SUPREME COURT OF QUEENSLAND 

1. GOTTERSON JA:  I agree with the order proposed by Boddice J and with the reasons given by his Honour.

2. BODDICE J:  On 4 September 2013, a judge of the District Court gave judgment for the Respondent against the Appellants, in the sum of $445,515.90 and costs, in a claim for loss of dependency arising out of the death of her husband Cawood Hancock (“the Deceased”) from injuries sustained when he fell down a drain pipe on residential land at Indooroopilly owned by the Appellants.

3. The trial judge found the Deceased’s fall and subsequent death were caused by the Appellants’ negligence in failing to warn the Deceased about the presence of the drain pipe.  The Appellants appeal that finding.  At issue is whether the facts found by the trial judge to support the conclusion of negligence were unreasonable and against the evidence and the weight of that evidence.

Background

4. The Deceased fell into the drainage pipe whilst undertaking gardening work at the Appellants’ property on 7 October 2009. The Appellants had purchased the property from Ralph and Lesley Craven. Settlement took place on 7 June 2007.

5. The incident happened whilst the Deceased and his assistant, Charles Fenech, were trimming shrubbery in an area located behind a pool and adjacent to the rear boundary of the Appellants’ property. Whilst undertaking this task, the Deceased stepped back onto an area of ground somewhat lower than the pool area.  Unbeknown to the Deceased, there was located under that area of ground a 900 millimetres diameter drainage pipe.  The drainage pipe was covered by a metal lid and contained a metal grate to prevent entry into the pipe.

6. When the Deceased stepped onto that area of ground, the metal lid and grate collapsed under his weight, causing him to fall downwards into the drainage pipe which was over two metres deep. The metal lid over the pipe, which had a lip around its circumference enabling the cover to fit over the circular steel grate, appears to have rusted over time, as had the grate.

7. The existence of the drainage pipe was not recorded on any drainage plan, and was not known to the local authority. The drainage pipe had, however, been in situ for many years. The trial judge found it likely the drainage pipe dated from around the time a drainage easement was created in 1965 over land running along the northern boundary of the Appellants’ property.

8. Whilst the presence of the pipe was not recorded on any drainage plan, a search of the title of the property revealed the existence of the drainage easement. The presence of the pipe was also known to the Cravens, who had purchased the property in 2001. They had resided there from purchase until 2004 when they moved overseas. The property was then tenanted until it was sold to the Appellants in 2007. The last tenants were the Morgan family.

Evidence

Incident

9. The Deceased conferred with solicitors on 19 October 2009. According to a file note of the Deceased’s instructions the Deceased, who carried on a business providing gardening and handyman services on an ongoing basis to regular clients, had been providing services to the Appellants for approximately nine months. He had attended the Appellants’ home approximately 10 to 12 times. These visits included standard periodic gardening services and special one-off requests for work.

10. The Deceased said a few days prior to 7 October 2009 the female Appellant contacted him and requested he plant some new Palm trees in an unformed garden area adjacent to the swimming pool. She also asked he remove or trim a Moraya hedge in that area so that the nearby Frangipani tree could flower properly. The unformed garden area was apparently becoming quite untidy and overgrown.

11. The Deceased estimated the dimensions of the unformed garden area, located behind the paved pool surrounds, to be in the order of four metres by four metres. It had a dirt surface, a large Frangipani tree and a Moraya hedge growing along the rear fence. The surface of the garden area was littered with various leaf and other vegetation debris. A series of pumps were located within the area which were used to clean and filter the pool.

12. In the very rear corner of the garden there was an area which the Deceased called “the sump” area. It was approximately two metres by two metres in dimension, and was bordered by pieces of timber laid into the ground at ground level. The square area inside these pieces of timber was sunken so that it was approximately 30 centimetres lower than the surrounding ground surface.  The ground surface inside the sump area was also covered with leaf and other vegetation debris.

13. The Deceased said he had worked in the rear unformed garden area and sump area on at least one previous occasion. He had not previously noticed anything untoward, and was not aware of what lay underneath the leaf litter or other debris on the surface of the sump area. The Deceased assumed it was a simple dirt ground surface like the outside surrounding area.

14. The Deceased gave the following description of the incident:

“17.The work began with Cawood using a chainsaw to remove the first branch from the Moraya hedge.  In order to cut his branch from Moraya Cawood was standing inside the sump area.  After the branch was cut off Cawood handed it to Charlie who was standing immediately outside the sump area.  Charlie took the branch and walked a short distance away from the sump area in order to put the branch out of the way of the work area.

18. As Charlie was taking that branch away Cawood picked up the chainsaw again with the intention of removing the next branch from the Moraya.  As he did so he took a single step backwards within the sump area.  As he took this step backwards, instantaneously and completely without warning, Cawood felt himself falling directly downwards.  Cawood describes that he did not feel the ground giving way beneath him or any gradual falling or giving way.  It was, in his words, ‘instantaneous’.  One second he was standing on the ground the next second he had fallen ‘through the ground’ completely without warning.

19. Cawood was still holding the chainsaw in his right hand as he fell.

20. Cawood subsequently learned that he had fallen directly into an underground concrete stormwater collection tank installed on the property.  It appears that the opening to the stormwater collection tank had been covered with some type of cover and then direct, leaf litter and other vegetation debris has gradually covered it over so that it was entirely undetectable to anyone walking upon it.  Cawood adamantly maintains that anyone walking on the ground surface in the sump area would never have perceived that they were walking on a stormwater opening or any form of cover and would have simply assumed that they were walking upon firm, solid ground.  There was no movement or noise underfoot and no sense of an altered or differing ground surface.

21. The opening to the stormwater collection tank is circular and Cawood estimates approximately 1 metre in diameter.  After his accident Cawood observed that the opening to the tank appears to have been covered by a steel grate which was in turn covered with a metal cover of some description.

22. For reasons that are presently unknown it appears that the cover over the opening to the stormwater collection tank has collapsed beneath Cawood when he stepped upon it causing him to fall unimpeded and without warning into the tank itself.

23. Cawood estimates that he fell approximately 9 feet to the bottom of the stormwater tank.  As he fell Cawood’s knees collided with the concrete sides of the 1 metre wide opening.  The steel grate fell down into the tank with him.  When he landed at the bottom of the tank Cawood managed to land largely on his feet however, as he landed, his left knee buckled under him and he went over.  Miraculously, Cawood managed to keep hold of the chainsaw with his right hand avoided any further injury being caused by the chainsaw itself.

24. As soon as he landed Cawood felt extreme pain in his left leg and knee and he knew he was seriously injured.  He immediately called out to Charlie for help.

25. Charlie was approximately 3-4 feet away at the time of the accident with his back to the sump area.  The fall was so sudden and quiet that Charlie did not even realise it had happened until he heard Cawood calling out for help from the bottom of the tank.

26. Charlie immediately came to Cawood’s assistance. Cawood firstly handed the chainsaw up to Charlie and then, with Charlie’s assistance, he managed to climb up and scramble out of the tank opening by putting his right foot in a drainage pipe on the side of the concrete stormwater tank opening. Cawood attempted to stand up and walk but his left knee kept giving way.  With Charlie’s assistance he managed to shuffle to the front of the Johnsons’ property to where their work vehicle was parked.  As they reached the front of the property Michelle Johnson arrived home.

27. Cawood informed her about what had happened and that he thought he had a bad injury to his knee.  Michelle Johnson’s only response was to say ‘that’s not good’. Cawood was of the view that Michelle Johnson was not surprised by how his accident happened and was immediately cagey once she learned of the accident.  She did not offer or render any assistance and Cawood has not had any further contact with Mr or Mr Johnson since that time. Cawood notes that he believes Michelle Johnson is a barrister.”

15. Charles Fenech, who had worked with the Deceased previously in another industry, described the Deceased as an excellent worker who was very conscientious and a perfectionist.  After he retired, Mr Fenech assisted the Deceased in lawn mowing or gardening duties.  He had undertaken that task for about two years prior to the incident.  The Deceased was very safety conscious.  He always insisted Mr Fenech use the correct safety equipment.

16. Mr Fenech said he had been to the Appellants’ property “a couple of times” prior to the incident. They would trim hedges, mow the grass and pull out weeds. On the day of the incident, the Deceased took a chainsaw, rakes and rubbish bags down into the swimming pool area. The Deceased commenced to trim the shrubbery, passing the cut branches to Mr Fenech who took them out to a trailer.

17. Mr Fenech said after about 10 minutes he heard the chainsaw working and then the Deceased cry out for help. He found the Deceased down the drainage pipe. The chainsaw was still operating at that time. He assisted the Deceased out of the drainage pipe. This was achieved with difficulty. The Deceased emerged with a badly injured leg.

18. After the incident, the Deceased went and spoke to the female Appellant who had just arrived back at the property. Mr Fenech said they had decided to tell her about the incident and to ask her to keep the gate shut so that nobody could go into the area because it was considered too dangerous. He did not hear the conversation between the Deceased and the female Appellant. They then left the property.

19. Mr Fenech was shown photographs of the area. Neither he nor the Deceased had, to his knowledge, planted the Palm trees shown in those photographs. He could not comment on the extent of the foliage in the area as depicted in the photographs compared to the day of the incident as he was focusing on the Deceased.

20. In cross-examination, Mr Fenech agreed the ground surface of the area containing the drainage pipe appeared to be level dirt with leaf litter and other plant debris covering the surface. He did not know about the existence of the drainage pipe prior to the incident. He could not recall ever having been in the swimming pool area before that day.

Other Evidence

21. Mrs Craven gave evidence that at the time they occupied the property, there was located in an area behind the pool and adjacent to the drainage pit, a Moraya hedge and a Frangipani tree. The Frangipani tree was in place when they purchased the property. The Cravens planted the Moraya hedge. They did not plant any Palm trees in that area. During their occupancy, a timber box configuration was built in front of the Frangipani to house the pool filter and associated equipment.

22. Mrs Craven said the pool filter backwashed into the drainage pit. The pit was in an area which stepped down from a raised area beside the pool. The raised area was retained by a sleeper wall on two sides. The backwash pipes travelled down the sleeper wall into the drainage pipe. The drainage pipe had a mental cover of considerable weight covering its opening. It lay flat on top of the drainage pipe.

23. During their occupation, the area of the drainage pit was kept well maintained so that the metal cover was clearly visible. Her family knew about the drainage pit, as did their gardener and pool man. When the pool was backwashed you could hear the water going down the back. The same would occur after a heavy storm.

24. Mrs Craven said she attended the property on the day of settlement. She cleared away some pots located in the lower area containing the drainage pipe. The area containing the drainage pipe was clean and tidy. The cover was in place, and clearly visible. There was no leaf material over it. There was, however, located adjacent to it some black polyurethane piping, some metal cage material and a metal base from a brazier. Mrs Craven agreed they had used the area as a storage area when they had let the property.

25. Mrs Craven was shown photographs of the drainage pipe area taken in December 2009, some two months after the incident. Those photographs depicted a number of items in the vicinity of the drainage pipe, which was then uncovered as the cover and grate were still inside the pipe where they had fallen after the incident. Those items included the black piping, metal cage and base referred to by Mrs Craven.

26. The photographs shown to Mrs Craven also depicted two pieces of white PVC sewerage piping, two sprinklers, and some black plastic. Mrs Craven denied those items were in the area on the day of settlement. She also denied fairy lights, located in branches of the Frangipani, were in existence at that time. Mrs Craven denied having planted the Palm trees adjacent to this lower level.

27. In cross-examination, Mrs Craven accepted the photographs depicted the drainage pipe as being on the same level as the surrounding ground. It was not at that level on the day of settlement. Mrs Craven agreed she did not talk to the Appellants prior to settlement. She also agreed the property had been tenanted for some three years prior to its sale. She did not talk to the tenants as she was living in New Zealand.  The property was managed by agents. 

28. Anthony Politylo undertook pool maintenance on the property for the Cravens, and was kept on as the pool maintenance person by the Appellants. He would visit the property monthly. He was aware of the existence of the drainage pipe in the back corner of the property. He could not recall whether it was Mrs Craven or the female Appellant who had told him to be “careful of the pit down there”. He did not ever see the pipe as he had no reason to go into that area. He also did not ever hear any sounds that alerted him to its presence when undertaking backwashing of the pool.

29. The female Appellant, a solicitor by occupation, gave evidence that at the time they acquired the property in 2007 it was tenanted by the Morgan family, who remained for a short period post-settlement.  Prior to the purchase of the property, the Appellants undertook an inspection of it.  The female Appellant remembered standing in the pool area making general observations of the property.  She did not go into the garden area along the back fence.

30. The Appellants appointed solicitors to act in the conveyance. Those solicitors had provided her with a copy of the contract, and the searches. The female Appellant said she would have seen details of the easement but paid no particular attention to it given that she thought it was a drainage easement. Prior to settlement they obtained a pre-purchase property inspection report. She read that report but did not recall any specific disclaimers in relation to storm water or sewerage drainage. Whilst she was aware of the existence of a drainage easement, she did not understand there was drainage infrastructure under that easement. She did not know if there was a drain there or not.

31. The female Appellant said they used the swimming pool regularly. However, she did not ever go into the garden area behind the pool. The pool maintenance was undertaken professionally. The female Appellant also engaged the Deceased to undertake gardening work on the property. He was to mow the lawn and keep the hedges trimmed on a regular basis. The arrangement was that the Deceased would do what was necessary, when it needed to be done. The Deceased would leave an invoice in the letterbox at the end of each visit.

32. The female Appellant denied telephoning the Deceased prior to the incident on 7 October 2009 and asking him to plant some Palm trees.  She did not know he was going to be coming to the property on 7 October 2009.  On the day of the incident, the female Appellant was not at home when the Deceased and Mr Fenech arrived at the property.  She returned as they were leaving the property.  She had a brief conversation with the Deceased when he told her he had hurt his knee.  The Deceased did not say how he had sustained that injury.  The Deceased then left.

33. The female Appellant said when they received notice of the Respondent’s claim, which gave details of the drain, the Appellants “bolted down to the backyard” to look at the drain. They saw the drain with its cover off. She agreed the photographs depicted the area basically as it was on the day of the incident. She did not recall seeing the two PVC pipes in that area on the day but agreed they may have been there. She did not have anything to do with putting the pipes in that area. She denied the sprinklers were their property.

34. The female Appellant was not aware of any work that had been undertaken in the relevant area between the date of the incident and the date photographs were taken in December 2009, other than steps to cover the drainage pit with a piece of marine ply. The female Appellant was shown photographs taken on 11 June 2010. She was not aware of any work being undertaken in that area between the incident and the date of those photographs, except for placement of the marine ply cover.

35. The female Appellant did not clear the area of any leaf litter in the whole time she owned the property. At one time they had stacked garden waste, such as pruned tree branches in that area when they were cleaning up the property. The fairy lights located in the Frangipani tree were hung by her husband. They hung over the top of the pool box. The female Appellant did not know who had planted the Palm trees shown in the photographs, and did not know when they had been planted.

36. The male Appellant also is a solicitor. He said they had inspected the property three or four times before purchasing it. They walked around the backyard and pool area looking for any major problems that might affect the purchase. He did not go into the back corner area of the property. He remembers seeing a Frangipani tree, a hedge and some plants in the area towards the back boundary.

37. The male Appellant accepted they had retained solicitors for the purposes of the acquisition of the property. He believes the existence of the drainage easement was brought to his attention but he did not know of the existence of the drainage pipe in the back corner of the property. His solicitors did not bring the presence of that drain to his attention.

38. The male Appellant first became aware of the existence of the drainage pipe when the notice of claim was received in late 2009. Shortly thereafter, he went down into the pool area. He found what looked like a hole in the ground. The photographs taken in December 2009 depicted a scene similar to what he saw at that time. He thinks the two PVC pipes were in the area at that time. He did not purchase them, and does not know how they came to be there. He did not place them in that position. He also did not know anything about the sprinklers or black plastic.

39. The male Appellant did not ever undertake responsibility for backwashing or filtering the pool, or trimming the bushes in that area. He also did not plant the Palm trees depicted in the photograph. He does not recall whether they were there at the time they acquired the property. He did place fairy lights in the Frangipani tree and on the upper portion of the pool fence about a year or two after purchasing the property. He climbed on top of the filter box to put them around the tree.

40. In cross-examination, the male Appellant accepted that after becoming aware of the existence of the drain they told their next gardener of its presence. The male Appellant also put a wooden cover over the drain pipe. He agreed you could see parts of the back corner of the backyard from the pool area but said he did not ever wonder what was down in that corner, and nobody ever went into that area.

41. Anthony Elson undertook lawn mowing and gardening at the property when it was owned by the Cravens. He did not recall doing anything in particular in the backyard, other than mowing and cleaning around the pool area. The Frangipani tree caused him “a lot of heartache with leaves” in autumn. He had no recollection of a drain being located in the far corner of the backyard. He had no recollection of pipes leading towards the drain, and did not recall the sleeper wall at all.

42. In cross-examination, Mr Elson accepted he would probably remember if Mrs Craven had told him of the existence of a drain in the back corner of the backyard.

43. Ross Morgan was a tenant of the property between January 2005 and its sale to the Appellants. He did not have responsibility for looking after the garden or the pool. He was not aware of the sunken area in the far corner of the property, and did not venture there in his years of residency. Nobody told him of the existence of a drainage pipe in that area.  He did not remember if Palm trees were planted in that area.  He had no involvement in using any PVC white piping of the type shown in the photographs.  He did not recognise the sprinklers, and did not ever use that area as a storage area.

44. A report was also tendered from William Purcell, a solicitor.^[1]  Mr Purcell opined a reasonable solicitor undertaking the conveyance work for the property would have undertaken reasonable searches, and informed the purchasers of the outcomes of those searches, including the existence of the drainage easement and its significance.

45. Campbell Craig carried out a pre-purchase inspection of the property for the Appellants on 29 March 2007. He did not recall entering the area to the rear of the property containing the drainage pipe. He did inspect the swimming pool filtration equipment cage. He would have cast an eye generally around the area, noting some deteriorating fencing in the left corner which was referred to in the report. He did not see anything in the nature of a metal cover over a drain. If he had it would have aroused his curiosity. He also did not see any PVC piping in the area.

46. Mr Craig accepted the PVC piping could have been there on his inspection but said if he had observed it he would have investigated it as it was 100 millimetres PVC piping used for the sewer. If the area had been visible from the swimming pool his curiosity would also have been aroused by the fact the ground level was lower than the surrounding area. He does not remember whether there were Palm trees in the vicinity. The whole area in the corner was covered with vegetation consistent with any normal garden setting.

47. Mr Craig also inspected the property for a subsequent inspection report on 15 March 2012.  At that time the area to the rear of the property contained a pile of foliage, branches and garden matter.

Trial judge’s findings

48. The drainage pipe was located within a small area at the rear of the property which was bounded on two sides by boundary fences and on two further sides by a low wooden retaining wall. Adjacent to the area was the swimming pool. The trial judge found that a person looking towards that corner of the yard would have noticed an area in the corner that had been left unfilled and maintained at a lower level than the surrounding garden bed. A closer inspection would have revealed the circular metal cover sitting a few centimetres above the surrounding ground, subject to the presence of fallen leaves and other garden waste.

49. The trial judge found photographs of the area taken on 15 December 2009, showed little sign of any build up of leaves or other garden litter in the sunken area. Whilst the trial judge accepted that by this stage the cover had fallen into the drainage pipe and therefore could not be concealed by any fallen leaves or other garden litter, if there had been significant build up at the time of the fall he would have expected reasonable traces of it to remain unless someone had gone to the trouble of cleaning the area. The Appellants claimed not to have done so.

50. The trial judge considered it likely someone had cleaned up the area before the photographs were taken as the photographs depicted four quite small Palm trees in the garden set back from the edge of the paving surrounding the swimming pool. The trial judge accepted Mrs Craven’s evidence they were not present in the garden at the time she sold the property to the Appellants in 2007. Whilst it was possible those Palm trees were put in that area prior to October 2009, the trial judge found it was more plausible the Palm trees were not there.

51. The Deceased told his solicitors shortly after the incident he had been given instructions by the female Appellant to plant some new Palm trees in the garden area adjacent to the swimming pool. The trial judge considered it odd the Deceased would have made a false statement in respect of those instructions. Whilst the female Appellant denied ever giving that instruction, the trial judge found both Appellants “coy to the point of being evasive” about when the Palm trees were planted. The trial judge found it likely that after Mr Hancock was injured but before the photographs were taken in December 2009 the Appellants had someone cut the Moraya hedge and plant the Palm trees.

52. The trial judge further found that items located adjacent to the drainage pipe in the photographs taken in December 2009 had been placed there after settlement of the property in 2007. Those items included two pieces of 100 millimetres white PVC piping, a quantity of black plastic sheeting, and two sprinklers of different design. The trial judge accepted Mrs Craven’s evidence the black plastic sheeting, sprinklers and white pipes were not there at the time of settlement.

53. Whilst there was no evidence any work had been undertaken on the sewerage system at any time while the Appellants owned the property, or while the Cravens owned the property, the trial judge accepted Mr Craig’s evidence that at the time he undertook a pre-purchase inspection of the property on behalf of the Appellants he had not seen those pieces of white PVC piping. The trial judge found that unless the area was considerably overgrown at that time it was more likely the reason why Mr Craig did not see the pipes is that they were not there at that time.

54. If the pipes were not in the area at the time the Appellants purchased the property, they must have been placed there subsequently. In that case, the Appellants ought to have found out about the drainage pipe and investigated it. If the pipes were present at the time the defendants purchased the property and were not seen, that could only be because the area was much more overgrown.

55. The trial judge concluded there was no reason for the pipes to have ended in that position, unless the occupants of the property had put them there. If they had, the occupants would have been aware of the presence of the drainage pit or at least its cover. Later photographs taken on 11 June 2010 revealed removal of the white plastic pipes. The trial judge considered it odd the pipes would have been removed but the area not otherwise have been cleaned up more generally. Although the later photographs showed fallen Frangipani leaves which were conspicuous, it would “obviously have taken a lot more than one year’s supply of dead frangipani leaves to have caused the lid of the drainage pit to have affectively disappeared under the pile of leaves”.

56. Having regard to the significant concerns he had about the credibility of the Appellants, the trial judge did not accept their evidence they were not aware of the presence of the metal cover over the drainage pipe prior to the Deceased’s fall.  The trial judge accepted that the rejection of that evidence did not establish knowledge of the cover and associated pit.  However, the trial judge concluded it was more probable the white surplus sewerage pipes were placed in that area at the time of the Appellants’ occupation of the property, prior to the fall of the Deceased, and that other items were also put in that area by the Appellants during their occupation of the property. That conclusion supported an inference the Appellants were aware of the presence of the metal pipe, prior to the fall of the Deceased.

57. The trial judge further found the Appellants ought to have been aware of its presence as reasonably careful owners of a suburban residential property would familiarise themselves with the nature and characteristics of that property. The trial judge rejected the female Appellant’s evidence she had given no specific instructions to the Deceased as to the work to be undertaken.  He accepted the Deceased’s statement to his solicitors that he was given specific instructions to cut back the Moraya tree. Those instructions required the Deceased to specifically undertake work in the vicinity of the metal cover and associated pit.  There was an obligation on the Appellants to inspect that area to ascertain whether there was any hazard there which a reasonable person, knowing the Deceased would or could be working in that area, would take steps to protect the Deceased against.  The Appellants had not done so.

58. The trial judge concluded the Appellants knew, or ought to have known the drainage pit was there, and ought to at least have warned the Deceased about its presence. If the Deceased had been warned about the presence of the pipe, he would have avoided standing on the lid and falling into it. The Appellants were negligent in failing to warn the Deceased of its presence. That negligence caused the Deceased to fall, and his ultimate death.

Appellants’ submissions

59. The Appellants submit the trial judge fell into appealable error in inferring:

1. the Appellants must have been in the area of the drainage pipe because they deposited some material there; and

2. if they were in the area it was at a time when the drainage pipe or at least the metal lid was visible.

The evidence did not support such inferences.  Further, the Deceased’s statement to his solicitor was inconsistent with the drawing of an inference that an inspection of the area would have revealed the presence of the metal cover and the underlying drainage pipe.

60. The Appellants submit that having regard to the Deceased’s description of the area at the time of the fall, and the description given by Mr Fenech, any reasonable inspection of the area would only have revealed “dirt, leaf litter and other vegetation on the surface” leaving the pipe and its cover entirely undetectable, visually or when one walked upon it. A reasonable inspection did not require the removal of dirt, litter, leaves and other debris where there was no reason to suspect the presence of the metal cover or the underlying pipe.

61. The Appellants further submit the trial judge erred in finding the Appellants actually knew of the presence of the metal lid. No such inference could be drawn from the presence of the white sewerage pipes and other items in that area. There was no direct evidence these were put there by the Appellants. An inference the Appellants had placed them there was inconsistent with facts established on the evidence. Mrs Craven conceded some of the items in the area had been placed there during her occupation.  She had been uncertain as to whether the remaining items including the PVC piping was there at the time of settlement.

62. Further, there was no basis upon which an inference could be drawn that at the time the Appellants deposited those items in the area, the metal cover and underlying pipe were visible. The evidence from Mrs Craven was that the metal cover was visible on the date of settlement. The fall occurred over two years later. The Deceased had worked in the area in about January 2009, some nine months before the incident and the metal cover was not visible at that time according to the Deceased’s statement.  There was no evidence to support an inference the Appellants had been in that area at any time before dirt, leaves and litter had camouflaged the presence of the metal cover.

63. Finally, the Appellants submit there was no evidence that might support the trial judge’s finding that in any event the Appellants ought to have known of the presence of the metal cover and drainage pipe. There was no evidence the metal cover was visible at any time when the Appellants had entered that area. There was evidence that at the time the Deceased worked in that area the metal cover and drainage pipe were covered by dirt and leaves such that it looked like normal ground. As such, there was no basis to conclude the Appellants ought to have known of the presence of the metal cover and underlying drainage pipe.

Respondent’s submissions

64. The Respondent submits the trial judge’s findings of fact ought not to be overturned “… unless they are glaringly improbable; or unless the judge, in making them, failed to use, or clearly misused, his advantage in observing the witnesses give their evidence”.^[2]  The findings of fact were not glaringly improbable and there was no misuse of that advantage.  Once the trial judge found the drainage pipe and its cover were in a position to be observable during the Appellants’ occupancy of the property, a finding the Appellants, acting reasonably, would have detected the danger is unimpeachable.  Similarly, once it was found the Appellants knew the Deceased may be working in the area, they owed him a duty to inform him of that risk.

65. The Respondent further submits the findings of fact were amply supported by the evidence. The trial judge was entitled to accept the evidence of Mrs Craven that the Palm trees, depicted in the photographs taken on 15 December 2009, were subsequently planted by the Appellants. This conclusion was supported by the Deceased’s statement that the female Appellant had requested he plant some new Palm trees in the garden area adjacent to the swimming pool. Mr Fenech gave evidence they did not plant the Palm trees on the day of the incident.  The photographs taken on 15 December 2009 clearly showed the planted Palm trees in situ.

66. There was also ample evidence to support the trial judge’s finding that the white PVC sewerage pipes shown in the area of the drainage pipe had been placed there by the Appellants prior to the Deceased’s fall. Mrs Craven gave evidence they were not there on the day of settlement. Mr Craig did not see them when he inspected the property pre-purchase, and there was no basis to conclude they were put there after the fall of the Deceased.

67. Once it was found the Appellants had placed the white PVC piping in the area adjacent to the drainage pipe, it was open to the trial judge to find they must have been aware of the drainage pipe. This is particularly so having regard to the photographs taken on 15 December 2009, which showed little sign of any build-up of leaves or other garden litter consistent with there being a significant build-up at the time of the fall. That conclusion was not inconsistent with the Deceased’s description of the area, the Deceased was using a chainsaw at the relevant time and had limited opportunity to view the area prior to the incident.  His statement suggests he was more reliant on the feel of the terrain underfoot rather than its appearance.

68. Finally, the Respondent submits there was clearly a basis upon which the trial judge properly rejected the Appellants’ evidence that they had not placed the white piping in the vicinity of the drainage pipe. The Appellants were considered evasive in their answers, and the female Appellant’s evidence that she had not given specific instructions to the Deceased was inconsistent with the Deceased’s statement. The female Appellant’s evidence she had never hired another gardener was also contradicted by the evidence of the male Appellant.

Discussion

69. The trial judge’s acceptance of Mrs Craven’s evidence that the drainage pipe and its cover were clearly visible on the day of settlement is not the subject of challenge in the Notice of Appeal. Once that finding is accepted, it must follow that from the commencement of the Appellants’ occupation of the property, the drainage pipe and its cover were clearly visible to any occupant of the property who ventured in or near that area.

70. This conclusion renders important the findings of fact as to the placement of the two pieces of white PVC piping shown in the photographs taken on 15 December 2009. Mrs Craven gave evidence they were not placed there by her.  She had acknowledged some of the items depicted in the photograph had been placed there during her occupancy.  There was no reason for her to draw a distinction between those items.  It was open to the trial judge to accept Mrs Craven’s evidence she was not responsible for the placement of the two pieces of white PVC piping.

71. That evidence was consistent with the evidence of Mr Craig that he did not observe any white PVC sewerage piping on the date of his pre-purchase inspection. Whilst Mr Craig did not venture in that area during the pre-purchase inspection, he did look in that direction. There is good reason why he would have noticed their presence if they had been in that area. They were sewerage pipes, and he would have been keen to investigate their presence.

72. Once the trial judge found the two pieces of PVC piping were not in the area on the day of settlement, the two pieces of PVC piping had to have been placed in the area during the Appellants’ occupancy. As there was no evidence any tradesperson had undertaken any sewerage work during that occupancy, it was a legitimate inference, open on the evidence, that the Appellants were responsible for the placement of those pipes. This is particularly so having regard to the evidence accepted by the trial judge, that other items located in that area, namely the black plastic and the sprinklers, were also not present during Mrs Craven’s occupancy of the property.

73. The trial judge’s acceptance that these items were placed in the area during the Appellants’ occupancy of the property amply supported an inference the Appellants had, notwithstanding their denials, been in the area in which the drainage pipe was located at a time prior to the Deceased’s fall. Such an inference was not “glaringly improbable”. To suggest that an equally open inference, was that these items were placed after the Deceased’s fall would mean the Appellants had placed those items there after October 2009 but removed them prior to the photographs being taken in June 2010. There was no logical reason for the Appellants to have done so.

74. The evidence, as accepted by the trial judge, also supported the finding the Appellants ought to have been aware of the existence of the drainage pipe. Mr Purcell opined a reasonable solicitor would have informed the Appellants of the outcome of the searches, which revealed the presence of the drainage easement, and would have informed the Appellants of the significance of that easement.  The Appellants accepted the presence of the drainage easement was brought to their attention as part of the conveyance.

75. It was open to the trial judge to conclude that once the Appellants knew of the presence of the drain they would, as reasonable people, have inspected it, within a reasonable time of their occupancy of the property.  It was, as the Respondent contends, properly a matter for the trial judge to consider the Appellants’ denials as to the knowledge of the drainage pipe against that background.  This is particularly so having regard to the finding the drain and its cover were clearly visible as at the date of commencement of their occupancy of the property.

Conclusions

76. The findings of fact made by the trial judge were supported by the evidence. The inferences drawn by the trial judge were reasonably open having regard to those findings of fact. Those inferences were not “glaringly improbable”. The drawing of those inferences did not involve any misuse of the trial judge’s position of seeing and observing the witnesses.

77. The trial judge was entitled, having regard to the totality of the evidence, to reject the Appellants’ denial of any knowledge of the existence of the drainage pipe. The trial judge was also entitled, having regard to his acceptance of the evidence of Mrs Craven, to find the Appellants ought to have known of the existence of the drainage pipe.  There was the uncontradicted evidence of Mr Purcell that a reasonable solicitor would have brought the existence of the drainage easement to the attention of the Appellants, and the evidence of the Appellants that the drainage easement was brought to their attention.

78. It was open to the trial judge to conclude a reasonable person in the position of the Appellants would, soon after their occupancy of the property, have inspected the area and ascertained the existence of the drainage pipe which was clear of debris as at the date of settlement.

Orders

79. The appeal should be dismissed, with costs.

80. THOMAS J:  I have read and agree with the reasons of Boddice J, and with the order proposed by his Honour.