discolouration of the knuckles of both hands. Professor Duflou thought that these marks could have been caused by hospital staff holding the appellant down when he struggled during his admission process, or could be the result of medical treatment. On balance he was of the view that there was no injury to the hands of the appellant when he was found by police.

69. Professor Duflou considered that all of the appellant’s injuries were caused by the application of blunt force. With the exception of the fracture of the right side of the jaw, all injuries were on the left side of the face and underlying skull. Professor Duflou thought that it followed that the major force applied to the appellant’s head was on the left side. It was entirely possible that a single impact with that side of the head could have caused all the injuries. Whilst it was possible that a second blow may have caused fracturing to the right side of the mandible, it was also reasonably possible for a solid blow to the left side of the jaw to cause such a fracture. Professor Duflou accepted that the appellant’s injuries could have been caused by a fall, but in such a case he would have expected to see injury to the upper limbs as a result of the appellant attempting to break his fall by putting out his hands. Such an injury would be at least in the form of abrasions, and could very likely also be expected to include a range of fractures typical of falling onto outstretched hands. Professor Duflou noted that there were a number of features consistent with the appellant having been assaulted, including the extensive injury to the head caused by the application of force with a blunt object and fracturing of parts of the skull which are typical of those expected in an assault. The lack of injury to other parts of the appellant’s body would suggest that he did not have an opportunity to defend himself prior to being knocked unconscious. Professor Duflou also believed that the injuries to the appellant’s face could reasonably be the result of impact with one of many broad flat surfaces on a car, including potentially the windscreen, bonnet or side mirror. They could also be the consequence of secondary impact with the ground following impact of any part of the body with a moving motor vehicle. He considered that the appellant may have moved some considerable distance after sustaining his injuries before he collapsed.

70. In Professor Duflou’s opinion no definite conclusion relating to the mechanism whereby the injuries were sustained could be reached. He considered that all three scenarios, a fall, motor vehicle accident or assault, were equally likely.

71. Subsequently, Dr Collins provided a further report dated 24 March 2011 in which he commented on Professor Duflou’s report of 17 October 2010. Dr Collins noted that he had not previously received the material from the Australian Federal Police concerning examination of the appellant and his hands at the scene. He considered that the issue of whether the appellant had sustained hand abrasions remained unresolved, although he remained of the view that the relevant photographs of the appellant showed features consistent with the presence of healing abrasions on the dorsal palmar aspects of both hands. He disagreed with Professor Duflou’s suggestion that these marks could have been the result of treatment at the Canberra Hospital, although he gave no reasons for that view other than to “wonder” about the completeness of the total body physical examination performed by the medical practitioners at the Canberra Hospital. In any event, Dr Collins did not consider the existence of abrasions to the appellant’s hands to be pivotal to establishing how the appellant sustained his injuries. Dr Collins disagreed with Professor Duflou’s suggestion that the appellant could have walked some distance after receiving his injuries and prior to collapsing. In his opinion, taking into account the extensive skull fracturing, the ability to walk post injury would be highly improbable.

72. Dr Collins provided a further report dated 7 June 2011 after being provided with a number of documents from the AFP. He noted that at paragraph 2 of Constable Eggins’ case notes, she indicated “There was no sign of grazing on his palms”. Dr Collins thought that this observation should be assessed “with some degree of circumspection, as to its accuracy/reliability”. Dr Collins believed that any proper and detailed assessment at the scene at Lakeview Square of any injuries that may have been present on the appellant’s hands would be subject to a degree of difficulty as a consequence of less than optimal ambient lighting and the positioning of the hands, which the photographs suggested were partially covered by clothing.

73. Professor Duflou provided a further report dated 24 June 2012. Prior to providing that report he was provided with the detailed dimensions of the two retaining walls, noting that they were not, as he originally thought, a single retaining wall, but in fact were two separate retaining walls approximately 500 mm apart. Professor Duflou stated that if the appellant had stumbled and fallen over the upper retaining wall, it was highly likely this would have at least partially broken his fall and either caused him to land and remain on the area between the two retaining walls, or to have fallen a second time from the top of Wall A. If that had occurred, Professor Duflou would have expected there to have been disturbance of vegetation on the area between the two walls. Further, if the appellant had fallen from the top of the upper retaining wall onto the area between the two walls, he would have expected a wider distribution of injuries to his body. By reference to the pattern of blood located at the scene, Professor Duflou now considered it very unlikely that the appellant sustained his injuries at some other location. In conclusion he thought it unlikely that the appellant would have fallen from the top of Wall B, impacted with the ground between the two walls and then fallen to the roadway and landed in the position he did without injury to his limbs or other parts of the body. If the appellant had commenced his fall from the top of Wall A, Professor Duflou would not have expected his head to have been located where it was ultimately located. Further, in either of these scenarios, he would have expected there to have been some disturbance to the vegetation above where the appellant was found. He therefore concluded that the two most likely scenarios to explain the appellant’s injuries and the scene findings were either a physical assault on the appellant or a motor vehicle collision.

74. Both Dr Collins and Professor Duflou were cross examined. Dr Collins agreed that he had not mentioned the bloodstained tyre tracks in his reports, explaining that he did not consider them relevant to determining the cause of the appellant’s injuries. For the same reason he had not referred to the missing clutch kit. Dr Collins agreed that when a conscious person falls forward they usually put their hands out in front of them, but this would not necessarily be the case where the individual’s reflexes were compromised by alcohol and drug consumption. It was pointed out to Dr Collins that the appellant was found with his hands by his side, palms upward. Dr Collins agreed that it was a reasonable assumption that this was the position the appellant’s arms were in when he landed on the ground. Dr Collins agreed that the probability was that the appellant’s body hit the ground with his arms by his side. It was suggested to Dr Collins that one way of explaining this fact would be that the appellant had already been rendered unconscious before he began his fall. Dr Collins agreed that he could not entirely exclude that proposition. He also agreed that it was a possibility the appellant could have lost consciousness due to his intoxication. When asked what might explain the position of the appellant’s hands as observed by police at the scene other than a fall when he was unconscious, Dr Collins said: Well, the other ways are that he precipitated himself for whatever reason from the top of [Wall B], over the foliage, and landed, for whatever reason, with his arms by his side. I don’t think one has to explain it.

75. Dr Collins was then cross examined about the probability of the appellant falling from the top of Wall B to the position where he was found without hitting the top of Wall A or the area between the two retaining walls. It was suggested to Dr Collins that if the appellant fell from the top of Wall B, his feet or shins would have come into contact with Wall A. Dr Collins disagreed with this proposition. Dr Collins agreed that there was no evidence of significant damage to the foliage at the top of Wall A adjacent to where the appellant was found, but he did not accept that observable damage would necessarily have been occasioned to the foliage if the appellant had fallen from the top of Wall B. Dr Collins considered the position where the appellant was found was consistent with him having forward momentum when he left the top of Wall B. He agreed that the appellant could have been pushed.

76. Dr Collins stated that he considered the possibility that the appellant was struck by a car to be unlikely as he would have expected other injuries. The position of the appellant’s body was also a reason for Dr Collins rejecting as likely the possibility that the appellant had sustained his injuries elsewhere and had then been thrown from a car at the position where he was found. He thought that the appellant’s body “would be in considerable disarray” if that had occurred. He was asked whether he would have expected the appellant’s body to be in disarray if he had fallen, headfirst from the top of Wall B, and he responded: “not with the same degree of likelihood”.

77. In cross examination Dr Collins said that he believed that the appellant’s body was more likely to be tending towards the horizontal rather than the vertical when he hit the ground. He said that he could envisage “an erect individual” going to that foliage at the top of Wall B, in the foliage, stumbling through that, falling at some stage from the vertical orientation to the horizontal position, and then hitting the ground basically in the horizontal, headfirst position. In such a case he would have both forward and downward momentum. Dr Collins agreed that the appellant had hit the ground “relatively flat”. It was suggested to him that in those circumstances you would expect to see bruising “from head to toe”. Dr Collins said that that was not an unreasonable assumption except that the appellant had the possible protection of clothing. He agreed that the appellant’s head had taken the brunt of the force of the fall. He thought that the angle of the appellant’s body at the time of impact with the ground was close to horizontal, with the head slightly lower than the horizontal. It was suggested to him that if the appellant had landed this way you would expect to find bruising to the appellant’s chest. Dr Collins said that the appellant’s clothing may have protected him, and that it was unknown whether the appellant had sustained any “deep injuries”. Dr Collins agreed that the evidence showed the appellant was wearing shorts when found by police, although they were shorts which extended below the appellant’s knees. He disagreed with the proposition that if the appellant had fallen as he suggested, some injury to the exposed parts of the appellant’s legs would be expected. Dr Collins agreed that if a man fell three metres, basically horizontal, onto the ground and ended up in the position of the appellant, it was more probable that there would be signs of contact with the ground such as bruises, abrasions and potentially fractures, although it was possible he may have been protected by his clothing. It was also possible that the appellant had not been properly examined for injuries at hospital. Indeed, he said that the absence of a record of any such injuries in the hospital record made him doubt the sufficiency of the medical examination of the appellant.

78. In cross examination Professor Duflou reiterated his belief that the appellant’s injuries could have been sustained in a motor vehicle accident, probably with the vehicle travelling between 20 and 50 km an hour. He confirmed his opinion that all of the appellant’s injuries had been caused by the application of blunt force. He considered it unlikely that those injuries could have been inflicted by a fist. He also considered it unlikely that they could have been inflicted by a single kick. He accepted that the appellant’s injuries were consistent with him coming into contact with the bitumen. He accepted that a fall from a height of about 3 metres could have caused those injuries. It was pointed out to Professor Duflou that when located, the appellant was wearing a woollen jacket back to front. Professor Duflou accepted that if the jacket was on back to front it was more likely that the arms would not protrude from the jacket. He also accepted that if the arms did not protrude from the jacket, and the hands did not come into contact with the driveway, there may be no injury to the hands.

79. With respect to the proposition that the appellant sustained his injuries in a fall from the top of Wall B, Professor Duflou accepted that, with sufficient momentum, the appellant could have cleared both retaining walls and landed on the bitumen without hitting Wall A. He described the momentum required as “a flying leap”, but accepted that he could not advance an opinion as to the speed which the appellant would need to be travelling at the top of Wall B in order to achieve this. He was, however, uncertain whether this scenario was possible if the appellant had merely been walking before leaving the top of Wall B.

80. The primary judge was confronted by two experts who held differing views concerning the probable cause of the appellant’s injuries. Both experts accepted a fall from Wall B was a possible cause of those injuries. Professor Duflou considered it improbable that the appellant’s injuries were caused by such a fall, whereas Dr Collins thought it the most likely scenario. The primary judge was alive to the circumstantial evidence supporting the fall scenario: the position the appellant was found in, its proximity to the retaining walls and to the small break in the vegetation, the nature of the injuries (blunt force trauma) and the findings and conclusions of investigating police. Nevertheless, there was also evidence suggesting that the appellant’s injuries were not caused by a fall. The injuries sustained suggested a peculiar mechanism of any fall; that is, to have sustained the precise injuries, and no others, the appellant had to land head first on the driveway, without moving his hands to break his fall and with his hands beside his body (the position they were found in). Because of the lateral distance from the top of Wall B to the position where the appellant landed he must have left the top of Wall B with some momentum. Dr Collins accepted that to be the case. The fact that there were no injuries, including abrasions, to other parts of the appellant’s body was problematic, particularly bearing in mind the fact that his legs were at least partially bare as he was wearing shorts. In order to explain what would otherwise seem improbable (the absence of injuries), Dr Collins was forced to speculate about the appellant’s clothing possibly protecting him and the thoroughness of the medical examination of the appellant at hospital. The primary judge clearly did not accept the initial opinion of Dr Collins that the appellant had injuries to his hands when located by police. With respect, we agree with her Honour’s finding. The evidence of the police who located the appellant and the hospital medical records all support that finding.

81. The primary judge was entitled to consider that the absence of other injuries made the scenario of falling from the top of Wall B unlikely. We agree with that conclusion. In addition, her Honour was entitled to be sceptical of the proposition that the appellant could have fallen from the top of Wall B to where he was found without leaving the top of Wall B with a relatively significant degree of momentum. The need for some momentum in any fall from Wall B is what caused Professor Duflou concern, a concern shared by the primary judge. Professor Duflou did not inspect the site where the appellant was found, which limited the weight that could be given to his evidence on this point, but the primary judge did conduct a view with the concurrence of the parties. She was entitled to draw inferences from what she saw: s 54 Evidence Act 2011 (ACT). This Court should be slow to reject inferences drawn by a trial judge after a view: Pledge v Roads and Traffic Authority (2004) 205 ALR 56. In any event, the appellant’s expert, Dr Collins, ultimately agreed with the proposition that for the appellant to land where he was found required him to have left the top of Wall B with a degree of momentum. This resulted in the appellant inviting the court to speculate about how this could have occurred, suggesting he may have stumbled down the slope (of unknown degree) to the top of Wall B.

82. We are not satisfied that the primary judge made an error in concluding that the appellant’s injuries were not caused by a fall. The reasons she gave for making this finding (at [130]) are logical and cogent. With respect, we agree with them.

83. The complaint that the primary judge erred by not referring to the positioning of the appellant’s jacket is without merit. The primary judge referred to the opinion of Dr Collins that the appellant’s clothing may have protected him from other injuries. In particular, the primary judge, at [129], did not consider the absence of expected injuries to the appellant’s hands or arms to be “conclusive evidence” that he did not fall. The evidence concerning the precise positioning of the appellant’s jacket, and the extent to which it may have protected him from other injuries in a fall, was meagre, and did not require her Honour to say more than she did about the appellant’s clothing in general or the position of his jacket in particular.

84. The primary judge went on to determine that it was probable that the appellant’s injuries were caused by an assault. It was unnecessary for her to do so. The appellant’s case was that he fell from the top of Wall B due to the respondent’s negligence. To succeed, he was required to prove that scenario. The primary judge was not satisfied that he had proved it to the requisite degree. It did not fall to the respondents, or the primary judge, to prove how the appellant did sustain his injuries, or that it was probable that he sustained them in any particular way. We respectfully agree with the findings and conclusions of the primary judge. Notices of Contention

85. In the light of the conclusions reached regarding the grounds of appeal pleaded by the appellant, it is unnecessary to consider the Notices of Contention to any greater extent than we have in addressing those grounds. ORDERS

86. It follows that the appellant’s appeal must be dismissed with costs.

I certify that the preceding eighty six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate

Date: 19 May 2014

Counsel for the Appellant: Mr D J Higgs SC with Mr F J Purnell SC

Solicitor for the Appellant: Blumers Personal Injury Lawyers

Counsel for the First Respondent: Mr G J Parker SC

Solicitor for the First Respondent: Bradley Allen Love Lawyers as agents for McCulloch & Buggy Lawyers

Counsel for the Second Respondents: Mr G M Watson SC with Mr A R Muller

Solicitor for the Second Respondents: Moray & Agnew

Date of hearing: 7 November 2013

Date of judgment: 19 May 2014

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