Singh v Panjabi Sangeet Centre [2008] NSWCA 19 (27 February 2008)

Last Updated: 5 March 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Singh v Panjabi Sangeet Centre [2008] NSWCA 19


FILE NUMBER(S):
40214/07

HEARING DATE(S):
27 February 2008

JUDGMENT DATE:
27 February 2008

EX TEMPORE DATE:
27 February 2008

PARTIES:
Premila SINGH (Appellant)
PANJABI SANGEET CENTRE INCORPORATED (Defendant)

JUDGMENT OF:
Beazley JA Hodgson JA Tobias JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2843/05

LOWER COURT JUDICIAL OFFICER:
Ashford DCJ

LOWER COURT DATE OF DECISION:
16 March 2006


COUNSEL:
S NORTON SC (Respondent)
J E SEXTON SC (Respondent)

SOLICITORS:
Bryden's Law Office (Appellant)
Lee and Lyons (Respondent

CATCHWORDS:
TORT - Negligence - Whether primary judge's preference for the defendant's witneses was justified - Whether adquate reasons given - Whether judge should have made clear findings as to what happened to the plaintiff.

LEGISLATION CITED:
Trade Practices Act

CATEGORY:
Principal judgment

CASES CITED:


TEXTS CITED:


DECISION:
The appeal dismissed with costs. The Notice of Motion for orders as to the incompetency of the appeal is also dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40214/07

DC 2843/05

BEAZLEY JA

HODGSON JA

TOBIAS JA

27 FEBRUARY 2008

Premila SINGH v PANJABI SANGEET CENTRE INCORPORATED

Judgment

1 HODGSON JA: On 10 April 2005, the appellant fell and sustained injury while attending a cultural festival conducted by the respondent. She brought proceedings against the respondent claiming damages. On 16 March 2006, Ashford DCJ determined these proceedings, giving a verdict and judgment for the respondent and ordering the appellant to pay the respondent’s costs. The appellant appeals from that decision.

2 We are dealing with that appeal, and also with a motion brought by the respondent seeking an order to the effect that the appeal is incompetent. Having regard to the view that the court has reached on the merits of the appeal, it is not necessary to deal with the notice of motion. However, I would comment that the notice of motion should have been brought within a limited time after the lodging of the appeal, and it was not brought when it should have been brought.

3 At the trial the appellant gave evidence that she had been born in Fiji in 1954, had married in 1975, and came to Australia with her husband and children in 1990. On the day of the accident, she and her friend, Ms Nadan, arrived at Blacktown Showground at about 12.30pm for a cultural festival. They paid an admission charge and for a time watched some entertainment on a stage. There were some hundreds of people present.

4 The appellant gave evidence that she and Ms Nadan then went to stalls selling food, and they had lunch. The appellant’s evidence was that, as they went back to the stage area, she tripped on something and fell to the ground on her right arm. When she stood up, she saw a rope running along the ground, and two men with turbans doing something with the rope. She said “this rope was not here”, and one of the men said “sorry, we are marking this for the sport, the sports is going to be held here”.

5 The appellant’s evidence was that the ground was hard and the grass was brown, and that the men were about three to four metres apart, the one on her right who spoke to her being “not even a metre from where I fell”. The other man was standing near a post. The rope was tied right at the bottom of this post and was lying on the ground and was straight. It was rope coloured and maybe as thick as the appellant’s finger. The appellant said she did not see the rope before she fell because there were “so many people around”.

6 Ms Nadan gave evidence to somewhat similar effect. She was walking maybe a metre behind the appellant when the appellant fell, and she looked and there was a rope on the ground. However, Ms Nadan could not remember if there was a post the rope might have been attached to, and she said it was in a coil sort of position, it was “like twisted” and was not straight.

7 Both the appellant and Ms Nadan drew diagrams showing the stalls to which they went as being in an area to the left of the stage, looking from the stage; and showing the rope as extending across the front of the stage to a point near the stalls, and locating the fall as being at a point to the left of the stage or perhaps opposite to the left extremity of the stage.

8 The defendant called three witnesses: Mr Dharia, who said he was the overall organiser of the event; and Mr Pooni and Mr Khakh, who said they had erected the rope for the sporting events on that occasion. All of them gave evidence that this rope was erected in an area to the right of the stage, looking from the stage, and that the stalls were some distance from the stage generally in front of it and extending both to the left and right of it.

9 Neither Mr Pooni nor Mr Khakh had any recollection of the appellant or of anyone falling; and for her part, while the appellant remembered seeing Mr Dharia on the stage, she had not seen either Mr Pooni or Mr Khakh before.

10 Mr Pooni gave evidence that there was an area intended to be roped off and that was roped off by him and Mr Khakh. They got the rope from behind the stage, the rope being fluorescent orange, about five millimetres diameter and about 50 to 60 metres long. They set it up in an L-shape to the right of the stage, and they used about 15 poles each about one metre high. Mr Pooni said that he banged the poles in with a hammer, and as each pole was hammered in the rope was looped round the top and pulled taut, this being done by both Mr Pooni and Mr Khakh. The poles were about six metres apart. At the venue there were other ropes on tents, but this was the only rope erected where races were to be conducted. When they set up the rope, there were no other people there.

11 Mr Khakh gave somewhat similar evidence, although he gave very different estimates as to the length of the rope and also as to the distance of the stalls from the front of the stage. His evidence was also rather vague about the procedure for looping or tying the rope to the top of the posts.

12 Mr Dharia gave evidence to the effect that Mr Pooni and Mr Khakh roped off the area for the sports, and gave evidence also that there were few people in that area when the ropes were set up.

13 So far as concerns this appeal, the important part of the decision of the primary judge was her decision rejecting a case of negligence against the respondent. The case was put both in terms of negligence at common law and also a failure to take due skill and care in terms of s 74 of the Trade Practices Act. However, nothing was made of any possible distinction between those two causes of action.

14 The reasons for the primary judge’s decision adverse to the appellant are set out in paras [26]-[31] of her judgment as follows:

26. The evidence in relation to the rope over which the plaintiff is alleged to have fallen differs. On the one hand the plaintiff described the rope as being "rope coloured". The witnesses for the defendant described the rope as being 'orange fluoro'. The plaintiff's witness was not asked the colour of the rope. There is general consensus that the surface of the showground was dry grass. The plaintiff and her friend did not recognise any of the defendant's witnesses as being the persons present in connection with tile rope. The defendant's witnesses did not recognise the plaintiff or her friend.

27. Taken at its highest the plaintiffs evidence is that the rope was rope coloured and thus not easily seen on the dry surface of the showground, saying there was a lack of reasonable care taken by the defendant to ensure persons such as the plaintiff would not fall over such a rope and be injured. The plaintiff’s evidence was that she tripped on something and when she got up she saw the rope running along the ground, concluding she fell over the rope. The plaintiff says there were other people in the area and by inference a rope such as that on the ground constituted a risk. Both the plaintiff and Mrs Nadan were to my mind reasonable witnesses. They did not appear to prevaricate or try to mislead in giving their evidence in respect of the description of the plaintiffs fall although detail of the fall was sketchy. However, the defendants witnesses were also reasonable witnesses who did not seem to me to be untruthful or to attempt to mislead. Indeed all those who gave evidence did so with conviction:.

28. There are no extrinsic aids such as photographs/rope or the like before me which might assist me to form a conclusion such as to resolve this evidentiary dilemma.

29. Each version of events is plausible. Both versions cannot be correct. There was only one area for the races. The defendant submits that reasonable care was taken by the defendant in constructing this area and this was done in an area where there were not a lot of people present and each pole was done one at a time and the rope then attached and pulled taut. Each of the defendant's witnesses maintained the rope was a bright colour and thus easily seen. It was day time. If the rope was orange then it would seem to me it would have been easily seen by any person in the vicinity. It was not suggested the rope was hidden in any way.

30. The evidence of the defendant's witnesses is cogent and compelling in giving a clear rope description and describing the activity they were performing and I accept and prefer their evidence to that of the plaintiff which was lacking much detail.

31. I am satisfied the defendant owed a duty of care to persons such as the plaintiff coming into the festival but I am not satisfied on the balance of probabilities the plaintiff fell as a result of any negligence on the part of the defendant nor that any material supplied in respect of the defendant's event was unfit for the services supplied. I am not satisfied the defendant left any rope unattended on the ground. As a matter of common sense if the rope was orange coloured, as I accept, even if it were on the ground and unattended it would have been obvious to persons such as the plaintiff taking care for her own safety and thus I am of the view that her claim must fail.

15 Ms Norton SC for the appellant made three broad submissions as to unfairness at the trial and error by the primary judge.

16 In relation to the statement by the primary judge, supporting preference for the defendant’s witnesses in para [30] of her judgment, to the effect that the evidence of the defendant’s witnesses was cogent and compelling in giving a clear rope description and describing the activity they were performing, Ms Norton provided a schedule showing inconsistencies and unclarities in the evidence of the defendant’s witnesses, and submitted that their evidence was not cogent and compelling but rather conflicting and confused. Ms Norton’s submission was to the effect that the statement I have referred to by the primary judge was in error, and that the primary judge did not give adequate reasons for accepting the evidence of these witnesses.

17 The second point, which I understand to be both an independent ground and also a further support for a submission that the defendant’s case was not clear and compelling, was that two extremely important aspects of the defendant’s case were not put to the plaintiff in cross-examination as they should have been. Ms Norton submitted that it was not put to the plaintiff in cross-examination that the only area where sporting activities were conducted at the event was an area to the right of the stage, some distance away from where the plaintiff said her accident occurred and in a quite different part of the venue; and it was not put to the plaintiff that, at the area where the sporting activities were conducted and a rope put up, there were very few people at the time when the rope was being put up. Ms Norton submitted that it was unfair to the plaintiff that these important aspects of the defendant’s case were not put to her, and she also submitted that the failure of the defendant to put these matters to the plaintiff further confirmed that the defendant’s case was not the cogent and compelling case that the judge referred to.

18 The third broad submission made by Ms Norton was to the effect that the primary judge did not make a finding as to what happened to the plaintiff, having made a finding of preference of the defendant’s witnesses. The primary judge should, Ms Norton submitted, have gone on to make a finding as to what happened to the plaintiff rather than simply dismissing the plaintiff’s case.

19 I will deal in turn with those three matters.

20 I have carefully considered the schedule provided by Ms Norton and the evidence given by the defendant’s witnesses. It is clear that in certain respects Mr Khakh’s evidence in particular differed from that of Mr Pooni and Mr Dharia, in relation to estimates of length and distance; and I accept that Mr Khakh’s account of precisely how the rope was attached to the post was unclear. However, in my opinion a reasonable inference is that Mr Khakh was not a good judge of lengths and distances, and just did not have a clear recollection of how the rope was attached. In other respects, in my opinion, the evidence of the defendant’s witnesses was clear and consistent in substance, and in particular was clear and consistent as to the general location of the area where the sporting events were to be held and where ropes were put up, and clear and consistent as regards the lack of any large number of people in that area at the time when the ropes were being set up.

21 Ms Norton did point to a difference between Mr Pooni and Mr Khakh, on the one hand, and Mr Dharia on the other hand, the former saying there was no-one else there when they put the rope up and Mr Dharia saying that there were a few other people there; but in my opinion that is not a significant difference, and may be explained by the circumstance that they were not in their evidence referring to precisely the same distances from where a particular activity was being carried on over a particular time.

22 I think there is force in Ms Norton’s submission that the defendant’s case on the location of the area where sports were held, and its case that this was the only area where sports were held, should have been put squarely to the plaintiff, and also the defendant’s case that there were very few people in that area at the time the ropes were being put up should also have been squarely put to the plaintiff.

23 However, the plaintiff’s evidence as to her accident was challenged, and when the defendant’s witnesses came to give their evidence, the nature of the defendant’s case was clear. If the plaintiff did have something helpful to her case that she could have said in relation to those particular aspects of the defendant’s evidence, that is a matter that could have been dealt with in reply. So although ideally the case should have been put to the plaintiff in cross-examination, I do not think the manner in which the case was conducted gave rise to an unfairness that could be regarded as suggesting miscarriage of justice.

24 Having regard to these considerations, I do not think the primary judge was in error in reaching the view that the evidence of the defendant’s witnesses was cogent and compelling and gave a clear description of the rope and the activity they were performing, and in particular gave a clear description of where they were performing it, and the fact that there were few people in that area at the time. In my opinion, the judge was entitled to take that view, and the judge gave adequate reasons for reaching it.

25 Accordingly, in my opinion the primary judge was justified in reaching conclusions that the only ropes for sporting events on the occasion were ropes put up to the right of the stage and not in the location described by the plaintiff; that there were very few people in the area where the ropes were being put up at the time they were put up; that the rope was tied to the top of each post and then carried to the next post; and that the rope was fluorescent orange; and the judge was justified in all those respects in not accepting the contrary evidence of the plaintiff.

26 Ms Norton’s submission is in effect that the primary judge should have gone on to find exactly what happened to the plaintiff, and to indicate with some precision what she accepted or did not accept about the plaintiff’s evidence to the effect that the plaintiff tripped over a rope, spoke to two people putting up the rope, these people not being Mr Pooni or Mr Khakh.

27 In my opinion, in the circumstances of this case it was not essential for the primary judge to spell out precisely what she found in relation to the plaintiff’s evidence. There were perhaps three broad possibilities. One was not accepting the plaintiff at all. The next was accepting that something like what the plaintiff described occurred, but in some other area apart from the area where the rope was put up by Mr Pooni and Mr Khakh. The third was that it did happen in the area where Mr Pooni and Mr Khakh put up the rope.

28 The primary judge did not make it clear which of those three possibilities she preferred, but para [31] rather suggests that of the three she was inclined to accept the third of them. Plainly in relation to the other two, in my opinion, the plaintiff would not have made out a case in negligence against the defendant. If it was a different rope in a different area, then the plaintiff’s evidence as to what was said in relation to sporting events could not be really made sense of, and it would be in my opinion impossible to construct a scenario showing negligence by the respondent.

29 If, as seems to have been the primary judge’s preference, something happened in the area described by Mr Pooni and Mr Dharia, again there would seem to be no basis in the evidence for any finding of negligence against the defendant. A clearly visible rope was being put up in an area with few people around; and although perhaps the primary judge’s reference to a rope being left unattended on the ground was one which did not have any support in the evidence, the judge was really left in a position where it was difficult if not impossible to make a clear finding as to what happened.

30 In all the circumstances, I am not satisfied that the judge’s reasons were inadequate or that her conclusion was wrong.

31 For those reasons, I would propose that the appeal be dismissed with costs, and I would propose that the notice of motion for orders as to the incompetency of the appeal also be dismissed with costs.

32 BEAZLEY JA: I agree.

33 TOBIAS JA: I also agree.

34 BEAZLEY JA: The orders of the court are those proposed by Justice Hodgson.

oOo




LAST UPDATED:
4 March 2008