[44] Although the appellant accepted that one witness (ironically one it had called) Mr Ahama, said in cross-examination that the ramp surface was slippery whether wet or dry, it argued that evidence did not establish the surface was unreasonably slippery because concepts of slipperiness are idiosyncratic in relative terms. This was borne out, it argued, by the fact that despite Mr Ahama’s evidence, he did not say he had ever slipped on the ramp, why it was slippery or how slippery it was, let alone that an employee taking reasonable care for his or her safety could not do his or her job insofar as it entailed accessing the ramp. In such circumstances, it contended, it was not open to the primary judge to conclude that Mr Ahama’s evidence overwhelmed Dr Adams’ evidence.
[45] The respondent submitted that the primary judge’s finding that the ramp was slippery and that that condition contributed to his fall was open on his evidence, that of Mr Ahama, the defect report completed on the day of the accident, the Register of Injuries, and the pre-accident defect reports. He accepted that slip tests were not relevant to Dr Adams’ analysis which highlighted the problem from an ergonomic point of view of the slope of the ramp. The submissions repeated Dr Adams’ theory of the respondent’s fall. That was not, as I understand the submissions, an attempt to resurrect the case based on his opinion which, as I have said, counsel for the respondent at trial abandoned. There was no notice of contention seeking to uphold the primary judgment on the basis of Dr Adams’ opinions, although the submissions did contend that both the slope of the ramp and its lack of slip resistance contributed to his fall.
[46] The respondent submitted that he was not required to establish that he was aware at the time he slipped and fell exactly why he slipped. He contended, however, that he did not fall over simply as a result of the mechanics of his upwards movement.
Consideration
[47]
4 cases
In order for the respondent to succeed against the appellant, he had to adduce evidence supporting a positive inference implying negligence on its part, an inference which arose as an affirmative conclusion from the evidence and one which was established to the reasonable satisfaction of a judicial mind. The evidence had to rise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (at 5); Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 (at 359–360) per Dixon, Fullagar and Kitto JJ; Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 (at 304–305) per Dixon CJ, (at 310) per Menzies J, (at 318–319) per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15 ; (1982) 149 CLR 155 (at 161–2) per Stephen J, (at 168) per Mason J; Anikin v Sierra [2004] HCA 64 ; (2004) 79 ALJR 452 (at [45]–[46]) per Gleeson CJ, Gummow, Kirby and Hayne JJ.
SHOALHAVEN CITY COUNCIL v PENDER [2013] NSWCA 210; BC201310826
[12] Ms Caruana also gave evidence to the effect that her choice of sealant was based on a recommendation from her local hardware store. Her evidence shifted slightly, in that she did not initially specify that the reason for her using this particular sealant was not only that it was the same one that Coastline had employed, but also that there had been a specific recommendation to that effect by the hardware store. The primary judge did not refer to Ms Caruana’s evidence about the recommendation of the hardware store, but his Honour did consider the more relevant issue of whether Ms Caruana had used a non-slip additive, also purchased from the hardware store, on the driveway. If the inference is drawn that Ms Caruana was aware of the warnings on the sealant drum, which are referred to below, such that it became necessary for her to purchase the non-slip additive, then the particular reason why she chose the sealant in question becomes less important.
[13] Ms Caruana gave evidence that, when she resealed the driveway in 2009 or 2010, she added a material to the sealant that she used. She described the additive as a “grainy, sandy, sort of rough“ mixture. She applied the sealant by rolling it on with a roller. The primary judge found that Ms Caruana was aware that, if an inappropriate sealant was applied to the driveway, the surface could be rendered slippery. There were indications that Ms Caruana was aware of the slipperiness that could result from application of the sealant. For example, in cross examination, she said that the surface needed preparation to make sure that it was clear but that now it needed to be done properly because it had deteriorated. She said it needed to be done “just for aesthetic purposes“ and that:
the sealant really does nothing as far as just
CARUANA (as executor of the estate of the late CARUANA) v DAROUTI [2014] NSWCA 85; BC201408951
[37] It was open to the primary judge to draw the inference that Ms Caruana was aware of those warnings, not only because of their prominent location on the drum, but also because Ms Caruana had additionally purchased a non-stick additive “to ensure adhesion“. She purchased that additive and the sealant at the same time when she visited the hardware shop on 19 October 2009, as recorded on the tax invoice admitted into evidence.
[38] The significance of the inference that Ms Caruana was aware of the warnings on the sealant drum is that she was put on notice that if she did not take adequate preventative measures, there would be a real risk that someone would slip on the driveway. Clearly, she viewed the application of a non-slip additive as an adequate preventative measure to counteract the consequences of applying the sealant on a surface on which it should not be applied. But if that additive was not applied, or was improperly applied, then the risk of someone slipping on the driveway would not be averted.
CARUANA (as executor of the estate of the late CARUANA) v DAROUTI [2014] NSWCA 85; BC201408951
[124] I accept, as Basten JA said in Fitzsimmons at [23], that it is for parties to run a case as they see fit. But, equally, parties must live with the consequences of forensic choices that they make. Where, as in this case, expert evidence is not inherently illogical or implausible, or based on manifestly incorrect or unproven assumptions of fact, the primary judge must decide between the experts as best he or she can. In those circumstances, where a primary judge makes an apparently rational choice between competing inferences available from expert evidence, it is very difficult for the disappointed party to complain on appeal that some other inference should have been chosen.
CARUANA (as executor of the estate of the late CARUANA) v DAROUTI [2014] NSWCA 85; BC201408951