Afoa v McBride

[2017] NSWCA 323

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Afoa v McBride [2017] NSWCA 323
Hearing dates:	25 October 2017
Decision date:	14 December 2017
Before:	Macfarlan JA at [1]; Payne JA at [77]; Sackville AJA at [78]
Decision:	Appeal dismissed with costs.
Catchwords:	NEGLIGENCE – personal injury – child appellant injured after ingesting corrosive substance left in a glass – whether respondent responsible for presence of substance in glass – credit based findings led to primary judge’s rejection of appellant’s case – Fox v Percy (2003) 214 CLR 118 – whether primary judge’s findings were glaringly improbable   EVIDENCE – reliability of hospital and other medical records – relevant factors – Container Terminals Australia Ltd v Huseyin considered
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Category:	Principal judgment
Parties:	Vai Afoa by his tutor Christine Taylor (Appellant) Barry Anthony McBride (Respondent)
Representation:	Counsel: A J Stone SC / P R Glissan (Appellant) P Cummings SC (Respondent)   Solicitors: John McEncroe & Company (Appellant) Moray & Agnew (Respondent)
File Number(s):	CA 2016/326627
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2016] NSWSC 1415 Date of Decision: 6 October 2016 Before: Harrison AsJ File Number(s): SC 2013/44853

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 8 April 2012, the appellant, Vai Afoa (who was then 3½ years old) suffered serious injuries when he ingested a highly corrosive substance by drinking from a glass that was on an outside table at a barbeque. By his tutor (who is his mother), he commenced proceedings in the District Court claiming damages for negligence from the respondent. The respondent was the owner of the premises, but not present at the barbeque. The appellant‘s case was that some days before the barbeque the respondent left a glass containing a caustic soda product, similar to the product sold under the brand name “Drano”, on the kitchen bench of the premises. The appellant alleged that on the day of the barbeque, water was unwittingly put in the glass, and given to the appellant. He then left the glass on a table in the garden, and when he came to drink it later he suffered serious injury.

By judgment of 6 October 2016 Harrison AsJ rejected the appellant’s claim and directed the entry of judgment for the respondent ([2016] NSWSC 1415). The case before her Honour involved major factual disputes and the credibility of the lay witnesses was strongly in issue. Her Honour found that the appellant had not discharged his onus of proving that the events occurred in the manner he alleged. Particularly significant to her Honour’s conclusion was that when the appellant was first given the glass in the kitchen he sipped from it but suffered no reaction, but when he later drank from what he alleged was the same glass he suffered…