Ferry v Cairns City Council [1991] QSCFC 61

& IN THE SUPREME COURT OF QUEENSLAND FULL COURT REVISED COFIES ICC? » " j Court Reporting Bureau 1 I Date. A3/ 6/^| 10 BEFORE : No. 100 of 1990 The Chief Justice fMr.Justice Macrossan) Mr. Justice McPherson (SPJ) Mr. Justice Derrington BRISBANE , 11 APRIL 1991 10 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter ,Court Reporting Bureau.) BETWEEN: ANGELA GAY FERRY Appellant (Plaintiff) -and- CAIRNS CITY COUNCIL Respondent (Defendant) 30 JUDGMENT 40 50 ~'HE C ‘T '" JUSTICE:: This appeal challenges the finding against the plaintiff on negligence and, as well, seeks to have altered the learned trial judge's assessment of damages. The notice of appeal, so far as it deals with the negligence issue, covers a number of matters but, when the hearing was opened before us, counsel appearing for the appellant accepted that the matter raised in the notice of appeal would not be a sufficient basis for challenge -to . succeed in the appeal itself. In other words, he considered that the ground as taken in the notice of appeal on negligence would not really be able to be argued by him. The plaintiff sustained her injuries when, in a park area, through natural forest, she fell. She was there in the — Govt. Printer, Qtd. i 30 40 50 60 [1991] QSCFC 61 -- 1 of 6 -- I 10 20 30 40 50 course of her employment walking on a bush track. The track itself changed elevation from point to point and it had, along its course, a number of rough bush-type steps constructed. The height of the risers as well as the depth of treads in the bush steps varied between one step and another within the limits which are set out in the evidence and repeated by the learned trial judge in his findings. The plaintiff fell as she was stepping down from one step to another. The way she put it in her evidence was that she slipped. The particulars, as set out in the pleadings originally, did not rely on an unevenness in the steps, but the matter was covered to an extent in evidence in the trial and is also dealt with in the findings of the learned trial judge. The judge below refused to find, as he was invited to on behalf of the plaintiff, that the accident happened due to a quantity of leaves being allowed to accumulate on the relevant step or steps, which leaves were moist or damp. The case for the plaintiff was that the leaves should not have been permitted to build up to the extent that occurred, but should have been swept. The learned trial judge refused to accept the claim.put forward by the plaintiff on her behalf and found against her on negligence . Counsel now then, in opening the appeal before us, accepts that he would not be able to succeed on the issue of the accumulation of leaves and the failure to rake them. Instead, he has handed up an outline which purports to rely on the variation in the dimensions of the steps, that is, in their risers and treads, and in the failure of the defendant's employer, who controlled the park, to provide a 10 2v 30 40 50 60 -Govt. Printer, Qld. 2 60 -- 2 of 6 -- ] 10 20 30 40 50 60 1 10 20 30 40 50 60 handrail beside the steps. Once the outline of argument was handed to us and to counsel for the respondent, objection was made on behalf of the respondent, saying that this went quite outside the notice of appeal. Indeed, that is true and it is conceded. The notice of appeal relies entirely, so far as the appeal against negligence is concerned, upon the accumulation of leaves and the failure to sweep, that is the matter which is now not to be pressed at all. The judgment was given after the reasons were handed down and that occurred on 24 August 1990. A notice of appeal was given some substantial time later and it was filed, we are told, on 21 September 1990. It is suggested to us that under the District: Court Rules applicable in these cases it was, in fact, filed on the last day for the giving of an effective notice of appeal and the initiation of the appeal. Whether that is so or not - and we did not turn to the rules - the point is it was filed about a month after judgment was given, so there was ample opportunity in, what was, after all, not a complicated case, for the plaintiff and her advisers to consider their position. When asked what particular matters counsel for the appellant could rely on to justify an amendment of the grounds at this late stage - and notice of amendment was given to the Court and to the respondent only when argument was opened - counsel for the respondent could really say no more than that he had come into the matter himself very late, no doubt in substitution for previous counsel, and that an injustice would be done if the appellant were not permitted to argue the new grounds. Well, no doubt that could be said in every case by an appellant who wishes to amend the grounds given but, in my •Govt. Printer, Qtd. 3 -- 3 of 6 -- 1 10 20 30 40 50 60 1 10 20 30 40 50 60 opinion, the Court should look, for something substantial before it would, under circumstances like the present, permit, especially belatedly, an amendment of the grounds of appeal changing the very nature of the case to be argued on negligence . As well as these considerations, we allowed counsel for the appellant to outline, in effect, some of the matters on which he would wish to rely if he were granted leave to amend. Speaking for myself, I am not persuaded that it would advance his case significantly upon the merits. I am expressing a prima facie view, of course. There is no need for me to express a final one. I am saying that at least in this case . there is no prima facie reason for thinking that allowing the proposed amendment would materially alter the plaintiff's prospects on the appeal. The learned trial judge seems to have found, relying on the plaintiff's own account, that she slipped; and that is indeed what she did. This occurred to her as she was putting one foot forward down to the next lower step. He has found that he was not satisfied that the accident occurred as a result of the failure to provide a handrail in the situation where the accident did happen. He said that in that area a handrail was not necessary for support or for the safety of an able-bodied young woman. He also found that the plaintiff did not overbalance as she was walking down the step and before she slipped. The way he put it was, "The plaintiff could not say that she was experiencing any unbalancing effect as she descended on the date in question." There are findings then against the matter which the plaintiff's counsel wishes to add on appeal but, for myself, Ou -Govt. Printer, Qld. 4 -- 4 of 6 -- ] 10 20 30 40 50 60 1 10 20 30 40 50 60 I do not think that they should be permitted to be argued. As I say, prima facie, they are not particularly promising and there is no obvious case of an injustice being occasioned by refusing leave to amend. I think that the rules should be given their usual effect, and no particular case being made out to allow amendment in the present circumstances, the application for it should be refused. That, of course, does leave the further matter to be considered of the appeal against the assessment of damages if no further argument is to be advanced on the appeal on the grounds that are presently there. MR. JUSTICE MCPHERSON: I agree. The appellant asks leave to amend. The amendment would involve the abandonment entirely of the existing grounds of appeal so far as they relate to liability and the substitution of another basis of alleged error on the part of the trial judge. The application to amend, which is opposed,is made at the last possible moment; more accurately, it is made after the last possible moment, because it was made a little after the appeal was called on for hearing. The substance of the proposed amendments have been set out in the remarks of the learned Chief Justice, with which I agree. I wish to add, only by way of further emphasis or re-emphasis, that the appeal, even if - and more particularly if - the amendments were permitted, would be an appeal in which challenge was made only to matters of fact; that the trial judge himself carried out an inspection of the locus; indeed, what he did seems, very clearly, to my mind, to have been more in the nature of a demonstration. He walked up the path and back down the path on which the -Govt. Printer, Qid. 5 -- 5 of 6 -- I 10 20 30 accident occurred and drew his own conclusions about the significance of evidence and so on in the light of his experience acquired in so doing. That, in relation to any factual question, places him in a position of very great advantage over a Court of Appeal, which has not seen the witnesses and has not got the practical experience of the area in question. In addition, I have now read the whole of the plaintiff's evidence. It appears to me to be quite clear that there is no direct evidence from her to show that the differences in dimensions of the various steps or the absence of the handrail were, or, taking either of them individually, was in any way responsible for the accident happening. In those circumstances, one is compelled to say that the case is not one in which there is any real prospect of success on appeal such as would justify the giving of leave to amend at the late stage that I have identified. I agree with the Chief Justice's remarks on the matter of quantum and with the order he proposes. . MR. JUSTICE DERRINGTON: I agree. THE CHIEF JUSTICE: The appeal is dismissed with costs. i 10 2 30 40 40 50 50 60 60 -Govt. Printer, Qld. 6 -- 6 of 6 --