Australia: Be careful where you walk when the lights go out – resolution of conflicting evidence

Curwoods Case Note
Last Updated: 3 December 2011
Article by Nicholas Gordon

Judgment date: 24 November 2011

Amanda's On The Edge Proprietary Ltd v Dries [2011] NSWCA 358

NSW Court of Appeal1

In Brief

  • An appellate court will not overturn the findings of a primary judge unless there is an indefensible inconsistency in the findings based on incontrovertible evidence.
  • A primary judge has the benefit of making an assessment of the demeanour of witnesses that is not available to an appellate court and is not readily disturbed unless there is an obvious error in fact finding.
  • In order for a defendant to defeat a plaintiff's claim or achieve a reduction of damages under s 50 of the Civil Liability Act 2002 (CLA), the defendant bears the onus of proving that the accident was the consequence of, or contributed to by, the plaintiff's level of intoxication.


In March 2007, the plaintiff was a guest at a wedding being hosted at the defendant's restaurant.

At the end of the evening, the plaintiff and his partner headed off from a marquee towards where their car was parked. Whilst they were walking in that direction they were called by friends who were standing approximately at the lamp post at the top of the driveway to the south of the restaurant. At that point, the plaintiff and his partner apparently turned and retraced their steps to a point roughly adjacent to the southern part of the restaurant building. After hearing the voices of those at the top of the drive, the plaintiff and his partner proceeded to the right in that general direction. This took the plaintiff into a garden bed which he crossed, and through some scrubs and bushes. On the other side of the bushes, some feet further, was a concrete wall and a drop from where he fell some 6 feet.

A significant issue at trial was the state of the lighting, and whether or not the veranda lights were kept on, as maintained by the defendant, or had been turned off. Witnesses were called on behalf of the plaintiff who indicated that the lights were turned off, and on behalf of the defendant who maintained that the lights were kept on as was the practise when patrons were still in the restaurant.

Another significant issue was the defendant's reliance on the intoxication defences under s 50 of the CLA, as the plaintiff conceded that he had had 5 to 6 beers and 1 to 2 bourbon and cokes over about 6 to 6.5 hours that night.

Section 50 of the CLA provides in part as follows:

  1. This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired.
  2. A Court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.
  3. If the Court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the Court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage...

District Court Decision

In relation to the lighting issue, the primary judge, Sidis DCJ, had the benefit of attending a view of the premises. As the restaurant was open she was unable to view the premises with the internal and external lighting turned off. However, she was able to note that the area of the garden through which the plaintiff walked was well lit by verandah lighting as was the void into which he fell.

The primary judge then assessed each of the witnesses called on behalf of both parties in relation to whether or not the verandah lights had been turned off or not. The primary judge placed significant emphasis on the evidence of a Mr Bax, who was actually called on behalf of the defendant, who stated that whilst the verandah lights were switched on at the time that he and other remaining members of the wedding party left the restaurant, he was only just able to make out a shadow on the concrete where the plaintiff fell, and recalled that the area where the plaintiff fell was very dark. This indicated to her Honour, based on her observations at the view, that the verandah lights must have been turned off after Mr Bax left the restaurant.

The primary judge also found the evidence of the restaurant manager on behalf of the defendant to be unsatisfactory, and that she was reconstructing her evidence based upon the usual practise adopted at the restaurant.

Having preferred the evidence of the plaintiff's witnesses (and Mr Bax), the primary judge concluded that the plaintiff did fall in darkness, and that bearing in mind that if the veranda lights had been left on they would have provided a considerable degree of illumination, they must have in fact been turned off. The primary judge therefore found that the defendant had been negligent in failing to ensure that there was proper illumination in the area of the unguarded wall from where the plaintiff fell.

The primary judge rejected the defence of contributory negligence finding it somewhat extraordinary that, having denied there was any risk in leaving the wall without a balustrade, the defendant argued that the wall represented an obvious risk. Her Honour did not consider it was unreasonable that the plaintiff took the route presented by the gap between the shrubbery having the appearance of a pathway and that the plaintiff would not expect to encounter the unusual and serious hazard represented by an unguarded drop of close to 3 metres.

The primary judge also rejected the defendant's submissions in relation to the intoxication defences, stressing that it had not been suggested to the plaintiff that he was so heavily intoxicated that his judgement of physical co-ordination was affected, and also noting that the plaintiff's partner, who drank very little because she was driving, made the same decision as the plaintiff to take the route through the garden bed.

Court of Appeal Decision

Allsop P, who wrote the leading judgment on behalf of the unanimous Court, turned firstly to the issue of the lighting, and the defendant's submission that the primary judge had made an error in accepting that the verandah lights had been turned off. Allsop P was of the view that the primary judge's finding as to lighting should not be disturbed as the primary judge had the benefit of the view, and also having been able to assess the evidence of each of the witnesses and their demeanour.

Allsop P rejected the attack on the primary judge's findings of no contributory negligence on the basis it was not unreasonable that the plaintiff took what appeared to be a short cut to reach a place from where the voices were coming.

Allsop P also agreed with the primary judge that the defendant could not successfully rely on the defence of the plaintiff's alleged intoxication, noting the requirement of s 50(1) of the CLA was not established.

For the above reasons, the Court of Appeal upheld the primary judge's decision in favour of the plaintiff.


The decision confirms the difficulties that appellants confront in seeking to have lower court decisions overturned when those decisions are based almost entirely on the primary judge's observations as to the witnesses' credibility and demeanour.

Some error in the fact finding must be demonstrated to justify a new trial or for the Court of Appeal to overturn the primary judge's decision.

The mere fact of apparent intoxication will not be sufficient to successfully rely on the defences under s 50 of the CLA. A defendant must establish that in the particular circumstances the apparent intoxication was causative of the injuries sustained.

Nicholas Gordon
Curwoods Lawyers


1 Allsop P, Beazley JA and Giles JA

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