Miller v Council of the Shire of Livingstone
[2003] QCA 29
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- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
- Miller v Council of the Shire of Livingstone[2003] QCA 29
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Miller v Council of the Shire of Livingstone[2003] QCA 29
Miller v Council of the Shire of Livingstone[2003] QCA 29
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Court of Appeal | |
PROCEEDING: | Personal Injury – Liability Only |
ORIGINATING COURT: | |
DELIVERED ON: | 14 February 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 November 2002 |
JUDGES: | McPherson and Jerrard JJA and Helman J |
ORDER: | Appeal dismissed with costs |
CATCHWORDS: | TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGES – CAUSATION – whether breach of duty caused injury APPEAL – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where inferences of fact involved generally –whether trial judge erred in finding of fact – whether trial judge erred in inferences drawn from fact Uniform Civil Procedure Rules 1999 (Qld) r 149(1)(c), r 150(4)(c) Browne v Dunn (1893) 6 R 67, considered Jones v Dunkel (1959) 101 CLR 298, considered |
COUNSEL: | J Curran for the appellant R J Douglas SC for the first respondent R C Morton for the second respondent |
SOLICITORS: | Robert Harris & Co for the appellant Barry & Nilsson for the first respondent C W Lohe, Crown Solicitor for the second respondent |
[1] McPHERSON JA:The appellant plaintiff was found lying seriously injured at the base of a culvert below a road along which he had been jogging shortly before. There were no eye witnesses of the event and the plaintiff himself has no recollection of it, or of how or why he fell. Details of the evidence given at the trial are set out in the reasons, with which I agree, of Helman J. It is only out of deference to the plaintiff’s misfortune and the submissions addressed to us on appeal that I add a few remarks of my own.
[2] The learned trial judge found that the fence along the edge of the footpath above the culvert was not sufficiently high to present an effective barrier to guard against the risk that someone using the footpath might fall over the fence into the culvert. The trial judge was prepared to find negligence on the part of either or both of the defendants in erecting the fence or in raising the level of the surface at the foot of it when a concrete footpath was installed. The plaintiff’s action failed, however, because his Honour held that the plaintiff had not discharged the onus of proving that the inadequacy of the fence caused the injuries he sustained. It was not enough for the plaintiff to show that the fence was so low as to create a potential risk of injury to passers by without also showing that in this instance the risk materialised in a way that established it was the defendants’ negligence that caused or materially contributed to the injury.
[3] It is safe to ignore the possibility that the plaintiff jumped or was pushed into the culvert; but there are other possibilities of greater or lesser plausibility that might explain how he came to be injured and lying at the foot of the culvert. One or more of them are mentioned by Helman J in his reasons. For my part, I think the most plausible is that the plaintiff might have sat on the rail of the fence to rest until his brother, who was jogging some way behind, caught up with him. The plaintiff had drunk a good deal that evening and, in that condition, it is not at all unlikely that, while sitting or attempting to sit on the rail, he might have lost his balance and toppled over backwards into the culvert. If that is what in fact happened, I do not see that the defendants would be liable for it.
[4] It is not, however, enough to think up other competing hypotheses that are more or less favourable to the success of the plaintiff’s claim. No one can say that one of them is more probable than another because no one can say what in fact happened. The case is covered by what Lord Watson said in Wakelin v London & Southwestern Rye Co (1886) 12 App Cas 41, 47:
“Mere allegation or proof that the company were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connection whatever with the injury for which redress is sought; and therefore the plaintiff must allege and prove, not merely that they were negligent, but that their negligence caused or materially contributed to the injury”.
See also Fraser v Victorian Railway Commissioners (1990) 8 CLR 54, 59, 66. These decisions are old, but the principle has not changed. In the absence of evidence, speculation is not enough. It was necessary for the plaintiff to prove how or why he fell. Inference from proved facts will do, but not mere hypothesis. The circumstantial evidence in the present case does not support an inference that the plaintiff's injuries resulted from the negligence of the defendants or either of them in installing or maintaining a fence that was too low rather than from some other cause that is inconsistent with negligence on their part.
[5] The appeal should be dismissed with costs.
[6] JERRARD JA: I have read and respectfully agree with the reasons for judgment of McPherson JA and Helman J.
[7] HELMAN J: The appellant, a disability pensioner born on 24 July 1975, appeals against the dismissal of his claim against the respondents. Each respondent has filed a notice of contention, wrongly headed as a notice of cross-appeal.
[8] At about midnight on Friday 30 May 1997 the appellant, then a farm labourer, was seriously injured when he fell onto the concrete apron of a stormwater culvert which permits water to flow under Appleton Drive, Yeppoon. The culvert is approximately 100m north of the Fig Tree Creek bridge and has three tunnels with wing walls and a head wall. Before he fell, the appellant had been making his way home on foot in a southerly direction along a footpath in Appleton Drive. On 26 October 1998 he began his action in the Supreme Court at Rockhampton claiming damages for negligence and breach of statutory duty from the first and second respondents. The appellant’s claim against each respondent was that it was the owner and/or occupier of the place in question, and, further or alternatively, that it was responsible for maintaining, preserving, and repairing what was there.
[9] Above the culvert there was a flat concrete footpath, constructed in 1995, and a metal fence with seven posts on the top of the concrete head wall of the culvert. The surface of the footpath was 2.7m to 2.8m above the apron of the culvert. (The appellant alleged 2.8m in para 2(b) of his further amended statement of claim, the first respondent admitted 2.8m in para 10 of its further amended defence, and the second respondent admitted a variation from 2.7m to 2.8m in para 2(b) of its amended defence; nothing turns on that discrepancy.) The appellant’s case against the respondents focussed on the state of the footpath and nearby ground and the dimensions of the fence. The footpath was 1.5m wide and 100 mm thick. The fence posts varied in height from 700 mm to 860 mm above the surface of the footpath. There was a gap between the edge of the footpath nearer the culvert and the line of fence posts which varied in width from 410 mm to 70 mm. In addition there was a drop off of between 100 mm to 150 mm between the edge of the footpath and the top of the head wall. The drop off was obscured by weeds growing from the edge of the footpath to the head wall.
[10] The trial took place in Rockhampton on 7, 8, and 9 May 2002. The quantum of the appellant’s damages was agreed at $1,600,000. The appellant’s case, as the learned trial judge summarized it, was that the fence was too low to prevent injury, no warning of the inadequacy of the fence was given, the gap between the fence and the nearer edge of the footpath was uneven and constituted a risk, and the area was ill lit.
[11] His Honour’s conclusions concerning the lighting, footpath, nearby ground, and fence were these:
I am satisfied that the area was adequately lit at all relevant times. I am also satisfied that the fence was too low to provide an effective barrier relative to the path. I am not satisfied that the area between the edge of the path and the fence was such as to constitute any danger to a person taking reasonable care for his or her own safety. I am satisfied that the pathway was a popular route for walkers and that many of them, especially at night, might reasonably be expected to be affected by alcohol. It is noteworthy that the council’s records do not disclose any complaint regarding this section of footpath notwithstanding the keeping of detailed records since 1992. The only respect to which the plaintiff can point in which either defendant has failed to act reasonably in relation to this section of footpath is in not ensuring that the fence in fact erected was of an effective height commensurate with the design height. Reference to the photos attached to Mr Smolokov’s report as Plate V show that the fence is not likely to afford an effective barrier if regard is had to the fact that it comes to below the waist of the person in the photograph, Mr Shroder, the plaintiff’s solicitor. Mr Shroder is a much shorter man than the plaintiff. It is reasonably foreseeable that if a vertical drop to a concrete culvert is created on a busy walkway someone might fall over it and injure themselves unless an adequate fence is constructed. Such a danger is obvious and the fact of a fence being constructed evidences a recognition of it. The fact that there is a fence suggests that the erection of a fence is a reasonable response to the perceived risk. If it is reasonable to construct a fence it seems to me to be reasonable to construct an adequate one. A proper fence was in fact constructed in 1999 after commencement of these proceedings. If I were satisfied that the plaintiff had discharged the onus of showing that the inadequacy of the fence was causative of his injuries I would find either or both of the defendants liable. [footnotes omitted]
[12] In their notices of contention, which are in identical terms, the respondents seek to challenge his Honour’s finding that in 1997 the fence did not provide an effective barrier ‘relative to’ the path.
[13] In explaining his conclusion that the area was adequately lit at all relevant times, his Honour first mentioned eight photographs taken between 8.10 pm and 8.55 pm on 6 September 1999 by Mr Ian Lavin, loss adjuster. The night of 6 September 1999 was fine. There was no moon and there were no vehicles in the vicinity at the time. The photographs, which became exhibit 9, show the road and the footpath lit by four overhead street lights, but the culvert in darkness. (Two more photographs, of no further significance, taken by Mr Lavin on the same occasion became exhibit 15.) On the night of 7 May 2002, on the invitation of the parties, his Honour viewed the scene and found the lighting not as bright as might have been thought from the photographs. Allowing for the effect of the use of time-lapse automatic exposures of the film and taking into account what he had observed when he viewed the scene, his Honour found that the lighting was ‘sufficient to clearly show the pathway’. His Honour accepted the evidence of Mr Keith Hamilton, a scheduler employed by Ergon Energy, which was responsible for maintaining the lights in question, to the effect that there had been no change in the lights or lighting around the culvert after the appellant was injured. It followed that the lighting was sufficient to show the footpath clearly on the night the appellant came to grief. His Honour noted that his observations were consistent with the account given by Ms Lynne Chadjinicolis, a motorist who had stopped at the culvert to help Mr Mark Miller, the appellant’s older brother, soon after the appellant was injured. His Honour accepted her evidence, as he recounted it, that ‘it was dark both in the area around the top of the culvert as well as at the base’. His Honour observed that the area to the side of the culvert was dark, ‘out of the reach of the street lights’ and in the shadow.
[14] The ‘design height’ referred to by his Honour was that included in the plans from which, his Honour found, the culvert appeared to have been constructed in about 1982 by the Queensland Main Roads Department. Included in the plans was a fence to a height of 900 mm above the top of the concrete head wall of the culvert. That height would have complied with what was the only relevant standard, AS1657-1992, which related to fixed platforms, stairways, and ladders and required a guard rail to be of between 900 mm and 1100 mm above platform etc. level. The effect of the construction of the concrete footpath to replace the original unsealed path was to raise the level of the path and so reduce the distance between the top of the fence and the surface of the path. Mr Boris Smolakovs, mechanical engineer, is a consultant to a firm specializing in ergonomic design, accident investigation, and advice on safety precautions, who was called as a witness on behalf of the appellant. Mr Smolakovs provided a report dated 23 July 1998, which was placed before his Honour. His Honour found that the appellant was 1.88m tall and accepted the evidence of Mr Smolakovs that to be an effective barrier of a kind provided by the fence a height of greater than fifty-eight per cent. of a person’s body height was required. A fall against a fence lower than that might result in a person’s body rotating over the fence rather than being stopped by it.
[15] The main obstacle the appellant faced in pursuing his claim was that there was no known witness to his fall and he had no memory of the events of the night in question, including of course his fall. The appellant’s case was in consequence a circumstantial one. His Honour was urged to draw inferences concerning what happened - all of them favourable to the appellant’s claims.
[16] Mr Mark Miller gave evidence of what the appellant had been doing before he fell that night. Mark said that at about 6.30 pm he and his brother arrived at the Railway Hotel in Yeppoon with Mark’s wife Rhonda, then his fiancée, and another, male, friend. They stayed there until about 9.30 pm. The appellant, who had a cold, drank about three ‘mid-strength’ beers. From the Railway Hotel the brothers went to the Marsden Tavern to play pool. They remained there until about 11.00 pm and drank about six half rum and Cokes each. From the Marsden Tavern they went next door to a nightclub where they had another half rum and Coke. They then returned to the Marsden Tavern where they played pool and had another ‘couple’ of half rum and Cokes before deciding at about midnight to return home on foot, as they had often done before. They jogged to Appleton Drive. When they reached it the appellant was in front. They slowed to a walk and crossed the road to the concrete footpath. The appellant began jogging again, then walking, leaving him 20m ahead of Mark.
[17] As one travels south the pathway turns to the left just before the culvert. The corner was blind because there were mangroves growing near the water-course. The appellant was hidden from Mark’s view, but ten or fifteen seconds after Mark last saw the appellant Mark heard a thud. Mark came around the bend but saw no sign of the appellant. Mark looked over the side of the culvert and saw the shape of something on the apron. The shape was not immediately recognizable as that of a person because it was in darkness. Mark called out to the appellant, ‘Come on, Ben. Stop mucking around. Get up’. Soon after, Mark found the appellant lying face down on the culvert apron, seriously injured. The appellant’s position as Mark remembered it was marked on a sketch which became exhibit 8. It showed a stick figure lying at a right angle to the culvert wall with feet near the head wall. The distance from the feet to the head wall was shown as 2¾ feet and the distance from the feet to the place where the northern wing wall met the head wall was also shown as 2¾ feet.
[18] Mark gave evidence that the appellant was ‘quite tolerant’ to the consumption of alcohol, that when he had had as much to drink as he had that night he became ‘more talkative, lot more sort of … humorous, sort of telling jokes and … sort of not as shy’, coming ‘out of himself a lot more’ whereas ‘generally’ he would be very quiet in a group. Mrs Rhonda Miller, who saw the brothers when they left the Marsden Tavern, gave evidence that they were ‘fine’, not drunk.
[19] On behalf of the appellant it was submitted to his Honour that the inference could be drawn that the appellant probably put his foot into the gap between the concrete path and the fence, stumbled against the fence, and, because it was so low, simply toppled over it.
[20] His Honour did not reject the hypothesis advanced on behalf of the appellant, but pointed to difficulties in accepting it. His Honour observed first that if the incident occurred in that way it was curious that the appellant landed with his head away from the footpath. If he had ‘rotated’ over the fence, his Honour reasoned, it was ‘not unlikely’ that he would have continued to rotate and landed with his head nearer the pathway. Secondly, the gap between the fence and the concrete footpath above where the appellant was found after his fall was only 70 mm, and his Honour observed that it was difficult to see how the appellant could have been close enough to the fence or put sufficient of his foot into that gap to stumble. In addition to those difficulties in accepting the hypothesis advanced on behalf of the appellant there were, his Honour continued, other plausible competing hypotheses that came readily to mind in which the fence played no part in the fall because each involved the appellant’s deliberately skirting around the end of the fence and then falling over the wing wall. Among those hypotheses were the appellant’s moving around the end of the fence and off the footpath into a dark place where he could urinate and his attempting to conceal himself beside the culvert behind the fence to surprise his brother as a joke when the latter came around the bend. ‘His brother did, after all, think at first he was joking when he lay in the culvert’, his Honour added.
[21] His Honour summarized his conclusions as follows:
Here the evidence does establish that the footpath itself was safe. It had been in use for some years without complaint to the council. It was flat, well lit and its limits clearly defined. Whatever may have been the state of the fence there is no basis for concluding that it was causative of the injury unless there is evidence to establish if and how the plaintiff came to fall over it. If he was so close to the fence that he tripped off the edge of the concrete path and then over the fence it seems to me that involves a level of carelessness for his own safety for which he must bear some responsibility himself. If he was going around the fence to the darkened area out of the reach of the streetlights for a reason such as that I postulated earlier then the fence does not seem to me to have played any part at all in the accident.
In all the circumstances I am not satisfied that the plaintiff has discharged the onus of establishing that the hypothesis relied on by him either occurred or is more probable than any other inference that may be drawn from the evidence. It is not inevitable that the fence which I have found by the time of the accident to be inadequate and substantially below both the design height and the height specified by the only objective standard available was causative of the injury.
The appellant’s claim was accordingly dismissed.
[22] The appellant’s original grounds of appeal are set out in paragraph 2 of his notice of appeal:
2.1His Honour erred in not accepting as the likely probable explanation for the fall that the plaintiff either put his foot into the gap between the concrete path and the fence, or put his left foot on the edge of the concrete path at or about 2¾ feet after the second post and thereupon his upper leg came into contact with the barrier fence on his left, rotating him head first into the culvert where he was found at the position indicated in exhibit 8.
2.2His Honour erred in finding:
2.2.1That the witness, Mark Miller, initially thought ‘Ben (the plaintiff) was playing a practical joke’;
2.2.2That it was a plausible scenario as to how the plaintiff came to be found injured in the culvert that he, the plaintiff, ‘may have been intending to conceal himself in the darkened area beside the culvert to surprise his brother as a joke when he came around the corner’.
2.3His Honour erred in finding that it was not unlikely that he would have continued to rotate and landed with his head nearer the pathway.
2.4His Honour:
2.4.1Erred in finding as a plausible scenario that the ‘plaintiff might have moved deliberately around the end of the fence and off the path into the darkened area beside the wing wall of the culvert to urinate and slipped and fallen’;
2.4.2Did not accord procedural fairness or natural justice to the plaintiff in entertaining such a scenario because it had not been raised in the pleadings or the evidence.
2.5His Honour erred if and to the extent that he found that it had to be inevitable that the fence was causative of the injury.
2.6His Honour erred in failing to find that the negligence of the defendants was not only failing to act reasonably in not ensuring that the fence was of an effective height, but also:
2.6.1Allowing a hole or depression of varying width and varying depth between the left hand edge of the concrete and the fence;
2.6.2Allowing this hole or depression to be concealed by vegetation growing in and out of the hole or depression;
2.6.3In failing to have this area well lit in the early hours of 31 May 1997.
2.7His Honour erred:
2.7.1In finding that the footpath was adequately lit or well lit;
2.7.2In failing to find the left hand edge of the footpath was poorly lit.
At the hearing of the appeal the appellant was permitted to add the following to his notice:
2.7.3In finding that the area at the top of and on the approach side to the culvert was in the shadow of the overhead lights and thus much darker than the pathway or the roadway.
[23] The appellant’s grounds of appeal fall into two broad categories. In the first is ground 2.7 and in the second the remaining grounds. In ground 2.7 it is asserted that his Honour erred in his fact-finding regarding the place at which the appellant suffered his injury, and in particular his fact-finding concerning the lighting. The remaining grounds all concern errors his Honour allegedly made in drawing inferences, or failing to draw inferences, from other facts he found to have been established, or in reaching conclusions, or failing to reach conclusions, on the primary facts he found to have been established and the further inferences he drew. I shall deal first with ground 2.7.
[24] I have already mentioned the facts found by his Honour concerning the lighting, footpath, nearby ground, and fence. In referring to the footpath, nearby ground, and fence I have set out his Honour’s findings, which were not challenged by the appellant. In referring to the way in which the place in question was lit I have related the steps by which his Honour reached his conclusion, which is challenged, that the area was adequately lit and the footpath well lit.
[25] Mr Curran, for the appellant, submitted that his Honour’s understanding of Ms Chadjinicolis’s evidence was mistaken, that a fair reading of her evidence indicated that she did not agree that the lighting clearly showed the pathway, and furthermore she made no distinction between the area around the top of the culvert and, as Mr Curran described it in his written submissions to us, ‘the area in the vicinity of the fence (footpath)’, whereas his Honour did. Some aspects of Ms Chadjinicolis’s evidence are not entirely clear, but it is clear that she said first that there was no light at the base of the culvert, and secondly that the lighting ‘in the vicinity of the fence’ was ‘poor’. Having looked at one of Mr Lavin’s photographs (the bottom one at p 383 of the appeal book), she said that her recollection of the state of the lighting was that it was ‘very dim, extremely dim’ whereas in the photograph it ‘looked almost like the sun’s been sort of turned three-quarters on as opposed to [her] recollection of that area on that night’. Later in her evidence, however, when she was asked whether she could clearly see the footpath – which I should mention here, she had said she did not recall – as it ‘snaked’ south towards the Fig Tree Creek bridge, she replied that she could not say ‘yes’ or ‘no’ to that. Bearing in mind that disclaimer, I find myself unable to agree that his Honour misunderstood her evidence. The focus of Ms Chadjinicolis’s attention on the night of the mishap had been on the apron of the culvert where the appellant was found in the darkness. There was more light at the top of the culvert but that area was dim. Ms Chadjinicolis, quite understandably, did not turn her attention to the state of the light on the footpath. His Honour’s finding was based on what could properly be regarded as the best evidence on the subject, that of Messrs Lavin and Hamilton. Mr Hamilton gave evidence to the effect that the lights were 400 watt mercury vapour lanterns on the night in question. Ergon Energy had no record of what failures there were in 1997, but his Honour, justifiably I think in the circumstances, appears to have ignored that possibility. At all events, the possibility of the failure of all four lamps would seem to be too remote to be worthy of consideration.
[26] Two residents of Yeppoon, a miner Mr Charlie Rabbits, and a research technician Mr Nicholas Corbett, gave evidence that they had walked home down the path over the culvert many times at night. Mr Rabbits said that he had walked home that way on and off for twenty years and had not seen the lighting as bright as it was shown in the photographs exhibit 9. Asked whether, when he had used the concrete footpath ‘over the years’, he had ‘always been able to see things pretty clearly’ ahead of him as he walked along, Mr Rabbits replied, ‘Reasonably’. Asked whether he could see where he was going he said, ‘Usually’. He had, he said, noticed ‘on and off’ that lights were ‘either not operational or flickering and less than effective’. Mr Corbett gave evidence that he had used the footpath from ‘about 1994’ to January 2000 and that the lighting was adequate. He agreed that as he approached the culvert he could see the footpath ‘snaking ahead in front of [him] towards the bridge’ clearly, and that the fence and the southern wing wall of the culvert could also be seen. Mr Corbett did not think, he said, that there had been any change in the lighting in the time he had used the footpath.
[27] Mr Mark Miller gave evidence that as he followed the appellant when the two were approaching the culvert, it was ‘very dark’ but he could see the appellant’s silhouette approximately 20m or so ahead. The lighting in the area had improved since May 1997, Mark said. He had observed it in the month before the trial and it was very well lit, completely different from what it had been in May 1997. His Honour did not accept that evidence, but made a finding concerning the state of the lighting in accordance with Mr Hamilton’s evidence. The weight of evidence renders that result a reasonable one in my view. Mr Hamilton’s evidence was likely to be more reliable than that of those whose attention was not directed to observing the scene, but rather to the rescue of the badly injured appellant. I therefore conclude that the appellant’s grounds calling into question his Honour’s finding concerning the lighting at the scene of the mishap must fail.
[28] I should add that the issue concerning the lighting at the scene of the appellant’s mishap was relevant only to the case advanced on his behalf that he had toppled over the fence: that the fence, the depression between the footpath and the fence concealed by weeds, poor lighting, and the curve of the footpath all combined to cause the appellant to come to grief. If, however, that case were not established the state of the lighting ceased to have significance, because its significance was that, as Mr Curran put it, ‘it exacerbated the concealment’ of the depression.
[29] The difficulty the appellant faced was in proving a causal link between the state of the fence and his fall, i.e. that it caused or materially contributed to his injury.
[30] The steps involved when circumstantial evidence is relied on to establish a fact in issue are these: first, the primary facts must be established to the satisfaction of the tribunal of fact and then the tribunal must decide whether those primary facts are sufficient to prove the fact in issue to the required standard. The tribunal must of course apply its common sense and general knowledge of the world at each step. The process of finding the primary facts does not call for any further discussion in the context of this case, but the second step does require some brief further mention. The second step will require the tribunal of fact to consider possible conclusions open on the primary facts found to have been established.
[31] A court is not authorized, however, ‘to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’: Jones v Dunkel (1959) 101 CLR 298 at p 305 per Dixon CJ. In reaching that definite conclusion the tribunal will apply its common sense and general knowledge of the world to the facts, and, in doing so, consider explanations for what happened which would spring to the mind of an ordinary, reasonable person. Some possible explanations will be rejected immediately as insupportable on the facts. In this case for instance it could have been thought possible that the appellant was pushed into the culvert, but as there was no evidence of anyone else in the vicinity at the time apart from his brother and as the two were clearly enough on good terms, that explanation did not enter into his Honour’s process of reasoning.
[32] Once the possibility that the act of someone other than the appellant caused his mishap is eliminated, two possibilities remained: either the appellant went over the fence in some way or other, or he did not. The first possible explanation is open since the appellant was found below the fence. He could, then, have toppled over the fence in some way, or even fallen off it. The latter suggestion was discussed in the course of the hearing before us, i.e. that the appellant was sitting on the fence waiting for his brother to catch up with him when he fell. The second possible explanation is also open because the appellant was found quite close to the northern wing wall of the culvert.
[33] The appellant could have toppled over the fence in the way contended for on his behalf or simply lost his balance as he walked along the footpath without putting his foot in the gap between the footpath and the fence. On behalf of the appellant considerable reliance was placed on evidence that the brothers were doing no more at the time in question than they had done many times at night before: making their way home, if not drunk then at least affected by alcohol, on foot, running and walking without difficulty, always along the same footpath. The appellant said that he had done so ‘at night-time, probably ten, twenty times’. Notwithstanding the appellant’s previously uneventful return journeys, his Honour was invited, on behalf of the appellant, to conclude that on this occasion he suffered a mishap in a most particular way – incidentally the way most favourable for his case for compensation. But it could reasonably be concluded, I think, that the brothers’ history of safe returns suggests something other than the condition of footpath, ground, and fence as the cause of the fall.
[34] Ordinary human experience shows that there can be physical effects of the consumption of a large quantity of liquor and effects on mood if that liquor is alcoholic. A physical effect is of course the need to urinate, and the effects on mood can vary from person to person: some become morose and others more exuberant than is their normal mood, and on still others no effect on mood is detectable. In this case the appellant’s brother described the effect of the consumption of the alcohol on the appellant as I have related – he became ‘more talkative’, ‘humorous’ etc.
[35] It follows that his Honour’s analysis of the possible explanations for the appellant’s mishap has not been shown to be affected by any error of reasoning and so no definite conclusion could be drawn that the appellant’s injury was caused by the condition of the footpath, ground, and fence. In the state of the evidence the only way in which such a conclusion could have been reached would have been by making an impermissible choice between equally plausible hypotheses.
[36] While the general approach adopted by his Honour in deciding the case was not in error were there particular errors that affected the result? I shall now deal with the particular such errors contended for on behalf of the appellant.
[37] Grounds 2.2.1 and 2.2.2 deal with the practical-joke explanation. It was reasonable for his Honour to have concluded that Mark initially thought the appellant was playing a practical joke when one bears in mind what Mark called out after he saw something on the culvert apron. Mark’s state of mind was of course not of itself relevant to the question whether an attempt to play a practical joke was a possible explanation for what happened, and his Honour’s reference to Mark’s state of mind was obviously enough an afterthought included to indicate that the practical-joke explanation, which followed from the evidence concerning the effect of the consumption of a large quantity of alcohol on the appellant’s mood, did not at the time appear to Mark to be out of the question and in fact was uppermost in his mind. I therefore conclude that there is nothing in ground 2.2.1; and because the practical-joke explanation was one that would, for the reasons I have given when discussing his Honour’s general line of reasoning, appear a distinct possibility I conclude that there is nothing in ground 2.2.2.
[38] Ground 2.3 relates to an observation on a matter of fact which his Honour was justified in making, in my view: the appellant’s case was, as I understand it, that the appellant’s body was caused to rotate as he toppled over the fence.
[39] Ground 2.4.1 is in the same category as ground 2.2.2 and fails for the same reason: common sense and ordinary human experience would suggest the urination explanation as a possibility. In the course of the argument advanced for the appellant it was submitted that since Mark Miller did not give evidence of hearing any noise caused by the passing of urine the urination explanation should not have been considered, but it does not follow that because there was no evidence of the appellant’s beginning to urinate that he had not left the footpath to do so and fell before he had begun.
[40] In support of ground 2.4.2 reliance was initially placed on the respondents’ omission of any reference to the urination explanation in their defences, contrary, so it was argued, to the requirements of rules 149(1)(c) and 150(4)(c) of the Uniform Civil Procedure Rules 1999, but at the hearing of the appeal the argument founded on those rules was abandoned. Mr Curran persisted, however, to argue that there had been a denial of procedural fairness or natural justice in his Honour’s accepting the urination explanation as a possible one. That explanation was not mentioned in the evidence, but was put forward as possible in the submissions made to his Honour after the close of evidence. Mr Curran addressed his Honour on the subject, submitting that for various reasons the explanation was ‘unbelievable’, ‘not only improbable but impossible’, but did not seek to re-open the appellant’s case to call any evidence about it. Although Mr Mark Miller had given a detailed account of what he and the appellant had done on the night of the incident there was no evidence of urination by either man.
[41] Mr Curran argued that his Honour should not have considered the urination explanation when it was obvious that it had not been, but could have been, raised in the evidence; alternatively, Mr Curran continued, the parties should have been invited to deal with it in further evidence. Elaborating the latter point, Mr Curran submitted that after the respondents had delivered their final addresses and when his Honour formed the view that the urination explanation was plausible his Honour should have drawn it to Mr Curran’s attention so that Mr Curran could have called or recalled witnesses with a view to refuting it. The first difficulty with those propositions is that there was no obligation on the respondents to adduce evidence, whether through the appellant’s witnesses or their own, if the urination explanation was one fairly open on the evidence as it was. Since that explanation was one that would readily spring to the mind of an ordinary person on the account given by Mr Mark Miller it was one fairly open on the evidence in my view. Secondly, his Honour was under no obligation to reach a tentative conclusion on the matter, or, if he had done so, to communicate it to the parties. Had it not been canvassed in the submissions by the respondents and had the appellant not been given the opportunity to be heard on the subject there would be substance in the argument, but the appellant was given adequate opportunity to address his Honour about the urination explanation, and, had the appellant been so advised, to seek to re-open his case.
[42] Mr Curran argued further that his Honour ‘should have imposed the Jones v Dunkel inference against the [respondents]’, or applied the rule in Browne v Dunn (1893) 6 R 67 concluding that counsel for the respondent should not have been permitted to suggest the urination explanation and so, it would follow, he should ignore it. Mr Curran referred to the following passage in the reasons of Menzies J in Jones v Dunkel:
In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. (p 312)
He referred also to the proposition discussed by Windeyer J in his reasons in the same case that unless a party’s failure to give evidence be explained, ‘it may lead rationally to an inference that his evidence would not help his case’ (p 321). The obstacle to the application of those principles to this case is that there were no witnesses to the incident. Although ambulance officers etc. could have been called, it is doubtful that they could have revealed anything conclusive on the urination explanation. In any event there was no onus upon the respondents to prove that explanation. They were entitled to rely on it on the evidence as it was. Mr Curran referred to the discussion of the rule in Browne v Dunn by Gleeson CJ, with whom McInerney J agreed, in R. v Birks (1990) 19 NSWLR 677 at pp 686-692. The argument based on Browne v Dunn must also fail: once it is understood that the urination possibility was an obvious one on the appellant’s own case without any contradiction of the evidence of any of his witnesses the respondents were not obliged to go further than they did in alerting the appellant to it.
[43] It follows that ground 2.4.2 must fail.
[44] There is no merit in ground 2.5. His Honour observed, in a passage I have quoted, that it was ‘not inevitable that the fence … was causative of the injury’. In its context that observation was not, as I read it, made on the premiss that the appellant was required to prove the inevitability of that consequence, but was rather a response to the way in which Mr Curran had put the appellant’s case to him. Indeed, as I have related, Mr Curran dismissed the possible explanations for the appellant’s mishap advanced on behalf of the respondents as ‘not only improbable but impossible’ and prefaced that submission with the submission that the position of the stick figure shown in exhibit 8 was consistent ‘only with a topple over the fence’. His Honour’s observation was then I think a comment on Mr Curran’s strong submission rather than on any perceived requirement of proof.
[45] It is not necessary to deal further with ground 2.6 or with the respondents’ notices of contention if his Honour’s conclusion concerning the appellant’s failure on the issue of causation is to remain undisturbed, as I conclude it should be.
[46] The appeal should be dismissed with costs.