good morning may please the court of the council my name is matthew governs i represent james brace in re this matter i consider this case the case of the cracked and crumbling concrete use that a eration as a tool to emphasize how this case is distinguishable from the caterpillar case that was relied upon by the commission initially if you  reviewing my briefing note that i'm fishing or maintains that this is a case where the standard review that applies would be to novo review insofar as it's titian ors position that the facts are undisputed and the record is devoid of any conflicting inferences that can be drawn from those undisputed facts if the court still finds them to know of a review would be appropriate if however the court would conclude as i argued in my reply brief that the facts are in dispute and that the record supports multiple entrances that can be reached from those disputed facts then whether or not this action or rose out of the course of the employment would be a question of fact in the commission which could only then be reversed if this court were to find that the findings of the commission  the facts are largely in dispute undisputed and that is the official report of the work at eight thirty on day in question she had a mid morning meeting at the respondents ministry ation building two blocks from the can't keep county courthouse she was returning from that meeting the employee door at the south end of the building undisputed was locked at eight thirty and therefore did not provide her access to the can't keep going to court house counsel could i interrupt you sidewalk are there photographs depicting sidewalk prior to the repair that were made of the placement of the sidewalk and there's an exhibit at arbitration were pictures of the cracked and crumbling concrete do you have those here i have good morning may please the court counsel my name is mike ross and i represent the employer in this matter i do take issue with counsel's argument i do take issue with this concept that there was a defect which caused the injury there are not photographs of the accident location there is a photograph there case i don't think you know the end and one of the reasons why you say you know did you dispute it to a certain extent we didn't dispute it because i don't think she testified to a defect she said you know the sidewalk it's income going to it she testified that there was or two at most an inch of alteration in the height of the sidewalk because the concrete wasn't perfect well then she testified that she was wearing  differentiations left and trip on if they encounter a great in the sidewalk that's small enough for large enough for her to ask how many women have i seen walking down the street to catch their hero walking over  reasonable inference for the commission to decide that this woman fell as a result of her high heels as or as opposed to falling as a result of a defect the answer is yes that's a permissible inference for the arbitrator to make that's permissible inference for the commission to make is it permissible for the commission to rely on caterpillar absolutely yes did the commission explicitly indicate that this was a defect that contributed to the cause all i would disagree i would say that there is not that it is a permissible inference for the commission to to decide that the fair always the result of a personal condition rather than a defect in the premises then you know there are court obviously dealt with a lot of caterpillar cases over the years and it's hard for me to believe caterpillar was coming close to thirty years ago and i've been you know dealing with the issues ever sense and and every claimant that comes to the commission that says you know we don't want to be stuck with the caterpillar decision attempts to distinguish it and caterpillar you know if thirty years ago that would take me before caterpillar someone said caterpillar will be decided in that manner i would say no you know that that's not the state of the law and caterpillar changed the law markedly caterpillar said hey you know we're not  a state that looks at only in the course of we're a state that looks at arising out of the end in the course of and in order for arising out of two to apply you have to show a risk that is not com i'm and i'm i'm i don't mean to change your question but you have to read the arbitrator's decision that it was not a defective condition wanganui said i'm in for because that's what he concluded will work here  heard the evidence he's the one who saw the witnesses he's the one who you know has a first chance and eat you obviously have the right obligation to change it based on the rule of law but you can't just simply say hey that is the distinctive characteristic of her on that's from well you know it simply means that she fell while in a public sidewalk and i don't find any aspect of the public sidewalk which caused her fall other than the fact that she's walking on the public want a picture and say this is not a defect and i will get a picture and say oh yes it is now the question is do i have to defer to their view of what's in the picture compared to what i can see i mean this is a commission you you get no difference whatsoever because you know i'm looking at this stuff and i'm in the same position you are you know you got it you got to change it we have got rid of her fiction that they're there because they have some special knowledge mail and they do to a certain extent i mean  you know just like in the last case you know you see the names of doctors every once in a while i see the names of doctors every day i know you know and they're kind of the same way and we have some that have never seen an x ray that shows a fracture i always a here cross you know and then we have another guy we have a compound fracture and says oh no it's it's affecting field it's nothing wrong with his leg you know we have to figure out which ones he was telling the truth i if by the simple answer is you can do whatever she wants because you're entitle to make that decision the question i think really is should you and i mean it here what i'm thinking is with our own conclusion i believe it would be contrary to law for you to do it at the minute what would your alternative be his you know this is terrible he totally ignores my merino he totally ignores litchfield and he seems to suggest that because what she was doing was walking and she tripped and fell that she's not trying to recover because everybody was which is nonsense so which we do we should reverse the condition of reverse circuit court reversed the commission sent it back for them to be determinations whether the condition of the sidewalk was or was not a defect if it is a defect award or benefits if it's not don't if it did the he would have you believe that if i tripped and fell on the grand canyon i would not recover merely because i was walking when i did it i mean you know that's not this silly so will make sense here or give me a lot of this really interesting petitioner was walking in the time of the accident even in walking the petitioner did not take any action differ from them which you would take as a member of the general that silly it's only will go off if the condition is is is a normal condition non defective he's got to meet the defective condition and the alice's because of her testimony that it was language in the eye in his decision is to not respond to the bomb redo analysis but to the other appellate court cases is that he has said hey you know this is an exception a caterpillar this is a caterpillar for example it's a parking lot case for example if it's a special some sort of special risk case for example it's you know why i'm up this courthouse you know more times than somebody else and i have a greater risk i was whoring i was carrying all of the other exceptions that have come to caterpillar that's the reason for that language in the in the arbitrator's decision is to not necessarily address bomb alito but to address all of the other cases that have been risk there's been no argument raised that there was an absence of a defect in the sidewalk and for caterpillar to apply when you have there's no defect there's no rule i understand but as you pointed out in the previous argument depression of the cracked concrete in relation to adjacent slabs of concrete will counsel the evidence might have been unrebutted as to the condition of the side but it doesn't that it compel the conclusion that it was defective such that it was dangerous for bomb reid or that it contributed cause your fines fall so we're basically left without that one half to one inch cracks depressed cracked sidewalk is the characteristic of a sidewalk which flies in the face of litchfield which flies in the face of a bomb read on and so far as the curve in caterpillar the court concluded there was a characteristic of the curve it wasn't a defect for caterpillar to apply to the the section of concrete that was in question here that caused her to fall for heel getting caught the  or must have concluded that that is a characteristic of a slab of concrete to have one half to one inch cracks to have one half to one inch depression in relation to