Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35 (20 March 2008)

Last Updated: 25 March 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Gaskell v Denkas Building Services Pty Limited [2008] NSWCA 35


FILE NUMBER(S):
40425/2004

HEARING DATE(S):
29/02/2008

JUDGMENT DATE:
20 March 2008

PARTIES:
David Anthony Gaskell - Appellant
Denkas Building Services Pty Ltd - 1st Respondent
Harding Rogers & Associates Pty Ltd t/as Richardson & Wrench - 3rd Respondent

JUDGMENT OF:
Hodgson JA Basten JA Bryson AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
CL 20763/2001

LOWER COURT JUDICIAL OFFICER:
Johnson J

LOWER COURT DATE OF DECISION:
23 June 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
[2006] NSWSC 632

COUNSEL:
D W Elliott - Appellant
J Sexton SC, J Gracie - Respondents


SOLICITORS:
G H Healey & Co - Appellant
Vardanega Roberts - 1st Respondent
DLA Phillips Fox - 3rd Respondent

CATCHWORDS:
EVIDENCE - occupiers liability - tenant of office suite injured in slip and fall in toilet, common area in office building - tenant alleged he had earlier informed director of building owner of repeated pooling of water - adverse inference based on failure of occupier to call director - Trial Judge accepted evidence of other witnesses denying complaints to them and declined to draw adverse inference although recognized that it was available - Held, no error.
COURTS and JUDGES - delay in giving judgment - reserved 29 July 2005, published 23 June 2006 - no expressed reliance on demeanour - on review of reasons in judgment, no ground for fearing that a grasp of the evidence has been lost or that conclusions have been hurried or poorly considered.

LEGISLATION CITED:
Civil Liability Act 2002
Conveyancing Act 1919 s 127


CASES CITED:
Hadid v Redpath [2001] NSWCA 416; [2001] 35 MVR 152
Jones v Bartlett [2002] HCA 56, 205 CLR 166
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Krivoshev v Royal Society of the Prevention of Cruelty to Animals Inc. [2005] NSWCA 76
Manly Council v Byrne [2004] NSWCA 123
Monie v Commonwealth of Australia [2005] NSWCA 25
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
Expectation Pty Ltd v PRD Realty Pty Ltd & Anor [2004] FCAFC 189

TEXTS CITED:


DECISION:
Appeal dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40425/2004

CL 20763/2001

HODGSON JA

BASTEN JA

BRYSON AJA

20 March 2008

DAVID ANTONY GASKELL v DENKAS BUILDING SERVICES PTY LIMITED and OTHERS

Judgment

1 HODGSON JA: I agree with Bryson AJA.

2 BASTEN JA: The appeal should be dismissed with costs, for the reasons given by Bryson AJA.

3 BRYSON AJA: The appellant, plaintiff in the Common Law Division, appeals against the verdict and judgment for the first and third defendants, now respondents, given by Johnson J. on 23 June 2006. The proceedings were commenced by Statement of Claim on 7 September 2001 and the Civil Liability Act 2002 has no application. On 10 September 1998 Mr Gaskell was injured when he slipped on the floor of the men’s toilet in an office building at Railway Parade, Engadine.

4 Mr Gaskell was then the tenant of office Suite 4A. Hydrofix Pty Ltd, a company through which Mr Gaskell carried on an engineering consultancy business, underleased Suite 6 on the first floor of the premises from Denkas Building Services Pty Ltd (the first defendant and first respondent) and Durrusi Holdings Pty Limited, which were then co-owners of the head lease, for three years from December 1993, and Mr Gaskell guaranteed Hydrofix’s obligations. The toilet was one of the common areas such as foyer and corridors which were available for use by Mr Gaskell and other tenants and persons associated with them. They were not parts of the demised premises. The lessors were the occupiers of the common areas including the toilet.

5 The lease conferred rights on the lessee to use common areas. Curiously there were two different sets of provisions in the lease in slightly different terms. One of these (cl 13.2) was as follows:

The Lessee will have the right to use in common with the Lessor and other persons the footways passageways toilets driveways and such other areas grounds pertinences [sic] and conveniences of and in relation to the building for the respective purposes for which they were designed and intended.

Clause 10.8 was very similar but did not speak in terms of right to use common areas; it spoke only in terms of permission.

6 Hydrofix was deregistered and went out of existence in March 1996, and from then on Mr Gaskell paid and the landlords and their managing agent accepted rent for Suite 6 from Mr Gaskell himself. Then Mr Gaskell left Suite 6 and took Suite 4A, also on the first floor of the building. The Trial Judge held (judgment [41]) that these events gave rise to a tenancy at will under s 127 of the Conveyancing Act 1919 terminable by one month’s written notice expiring at any time; incorporating such of the covenants of the written lease as were consistent with such a tenancy. As the Trial Judge found (judgment [43]) Mr Gaskell was the tenant of the office premises with a right to use the men’s toilet.

7 The building had once been a squash court complex, but had been converted to an office building before Denkas became an owner. Mr Gaskell’s office was a modified squash court. The male toilet was on the first-floor, diagonally opposite Suite 4A but up three stairs from the entry to Mr Gaskell’s office. There was a female toilet on the second floor.

8 The managing agents Harding Rogers and Associates Pty Ltd (HRA) had responsibility for managing the common areas, including cleaning, which they did not have for the office suites let to tenants. HRA was the managing agent of the building under a written Agency Agreement dated 9 August 1993 to which Denkas was a party. Denkas and HRA were separately represented at the trial, but had common representation on the appeal. At some time the co-owner Durrusi Holdings Pty Ltd also went out of existence; it is named on the record as second defendant, and as second respondent, but proceedings against Durrusi were discontinued and Johnson J’s decision and the appeal do not relate to it. Denkas sold the building in late 1998 and HRA involvement in managing the building ceased.

9 In the Notice of Appeal Grounds 1 and 2 challenged the Trial Judge’s treatment of the failure of the respondents to call Mr Mark Kasunic, the principal of Denkas, as a witness to rebut Mr Gaskell’s evidence about notifying Mr Kasunic that there was pooling of water in the men’s toilet. It was contended that the Trial Judge erred in failing to draw an inference adverse to the respondents and there were complaints about the effect that the adverse inference would have had on other findings. Grounds 3 and 6 asserted errors of fact in relation to findings against HRA; in view of the course of argument these do not require separate consideration. Grounds 4 and 5 contended that the Trial Judge was in error in applying the law relating to the duty of care and the standard of care owed by Denkas as occupant and Ground 5 related to a development of this contention to a matter of detail relating to the state of the tiles and to an observation in Jones v Bartlett [2002] HCA 56, 205 CLR 166 at 213. Ground 7 related to assessment of damages and contributory negligence. Shortly before the hearing the appellant obtained leave to add a further ground relating to the consequences of delay by the Trial Judge in giving judgment. The appellant has not availed himself of this leave or filed the Amended Notice of Appeal, so I rely on counsel’s development of the additional ground at the hearing of the appeal.

10 In the Trial Judge’s view [202]:

202 Firstly, there is no issue that Denkas owed a duty of care to the Plaintiff. The question for consideration is the nature of the standard of care owed and whether there was a breach of the relevant duty by Denkas.

11 The Trial Judge said (judgment [6]):

There is no issue that the Plaintiff experienced a fall in the premises on 10 September 1998. However, there is a significant controversy concerning the circumstances of that fall. A major question falling for resolution is whether the Plaintiff had observed pooling of water on the floor of the men’s toilet on occasions prior to 10 September 1998 and, if so, whether he had ever complained to representatives of Denkas or HRA about this matter.

12 The allegations of negligence which were addressed at the trial were not narrowly defined but they related to two subjects. The first was whether there was a danger of slips and falls for men using the toilet from the interaction of characteristics of the tiles and recurring events in which water pooled on the floor, enhancing the slip characteristics of the tiles. The source of the water which pooled on the floor was not established and seems not to have been important for this claim of negligence; it could have been water from flushing the urinal, or urine, or it could have been water from some other source; the danger arose from the recurring events in which there was pooled water on the tiles. To show negligence it was necessary to show that the occupier or the managing agent or both knew or ought reasonably to have known of these recurring events: this would show reasonable foreseeability of danger of slips and falls, and consideration would move to the standard of care: to the reasonable response of the occupier to the foreseeable risks.

13 The second claim of negligence related to a suggestion, not well-defined, to the effect that a pipe or other source of water under the tiles produced flows of water and recurring presence of water on the tiles through some leak or defect, and that the respondents ought to have known of it. There was no substantial evidence that any such condition existed in September 1998.

14 A third case which I mention to exclude is that there is no basis in the evidence for a claim of negligence based on a casual act of negligence in placing water or allowing water to be on the floor on the particular occasion when Mr Gaskell fell, or on taking inadequate measures to keep the floor clean and dry on that occasion.

15 To succeed Mr Gaskell had (at the least) to obtain findings that water was pooled on the tiles on the occasion when he slipped and fell, that the water was in a position where it was associated with and caused his slip and fall, and that he had informed the occupiers or their managing agents of the recurring presence of water before this event. Findings favourable to Mr Gaskell on all these matters could only be made if the Trial Judge accepted his evidence; his credibility and the reliability of his evidence were a turning point for decision. The Trial Judge’s reasons and survey of the evidence bearing on credibility show awareness of the centrality of Mr Gaskell’s credibility.

16 There was little reference to grounds relating to the standard of care in the course of argument. A relatively high standard of care is imposed on Denkas as occupant having regard to its contractual relationship with Mr Gaskell. Factual matters debated on the hearing of the appeal are dispositive of the appeal, and it is not necessary to examine the decisions which establish the standard of care. Unless Mr Gaskell obtained findings which established recurring presence of pooled water, established that the water was present on the occasion of his fall, and also established that he had notified the defendants on earlier occasions of the presence of pooled water he could not obtain a favourable decision on foreseeability of the risk of injury, or on breach of the duty of care even at a high standard.

17 The Trial Judge regarded evidence relating to Mr Gaskell’s injuries, his earnings, his financial success and business activities as relevant to his credibility. The Trial Judge set out (judgment [44 and following]) extensively Mr Gaskell’s evidence about the manner in which the slip and fall occurred. The Trial Judge stated the significance of this matter in these terms:

68 A significant issue in the proceedings concerns the Plaintiff’s prior knowledge of water pooling on the floor of the men’s toilet and action taken by him, if any, to bring such pooling to the attention of others. This question bears upon the liability of Denkas and HRA and has significance to the assessment of the credibility and reliability of the Plaintiff. It is necessary to refer in some detail to events prior to the hearing and the manner in which the Plaintiff’s evidence unfolded at the hearing on these issues.

18 Prior knowledge of water pooling on the floor was indeed a significant issue, as the Trial Judge said; unless the occupier and the managing agent knew, or reasonably ought to have known that pooling of water on the tiles happened recurringly there was not a basis for deciding that there was reasonable foreseeability of the danger of slips and falls caused by interaction of the tiles and water on them. The standard of care and the reasonable response are later considerations.

19 In Mr Gaskell’s case the evidence on the issue of liability was given by himself and Mr A.M. Giles a consultant in Occupational Health and Safety who inspected the toilet in November 2002, and made a report on the safety of the premises. By November 2002 the respondents’ connection with the premises was several years in the past, which is a difficulty for conclusions about the state of the premises in September 1998 based on Mr Giles’ observations.

20 Mr Giles’ evidence, including evidence of tests which he conducted on the slippage characteristics of the tile floor when wet, had little influence on the Trial Judge’s conclusions. The principal reasons for this were:

198 In my view, it is an open question as to whether the surface of the tiled floor was in a comparable state ... as it had been in September 1998.

199 Assuming, for present purposes, that it was comparable, a most significant feature is the absence of any slip-and-fall incidents in the men’s toilet in the years prior to September 1998 despite the large number of occasions on which persons, including the Plaintiff, used that facility.

21 Mr Giles also dealt with requirements of Australian Standards with respect to slip resistance of flooring surfaces; but these standards were not in effect when the building was constructed, and the respondents were not responsible for its construction.

22 The Trial Judge set out the following passage from Mr Gaskell’s evidence in chief (judgment [45]):

A. I went to the bathroom and I flushed the toilet. I turned to step down, as I would normally do. I stepped down with my right foot and placed the area of the foot where there was some water and, without warning, that foot slipped extremely forward very quickly and I fell slightly to the left and as my leg went forward, my left leg sort of basically remained where it was and just ran down a little from the step and I fell back onto it with my head backwards and my buttocks were pinning my ankle and my foot.

23 Mr Gaskell also said that when he was on the floor he noticed that there was water on the floor which he had not noticed as he entered the bathroom or as he fell down; he was actually lying partly in water and his clothing was damp. The water had not spilled from the urinal while he was there. He had seen water in that area previously on many occasions.

24 The Trial Judge found that Mr Gaskell had not complained to the respondents about pooling of water. His Honour’s reasons appear from these passages in the judgment:

97 The Plaintiff said that he did not see any pooling of water on the floor when he entered the toilet on 10 September 1998 even though he must have stepped over it in the relatively narrow space leading up to the urinal (T228.16). He said that the puddle was somewhere between four and six inches (100-150 mm) in size (T228.45). He observed the pooling on the floor after his fall (T232.50).

25 The Trial Judge found that Mr Gaskell had not complained to the respondents about pooling of water. His Honour’s reasons were:

105 The evidence demonstrates that the Plaintiff was ready, willing and able to raise issues concerning the state of the premises with the agent, some times in strident terms, if he considered that it was in his interests to do so. Against this background, it is difficult to understand that had he observed pooling in the manner alleged by him and had he complained about the pooling prior to 10 September 1998, that he would not have referred to this in writing after the fall. The absence of such contemporaneous written complaint after the fall is a telling factor against the Plaintiff’s account of events allegedly preceding the fall.

106 There is a significant contrast between the Plaintiff’s readiness to raise matters concerning the state of the leased premises in writing with HRA on other occasions, both before and after 10 September 1998, and the absence of any written complaint concerning alleged pooling of water on the men’s toilet floor. In my view, this is most significant in considering the existence or otherwise of contemporaneous corroborative material supporting the Plaintiff’s claim that he had complained to representatives of Denkas and HRA about the alleged pooling in about May 1998.

107 Having regard to the Plaintiff’s left knee injury sustained in 1983, it might be thought that he would have a heightened sensitivity to any risk of slipping in any part of the leased premises. The absence of any written complaint by him concerning this matter prior to 10 September 1998 is significant. Tellingly, the absence of any written complaint from the Plaintiff after 10 September 1998 alleging, in terms, that he had slipped in a pool of water on the floor of the men’s toilet and that this was a matter about which he had complained at an earlier time to representatives of Denkas and HRA, undermines his evidence on this point.

108 The position is further compounded by the matters which were alleged, and not alleged, by way of further and better particulars provided before the hearing, in his counsel’s opening address and in his own evidence in chief of the first day of the trial. The sudden and somewhat dramatic change in the Plaintiff’s evidence on the second day of the trial with respect to alleged earlier observations of pooling and complaints made to representatives of Denkas and HRA is difficult to accept. There are fundamental inconsistencies and contradictions in the evidence of the Plaintiff. His own statements expressed directly, or through his legal representatives, up to the end of the first day of the trial did not allege any direct complaint by him to any representative of Denkas or HRA prior to 10 September 1998. At its highest, there appears to have been an allegation of a hearsay account obtained through plumbers working at the premises in 2000 that a representative of Denkas was said to have some prior knowledge on this matter. This is far removed from the version ultimately given by the Plaintiff.

109 The Plaintiff's evidence on this issue is so unsatisfactory and unreliable that a finding ought not be made, on the balance of probabilities, that the Plaintiff complained about alleged pooling to representatives of Denkas and HRA prior to the fall in September 1998.

The evidence of Mr Rogers and Mr Harding

110 The Plaintiff’s position on these issues is worsened further by the sworn evidence of Mr Rogers and Mr Harding that no such complaint was ever made to them. This material fortifies my conclusion that the Plaintiff’s evidence does not establish, on the balance of probabilities, that some prior complaint was made.

26 After some further consideration the Trial Judge also said:

133 No written complaint has been made about the water pooling before the fall. Nor is there any written complaint after the fall indicating that he had slipped in a pool of water about which he had made prior complaint. Bearing in mind the Plaintiff’s propensity for written complaint, it is difficult to accept that he would have made no such written complaints, had the conversations about the water pooling occurred with Mr Kasunic.

134 The Plaintiff’s failure to assert that such an event occurred in further and better particulars provided prior to the trial, the highly unsatisfactory nature of the Plaintiff’s evidence given on the first and second days of the trial on this issue and the absence of any contemporaneous record of complaint that the very problem that he had allegedly complained about to Mr Kasunic had caused him to fall in the men’s toilet and suffer injury, lead me to a finding that the Plaintiff has not discharged the civil burden of proof on this factual issue, even taking into account a Jones v Dunkel inference arising from the failure of Denkas to call Mr Kasunic. As stated earlier, the evidence of Mr Rogers and Mr Harding fortifies that conclusion. Even if the second type of inference referred to by Campbell J in Manly Council v Byrne was to be drawn in this case, I would still not be satisfied, on the balance of probabilities, that the Plaintiff complained to Mr Kasunic concerning the pooling of water.

27 The Trial Judge’s rejection of Mr Gaskell’s evidence of prior complaint is a sufficient basis for the verdict for the respondents because on the evidence his prior complaints were the only basis on which it could have been found that they knew or ought to have known of the recurring presence of pooled water.

28 At a later stage (judgment [179-200]) the Trial Judge gave a “Summary of findings of significant facts concerning liability”. These included findings to the following effects:

183 Mr Gaskell was familiar with the toilet and in a position to observe features in it including pooling of water on the floor, because he had used it many times over five years.

184 I am not satisfied that the Plaintiff observed pooling of the water on the floor on an intermittent basis in the manner alleged by him in his evidence. I have set out earlier in this judgment my reasons for this view flowing from an examination of the various accounts given by the Plaintiff prior to and at the hearing concerning this and related issues.

186 I am not satisfied that the Plaintiff drew any alleged pooling on the floor of the men’s toilet to the attention of any representatives of HRA or Denkas prior to 10 September 1998.

189 I accept the evidence of Mr Rogers and Mr Harding that they had not themselves seen any pooling of water in the men’s toilet nor had they received any report of such pooling prior to 10 September 1998.

The Fall on 10 September 1998

190 I am satisfied that the Plaintiff fell to the floor in the men’s toilet on the afternoon of 10 September 1998.

29 The Trial Judge also found [191] that Mr Gaskell had told Mr Rogers in a telephone conversation the next day that he had slipped on “urine or something”. The Trial Judge accepted [192] that Mr Gaskell did not see any substance on the floor when he entered the men’s toilet on the occasion of his slip and fall and found “Had there been a history of prior pooling which he had observed and drawn to the attention of the agent or lessor, it is likely that he would have been vigilant to the presence of any liquid on the floor.”

30 The Trial Judge also found [196]:

196 On the evidence, there had been no slip-and-fall incident in the men’s toilet prior to the Plaintiff’s fall on 10 September 1998. The evidence of Mr Rogers and Mr Harding, which I accept, was to this effect. Further, the Plaintiff himself who had been a tenant of the premises for five years prior to his fall had no knowledge of any slip-and-fall incident in the men’s toilet.

31 His Honour disposed of the case against HRA by saying [judgment 218]:

It has not been established that HRA was ever informed of any alleged pooling problem in the toilet. I am not satisfied that the Plaintiff has demonstrated liability in negligence on HRA’s part.

32 In disposing of the case against Denkas His Honour said [judgment 222]:

In circumstances where Denkas was unaware of any alleged pooling problem in the men’s toilet and a system of cleaning was in place with respect to that facility, no basis has been demonstrated by the Plaintiff for a verdict under the claim in contract. There had been an accident-free history in the men’s toilet for several years prior to 10 September 1998. The first slip-and-fall accident was that involving the Plaintiff. The premises were reasonably fit and safe for ordinary use as a men’s toilet to be used by adult males in conjunction with commercial office premises: cf Jones v Bartlett at 178-180 per Gleeson CJ.

33 The Trial Judge made further observations and findings; I have set out those on which his decision seems to turn.

34 The Trial Judge’s disposition of the issue of Mr Gaskell’s credibility, and of other issues is not expressed to be based on an observation or view about his demeanour while giving evidence. I have not noticed any reference to demeanour in the judgment, which has over 85 pages. Demeanour exercises subtle influence on fact finding, not always capable of articulation. The judgment is founded on many statements by the Trial Judge, with careful references to the evidence, of matters and circumstances which led him not to rely on the plaintiff’s evidence. While I do not have the Trial Judge’s advantages of seeing, hearing and observing all the witnesses, the matters to which the Trial Judge referred appear to me to give his conclusions strong support. I particularly mention some which appear to me to be striking.

35 Mr Gaskell dictated a letter sent to HRA on 11 September 1998 and said that he had had an accident in the men’s bathroom on 10 September 1998 and had serious damage to his knee, but mentioned no circumstances such as slippage, pooling of water or earlier complaints; and asked for particulars of the public liability insurer. He sent another message on 30 September 1998 complaining that he had not received this information and also complaining about very loud noise from banging pipes.

36 In particulars furnished in correspondence before trial solicitors on his behalf said words to the effect that Mr Gaskell was informed by a plumber after the incident that the cause of the water pooling under or on to the tile floors was a leaking water pipe under the tiles, that Denkas’ contract plumbers had been aware of the problem before 10 September 1998 and had informed Denkas of their concern; that Mr Gaskell was unaware of water pooling prior to the incident on 10 September 1998 and that he was aware of prior notice being given to HRA of pooling of water by the plumber. These particulars included:

(ii) The plaintiff was unaware of water pooling prior to the incident on 10th September, 1998 though was aware that there was water on the tiled floor near the urinals from time to time.

37 In later particulars it was said to the effect that a warning was given to Denkas by the plumber approximately 1 year prior to 10 September 1998; there was no particular contending that Mr Gaskell had given such a warning.

38 In further correspondence Mr Gaskell was asked for particulars of the circumstances in which it was alleged that HRA was aware of the defect prior to the fall and again referred to information given to him by a plumber “Bruce” who was apparently the maintenance contractor contracted by Denkas, to “Mark” of Denkas; and these particulars were in no way certain.

39 There were no pre-trial particulars alleging that before his injury Mr Gaskell notified either respondent about water or pooling of water. The particulars I set out earlier are quite unclear on whether or not he was aware of the water pooling which his evidence at the trial spoke of: these particulars were not withdrawn.

40 At the trial there was no reference in counsel’s opening address to any complaint made by Mr Gaskell to any person about alleged pooling in the men’s toilet prior to 10 September 1998 (judgment [75]) and there was no reference to prior observations by Mr Gaskell of pooling. In his evidence in chief, which was quite lengthy, Mr Gaskell referred to conversations with Mr Rogers and with Mr Harding, representatives of HRA; but did not give evidence of his having made any complaint relevant to the presence of pooling of water on the tiles. The Trial Judge set out (judgment [82]) a passage in which Mr Gaskell was asked whether he ever had any occasion to report defects; and said that he did not do so in writing and “I probably did refer to matters when talking to the agent on other occasions. I can’t specifically recall what I said, though.” On the second day after cross-examination commenced there was a debate about leave to reopen Mr Gaskell’s evidence. Leave was granted. Mr Gaskell referred to a message of 27 May 1998 which he had sent to HRA, which did not refer to water on the tiles or to pooling but mentioned other complaints about the state of the building and went on to say that the events which gave rise to the letter included a discussion about air-conditioning during which he took Mr Kasunic of Denkas, identified as a person called Mark down to the bathroom “... and specifically showed him the water on the floor of the bathroom”:

Q. When you took Mark down to the bathroom and showed him the water, what was visible on the floor that day?

A. There was a small pool of water on the floor between the drain and the urinal.

41 Mr Gaskell went on (judgment [91]) to give evidence of a conversation in which he had said to Mark words to the effect that the pool of water was on the floor, that it was always there and there was a need to fix it. He also spoke of another occasion when he took Peter Rogers or John Harding of HRA down to the bathroom. The Trial Judge stated the effect of this passage: (judgment [93])

93 The further examination in chief of the Plaintiff, by leave, concluded soon after. It will be seen then that the Plaintiff had changed his position dramatically since his evidence on the previous day and the further and better particulars preceding the hearing. His evidence on the second day of the trial alleged specific occasions on which he informed Mr Rogers or Mr Harding from HRA of the alleged pooling problem and a separate occasion when, having met Mr Kasunic in the company of Mr Rogers, he took Mr Kasunic to the men’s toilet and pointed out the pooling problem to him. For the first time, on the second day of the trial, the Plaintiff was alleging direct communication by him to representatives of Denkas and HRA prior to 10 September 1998 that a pooling problem was said to exist on the floor of the men’s toilet and that this problem required attention.

42 The Trial Judge considered and set out treatment in cross-examination of Mr Gaskell’s evidence on the subject of his conversation with Mr Kasunic. His Honour’s consideration of this was extensive and included address to the terms of Mr Gaskell’s letter of complaint and message of 11 and 30 September 1998, and to the contents of a folder of documents with examples of written complaints and messages dealing with problems about the leased promises. There was no reference in correspondence before or after 10 September 1998 to the presence of water on the floor or to pooling of water. The Trial Judge found [104]:

104 The Plaintiff had no satisfactory explanation for his failure to mention in subsequent correspondence to HRA the alleged pooling of water prior to September 1998 and the alleged complaint about that topic.

43 The judgment proceeded to paras 105 to 110 which I set out earlier.

44 The Trial Judge reviewed the evidence of Mr Rogers and Mr Harding of HRA, each of whom denied that complaints had been made to him as deposed by Mr Gaskell in his re-opened evidence in chief. The Trial Judge placed reliance on the evidence of Mr Rogers and Mr Harding: see judgment [110] (which I set out earlier). Acceptation of their evidence that no complaint was ever made to them was relevant to the contention that an inference adverse to Denkas should be drawn.

45 The Trial Judge then dealt with the failure of Denkas to call Mr Kasunic and with the contention by Mr Gaskell’s counsel that in accordance with Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 an adverse inference should be drawn. The Judge addressed [judgment 127]: “What is the evidentiary consequence of the failure of Denkas to call Mr Kasunic”. He referred to the passage in the judgment of Campbell J. in Manly Council v Byrne [2004] NSWCA 123 at 51 and correctly observed [130]:

130 Of course, the fact that Denkas has not called Mr Kasunic to give evidence does not entitle the Plaintiff to an automatic finding in his favour on this issue.

46 In Manly Council v Byrne [2004] NSWCA 123 at [51]- [52] Campbell J. said:

51 Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should property be drawn.

52 Even though a jury should be directed about the availability of the inferences which are recognised by Jones v Dunkel, it is entirely a matter for the jury whether it actually draws one, or both, of those inferences: Cafe v Australian Portland Cement Co Pty Ltd (1965) 83 WN (NSW) (Pt 1) 280 at 286, 287. Applying this principle to the situation of a trial by judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences.

47 In a lengthy passage [44-75] Campbell J. gave an extended consideration to Jones v Dunkel and to authority in Australia and elsewhere on reasoning of the kind there considered. Paragraph 51 is an exposition of, not a departure from this body of law.

48 In the light of the way in which the appellant’s submission was put and of reference made to Campbell J’s judgment it should be stated, as is plain from Campbell J’s judgment, that the second type of result to which Campbell J. referred in which an unfavourable inference is drawn is available only if evidence otherwise provides a basis on which that unfavourable inference can be drawn; an unfavourable inference cannot be drawn solely on the basis that the witness was not called. There must be a basis elsewhere in evidence to support the inference. The Trial Judge was clearly aware of this truism. His Honour said [131]:

131 I accept that the Plaintiff had direct dealings with Mr Kasunic with respect to the air conditioning in 1998. However, to move to the next step and make a finding on the balance of probabilities, that the Plaintiff spoke to Mr Kasunic concerning the alleged pooling of water problem involves an assessment, on the probabilities, having regard to all the evidence.

49 In judgment [134] which I set out earlier Mr Gaskell obtained a favourable expression of view of the availability of an adverse inference arising from the failure of Denkas to call Mr Kasunic; but the Trial Judge did not draw that adverse inference because of his view about the facts which should be found on the evidence produced by Mr Gaskell. His Honour’s reasoning was, in my respectful opinion, orthodox and correct.

50 The Trial Judge reviewed a number of other issues affecting Mr Gaskell’s credit. These included evidence which the Trial Judge regarded, for sound reasons, as unsatisfactory with respect to the circumstances in which Mr Gaskell left his employment with Connell Wagner Engineers. In an affidavit the plaintiff said “... I was unable to continue this employment due to the injuries I sustained in the within incident,” but other evidence showed a number of reasons including ability to earn a higher salary elsewhere and differences with another employee; this led the Trial Judge to consider that the affidavit had been less than frank. The Trial Judge also reviewed and expressed dissatisfaction with Mr Gaskell’s evidence about his earnings before and after his injury, tested by reference to tax returns for the years 1992-1993 to 2002-2003, which were not lodged until 2 December 2003. The Trial Judge also reviewed evidence relating to physical disabilities since September 1998; these dealt with physical disability and capacity for performance of domestic tasks, recreational activities, work of various kinds and participation in car racing. His Honour was particularly impressed by photographic evidence of Mr Gaskell participating in car racing in March 2005 and a video tape of him pushing a buggy at a car race. His Honour said [159]:

159 The revelation in cross-examination of a range of activities which he was able to undertake, including car racing, moving in and out of low racing buggies, pushing a racing buggy, fencing and driving a tractor in a rural setting, provide a somewhat stark contrast with the word picture which the Plaintiff presented in his evidence in chief. In my view, these features do not assist the Plaintiff on credit in these proceedings.

51 Overall the Trial Judge’s review of evidence and statement of reasons for his adverse view of credibility and reliability were impressive. Counsel for the appellant did not refer to any respect in which there was a significant omission from evidence which the Trial Judge reviewed, or any significant error in the Trial Judge’s statement of the evidence and its effect; nor to any facts which can be regarded as established with objective certainty with which findings by the Trial Judge were inconsistent.

52 A principal attack on the judgment related to regrettable delay which occurred between the conclusion of the hearing and the delivery of judgment. The hearing was of surprising length, in relation to the issues. The hearing began on 18 April 2005 and continued for five hearing days until 22 April; resumed on 27 July and continued on three hearing days until 29 July when judgment was reserved. Judgment was published 11 months later on 23 June 2006. Mr Gaskell gave evidence on each of the five hearing days in April 2005.

53 There have been repeated expressions by appellate courts of dissatisfaction with delays of this order in giving judgment; there have been instances where there have been much longer delays, and dissatisfaction has sometimes been expressed with reservation of judgments for shorter periods, such as three or four months. The principal appellate concerns have been:

(1) After significant delay it is no longer warranted to repose confidence in generalised statements about impressions produced by witnesses, or by their evidence or their demeanour;

(2) After lengthy delay, the preparation of reasons may become unduly hasty and poorly considered.

The contention that there has been undue delay, often referred to as operative delay, leads to an evaluation of the quality of the reasons given, and even after a delay of many months the results of such evaluations are not always adverse; see Krivoshev v Royal Society of the Prevention of Cruelty to Animals Inc. [2005] NSWCA 76 at 124 (Giles JA) and Carr v Fischer [2006] NSWCA 313 at [53] to [55] (Bryson JA) and on the other hand Monie v Commonwealth of Australia [2005] NSWCA 25, 63 NSWLR 729 at [2]- [4] (Giles JA), [43] to [65] (Hunt AJA).

54 None of the reasoning of the Trial Judge is open to the view that it resorts with excessive simplicity and insufficient exposition of reasons to statement of preference for the evidence of one witness over the evidence of another, such as, after a lengthy delay led to an order for a new trial in Hadid v Redpath [2001] NSWCA 416; [2001] 35 MVR 152, for reasons stated by Heydon JA at [53] to [56]. See too Expectation Pty Ltd v PRD Realty Pty Ltd & Anor [2004] FCAFC 189, 140 FCR 17 at [66] to [83] and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, 228 CLR 470 (which related to judicial review of a Federal Administrative Tribunal, a different process to appellate review). The judgment of Johnston J. is meticulous. There is no expressed reliance on demeanour or adverse impressions of Mr Gaskell’s manner while giving evidence. While reliance on demeanour is not expressed, I find it difficult to suppose that it did not have some influence. The grounds for decision are stated at length and with care, with extended reference to the evidence upon which conclusions are based. There is no ground for fearing that a grasp of the whole of the evidence has been lost or that conclusions have been hurried or poorly considered. Mr Gaskell’s credibility was the main issue, and I see no indication that the Trial Judge’s recollection of Mr Gaskell and his evidence, which extended over five days, was materially diminished or injured by the delay. Delay in giving judgment is always unfortunate but it is not necessarily reprehensible; time taken to prepare a judgment can be used to good advantage, and in the present case I am satisfied that it was.

55 Johnson J. made findings relating to contributory negligence, and the assessment of damages, which had no effect on the outcome, having regard to his principal findings. These were debated in the course of the appeal, but I do not regard it as necessary to make any observations on them.

56 In my opinion the appeal should be dismissed with costs.

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LAST UPDATED:
20 March 2008