Craig William Jackson -v- Lithgow City Council  NSWCA 312
- The task of the court in drawing an inference as to the cause of an injury is to assess whether an inference is available and more probable than other possibilities.
- Where it could not be concluded that the plaintiff's intoxication did not contribute to his fall then the presumption of contributory negligence under s 50 (3) of the Civil Liability Act, 2002 applies.
- On the morning of 18 July 2002, Craig Jackson, the plaintiff, was found lying unconscious in a concrete drain in a park in Lithgow suffering serious injuries, including an injury to the head and a probable thoracic fracture. He had earlier taken his dogs for a walk after consuming a substantial amount of alcohol.
- He had no memory of how the accident occurred and there were no witnesses to the accident.
- The plaintiff sued the local council, who had the care and management of the park, alleging that he had fallen over the low, unfenced retaining wall of the drain and down approximately 1.5 metres on to the concrete drain.
District Court Decision
- The trial judge, Ainslie-Wallace DCJ, found in favour of the defendant. Her Honour found that the defendant owed someone in the position of the plaintiff walking in the park at night a duty to exercise reasonable care for his or her safety and that this duty was breached by the defendant not taking steps to avoid the risk of foreseeable injury to somebody falling over the wall at night.
- However, as the plaintiff could not establish how the injury occurred, her Honour could not find that the plaintiff had stumbled over the low wall or that the plaintiff had approached the drain when it was dark.
Court of Appeal Decision
- The plaintiff appealed submitting that the evidence did permit an inference to be drawn that the accident happened by the plaintiff walking down the slope of the park and tripping, causing him to fall 1.5 metres onto the concrete drain below.
- His Honour Allsop P delivered the unanimous judgment.
- Allsop P placed significant weight on the report of the ambulance officers who attended on the plaintiff. Allsop P held that the notation in the ambulance 'retrieval record' was consistent with the plaintiff coming down the hill in an easterly direction, and falling over the wall down on to the concrete drain, striking his wrist and head, causing him to become unconscious.
- Allsop P held that the balance of the evidence, read along with the notation of the ambulance officers, was consistent with the accident occurring in that fashion. His Honour further held that the nature of the plaintiff's injuries were more consistent with a significant fall of 1.5 metres rather than stumbling into the shallow drain from the side.
- Allsop P noted that if the ambulance record could not be used, then the balance of the evidence would not be sufficient enough for the primary judge to infer that the accident occurred in the way that the plaintiff alleged. Allsop P held that critical to the inference was the understanding of the place of the body, its configuration and its relationship to the surrounding structures. This was only to be found in the record of the ambulance officers.
- Read together with the balance of the material, Allsop P concluded that there was sufficient material to draw the inference that the accident occurred in the way that the plaintiff alleged.
- As the trial judge found that the plaintiff was clearly intoxicated at the time of the accident s50(3) of the Civil Liability Act which gives rise to a presumption of contributory negligence on the part of the plaintiff unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the injury, was engaged. Allsop P could not conclude that the plaintiff's intoxication did not contribute in any way to the cause of injury and therefore the statutory presumption that there was operative contributory negligence of 25% applied.
- By reason of s50(3) applying, it was necessary for his Honour to consider whether the mandatory 25% allowance for contributory negligence should be increased. Counsel for the defendant submitted that there should be a finding of 50% contributory negligence. His Honour considered that a 25% reduction was sufficient given that the plaintiff fell on to a concrete drain which was unlikely to have been seen even by a sober person.
- On appeal the plaintiff submitted that the trial judge's finding of 35% of a most extreme case in respect of non-economic loss was inadequate and submitted that a finding of 50% was warranted. Allsop P noted that the plaintiff suffered significant physical injury, including brain trauma and amnesia. He also noted that the plaintiff made a significant recovery.
- His Honour did not interfere with the trial judge's finding in respect of non-economic loss, noting the trial judge's advantages in seeing the plaintiff and her careful weighing of the evidence.
- Where there exists no definitive evidence as to how an accident occurred, the Court's role in drawing an inference as to how the accident occurred is to "assess whether an inference is available and more probable than other possibilities".
- This decision confirms the reluctance of appellate courts to interfere with a trial judge's findings in respect of non-economic loss. The decision confirms Elite Protective Personnel Pty Limited v Salmon (2007) NSWCA 322 wherein McColl JA observed that an appeal court may alter a judge's decision in relation to quantum if the judge acted on a wrong principle of law, misapprehended the facts or made a "wholly erroneous estimate of the damage suffered".
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