Sutherland Shire Council v Dietz

Sutherland Shire Council v Dietz - [2004] NSWCA 53 - NSWCA 2003 case summary — Zoe

CATCHWORDS : NEGLIGENCE - EVIDENCE - personal injuries suffered by respondent when she fell into an open drain from which grate had been removed - whether trial judge's conclusion that Council breached its duty of care "glaringly improbable" - failure to consider evidence - where case determined upon a basis not put to appellant's witness - failure to give proper reasons for rejecting evidence - whether respondent nevertheless established sufficient prima facie case - D Abalos v Australian Postal Commission [1991] HCA 47 (1990) 171 CLR 167 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Broken Hill Proprietary Co Limited v Waugh (1988) 14 NSWLR 360 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; 62 ALR 53 Burwood Council v Byrnes [2002] NSWCA 343 Chambers v Jobling (1986) 7 NSWLR 1 Cofield v Waterloo Case Co. Limited (1924) 34 CLR 363 Davis v Council of the City of Wagga [2004] NSWCA 34 De Gioia v Darling Island Stevedoring & Lighterage Co Limited (1941) 42 SR (NSW) 1 Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 Fabre v Arenales (1992) 27 NSWLR 437 Fox v Percy [2003] HCA 22 (2003); 197 ALR 201; (2003) 77 ALJR 989 Gurnett v Macquarie Stevedoring Co. Pty Limited (1955) 55 SR (NSW) 243 CASES CITED : Hampton Court Limited v Crooks (1957) 97 CLR 367 Hobbs v C T Tinling & Co Limited [1929] 2 KB 1 Holman v Holman (1964) 81 WN (Pt 1) (NSW) 374 Jones v Bradley [2003] NSWCA 81 Jones v Dunkel (1959) 101 CLR 298 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Mifsud v Campbell (1991) 21 NSWLR 725 R v Ryan (NSWCCA, unreported, 15 April 1994, BC9402482) Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3, (1999) 73 ALJR 306 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 Warren v Coombes (1979) 142 CLR 531 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 Zaronias v Papaiani [2002] NSWCA 207 PARTIES : Sutherland Shire Council (Appellant) Sandra Dietz (Respondent) FILE NUMBER(S) : CA 40955/02 COUNSEL : Mr J E Maconachie QC/Ms V Heath (Appellant) Mr B M J Toomey QC/Mr I D Cullen (Respondent) SOLICITORS : Ebsworth & Ebsworth (Appellant) Paul A Curtis & Co (Respondent)

[24]

Statement of the case 10 On 24 March 2000 the respondent was walking along the pathway passing between a number of community facility buildings near the Menai Town Centre. The pathway was located between two legs of Allison Crescent. There was a clock tower with four archways allowing access on each side to community buildings midway along its length. The pathway was 3m wide and constructed of a concrete base with border tiles around exposed aggregate infill panels. At the western edge of the clock tower there was a 300mm wide box drain with a 360mm wide grated cover set in a steel frame. The drain ran across a pathway and was bounded on each side by a row of tiles. Photographs of the area were tendered. Garling DCJ found they depicted an "excellent path". 11 The respondent was walking along the pathway with an acquaintance, Ms Hart, who was walking slightly behind her using a walking stick. 12 The respondent's account of the accident was simple: she was walking along the path, her foot went into the open drain, she fell and injured herself. She said that there was a structure (presumably the clock tower) which cast a shadow across part of the area where the grate should have been. Although Garling DCJ did not make an express finding to this effect, it appears that he accepted that the shadows obscured the respondent's ability to identify the fact that the drain was open rather than forming a part of the path along which she had been progressing immediately prior to the accident. The respondent realised, after she fell, that the drain did not have a cover. She looked around to see whether she could see a cover and was unable to see one anywhere. She also observed that the drain was clear of any debris and saw mud and "scraping marks". She also saw a pile of mud and a few leaves on one side of the drain on the pathway. 13 Ms Hart also looked around after the accident and could not see a grate. She observed the drain to be "an open drain with muddy inside but it was cleanish" and that there was "a clod of mud or something with leaves on the right hand side". 14 After the accident the respondent and her friend went to a nearby Community Health Centre and asked a woman, who it later transpired was a Mrs Lisk, to report the accident. The respondent and her friend were in that building for approximately five minutes or less. When they emerged they saw the council employee later identified as Mr Duncan on his knees with a grate, dropping it into the drain into which the respondent had stepped. The respondent and Ms Hart both gave evidence of a conversation which they said occurred with the workman. The respondent told the workman she had fallen down in the drain and asked where the grate had come from. The workman then said he had found the grate and indicated towards an area which appears to have been some distance away from the drain. Ms Hart said she had previously looked at the area the workman had indicated and had not seen the grate there. 15 The respondent and her husband returned to the area in the afternoon and photographed the drain into which she had stepped and the pathway along which she had walked prior to the accident. Two of the photographs depict what appears to be a small amount of mud and possibly some other debris on one side of the drain. The respondent gave evidence that the mud as depicted in the photograph was dry and flattened out compared to the morning when she had fallen. 16 The respondent said that prior to her fall she had seen the workman who replaced the grate in the adjacent parkland. She said he was almost next to his vehicle which was about 30m up the pathway. He was picking up papers. 17 Mr Duncan, the workman in question, was employed by the Council as a labourer/driver. He had worked in that position for approximately eight years prior to the accident. He had been employed by the appellant for almost twenty-eight years at the time of the accident, thirty years at the time of the hearing. 18 Mr Duncan gave evidence redolent of a routine of compelling ordinariness. 19 On Monday and Friday of each week he was responsible for picking up all the rubbish and cleaning the three bins in the area of the pathway. The area he was responsible for cleaning extended for nearly an acre. It was not his responsibility to pick up debris. That was the responsibility of other maintenance employees of the appellant. It was not his job to clean drains. 20 He said that the job he had to do at Menai was one of the last jobs of the day. He was to knock off work at 1 pm on the day in question. 21 On that day he said that he arrived in the area of the pathway, parked his car, got his pick up stick and started picking up rubbish. He said that as he was going around his area he noticed the grate over the drain was missing. He found it on the grassed area. He marked one of the photographs which had been tendered with the position in which he said he found the grate. Garling DCJ observed that although it was difficult to gauge the distance, probably the most significant observation which could be made in relation to the mark Mr Duncan placed on one of the photographs was that, according to Mr Duncan, the grate was lying on the grassed area which the respondent would have walked past immediately prior to the accident. 22 Mr Duncan said he had not worked near the drain before he saw the grate was missing. He said that he pulled the grate along the ground to put it back into the drain. He said he did not lift it because it was "a bit heavy". 23 He said he had never seen the grate off the drain before and that he had not removed it. 24 Under cross-examination he denied cleaning the path in which the drain was located. He could not remember a conversation with the respondent and her friend. He did not deny it happened. 25 The proposition that, contrary to this evidence, he had removed the grate from the drain was put to him with ritualistic formality in the following passage of cross-examination: Q. You see sir, I put it to you that in fact on 24 March 2000 you removed the grate in order to clean the drain? A. Well I don't clean the drain for starters. Q. Do you agree with that or disagree with that? A. I disagree what you said, I do not clean the drain. Q. I put it to you that you removed the grate? A. I did not remove the grate and I do not clean the drain. 26 He said that two people had to lift the grate and that he had not lifted it, rather he had pulled it across the grass, across the grate area and then dropped it into the drain. 27 At the respondent's request, Mrs Lisk reported the fact that the drain was uncovered to the Council. Later that day a Mr McGrath, an electrician employed by the appellant, went to the area. He found the grate was intact. His building works' co-ordinator had told him to make the grate secure and he sought to do that by knocking some galvanised washers in the gap between the grate and the wall of the drainage pit. He tried to lift the grate out of the drain and found that he struggled to lift it 25 centimetres. He described it as "fairly heavy". 28 The respondent tendered an expert's report prepared by a Mr Burn, an engineer. He inspected the drain and the grate and observed that the grate had been fixed against vandalism by two standard steel flat washers. He concluded that it required considerable pressure with a large screwdriver to dislodge the washers and lift the grate. He concluded that the use of the washers was a practical solution preventing the easy removal of the main panels of the grate. 29 The appellant tendered an expert's report prepared by Mr Abbott, also an engineer. It was admitted without objection. He described the grate as being 3m x 360mm and weighing 55kg. He said it would most likely take two or more youths to lift and remove the grate. 30 He said that the drain was designed to be self-cleansing, thus negating the need for regular maintenance except at pits. He said it was standard practice in the design and construction of gravity flow stormwater and sewer drainage systems to lay the pipes or gutters with sufficient fall to ensure they were self-cleansing. He said that the subject drain had a grade of 1 in 43 or 2.3% which was more than adequate to perform the self-cleansing function. He said that the design of the grated drain was in line with current public works practice. He concluded the grate was removed by persons unknown but considering its weight "it was most likely two or more adult persons". 31 Neither expert was required for cross-examination.

[25]

Reasons of the trial judge 32 The trial judge identified two issues which he said he had to resolve. 33 The first issue was whether a Council employee working in the vicinity of the drain had removed the grate to clean it, and had not placed any warnings in or around the open drain, with the consequence that whilst the grate was removed the respondent had stepped into the drain. He noted that there was no direct evidence of the allegation that a Council employee had removed the grate to clean the drain. 34 The second issue the trial judge identified was the respondent's alternative case that if the grate had been removed by vandals then the Council had breached its duty to her because it should have secured the grate in such a manner that it could not have been easily removed. 35 The Council's response to that issue was to say that while it may have been preferable to have fixed the grate more securely, having regard to the weight of the grate and the fact there had been no previous incident involving it, the case should not be decided with the benefit of hindsight. 36 The trial judge resolved the case by finding in the respondent's favour on the first issue. He did not consider the second issue. The respondent has not complained about that fact. She has not filed any notice of contention. 37 The trial judge delivered his judgment on the day the evidence was taken. It appears to have been ex tempore. It is repetitive and, at times, appears confused. The following account of the judgment is recounted in the order in which it was delivered. 38 The trial judge recounted the short facts of the case. He accepted that the grate was long and reasonably heavy. He found that the grate had been totally removed from the drain and that it was not in the vicinity of where the respondent had her accident. 39 After referring to the encounter between the respondent, Ms Hart and Mr Duncan, and Mr Duncan's statement that he had "found the cover nearby", the trial judge commented: "All that adds up to a fairly strong inference to support the plaintiff's case." 40 He then recounted Mr Duncan's evidence, noting the period which had elapsed before he had been asked to turn his mind to the incident, the fact that he had no memory of speaking to the respondent and Ms Hart, his evidence that he did not clean drains, and his recollection of replacing the drain cover. 41 The trial judge accepted that in order to resolve the case he had to determine whether he could infer that Mr Duncan had removed the grate in order to clean the drain. He concluded that the only reasonable inference open was that the drain was being cleaned by Mr Duncan, who removed the cover for the purpose of cleaning it, had not replaced it and had neglected to warn people. He came to that conclusion for what he described as a "large number of reasons" which I set out below. 42 The trial judge first concluded that the respondent and Ms Hart were excellent witnesses whose evidence he could accept without difficulty. After the accident they both observed that whilst the drain was clear of leaves there was mud and in one case scrape marks leading to the clear inference, in his Honour's view, that the drain had been cleaned. The trial judge concluded that the evidence of what he described as "clumps of mud and debris" outside the drain, was consistent with the drain being cleaned. While his Honour touched, albeit lightly, on the possibility that the drain was clear of leaves because there were no leaves in the vicinity, he rejected that in preference to "the clear inference that it had been cleaned". 43 Next, the trial judge referred to the weight of the grate and the fact that it would have been difficult for it to be lifted. He referred to Mr Duncan as "a large man … obviously a person who had worked outside for at least ten years who would have been able to and did, put or drag the drain back into place and therefore would have been capable of removing it". 44 He also referred to evidence that the respondent had told Mrs Lisk that the grate had been lifted for the purpose of cleaning and that was "clearly … in her mind". What reference that observation had is not readily apparent. 45 Next, his Honour referred to "the high point, there is Mr Duncan, an employee of the defendant, putting the drain cover back in place". 46 The trial judge then sought to explain how it had come about that Mr Duncan was putting the drain cover back into place within five minutes of the accident. His Honour's process of reasoning at this stage is not entirely clear and is best set out in full: "I have to ask myself why that suddenly happened. If he was not cleaning it, if he had been there, and he had been there because the ladies observed him, why did that suddenly happen? He did not say in his evidence that he had seen the fall or that anyone had told him what had happened but he was, within a very short time, replacing the cover. His actions are totally consistent, in my view, with a person who was cleaning the drain who had left the cover off whilst doing something else and had realised that suddenly had to be put back on. His actions in my view and his evidence were totally consistent with a person not accepting the blame for what may have happened. In addition to that, neither of the ladies saw the drain cover close to the area of the drain. It is unlikely that the drain cover would have been off for any extended period of time ." (Emphasis supplied) 47 His Honour then, as I understand the structure of his judgment, reviewed the appellant's case. 48 The trial judge rejected the Council's hypothesis that the drain cover had been removed by vandals. He appears to have done so on the basis that had vandals removed the drain cover, that would have been done either in darkness or in the early hours of the morning and that, having regard to the time at which the accident happened (some time between 10.30 and 11.00 am), it was highly unlikely that no one would have done anything about the open drain in the meantime. 49 He also observed that there was no evidence of signs of any other type of vandalism, queried why this particular heavy drain cover would be taken up and observed that there had been no previous reports of vandalism to the grate. Finally, he concluded: "So for it to be vandals, then it would have had to, in my view, have occurred at such a time when there were not many people in the area. It would have had to be a very isolated incident of vandalism which seemed to have no purpose at all and would seem to me to be totally unlikely." 50 The trial judge then weighed up the evidence to which he had referred. He considered it was possible that vandals could have removed the drain cover and that no one had noticed over an extended period of time. He said it was possible Mr Duncan may have been correct to say it was not his job to clean the area. 51 The trial judge dismissed these possibilities without elaboration. He concluded that he was satisfied that the only reasonable inference open on the evidence was that the grate was removed by Mr Duncan for the purpose of cleaning the drain, that he had not put it back, had not warned anyone about the obvious danger and "he could have easily done all of these things." 52 The trial judge made passing reference to the two experts' reports but concluded neither was of much assistance. 53 Turning to the issue of contributory negligence, the trial judge concluded that the hole was in the middle of the shadows, that the respondent had been "walking along in the normal manner and doing everything she should do." He found that there was no contributory negligence. The Council does not challenge that finding.

[32]

The inference was not available 61 The appellant submitted that the trial judge's conclusion that Mr Duncan had removed the grate to clean the drain failed the test of logical coherence and reasonableness required before an inference is available: Gurnett v Macquarie Stevedoring Co. Pty Limited (1955) 55 SR (NSW) 243 at 248 per Street CJ with whom Ferguson J agreed; Fabre v Arenales (1992) 27 NSWLR 437 at 448 per Mahoney JA with whom Priestley and Sheller JJA agreed. It was submitted that the "facts" on which the trial judge relied did not achieve that degree of positive suggestion required before mere possibility can pass from the "realm of conjecture" into the "realm of inference": Jones v Dunkel (1959) 101 CLR 298 at 306-7 per Kitto J. 62 The appellant further submitted that Mr Duncan's evidence that he found the grate and replaced it was reasonable, probable and consistent with the objective facts and was such that the trial judge was not entitled to reject it without there being clear reasons for doing so: Holman v Holman (1964) 81 WN (Pt 1) (NSW) 374 at 278 per Sugerman J; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431-432, 441 ff; Jones v Bradley [2003] NSWCA 81 at [125]. 63 The appellant also submitted that the trial judge's conclusion did not sufficiently accord with human experience of how people are apt to act for an inference to that effect to be available: see Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 222-227 per Mahoney JA; Jones v Dunkel (1959) 101 CLR 298 at 306-307 per Kitto J; R v Ryan (NSWCCA, unreported, 15 April 1994, BC9402482 per Mahoney JA with whom Gleeson CJ and Wood J agreed at 5). 64 Further, even if Mr Duncan's evidence of finding the grate could be disregarded, the respondent's case that he removed the grate did not rise above mere possibility (see Cofield v Waterloo Case Co. Limited (1924) 34 CLR 363) and was, on all the other evidence, inherently improbable. 65 The appellant then submitted that accepting the hypothesis that Mr Duncan removed the grate to clean the drain required the trial judge to conclude that a Council labourer of many years' experience undertook difficult work that was not his job, work that required a significant and senseless detour from the economical performance of his usual duties, work that was more than one man could readily or safely undertake, work that was apparently unnecessary and that if undertaken in the manner the trial judge found, was performed with an additional degree of arduousness entirely unexplained on the evidence. 66 Accordingly, the appellant submitted that the evidence advanced to support the respondent's case did not rise above the merely equivocal. It submitted that if proper significance was accorded to the trial judge's finding that the grate was not in the vicinity of the drain, the proposition that the drain was being or had been cleaned became extremely improbable. The appellant submitted that if the grate had been removed in order to enable the drain to be cleaned, the natural and probable course would be to move the heavy, awkward grate as little as possible by placing it partly over or immediately next to the drain so it could be dragged back into place with the least possible additional effort. The appellant submitted that there was no apparent reason why the grate would be removed from the area of the drain which would be consistent with the drain being cleaned. 67 Penultimately, the appellant submitted that the presence of the scrape marks in the drain, to which the trial judge accorded significance, was equally if not more likely explained by events other than manual cleaning, including the action of debris washing through and out of the drain in its normal operation, the grate being dropped into and dragged out of the drain in the course of its removal by persons unknown or that somebody had stepped into the drain prior to the respondent and left shoe marks. 68 Finally, the appellant submitted that the small clumps of dirt and leaves next to the drain did not support the inference the trial judge drew. It was submitted that the amount of mud and leaves found adjacent to the drain would not have blocked it and would have been a most improbable impetus for cleaning it. The appellant also submitted that the clumps may have come from the drain or elsewhere, and if from the drain, may have come loose from the grate when it was removed, or from a person scraping retained mud from their shoe after inadvertently stepping into the drain. 69 In short, the appellant submitted that Mr Duncan's appearance at the scene was better explained by diligent attendance to his duties than inane excursions from them.

[38]

Overlooking/wrongly rejecting Mr Duncan's evidence/failure to give proper reasons 76 The appellant then complained that the trial judge overlooked or wrongly rejected Mr Duncan's evidence and failed to give proper reasons. In particular, the appellant complained that the trial judge had not referred to Mr Duncan's evidence of how he came to find the grate in the course of carrying out his usual rubbish collection duties. The appellant thus submitted that the trial judge's failure to refer to this evidence implied that his Honour had overlooked it, referring to Mifsud v Campbell (1991) 21 NSWLR 725 at 728; cf Jones v Bradley [2003] NSWCA 81 at [123] - [126], [131]. 77 The appellant criticised the trial judge's assessment both of Mr Duncan's motives and his actions in a number of respects. First, the appellant said that the trial judge's conclusion that Mr Duncan's actions were "totally consistent with a person not accepting the blame for what may have happened" had never been put to Mr Duncan. The appellant submitted there was no evidence that Mr Duncan had any motive to lie on oath. Moreover, the appellant submitted that the suggestion of intentional untruthfulness was inconsistent with the trial judge's earlier finding that Mr Duncan was "no doubt trying to do his best". 78 The appellant also submitted that the trial judge's interpretation that Mr Duncan had been cleaning the drain, had left the grate off while doing something else and realised suddenly it had to be replaced, was not only never put to Mr Duncan but was also contrary to a reasonable view of the evidence. The appellant submitted that the trial judge gave no reason why Mr Duncan would undertake the task at all in the circumstances or in the exceedingly arduous and illogical manner postulated. 79 The appellant then submitted that the evidence Mr Duncan gave about where he had parked his car and how he had commenced his rubbish collection duty was not contradicted, and that the trial judge had given no reason as to why Mr Duncan would have walked 30 metres to clear a drain, left the job incomplete and returned to his point of origin to start or continue a normal or different duty. It submitted that that proposition was quite improbable. 80 The appellant criticised the trial judge's statement that Mr Duncan was a "far from impressive witness" on the basis that the trial judge gave no reasons as to why he formed that view or how it affected his assessment of the evidence. The appellant complained that the trial judge did not refer to Mr Duncan's demeanour as having any adverse bearing on his view of the evidence and drew attention to the statement made about Mr Duncan immediately prior to the criticised statement, namely that Mr Duncan was "no doubt trying to do his best". 81 The appellant also submitted that the trial judge's statement that he did not accept the "accuracy" of Mr Duncan's evidence cast no further light on how that proposition affected the trial judge's conclusion that Mr Duncan had removed the grate. The appellant submitted that accuracy was irrelevant either to Mr Duncan's evidence of the scope of his duties and his invariable practice, and his recollection of finding and replacing the grate in the course of his rubbish collection duties.

[54]

Consideration 92 I am conscious of the constraints which bind an appellate court asked to review the findings of a trial judge based solely on the record of the hearing, especially in circumstances where, on one view, it is possible the trial judge's conclusion depended upon Mr Duncan's credibility: Fox v Percy [2003] HCA 22; (2003) 197 ALR 201; (2003) 77 ALJR 989. 93 Nevertheless, as was said by Gleeson CJ, Gummow and Kirby JJ in their joint judgment in Fox v Percy at [25] (footnotes omitted): "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"... In Warren v Coombes , the majority of this Court reiterated the rule that: "[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." As this Court there said, that approach was "not only sound in law, but beneficial in ... operation". 94 In some cases, described as "quite rare" in the joint judgment in Fox v Percy (at [29]), "although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is "glaringly improbable" (Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57) or "contrary to compelling inferences" in the case (Chambers v Jobling (1986) 7 NSWLR 1 at 10). In such cases "the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses [and] making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion.": Fox v Percy (at [29]). 95 Having, I believe, given due weight to the trial judge's conclusion, I am unable to agree with it. This is one of the "rare" cases in which, in my view, the trial judge's conclusion that Mr Duncan removed the grate to clean the drain was glaringly improbable. Moreover it was reached in circumstances where the trial judge failed to consider all the evidence and determined the case upon a basis which was not put to the appellant's witness. 96 I turn first to the matters upon which the trial judge relied to reach his conclusion.

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The drain had been cleaned 97 The first was his Honour's conclusion that the observations made by the respondent and her friend were consistent with the drain having been cleaned. 98 That may be so. However, the trial judge made no reference to the unchallenged expert evidence that the drain was designed to be self-cleansing and that its pipes and gutters had been designed and constructed with sufficient fall to ensure it operated in that manner. That was Mr Abbott's expert opinion. His report also stated that "the subject drain has a grade of 1 in 43 or 2.3% which is more than adequate". It requires little extrapolation to infer that Mr Abbott's reference to adequacy was a reference to the drain operating as designed so as to be self-cleansing. The fact that the drain was self-cleansing meant that when one removed the grate which covered it, it may, for reasons entirely consistent with its ordinary function, bear the appearance of having been cleaned. The fact it bore that appearance did not, in my view, support the inference that the grate had been removed in order to clean it. 99 Mr Abbott's evidence, in my view, was powerfully supportive of three propositions: first, that the appellant had a system in place in relation to cleaning the drain. The drain cleaned itself because of its design and construction. It did not require manual cleaning. Secondly, albeit more indirectly, Mr Abbott's evidence supported Mr Duncan's evidence that it was not his duty to clean the drain. There was no need to prescribe manual cleaning of a drain which was self-cleansing. Finally, the fact the drain was self-cleansing meant that, absent extraordinary circumstances as to which there was no evidence, there would be no need for a council worker, such as Mr Duncan, even if it was not his duty to clean the drain, nevertheless to embark upon that exercise. 100 As to Mr Toomey QC's submission that while there was evidence that the drain was designed to be self-cleansing, nevertheless there was no evidence it was functioning in that manner on the day of the accident, Mr Maconachie QC submitted that the respondent had never challenged the proposition that the drain was not functioning as designed on the day in question. I accept that submission. 101 The trial judge's reliance upon the respondent informing Mrs Lisk that the grate had been lifted for the purpose of cleaning is neutral if not irrelevant and certainly not probative of the fact that the drain had been manually cleaned. It may well have been the respondent's view but, in the light of the matters to which I have referred above, her observations of the drain were equally consistent with the proposition that the drain was functioning in the self-cleansing manner for which it had been designed and, according to Mr Abbott, constructed. 102 The trial judge's failure to take the design and functioning of the drain as a self-cleansing unit into account substantially undermines the first premise upon which he relied to reach the conclusion that Mr Duncan had removed the grate in order to clean the drain. 103 The presence of mud and leaves adjacent to the drain did not support the inference the drain had been manually cleaned. To most familiar with the task of cleaning, it strains credulity to believe that had the drain been cleaned of mud and leaves, the debris removed would have been left adjacent to the drain in what otherwise appeared from the photographs which were tendered to have been an immaculately maintained pathway.

[58]

107 I accept that the trial judge found that Mr Duncan replaced the grate very soon after the respondent's accident. However there was an abundance of evidence, not referred to and apparently not considered by the trial judge, as to why that might have occurred. Mr Duncan was carrying out his duties nearby. The respondent's evidence was that prior to her fall she had passed Mr Duncan along the path - he was apparently about 30 metres away. She saw him picking up papers, precisely the activity Mr Duncan said it was one of his duties to perform in the park. Mr Duncan said he saw the grate was missing as he carried out his normal duties, looked around and found it and dragged it back to the drain. There was no reason to reject that evidence. 108 Mr Toomey QC sought to support the trial judge's conclusion on the basis that it was rational to reject Mr Duncan's explanation that he found the grate and put it back over the drain because Mr Duncan had said he saw the grate in a position where one of the other witnesses said it had not been. Leaving aside the fact that the trial judge did not refer to that matter in his judgment, the fact that Mr Duncan recalled seeing the grate in a position where one of the other witnesses could not recall it is not, in my view, a rational basis to support a conclusion that Mr Duncan had removed the grate. There is simply no connection between the two propositions. 109 Mr Duncan's evidence concerning the circumstances in which he located the grate was not challenged, save indirectly in the cross examiner's proposition that he had removed the grate in order to clean the drain. Mr Duncan's evidence that he was undertaking his ordinary duties in the park and found the drain in the circumstances I have set out above provided a rational explanation for the relatively short period which elapsed before Mr Duncan placed the grate in place. 110 On either party's case, the grate was returned to the drain by Mr Duncan. The fact that, as the trial judge found, it was returned within "a very short time" after the accident does not provide a basis for inferring that he returned it, in effect, because of a consciousness of guilt. 111 The trial judge's reasons disclosed no rational basis upon which the lapse of time on which his Honour relied could constitute the "high point" in inferring that Mr Duncan had removed the grate in order to clean the drain.

[62]

Failure to give reasons 119 In my view, the appellant was justified in its complaint that the trial judge failed to give proper reasons for rejecting Mr Duncan's evidence. Apart from his passing reference to Mr Duncan being a "far from impressive witness" to which I refer in more detail below, the trial judge gave no indication as to why he did not accept Mr Duncan's account. 120 An appeal court derives no assistance in its attempt to understand why a trial judge drew an inference determinative of the case if the trial judge does not explain why he rejected critical evidence supporting the opposite conclusion. This Court should not be left in the position where it must speculate from the trial judge's collateral observations concerning his view about Mr Duncan's desire to exculpate himself, this being the basis upon which he found that Mr Duncan had in fact removed the grate: see Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 701 - 702, 713; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 280 per McHugh JA. 121 The respondent's submission that Zaronias v Papaiani [2002] NSWCA 207 supports the proposition that the trial judge was not under any obligation to sift through all the evidence before him and explain at length why he rejected each item that was conceivably inconsistent with his decision is misconceived. 122 In Zaronias v Papaiani Meagher JA (with whom Foster and Ipp AJA agreed) said (at [7]) that where evidence was not absurd or self contradictory, the trial judge was not obliged to sift through all the evidence before him and explain at length why he rejected each item that was conceivably inconsistent with his decision. Zaronias v Papaiani concerned a trial judge's acceptance of a witness's evidence that he had told the deceased approximately 10 to 15 minutes before the accident which caused his death, that he was not needed on site. The evidence the appellant asserted the trial judge should have referred to before he accepted that account was "some evidence" that the time which elapsed between the conversation and the accident was 25-30 minutes. Meagher JA said (at [7]) "generally speaking", once the trial judge accepted the witness's account of the period which elapsed between the two events, and in circumstances where "it simply does not matter", he was under no obligation to explain why he did not accept the 25-30 minute evidence. 123 This case is entirely different. The trial judge's conclusion did not depend upon preferring evidence which contradicted Mr Duncan. It depended upon him rejecting Mr Duncan's uncontradicted direct testimony in order to draw inferences adverse to the appellant's case. In such circumstances, in my view, he was obliged to explain why he did not accept that testimony and why, instead, he preferred to draw an inference which determined the case in the respondent's favour.

[63]

Can the respondent's verdict be sustained? 124 The trial judge never explicitly rejected Mr Duncan's evidence that he did not remove the grate. That rejection must be inferred from his conclusion that Mr Duncan did remove the grate. However, rejecting Mr Duncan's denial of having removed the grate, as Mr Toomey QC accepted, did not entitle the trial judge to conclude that Mr Duncan did in fact remove the grate. It meant only that there was no evidence on the subject: Jack v Smail (1905) 2 CLR 684 at 695-6, 698; Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 684, 694; Broken Hill Proprietary Co Limited v Waugh (1988) 14 NSWLR 360 at 366; Hobbs v C T Tinling & Co Limited [1929] 2 KB 1 at 21. 125 Rejecting Mr Duncan's evidence left the trial judge, as Mr Toomey QC conceded, with a circumstantial case. Mr Toomey QC submitted, nevertheless, that the verdict could be sustained because of the circumstances I have outlined in the section dealing with the respondent's submissions. 126 I have dealt with most, if not all, of these matters in dealing with the trial judge's reasons. However Mr Toomey QC also submitted that the case fell within the principle in De Gioia v Darling Island Stevedoring & Lighterage Co Limited (1941) 42 SR (NSW) 1 at 4 that where the facts were peculiarly within the knowledge of the defendant and it was difficult for the plaintiff to produce them, then "very slight evidence pointing to [the] existence [of facts essential to the plaintiff's case] may be treated as sufficient to justify a jury in holding that they do exist." He submitted that it had been incumbent upon the appellant to dispel the inference that it had been negligent. 127 Much the same point as Jordan CJ made in De Gioia v Darling Island Stevedoring & Lighterage Co Limited, was made by Dixon CJ in Hampton Court Limited v Crooks (1957) 97 CLR 367 at 371 where he observed that "a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it." 128 In De Gioia v Darling Island Stevedoring & Lighterage Co Limited Jordan CJ also pointed out that if a prima facie case had been made out only if some evidence remained unexplained, and the defendant furnished an explanation by evidence which could not be treated as genuinely in dispute and which reasonable men could not reject, then what appeared to be a prima facie case no longer existed in point of time. 129 In this case, assuming, contrary to what I have already said, that the trial judge was entitled to reject Mr Duncan's statement that he had not removed the grate, there was evidence from the Council which, in my view, was sufficient to displace any prima facie case the respondent may have established. That was the evidence that the drain was designed and constructed to be self-cleansing. That evidence was not disputed. There was no reason for it to be rejected. It sufficiently dispelled any inference that anybody on behalf of the Council would have removed the grate.

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