James v Gold Coast City Council
[2003] QDC 569
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- Unreported Judgment
- James v Gold Coast City Council[2003] QDC 569
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James v Gold Coast City Council[2003] QDC 569
James v Gold Coast City Council[2003] QDC 569
DISTRICT COURT OF QUEENSLAND
CITATION: | James v Gold Coast City Council [2003] QDC 569 |
PARTIES: | FRANK JAMES (formerly known as FRANK FARRELLY) Applicant Appellant GOLD COAST CITY COUNCIL Respondent |
FILE NO: | 375/2002 |
PROCEEDING: | Appeal from Magistrates Court |
ORIGINATING COURT: | District Court Southport |
DELIVERED ON: | 25 February 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 7 February 2003 |
JUDGE: | Newton DCJ |
ORDER: | Leave to appeal granted – appeal allowed – decision of Magistrate set aside – matter remitted to Magistrates Court at Southport for a new trial – respondent to pay appellant’s costs of and incidental to the appeal and the trial, to be assessed – any costs paid to the respondent by the appellant up to the date of judgment in this appeal be repaid to the appellant by the respondent |
CATCHWORDS: | APPEAL AND NEW TRIAL – error of law – whether adverse inference could be drawn against appellant for failing to call as a witness staff member employed by respondent to perform scientific testing and provide a report as to the friction coefficient on the surface of the steps on which appellant slipped – whether such inference should be raised against appellant because he bears onus of proof – error of law – whether Magistrate erred in failing to find resurfacing of steps with non-slip paint by respondent after appellant’s fall was evidence, by inference, that the steps were slippery and constituted a breach of duty by respondent LANDLORD AND TENANT – personal injuries – dangerous premises – proof of negligence – whether rule in Jones v Dunkel was properly applied – whether Magistrate erred in failing to find respondent breached its duty of care to appellant by failing to respond to notice of slippery nature of steps – whether such failure to find was manifestly against the weight of evidence EVIDENCE – admissibility of evidence – whether Rule 227(2) of the Uniform Civil Procedure Rules operates to make admissible documents disclosed without the need to otherwise establish their admissibility Damages – assessment of damages – whether properly made Cases referred to: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Earle v Castlemaine District Hospital [1974] VR 722 Equuscorp Pty Ltd & Anor v Glengallan Investments Pty Ltd [2002] QCA 380 Fabre v Arenales (1992) 27 NSWLR 437 Ho v Powell (2001) 51 NSWLR 572 Jones v Dunkel (1959) 101 CLR 298 Neill v NSW Fresh Food and Ice Pty Limited (1962-1963) 108 CLR 362 Nelson v John Lysaght (Australia)Limited (1974-1975) 132 CLR 201 Payne v Parker ]1976] 1 NSWLR 191 Stead v State Government Insurance Commission (1986) 161 CLR 141 Taylor v Hayes (1990) 53 SASR 282 Tyler v Custom Credit Corporation Ltd (in liq) [2001] QSC 495 |
COUNSEL: | Mr M Jarrett – appellant Mr M Sheaffe – respondent |
SOLICITORS: | Whitehead Payne – appellant O'Keeffe Mahoney & Bennett – respondent |
- [1]This is an application for leave to appeal against the whole of the decision of a Magistrate at Southport on 19 April 2002 by which it was ordered that the plaintiff appellant’s claim in Proceeding No. M804 of 2001 be dismissed.
- [2]Many of the relevant facts are not in dispute and may be summarised as follows. The appellant was born on 30 September 1948 and was, at all material times, employed by the respondent at its water purification plant at 99 John Rogers Road, Mudgeeraba. As part of his employment with the respondent, the appellant was entitled to reside at a house on the site of the water purification plant during the period 1995 to 1998. Access to the house was by way of front and rear steps with a side ramp. The steps and ramp were painted with a gloss acrylic paint. Between 4.30 and 5 p.m. on 28 March 1999 the appellant attempted to walk down the rear staircase to the rubbish bin when he slipped on water on one of the top few steps and fell down the staircase. The steps in question were wet because the appellant had placed a sprinkler under the stairs which had wet the staircase from the third top step downwards. As a consequence of the incident, the appellant injured his right shoulder and right side.
- [3]Prior to the incident the appellant had complained on two occasions to his immediate supervisor about the gloss acrylic paint being slippery. These complaints seem to have referred specifically to the ramp rather than the steps, however the type of paint used on both ramp and steps was identical. The appellant’s supervisor, according to the appellant, advised him to fix the problem of the slippery surface of the ramp and steps himself. This is denied by the respondent.
- [4]The appellant reported the incident to Mr Dunn, Risk Manager, employed by the respondent, who organised for a slip testing officer to attend at the premises and conduct testing of the steps. Immediately after the testing, barriers were erected to prevent access to the steps, and the steps were repainted using a slip-resistant paint containing silica.
- [5]Prior to the incident rectifications had been undertaken to the steps by the respondent. On that occasion no complaint was made by the appellant in relation to their being slippery nor was any request made to have a non-slip paint applied to them.
- [6]Dr David White, Orthopaedic Surgeon, diagnosed the appellant as having suffered a right shoulder injury in the nature of disruption of the rotator cuff resulting in calcification and impingement. He assessed the appellant as having suffered 15%-20% impairment of the right upper limb.
- [7]Dr Peter Boys, Orthopaedic Surgeon, diagnosed the appellant as having suffered a degree of strain symptoms and restriction of right shoulder movement as a consequence of calcific tendonitis of the right shoulder, with a low level of impingement of the supraspinatus tendon and evidence of a mild posterior capsular contracture of the right shoulder. Dr Boys assessed the appellant as having 5% impairment of the upper extremity, with a proportion of this (0%-2%) resulting from the fall of 28 March 1998.
- [8]There are 13 grounds of appeal, each of which will be considered separately. The first two grounds relate to the failure of both of the parties to call the slip testing officer organised by Mr Dunn to attend at the premises and conduct testing of the steps. Thus, it is alleged that the Magistrate erred in finding that an adverse inference could be drawn against the plaintiff for failing to call as a witness the staff member employed by the respondent to perform scientific testing and provide a report as to the friction coefficient on the surface of the steps on which the appellant slipped and fell. It is further alleged that the Magistrate erred in failing to find that an adverse inference should be drawn against the respondent for failing to call as a witness its employee who performed scientific testing and provided a report to the respondent as to the friction coefficient of the surface of the steps on which the appellant slipped and fell.
- [9]I note that at the end of the appellant’s opening at the trial, counsel for the appellant sought to tender two documents that had been made available by the respondent in the disclosure process. Neither the appellant nor the respondent sought to call the author of the documents who, it was admitted by counsel for the respondent at the trial, was the respondent’s employee. It is accepted that the documents are the reports resulting from the scientific testing of the friction coefficient of the surface of the steps on which the appellant slipped.
- [10]In her reasons for her decision the Magistrate stated that:
“I think it is a very interesting point, this question about the inference to be raised against who and to what affect about the document. Here we have a document that is prepared by a council employee – the council is the defendant. The plaintiff knows who the witness is; knows that they could give relevant evidence and they do not call the witness to give oral evidence about what they saw and what their opinions were.
Their own client says that the fellow from the council said the stairs were dangerous. I do not know what exactly was dangerous about the stairs. I do not know what his report says.
It seems to me, in this case, that there is equally strong inference to be raised against the plaintiff as against the defendant because neither one of them called the worker or produced the report. So, the inference of that, the person would say something contrary to the interest of the party, could equally be said to apply to both parties; both the plaintiff and the defendant.
I accept that there is no evidence to contradict what Mr James says; that the worker came out and found the area was dangerous, barricaded it off and then applied non-slip paint. My difficulty is, I do not know whether it was classed as dangerous for some other reason; nothing to do with slipping. And whether there was some other remedial works done on the site; whether they be non-slip paint was the only problem; whether that was a minor problem; whether they thought, we are going to do some work on these steps anyway, so we will slap another coat of paint on. We do not know anything about that.
I do not believe I should fairly an inference against the defendant, nor against the defendant. I suppose I should raise it against the plaintiff, because the plaintiff bears the onus of proving their case when they come before the Court.”
- [11]It may, I think, reasonably be assumed that the Magistrate made an unintentional slip of the tongue in the last paragraph which should be understood as saying:
“I do not believe I should fairly raise an inference against the plaintiff, nor against the defendant …”
- [12]The rule in Jones v Dunkel (1959) 101 CLR 298 postulates that the unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case.
- [13]The respondent, in resisting the submission of the appellant in this regard, submits that the Magistrate made an inference against both parties and that as there were competing inferences, the uncalled evidence would assist neither side. In any event the inference against the appellant, it is suggested, was of little significance because the words “I suppose” in the final paragraph tend to indicate that little weight was placed by the Court on the inference. It is further submitted by the respondent that the appellant could have called the relevant witness and there is no explanation as to why the witness was not called. The appellant had been provided with a copy of the relevant documents and could have interviewed the employee who prepared them following the tests. Although counsel for the respondent in his written submissions has admitted that the closeness of the relationship of the absent witness to either of the parties is a relevant consideration, there is no evidence as to the precise position the employee held with the respondent. If, it is suggested, he was in a minor position, it would not reasonably be expected that the respondent would call him. The respondent submits that it was appropriate that an inference, though not a strong inference, be drawn by the Magistrate against the appellant for not calling the witness.
- [14]Several observations may be made with respect to the respondent’s submissions on this point. Firstly, it should be remembered that the rule can operate against parties not bearing the burden of proof and parties which do bear it as well (Ho v Powell (2001) 51 NSWLR 572 at [16]). In Fabre v Arenales (1992) 27 NSWLR 437 at 449-50 Mahoney JA (with whom Priestley and Sheller JJA concurred) stated that:
“The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness. He may not be sufficiently aware of what the witness would say to warrant the inference that, in the relevant sense, he feared to call him. The reason why the witness is not called may have no relevant relationship with the fact in issue: it may be related to, for example, the fact that the party simply does not know what the witness will say. A party is not, under pain of a detrimental inference, required to call a witness ‘blind’.
…
A Jones v Dunkel inference may not arise if, for example, the witness has a reason for not telling the truth or refusing to assist and the party who may well call him is aware of this.”
- [15]The learned author of Cross on Evidence (Butterworths 1996), Justice J D Heydon, in volume 1 at p 1088, notes that the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference.
- [16]Furthermore, the rule cannot be applied to the non-calling of a witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness, or where the missing witness would be expected to be called by one party rather than another (Payne v Parker [1976] 1 NSWLR 191 at 201-2 per Glass JA).
- [17]At p 1089 of Cross (ibid) the author states that although a party is not necessarily to be expected to call even that party’s own employees, the higher the employee stands in the party’s employment the more reason there is for thinking that the employee’s knowledge is available to his employer rather than any other party. In Earle v Castlemaine District Hospital [1974] VR 722 at 734-5, Lush J stated that:
“In the present case, the duties which the engineer performed for the defendant are known only from the fact he was described as engineer and safety officer, but I think even from so little information it can fairly be inferred that his knowledge was available to the defendant rather than to the plaintiff. The defendant had the right to know in advance what he would say; the plaintiff had no such right and it is not difficult to think of sound reasons why the engineer might refuse to make his knowledge available to her.”
- [18]In the instant case, in my opinion, the Magistrate instead of drawing an adverse inference in respect of the appellant because he bore the onus of proof of establishing a breach of duty, should have considered whether the appellant was in a position to have sufficient certainty about what the respondent’s employee would say if called as a witness. The Magistrate should furthermore have considered whether the closeness of the relationship of the absent witness with the respondent was sufficient to properly permit an inference to be drawn against that party rather than against the appellant. A proper assessment in that regard would require the Magistrate to consider whether the relationship between the slip testing officer and the respondent was such that the witness was likely to favour the interests of the respondent rather than those of the appellant. The Magistrate should also have considered whether it would be natural to expect the respondent to call the slip testing officer rather than to conclude that the appellant might reasonably be expected to call the witness. In my view, it was open to the Magistrate to infer that the failure to call the slip testing officer would not have assisted the respondent’s case. There was no explanation given as to why the respondent did not call its employee to refute the plaintiff appellant’s evidence that the steps were slippery. The Magistrate erred, in my opinion, in drawing an inference adverse to the appellant in the circumstances, and the relevant grounds of appeal have, accordingly, been made out.
- [19]The appellant next complains that the Magistrate was wrong to admit into evidence friction coefficient test results and a related report of the slip testing officer dated 26 May 1998. These were documents that had been disclosed to the appellant by the respondent. It is contended that pursuant to Rule 227(2) of the Uniform Civil Procedure Rules, 1999 these documents were admissible as evidence against the party making disclosure without the need to otherwise establish their admissibility. Rule 227(2) provides that a document disclosed under Division 1 of Part 1 of Chapter 7 that is tendered at the trial is admissible in evidence against the disclosing party as relevant and as being what it purports to be.
- [20]The scope of the Rule was considered by the Court of Appeal in Equuscorp Pty Ltd & Anor v Glengallan Investments Pty Ltd [2002] QCA 380. Williams JA, with whom Chesterman J agreed, stated at paras 103-108, in relation to a document which counsel for the plaintiffs had sought to tender at the trial and which the trial Judge had ruled was inadmissible unless supported by other evidence:
“[103] It was disclosed consequent upon the orders for further discovery and inspection made in the course of the trial. There was no suggestion the maker of the document was not available to give evidence. Counsel for the plaintiffs sought to tender the document as evidence of admissions by [P]. The document was clearly hearsay and there was nothing in the Evidence Act 1977 which afforded a basis for admissibility. The contention was that r 227(2) effectively altered the law of evidence so that the document was admissible. The learned trial Judge refused to hold that the rule in question had effected such a substantial change to the law of evidence.
[104] Since Wilson v Thornbury [1875] LR 10 Ch App 239 it has generally been recognised that (absent any special rule) disclosure in an affidavit of documents only admits that the pieces of paper are in the possession of the party, it does not amount to an admission of the genuineness of the document. That is overcome by the rule in question saying that the document, if admitted, is evidence ‘as being what it purports to be’. Further, r 211 requires a party to disclose documents ‘directly relevant’ to an allegation in issue; it says nothing about admissibility. In order to get a document into evidence it may in many instances be necessary to call a particular witness; the rule in question does not obviate the necessity of so doing.
[105] Some simple examples demonstrate the correctness and reasonableness of the ruling made by the learned trial Judge. Suppose a traffic accident is witnessed by a bystander who then hands to the driver of one of the vehicles a document saying:
‘I saw you go through the red light. Bill Jones’.
If the driver to whom that note was given kept it in his file on the accident it would be a document relevant to an issue in subsequent proceedings relating to the accident. It would therefore be discoverable, but, if Bill Jones could not be located to give evidence, the other driver could not tender the document as of right pursuant to [r] 227 against the driver making disclosure of it as evidence tending to establish who went through the red light. It would be clear hearsay and inadmissible. (If Jones could not be found the document may be admissible to s 92(2) of the Evidence Act 1977, but that is a different issue.)
[106] The decision of the learned trial Judge in this case was followed and applied by Muir J in Tyler v Custom Credit Corporation Ltd (in liq) [2001] QSC 495. There counsel for the plaintiff sought to tender a real property valuation disclosed by the defendant pursuant to the Uniform Civil Procedure Rules but where the author was not being called as a witness. Muir J held that r 227(2) did not operate to make the document admissible against the disclosing party on the issue of the valuation of the land. The decision is obviously correct. A bank or finance house may well have on a particular file numerous documents containing a statement as to the value of some property, sometimes without any indication whether the maker of the statement was qualified as a valuer. Such documents may well be regarded as relevant and therefore documents which had to be disclosed, but they would not be admissible on the issue of the value of the property without calling the maker and establishing qualifications as an expert.
[107] In the present case, as already noted, [P] was available to be further cross-examined…but counsel for the plaintiffs elected not to proceed in that way. The learned trial Judge had ordered that the trial be re-opened and in consequence the plaintiffs had the opportunity of calling such further oral evidence as may have been required in order to establish the admissibility of the documents in question. They chose not to proceed in that way.
[108] It follows that there was no improper refusal on the part of the learned trial Judge to admit evidence and the ground of appeal in question is not made out.”
- [21]In the present case similarly the friction coefficient test results and resultant report of the slip testing officer were hearsay and thus inadmissible. Counsel for the appellant conceded that the documents were not admissible pursuant to s 92(2) of the Evidence Act 1977. In my view, the documents, although clearly relevant, would not have been admissible without their maker being called to establish his qualifications as an expert. The Magistrate was not in error in refusing to admit the documents into evidence pursuant to r 227(2), and accordingly, the relevant ground of appeal must fail.
- [22]The appellant next complains that the Magistrate erred in failing to find that the barricading and resurfacing of the steps with non-slip paint containing silica by the respondent after the appellant’s fall was evidence, by inference, that the steps on which the respondent fell were slippery and constituted a breach of duty by the respondent landlord.
- [23]The plaintiff appellant gave evidence before the Magistrate that after the fall a risk assessment team came to the site and “did their report and then the following day they put up a temporary barricade on the long stairway and the ramp...they suggested I use the front stairs where there was only three steps...I was there while he was doing all the testing. It was my day off and he said it was dangerous and he’d have it barricaded...Within a fortnight, they’d painted all three houses on site with a slip-resistant paint...I was told by the painting crew that it had silica in the paint – glass beading.” The plaintiff said that the new paint felt a hundred times better under foot and very safe in wet weather. He said he had experienced no problems at all in using the steps in wet weather after the slip-resistant paint had been put down.
- [24]The evidence given by the plaintiff appellant in this regard was not contradicted by any evidence called by the respondent. In her reasons for judgment the Magistrate, in dealing with this aspect of the evidence, stated:
“He says that after this incident, the council went out – an employee of the council went out and inspected the place. They said it was dangerous. The[y] put up a barricade and then they put some stuff on the stairs which he presumes is non slip paint.”
- [25]The Magistrate’s summary of this part of the appellant’s evidence does not accurately reflect what the plaintiff said. It is not the case that the appellant “presumed” that some stuff was put on the stairs which was non-slip paint. His evidence was that the painting crew had told him that the paint used on the steps after his fall had silica in it or glass beading. No evidence to the contrary was placed before the Magistrate and there was no challenge by counsel for the respondent to that part of the evidence being inadmissible as constituting hearsay.
- [26]In Neill v NSW Fresh Food and Ice Pty Limited (1962-1963) 108 CLR 362 at 369-370 Taylor and Owen JJ stated that:
“...in order to enable an injured workman to recover damages from his employer the evidence must be such as to justify a finding of negligence on the part of the employer and, if the negligence alleged is in relation to the system of work employed, the evidentiary material must be such as to enable the jury to find that the system unreasonably exposed the workman to risk of injury. In other words, it must appear that the employer failed ‘to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation’: see per Lord Tucker in General Cleaning Contractors Ltd v Christmas [1953] AC 180, at p 195. Whether or not there has been such a failure on the part of the employer may, in some cases be resolved, by the application of common knowledge; in others it may be necessary to show a departure from long-established practice in the type of work under consideration or by showing that an appropriate method which would eliminate or minimise the risk was reasonably available. Additionally, of course, it must appear that the plaintiff’s injuries would have been prevented if the standard practice or the alternative method had been employed.”
- [27]Thus, it was open to the plaintiff appellant to undertake to establish at the hearing of the trial before the Magistrate that a reasonably practical alternative system or measure was available to the respondent which would have reduced the risk of injury – that is, that the application of a non-slip paint on the steps on which the plaintiff fell would have reduced the likelihood of such an incident occurring.
- [28]In Nelson v John Lysaght (Australia)Limited (1974-1975) 132 CLR 201 a workman was required, as part of the duties of his employment in a steel mill, to assist in moving coils of steel down a ramp and on to a hoist from which they were fed into rollers. After the coil was placed on the hoist the tail of the coil remained on the ramp and was held in place by a heavy bar. In order to lower the bar onto the tail the workman had to take hold of it and walk backwards across the ramp and the coil and clamp the bar in position. The ramp was made of smooth steel and both it and the coils were slippery with oil. While the workman was walking backwards with the bar he slipped and was injured. At the trial of an action for damages evidence was given that about a month after the accident a new system was installed which had made it unnecessary for a workman to walk backwards across the ramp and the coil in order to lower the bar. The employer called no evidence to suggest that the new system was inordinately expensive or otherwise disadvantageous, and its counsel did not cross-examine in such a way as to suggest that it was. The Court held that the jury was entitled to find that the system of work in force at the time of the accident was such as to expose the workman to a clear risk of serious injury; that it was practicable to eliminate or minimise that risk by the adoption of the method which had since been adopted, and that it was unreasonable for the employer not to have adopted that method before the accident occurred. Gibbs J, at 214-215 stated:
“In my opinion, however, the conclusion reached by the learned trial Judge that the appellant had made out a case fit to be submitted to the jury was correct, even if it be assumed that the bar was installed as part of a much wider remodelling of the plant. Even on that assumption the appellant has shown that it was practicable to provide a new method of doing the work that would eliminate or minimise the risk, because such a new method has in fact been put into operation. In determining whether a reasonable employer would have provided such a new system it would be necessary to consider not only the degree of risk of accident and injury likely to result if no such provision were made, but also the disadvantages, if any, of taking the suggested precaution…The onus of proving that it was unreasonable not to take the precaution, of course, lay on the appellant. However, when the respondent, which must have had full knowledge of the nature, cost and practical consequences of the new installation, gave no evidence, and by its counsel asked no questions, to suggest that it was inordinately expensive or in any other way disadvantageous, the jury was entitled to infer at the very least that the advantages of the method which the respondent has since adopted were not outweighed by any disadvantages.
The evidence was such as to entitle the jury to reach the conclusion that the respondent’s system of work in force at the time of the accident, notwithstanding that it involved the provision of protective clothing, was such as to expose the appellant to a clear risk of serious injury, that it was practicable to eliminate or minimise that risk by the adoption of a different method, namely, that which has in fact since been adopted, and that it was unreasonable of the respondent not to have adopted that method before the accident occurred.”
- [29]In the instant case it was, in my view, incumbent upon the Magistrate to consider whether the evidence had established that a change of system had been implemented by the respondent since the injury and whether such change amounted to a reasonably practical alternative system or measure which would reduce the risk of injury. In circumstances where the plaintiff appellant’s evidence on this point was not contradicted by any evidence called by the respondent, and where counsel for the respondent did not by his questions suggest that it was disadvantageous (by way of cost or otherwise) to provide non-slip paint for the steps it would, in my view, have been open to the Magistrate to infer that it was unreasonable for the respondent not to have applied such paint to the steps prior to the appellant’s accident. The Magistrate’s reasons for her decision do not reveal that she turned her mind to this aspect of the evidence. The relevant ground of appeal has, accordingly, been made out.
- [30]The appellant next complains that the Magistrate erred in finding that there was no evidence before her as to why the steps on which the appellant fell were considered dangerous by the employee of the respondent performing the testing of friction coefficient.
- [31]In support of this ground of appeal, the appellant points to a passage at p 7 of the Magistrate’s reasons which is in these terms:
“I accept that there is no evidence to contradict what Mr James says; that the worker came out and found the area was dangerous, barricaded it off and then applied non slip paint. My difficulty is, I do not know whether it was classed as dangerous for some other reason; nothing to do with slipping. And whether there was some other remedial works done on the site; whether they be non slip paint was the only problem; whether that was a minor problem; whether they thought, we are going to do some work on these steps anyway, so we will slap another coat of paint on. We do not know anything about that.”
- [32]It is not clear why the Magistrate thought it necessary to speculate as to the possible existence of some problem beyond that caused by the slippery nature of the steps. It should be remembered (as indeed the Magistrate observed) that the appellant’s evidence was entirely uncontradicted and that it was never suggested by counsel for the respondent that any other problem had been identified with regard to the steps in question. There was no evidence before the Magistrate to suggest that any other remedial works had been carried out on the steps.
- [33]Although, in my opinion, it was not open to the Magistrate to speculate as to any other difficulty than the non-slip paint, it does not appear that her decision was based upon a finding flowing from such speculation. I would not be minded to allow the appeal on this ground despite the well-merited criticism of the Magistrate’s remarks in this regard.
- [34]The appellant’s next ground of appeal alleges that the Magistrate erred in failing to find the respondent breached its duty of care to the appellant by failing to respond to notice of the slippery nature of the steps, when such failure to find was manifestly against the weight of evidence.
- [35]The appellant, in his evidence before the Magistrate, stated that he complained about the slipperiness of the gloss acrylic paint on two occasions. The first occasion followed a slip on the back ramp which occurred within a month or two of his moving into the house. The complaint was made to Mr Burness whose title was that of Co-ordinator. According to the appellant, the response of Mr Burness on that first occasion when he complained was to tell the appellant that he should paint the ramp himself and add some sand to the paint. The appellant replied that it was not his responsibility to do so to which Mr Burness made no comment but “brushed it aside”. The second occasion on which the appellant complained was within the next five to six months. On this occasion there were two people present when the complaint was made by the appellant, namely, Mr Burness and Mr Hughes. The second complaint also elicited little, if any, response. According to the appellant, after those complaints had been made and prior to his fall, the surface of the stairs was not changed although some timber that had been replaced was repainted but with the same type of gloss acrylic paint as had been used previously. In cross-examination the appellant conceded that his complaints had specifically been made in respect of the ramp rather than the stairs.
- [36]The evidence given by the appellant of complaints about the nature of the painted surface of the ramp was not controverted in any way by evidence called by the respondent. It was not suggested that the nature of the surface of the ramp differed in any way from that of the stairs. Nor was there any evidence led to contradict the appellant’s evidence that the respondent failed in the period between the complaints and the fall to take any action in response to the appellant’s drawing the respondent’s attention to the slippery nature of the painted surface of the ramp (and by necessary implication, the stairs).
- [37]In these circumstances the Magistrate had before her uncontroverted evidence of a defect, notice of the defect and a failure to remedy. In my view, the Magistrate’s perception of the credibility of the appellant as a witness could not have assisted her in forming her conclusions that the respondent had not been shown to have breached its duty of care by failing to respond to the appellant’s complaints with regard to the slippery nature of the paint which had been used on the steps in question. I accept that her finding in this regard was manifestly against the weight of evidence and that her verdict was unreasonable. Indeed, the Magistrate’s finding against the appellant was unsupported by any evidence which was capable of justifying the verdict reached.
- [38]In Taylor v Hayes (1990) 53 SASR 282 at 291 the approach to be taken in an appeal to this Court from a decision of a Magistrate was identified in these terms:
“An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for re-hearing before the same or another court of summary jurisdiction.”
- [39]Because of the views I have reached in relation to other defects in the Magistrate’s reasons for her decision, it seems to me more appropriate to remit the matter for re-hearing than simply to substitute my own view for that reached by the Magistrate regarding the breach by the respondent of its duty of care.
- [40]The appellant complains in ground 7 that the Magistrate erred in finding the appellant negligent for sprinkling his garden near the steps upon which he subsequently fell. This finding, in my opinion, was clearly open to the Magistrate to draw and I do not propose to dwell upon it beyond observing that the Magistrate’s reasons do not disclose any consideration of contributory negligence.
- [41]Ground 8 of the grounds of appeal alleges that the Magistrate erred in taking into account an irrelevant consideration, namely an assumption, not supported by evidence, that 95 per cent of houses have gloss acrylic paint on the steps attached thereto.
- [42]Little need be said in relation to this ground of appeal as the Magistrate specifically excluded from her mind the assumption that she made in that regard.
- [43]Grounds 9 to 13 (excluding ground 12) relate to allegations of shortcomings in the way in which the Magistrate dealt with quantum. This part of the Magistrate’s reasons for her decision causes me to have considerable concern as to whether the aspect of quantum was properly dealt with at the trial. The difficulties appear to have been at least partly brought about by the Magistrate’s misconception as to the nature of her function in a trial for damages resulting from personal injuries. Having found in favour of the respondent, the Magistrate was not aware that she was required to proceed to assess quantum, notwithstanding the verdict against the appellant. The transcript shows that having dismissed the plaintiff’s claim the Magistrate stated:
“I am not able to make any decision about any costs today or make any orders as I did say I wished to finish about four and it is now after that time.
If you gentlemen have a discussion then of course two things will apply. You might wish to appeal my decision, Mr Charrington. I do not know whether you want to sort out costs in any event, but if you are unable to agree on costs, perhaps we could have it listed in about a month’s time.”
- [44]At this stage counsel for the unsuccessful plaintiff appellant addressed the Magistrate and the following exchange occurred:
“MR CHARRINGTON: Your Worship, for the purpose of any appeal that is forthcoming, you are obliged to assess quantum in a personal injury case.
BENCH: Quantum?
MR CHARRINGTON: Yes.
BENCH: Even when I do not assess the liability?
MR CHARRIGNTON: Yes.
BENCH: I will do that on another day then. I reserve – I should do it now…”
- [45]Thereafter the Magistrate proceeded to assess damages for pain and suffering in the sum of $5,000.00. Her reasons continued as follows:
“There will be a proportion of interest therein which I will calculate later. There are medical expenses, travelling expenses and pharmaceutical expenses claimed. I will calculate those later, reparable [sic] to the period of the seven months that I have determined relate to this incident.
Therefore, after I do those calculations – I will not be sitting in this Court tomorrow or Friday – so I will make those calculations next week and I will deliver my judgment next week in finality about the figures.
Should anyone wish to be here, please contact Miss Hamilton. She will give you some details about what time I am going to do it that week. Thank you.
You do not need to attend and you can simply get that information from the registry.”
- [46]I was informed by counsel that the Magistrate did deliver further findings in relation to quantum of damages at a subsequent occasion. Counsel for the appellant informed me that his instructing solicitors searched the Court file in May of 2002 and discovered a notation on the Court file in these terms:
“I assess damages as for pain and suffering and loss of amenities, $5,000; interest, $400; past economic loss, nil; future economic loss, nil; special damages from May 1998 to October 1998, $159.35; interest on specials, $31.58; total $5,591.22.”
- [47]No notification was received by the legal representatives for the plaintiff appellant that the assessment either was to take place or indeed had taken place. Furthermore, it appears that no reasons for such assessment have ever been given.
- [48]The assessment of quantum of damages by the Magistrate in this case is open to criticism on several grounds. Firstly, it appears that the Magistrate has failed to take into account that the parties had agreed on special damages in the sum of $1,769.00. I am unable to ascertain from the Magistrate’s reasons or the notation on the Court file the reason why this agreed sum was not assessed. Secondly, to the extent that the schedule of special damages and agreed items applied through to July 1999, the Magistrate has varied an amount compromised by the parties, and therefore must be taken to have decided a matter which was not properly before her for consideration. Thirdly, by proceeding to assess quantum of damages in circumstances where the plaintiff appellant’s legal representatives were not afforded a proper opportunity to attend and make appropriate submissions, the Magistrate has circumvented the normal procedure. I do not consider it sufficient to tell the parties that they can discover the date of the resumed hearing by contacting someone in the Registry. The matter should have been adjourned to a date to be fixed and proper notification given to the parties prior to the assessment of damages at the resumed hearing.
- [49]In his written submissions counsel for the respondent has conceded that the Magistrate’s decision failed to give adequate reasons on quantum. It was suggested that it was open to this Court to make findings with respect to past and future economic loss and future medical expenses. I have concluded, however, that it would be inappropriate to do so in circumstances where differences of opinion between medical witnesses were resolved by the Magistrate on the basis of her findings of credit made in respect of the plaintiff appellant, and where other aspects of the trial have so manifestly miscarried.
- [50]The jurisdiction of this Court on the hearing of an appeal derives from s 47 of the Magistrates Courts Act 1921 which provides:
“47. On the hearing of an appeal or special case, the District Court may –
- (a)draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;
- (b)order a new trial on such terms as it thinks just;
- (c)order judgment to be entered for any party;
- (d)make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;
- (e)as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;
- (f)make such order with respect to the costs of the appeal or special case as it thinks proper.”
- [51]Not every error made during the course of a trial will be the occasion for ordering a new trial; it must be shown that the error caused a substantial wrong or miscarriage of justice (Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41). In this case the Magistrate’s finding that the respondent had not been shown to have breached its duty of care by failing to respond to the appellant’s complaints relating to the slippery surface of the ramp (and by inference the stairs) is, in my opinion, an error which has brought about a miscarriage of justice. Her failure to find that the resurfacing of the steps with non-slip paint by the respondent after the appellant’s fall was evidence, by inference, that the steps were slippery and constituted a breach of duty by the respondent landlord also constitutes an error which has led to a miscarriage of justice. Similarly, the Magistrate’s error in drawing an inference adverse to the appellant from the failure to call the slip testing officer on the ground that the plaintiff appellant carried the onus of proof should be viewed in the same light. Furthermore, the unsatisfactory manner in which quantum of damages was assessed has added to the substantial wrong occasioned to the appellant.
- [52]I have formed the view that the extent and significance of the Magistrate’s errors are such as to require that the plaintiff’s action be re-heard in the Court below and preferably by a different Magistrate. I am satisfied that such order would not inevitably result in the making of the same order as that made by the Magistrate and consequently be futile (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). I therefore order that leave to appeal be granted, that the appeal be allowed and the decision of the Magistrate dated 19 April 2002 be set aside. I further order that the matter be remitted to the Magistrates Court at Southport for a new trial. The respondent is to pay the appellant’s costs of and incidental to the appeal and the trial, to be assessed. Any costs paid to the respondent by the appellant up to the date of this judgment are to be repaid by the respondent to the appellant.