McGlen-McLeod v Galloway - [2012] NSWCA 368

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales

Case Title: McGlen-McLeod v Galloway

Medium Neutral Citation: [2012] NSWCA 368

Hearing Date(s): 9 October 2012

Decision Date: 09 November 2012

Jurisdiction:

Before: Allsop P at [1];
Campbell JA at [2];
Tobias AJA at [3]

Decision:
1. Appeal allowed.

2. Set aside Order 1 of the District Court made on 14 October 2011.

3. There be a new trial confined to the issues of causation and damages.

4. The respondents to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act 1951, if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
NEGLIGENCE - appellant fell through rotted floorboards of veranda - respondents breached duty of care - appeal in relation to causation and damages - whether the primary judge failed to take into account and assess the appellant's evidence that it was her right leg which fell through the rotted floorboards - whether the primary judge was required to made an assessment of the appellant's credibility in the light of her evidence as a whole

NEGLIGENCE- whether the primary judge's failure to consider in any direct way the appellant's evidence on the issue of causation resulted in a miscarriage of justice - Uniform Civil Procedure Rules Part 51.53(1) - whether a substantial wrong or miscarriage had been occasioned

Legislation Cited: Suitors Fund Act 1951

Cases Cited: Adamson v Ede [2009] NSWCA 379
Mason v Demasi [2009] NSWCA 227
McGlen-McLeod v Galloway [2011] NSWDC 163
McGlen-McLeod v Galloway (No 2) [2012] NSWDC 11
The Nominal Defendant v Kostic [2007] NSWCA 14
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Whalan v Kogarah Municipal Council [2007] NSWCA 5

Texts Cited:

Category: Principal judgment

Parties: Anne McGlen-McLeod (Appellant)
Nathan David Galloway (First Respondent)
Daniel Eli Galloway (Second Respondent)

Representation

- Counsel: Counsel:
C Curtin SC (Appellant)
G M Watson SC (Respondents)

- Solicitors: Solicitors:
CMC Lawyers (Appellant)
McCabe Terrill Lawyers (Respondents)

File number(s): CA16658 of 2012

Decision Under Appeal

- Court / Tribunal:

- Before: Gibson DCJ

- Date of Decision: 14 October 2011

- Citation: McGlen-McLeod v Galloway [2011] NSWDC 163

- Court File Number(s) DC 2009/338654

Publication Restriction:

JUDGMENT

ALLSOP P: I have read the reasons of Tobias AJA. I agree with them and with the orders proposed by his Honour. I would add only this. It can be accepted that the appropriate form of reasons for, and the acceptable judicial approach to, the resolution of controversies can be difficult subjects for generalised assertion. The tendency to generalise rules from the application of principle to particular factual situations can lead to overly specific, and at times conflicting rules. I do not wish to risk being accused of this vice; and I make no criticism of Tobias AJA's reasons along these lines. What can be said about this appeal is that the primary judge was obliged to resolve the dispute before her thrown up by the evidence. That involved a significant body of oral evidence of the plaintiff that was tested in cross-examination. It was necessary to engage with its acceptability and reliability. That did not mean mentioning every line of it. Summary and evaluative choice play their part in judgment writing. But, here, the evidence could not be substantially ignored or not addressed by reference to some judicial strictures as to the risks involved in using demeanour as a determining consideration in fact finding. It is a difficult task to assess the evidence of witnesses. Objective facts can be crucial to its assessment; but assessed it must be, if the controversy so presented is to be resolved. That assessment here miscarried for the reasons given by Tobias AJA.
CAMPBELL JA: I agree with Tobias AJA.
TOBIAS AJA: On 28 May 2008 the appellant, the tenant of a house owned by the respondents, was walking on its veranda when she trod on two rotted floorboards which gave way causing one of her legs to fall through the gap up to the level of her hips. As a consequence of the fall, she sustained injuries in respect of which she sought damages in a statement of claim filed in the District Court on 18 December 2009. The respondents admitted that they owed the appellant a duty of care and that it was breached. The issues which required determination at trial were those of causation and damages.
The issue of causation revolved around what was referred to as the left/right leg issue. The appellant claimed that it was her right leg that fell through the rotted floorboards whereas the respondents asserted that on the objective documentary evidence it was her left leg. The case was conducted upon the basis that if it was the appellant's right leg that fell through the gap in the floorboards then as a consequence she sustained, relevantly, reasonably serious injuries to her right knee, right ankle and lumbar spine. On the other hand, if it was her left leg that went through the floorboards, then the medical evidence accepted by the primary judge was that she sustained a painful soft tissue injury to the left leg/ankle which had resolved itself within a relatively short period of time and which did not impact upon her earning capacity or ability to carry out her domestic responsibilities.
The proceedings were heard on 10 and 11 October 2011 by her Honour Judge Gibson who on 14 October 2011 found that, on the objective evidence, it was the appellant's left leg which fell through the gap in the floorboards and that although she had suffered some minor injury to that leg, it had resolved after about six weeks. Accordingly, her Honour assessed damages on the conceded basis that the appellant was not complaining about continuing problems with her left leg. She then awarded the appellant damages in the sum of $700 and ordered the respondents to pay the appellant's costs (McGlen-McLeod v Galloway [2011] NSWDC 163). It is from those orders that the appellant now appeals to this Court.

The appellant's evidence with respect to the accident

The appellant was born on 19 September 1983 and at the time of the accident had five young children the eldest of which was born in 2000 and the youngest in 2007. In her evidence in chief, she stated that her right foot went through the rotted floorboards and she fell up to the level of her right hip. As she fell through the gap she thought that her right foot struck a support post to the veranda but otherwise ground level was well below the point where she ceased her downward trajectory. As her right foot and leg went through the floor her left leg ended up folded underneath her bottom and resting on the floorboards. In attempting to break her fall she asserted that she injured her left shoulder as well as her left wrist and left thumb. At the time of the accident she weighed approximately 107 kilograms.
Having extracted herself from the position in which she ultimately came to rest with the assistance of her partner, she went to bed as she was unable to get to the local hospital that night but did so early the following day. She was experiencing considerable pain particularly in her right foot, her right knee and lower back. It will be necessary to refer in some detail to the hospital notes as well as to the notes of the two general practitioners whom she visited shortly after the accident and upon which the primary judge placed significant reliance. It is sufficient at this point to note that apart from the visit to the Emergency Department at Coffs Harbour Health Campus the following morning, she saw a Dr Andrew Heslop on 6 June 2008 and a Dr Trevor Cheney (of the same general practice) on 16 July 2008.
In January 2009 when five months pregnant, the appellant lost the child due to an ectopic pregnancy. After recovering from the surgery associated with that episode, she saw a Dr Espinosa-Cassanellii on 28 January 2009. She again consulted one of her local general practitioners, Dr Gull Hertzberg, on 29 July and 26 August 2009.
As I have indicated, the statement of claim was filed on 18 December 2009. With respect to the particulars of her injuries she alleged, relevantly, injuries to her left leg; left wrist; left thumb; right leg; nerve damage in the right leg; injury to the right heel bone and injury to her lumbar and thoracic spine.
After the visit to Dr Heslop on 6 June 2008, the appellant did not formally did not formally consult any general practitioner with respect to her injuries. Nor did she receive any further medical treatment for them. Nor did she receive any further medical treatment for her injuries. However, in 2010 she saw a number of specialist medical practitioners for medico-legal purposes.

The evidence of the specialists

In all, the appellant consulted with five specialists, four in support of her case and one in support of the respondents' case. None gave oral evidence, the parties relied on their written reports. On the first occasion she saw each of those specialists, she described what occurred on 28 May 2008 in a manner consistent with her evidence, namely, that when walking on the timber veranda, her right leg went through rotted wood and she fell down to the level of her right hip. She put out her left hand to try and stop the fall thereby injuring her left wrist and thumb. She then described the other injuries she had sustained including, in particular, immediate pain over the back of the right ankle up to the right shin and into the right knee as well as pain within her lumbar spine extending into the right upper buttock. With respect to each of the specialists to which I shall make reference below, she described her symptoms at the time of examination including her pre-accident employment history.
Dr Paul Teychenne, a consultant neurologist, first saw the appellant on 12 May 2010. He recorded in his report of that date, that the appellant had stated that she had severe and constant pain over her lumbar spine for 12 months after the accident; that she could not sit for more than half an hour or walk for more than half an hour without exacerbating the pain in her lumbar spine which extended down her right leg. Even though she still had persistent pain in her right leg it was now less marked. Subsequent to the injury, her right knee would occasionally give way in that it would buckle under her when she was standing or walking. She complained about pain over the lumbar spine down her right leg every night and noted pain in the left ankle for 10 weeks after the accident. It was exacerbated by the fact that she had to take her weight on the left ankle when using crutches (with which she had been supplied when she first visited the hospital in Coffs Harbour).
The appellant saw Dr Teychenne again on 9 June 2010 when she repeated her symptoms, the doctor noting that she required a CT scan or an MRI scan of the lumbar spine area. He considered that her initial injuries and present complaints were referable to the subject accident. He further opined that she was not suited for activity which required heavy lifting or for activities which required sudden sharp movements of the lumbar spine. Nor was she suited for activity which required persistent walking including walking up and down steps or climbing ladders. She needed to see an orthopaedic surgeon.
In his report of 30 July 2010, Dr Teychenne reviewed an MRI scan of the appellant's lumbar spine noting that it revealed a mild posterocentral disc protrusion at L4/5 and a small annular tear over the posterocentral portion of the L4/5 intervertebral disc. He opined that the scan was consistent with the appellant's clinical history and his clinical examination results as well as the neurophysiologic investigations he had undertaken.
In a report dated 11 August 2010, Dr Teychenne reviewed an MRI scan of the appellant's right ankle which revealed tibialis posterior tenosynovitis. An MRI scan of her right knee revealed focal chondral wear with extension down the bone along the inferior margin of the lateral patellar facet with subchondral reactive changes along the adjacent trochlear surface. Dr Teychenne stated that those scans should be reviewed by an orthopaedic surgeon as comment on them was outside his field of expertise.
On 10 May 2010, the appellant saw Dr Stephen Buckley, a consultant physician in rehabilitation medicine. He also recorded a history of the accident when the appellant's right leg went through the floor up to the hip. She saved herself falling further using her left hand on the edge of the hole. She had lacerations to her leg and serious pain. This description of how the accident occurred was consistent with the appellant's evidence. The same comment applies to the history of the accident given to all other medico-legal practitioners with whom she consulted.
Dr Buckley further recorded that the appellant had indicated that her main problem was with her right knee which "pops out". When this occurs the kneecap seems to move medially and "locks up". She reported that on one occasion she fell to the ground because of it but she tries hard to prevent this occurring by, for example, walking around the shops using a shopping trolley to hold on to for stability and support. She complained about back pain which was exacerbated when she was more active such as running after the children. He noted her walking tolerance (apparently without undue pain) was only about 20 minutes.
The appellant's evidence at trial as well as her statements to the doctors was that she existed on a packet of 12 Panadol tablets per day. Dr Buckley's diagnosis was that the appellant probably has chondromalacia patellae of the right knee causing knee pain which was possibly associated with a tendency towards dislocation of the patella which would explain the giving away of the knee joint. In his opinion a fall such as that she described could well be responsible for the injury to the kneecap he had diagnosed.
The appellant also consulted Dr Bentivoglio, orthopaedic surgeon, on 24 June 2010. He also recorded a history to the effect that she had sustained injury to her right lower limb including her right hip and knee region as well as a jarring injury to her left shoulder. She subsequently developed symptoms present in her lower back region. Dr Bentivoglio recorded her current back symptoms as being the area that troubles her most of all noting that she has a dull ache in her back most of the time made worse when she was active. He recorded that the pain in her back radiates from her hip region down her right lower limb to the knee and that she was only able to walk for about 30 minutes before her back symptoms worsen. As to her right knee, she continued to experience some degree of pain present in the retro-patellar region. She felt that she had decreased strength in her knee albeit full movement. Dr Bentivoglio recorded that her knee tends to give way on her occasionly and tends to swell. She finds difficulty with stairs particularly when descending. Kneeling and squatting also gives rise to pain. He observed the appellant walking over a short distance without a limp. After examination and noting that he did not have any radiological information, his opinion was that without such investigation he was unable to accurately determine the extent of her disabilities although she did have symptoms and signs consistent with post traumatic chondromalacia involving her right knee as well as at least a musculo-ligamentous strain of her lumbar spine region and perhaps even some discal damage.
The appellant was again examined by Dr Bentivoglio on 24 June 2010 when he had available an MRI scan taken of the appellant's back and right knee. The former revealed a small annular tear at L4/5 level of the lumbar spine region with mild discal abnormality at that level. It indicated that she had sustained some degree of discal damage at the L4/5 level of the lumbar spine region. However, surgical treatment was not indicated. He opined that she would need to avoid bending and twisting movements of her back or activities that were particularly arduous in nature and that she should have a weight restriction placed upon her of avoiding objects weighing more than 7.5 kilos.
On 24 June 2010, Dr Bentivoglio again examined the appellant having available an MRI scan of the appellant's right knee and right ankle. With respect to the scan of the right ankle, this revealed evidence of tibialis posterior tenosynovitis together with mild oedema involving the deltoid ligament. There was also evidence of chronic insertional plantar fasciitis with bony spurring as well as evidence of a previous probable injury to her anti-talofibular ligament with some subsequent scarring. However he noted that the appellant had not advised him of any injury to her right ankle region and that in any event the scan revealed only a relatively minor injury with no long term disability.
Dr Bentivoglio then referred to the MRI scan of the right knee which revealed evidence of some degree of wearing involving the lateral patellar facet with adjacent changes involving the trochlear surface. He considered that the damage to the retropatellar region of her knee may well have developed from the specific incident she had described in May 2008. He noted that damage to that area could be particularly difficult to correct and generally did not respond well to conservative, or even operative, treatment. She was likely to have on-going symptoms and needed to avoid activities that required her to kneel, squat, remain in one position for long periods of time or do a lot of walking or climbing of stairs or ladders.
The fourth consultant seen by the appellant was Professor David Champion, a specialist neurologist. The respondent relied on aspects of Professor Champion's report of 31 May 2010 to attack the appellant's credibility upon the basis that it contained statements attributable to the appellant which were simply wrong. In a report extending over nine pages, five errors were identified. The first was the recording by Professor Champion that the appellant had done exceptionally well in the School Certificate and that she had sat for a general entrance examination with a view to becoming a registered nurse and achieved a score of 98.5%. The error identified was that she had not, and never had, sat for her School Certificate. This was in fact the case.
The second error was a recording by Professor Champion to the effect that at the time of the accident the appellant was working as a casual nurse for 32-65 hours per week and on top of that was a part time receptionist two days a week with a printing business. The latter was correct; the former was not. The third error was the recording by Professor Champion of a statement by the appellant that she had not seen any doctor with respect to her injuries after the initial hospital visit explaining that the doctors in Bellingen did not bulk bill and she could not afford to see them. He also records that she thought she would probably get better. The first part of this statement was wrong in that, relevantly, she did see two general practitioners in June and July 2008 after the initial hospital visit.

The fourth error was Professor Champion recording that in early 2009 the appellant began to attend Dr Herzberg who had agreed to bulk bill her. The main concern expressed to him was about her right foot and ankle and her knee. It was interfering with her capacity to power walk or to run and thus with her weight control regime. He recorded her statement that Dr Herzberg prescribed sibutramine hydrochloride for weight control. This had helped as her weight was down to 93 kg. I would note that on examination, Professor Champion observed that although she was obese, she seemed to be well on the way to effective weight reduction.
The respondents asserted that the fourth error confirmed the following: first, that the appellant did not see Dr Herzberg except on 29 July and 26 August 2009 rather than in early 2009; secondly, there was nothing in Dr Herzberg's notes of those consultations that indicated that she had expressed to him concern about her right foot, ankle or knee. This is so. However, the notes do confirm that on each occasion there was discussion about the appellant's weight and on each occasion he prescribed sibutramine hydrochloride capsules for weight control. Dr Herzberg's notes also confirm that the appellant was seen on 29 July 2009 not only with respect to her weight issues but also with respect to her asthma when she was prescribed Ventolin and Seretide for that condition.
The fifth error identified in Professor Champion's report was the statement that she had not been driving since the accident. She gave evidence at trial that though she could and did drive, it was difficult for her to do so because of the necessity to use her right foot on the brake and accelerator. Further, she could not drive for any length of time as extended driving, even as a passenger, caused pain in her right leg and lower back.
I interpolate that according to a report of Ms Trudie Warner, a consultant occupational therapist who the appellant saw on 10 May 2010, she also informed Ms Warner that she had not driven since the "subject injury" and that driving caused significant aggravation of her right knee and leg symptoms due to the repetitive flexion and extension of the right knee required when operating the brake and accelerator. She further recorded that travelling in a vehicle for extended periods, even as a passenger, also caused a significant increase in her lower back pain and right knee pain as well as stiffness.
The appellant was seen by a Mr Peter Defina for a vocational assessment report on 8 June 2011. On that occasion Mr Defina recorded that she reported she could no longer drive a car with manual transmission although she hoped to do so following rehabilitation.
The foregoing statements as to her ability to drive were generally consistent with her evidence at trial. Furthermore, the history of the accident given to Professor Champion was consistent with her evidence both to the primary judge as well as to the other medico-legal specialists she consulted. It was her right foot that went through the rotted floorboards and not her left.
Professor Champion had access to the Coffs Harbour Health Campus Emergency Department's triage and medical notes. As recorded at [6] and [7] of the primary judge's reasons, the relevant entry was:
"INJURY LEFT LOWER LEG AND FOOT, FELL THRU VERANDA"
The medical entry stated that the appellant:
Presents with sore left leg and ankle post falling through rotten veranda. Was apparently hanging by leg. Not weight bearing. Tender all toes, foot, ankle and leg, no skin tear or laceration.
An x-ray was taken of the left foot and foreleg the results of which proved normal.
In his report of 31 May 2010, Professor Champion referred to this recorded information which repeatedly referred to the left side whereas he recorded that the appellant was adamant that this was wrong and the injury was to her right leg (pointing to the scar over her right kneecap). He then recorded the following:
She was taken in a wheelchair to the radiology service. She lay supine with both legs on a couch and her legs were symmetrically arranged with a triangle sponge between them (details which I record because of the left-right problem). She could not tell which foot and foreleg was actually X-rayed. The report by Dr Shadley Fataar referred to "Left foot and foreleg" and there was stated to be no evidence of recent bone or joint trauma. As I was discussing this with Miss McGlen-McLeod she said "I want to know where the knee X-ray is." She said that she believed that her right knee was X-rayed before the foot and lower leg, remembering that the radiographer said "I'll do your knees first". Treatment advised was strapping, elevation, rest and ice. This she did at home. I asked her was there any possibility that the early injury had been to her left leg and she was emphatic that this was not the case.
On reflection about this left-right issue she recalls that after the accident she was sore at the left side of her neck, left groin, and on the medial aspect of her left ankle and was hesitant about using crutches because of soreness of the left foot, so it does seem possible that the hospital staff may have picked up on these left-sided symptoms and presumably ignored the right-sided symptoms. However she emphasised that compression bandages were definitely applied to her right leg, covering the knee and heel/ankle region. The notes were clearly inadequate. There was no description of what actually happened, except for "falling through rotten verandah" and "was apparently hanging by leg". The examination findings did not refer to left or right side.
With respect to his examination of the appellant Professor Champion recorded, amongst other things, that she walked with an antalgic limp (related to her right leg). There was painful inhibition of movement, active and passive, of the right knee and she reported "clicking"; there was an intermittent clicking type of catch feeling. Over her right patella was an oblique scar which she said was a result of the fall as the floorboards were jagged. The whole knee region was markedly tender. Overall the pain and disability revealed by his examination seemed to exceed substantially what he had anticipated from her mention of power walking and so on, but was consistent with her reported inability to effectively drive. He also detected marked pain on movement of her right ankle and tenderness in that region.
Under the heading "Diagnosis and assessment" Professor Champion relevantly recorded the following:
I felt somewhat incredulous about the pre-accident history as recorded and wondered to what extent it was believable. I was referring to her relationship with her partner on a DSP because of schizophrenia, her multiple children, her report which suggests in some ways high level intelligence, her holding down two jobs, exercising extensively and playing social soccer, as well as reading and writing stories for children. Evidently I conveyed that incredulity and this led to discussion. She offered in due course to send me some of her school reports and other evidence. I learned that her objective is to be an obstetrician (that seems a long hard road). I am concerned that the damage and injuries as a result of the fall on 28 May 2008 may well be a barrier too difficult to overcome. Generally the findings on examination were more severe than I had anticipated from her history, so it does not seem that there was any exaggeration and I found no obvious inappropriate response to my examination.
...
I am not sure what to make of the left-right problem where her recall was that she was mainly injured in the right leg, which was said to have gone through the defective verandah floor, yet the Emergency Department medical records at Coffs Harbour indicated early focus on the left leg and foot. The scar on her knee was somewhat persuasive, although that might have arisen in a separate incident. It may well be, as she later realised, that the early symptoms were predominantly on the left side. Generally however the medical notes were markedly deficient. Then she considered it unaffordable to seek medical care after two initial weeks off work.
It was not until early 2009 that she began to see Dr Hertzberg, general practitioner, whose consultations were affordable. He has focussed not unreasonably on weight reduction, including exercises. ...
Professor Champion provided a further report on 8 August 2010 in which he commented upon the MRI of the appellant's lumbar spine, right knee and right ankle. It is unnecessary to refer to his comments on the scans in any detail although he expressed surprise that the pathology was mainly at L4/5, observing that one could only account for that by either a one-hit injury to the S1 nerve root fibres or to the well known nerve root hyperexcitability and pathological influence that comes from leakage of protein polysaccharide from an annular tear as in the present case. He therefore suggested that she be re-examined in a few months but nevertheless opined that in any event the L4/5 disc lesion was consistent with the accident and the injuries she had described albeit that the pathology revealed only a minor part of the substantial regional pain problem.
On behalf of the respondent the appellant saw Dr John O'Neill, consultant neurologist, on 2 November 2010. Again she gave the same history to Dr O'Neill that she had given to the other specialists. She was adamant that it was her right foot which dropped through the rotted floorboards on the veranda. Dr O'Neill had access to all the medical entries of the general practitioners she had seen noting that in none of them was there any mention of problems pertaining to an injury to her right ankle. He further recorded that he was provided with extensive notes pertaining to "a number of attendances by [the appellant] to the Coffs Harbour Health Campus" and that he had found two medical entries by a Dr Ashton dated 10 November 2009 in the first of which the doctor had stated, relevantly, "left knee/leg pain likely secondary to bony contusion plus haematoma from blood trauma". Neither of those entries were tendered in evidence.
I note first that there was no cross-examination of the appellant as to any consultation with a Dr Ashton. Secondly, the appellant never suggested that she had attended the Coffs Harbour Health Campus with respect to the injuries sustained by her on 28 May 2008 other then on the following morning. Nor was she cross-examined on any of the attendances referred to by Dr O'Neil other then that on 29 May 2008.
With respect to her continuing symptoms, Dr O'Neill recorded the same symptoms that the appellant had stated to the other consultants she had seen in 2010. Thus he recorded that she had told him that the worst problem was the constant aching in her right lower back. Dr O'Neill also recorded that the appellant had told him that there was pain and limitation of movement in her right ankle which was worse after she injured it again on 20 September 2010 when her right knee gave way and she rolled her right ankle when walking down steps.
It is of some significance that that incident was only five to six weeks before she saw Dr O'Neill. That she did so injure her right ankle on 20 September 2010 was confirmed by the discharge letter from Belmont District Hospital of that date which records the injury she described. In this context I note that the appellant was cross-examined with respect to an observation by Dr O'Neill that she "could not co-operate with testing power at the right ankle because she said it was painful". In her evidence it was put to her that when Dr O'Neill asked her to get up on the balls of both feet and then stand on her heels, she could not perform those tasks with the right leg because she said it was too painful. She agreed that that was so as she had seen Dr O'Neill after she had rolled her ankle on 20 September 2010. She accepted that normally she would be able to do that exercise.
Dr O'Neill's stated his conclusions in the following terms:
Causation and Diagnosis
Medical entries indicate that as a direct consequence of the accident on 28 May 2008, Ms McGlen-McLeod sustained a painful soft tissue injury to the left leg/ankle requiring attention at Coffs Harbour Health Campus on 29 May 2008 and with her GP, Dr Heslop, on 6 June 2008.
All other medical interventions seem to have been instigated by CMC lawyers.
The aforementioned medical entries and those of 10 November 2009 leave no doubt that it was, in fact, the left leg which was injured as a consequence of the incident on 28 May 2008.
After noting that he was unable to make any comment about the MRI scans of the right knee and ankle as it was outside his expertise, Dr O'Neill nevertheless opined under the heading "Continuing Treatment", that in his opinion the MRI scans pertaining to the lumbar spine, right knee and right ankle were not reasonable and necessary in terms of having been requested as a consequence of the injury to the appellant's left leg which took place on 28 May 2008. One can infer that Dr O'Neill would have accepted that those scans were necessary if in fact it was her right leg that went through the gap in the floorboards rather than the left leg.

The notes of consultations relied upon by the primary judge on the issue of causation and the appellant's response thereto

I have already set out at [31] above the entry in the notes of the Emergency Department of Coffs Harbour Health Campus which the appellant had attended on the day following her accident. The primary judge recorded in full the relevant notes of the medical practitioners upon which she relied as "objective" evidence on the issue of causation and I shall do the same omitting those of 28 January 2009 which related solely to the loss of the appellant's baby due to her ectopic pregnancy, although the primary judge did record the notes of Dr Espinosa-Cassanellii of that date at [15] of her reasons, a matter on which I comment at [51] below.
The first entry is that of Dr Andrew Heslop of 6 June 2008 recorded by her Honour at [12] of her reasons. It was in the following terms (which I have amended so that it accords with the Dr Heslop's original computer entry):
1. On 27th May 2008 she fell through rotten floor boards in 2nd story [sic] house she is renting, and finished up at armpit level suspended. Seen at CHBH A&E the next morning and had XR done then. Said to have chipped bone in the heel. Bruised shin and is for re Xray.
Leg is not getting better, and remove bandage as DVT risk.
Examination: Swollen lower L leg
Needs Aspirin 100mgm daily
Actions:
Diagnostic Imaging requested: X-ray - Fore Leg (L) -10 days
Injury to L Foreleg and is XR to see is [sic] there is periosteal reaction
2. At ETC on Monday she slipped on the mossy stairs and rehurt sore L leg and R shoulder.
She is unable to lift R Shoulder and is limited with abduction laterally
Diagnostic Imaging requested: X-ray - Shoulder ®, US - R Shoulder - Slipped on the mossy stairs and injured R shoulder She is unable to lift R Shoulder and is limited with abduction laterally.
It is not uninstructive to refer at this point to the cross-examination of the appellant on the contents of Dr Heslop's notes. First, she denied that she ever told him that she finished up "at armpit level suspended". Her evidence to all the other doctors was that she was suspended at hip level. Given the size of the hole through which she fell (which was the subject of photographs in evidence) and the fact that the appellant, without meaning any disrespect, was at that time obese weighing some 107 kilos, it would simply have been physically impossible for her to have fallen through the hole to armpit level.
Secondly, when asked whether her left leg was in fact swollen when she saw Dr Heslop, she said that both legs were swollen after the accident. She maintained that she complained to him about her right leg although she did not recall the actual consultation at the time she gave evidence. She also maintained that she complained to Dr Heslop with respect to her back, shoulder, thumb and wrist.
Thirdly, the appellant confirmed that on the Monday prior to seeing Dr Heslop on the following Friday, she was on crutches and had slipped on some mossy stairs, as the notes record, further injuring both her right shoulder and her left leg. She agreed that she complained to Dr Heslop about her right shoulder and that she had hurt it in the fall on the Monday. She maintained that she complained to him about her right leg, back and knee.
Fourthly, there is something to be said for the view that the emphasis at the consultation on 6 June 2010 related to the appellant's left leg and right shoulder which she had injured in a fall only a few days prior thereto. This may possibly provide an explanation as to why Dr Heslop did not record the complaints she says she made with respect to her right knee and ankle and lower back.
The appellant next consulted a general practitioner on 16 July 2008 when she saw Dr Trevor Cheney. As recorded by the primary judge at [13] of her reasons the relevant entry in Dr Cheney's notes was as follows:
Wednesday July 16 2008 16:26:55
Dr. Trevor Cheney
asthma playimg [sic] up and family unwell
Reasons for contact:
asthma
Actions:
Prescription added: VENTOLIN CFC-FREE INHALER
100mcg/dose 2 puffs q.4.h.
Prescriptions printed:
VENTOLIN CFC-FREE INHALER 100mcg/dose 2 puffs q.4.h.
When it was suggested to the appellant in cross-examination that she made no complaints about any physical injury to any part of her body at that consultation as none was recorded by Dr Cheney, she responded as follows:
I wasn't there for that. I was - we had had whooping cough at that stage - suspected whooping cough. My asthma was playing up. Kiara was on a nebuliser. I also got a script for Rebulas at that stage for the nebuliser that is what I was there for and as far as I recall it was a very quick consultation because he fit me in.
In oral argument on the appeal, the respondents conceded first, that Dr Cheney was in a different category to Dr Heslop meaning, I infer, that whereas the appellant had consulted Dr Heslop with respect to the accident, she had consulted Dr Cheney for a different purpose; secondly, that the absence of any note by Dr Cheney of the appellant complaining about the injuries sustained by her in the accident could be explained away on the basis that she was simply not a whinger; and thirdly, that absence could be further explained by the fact that she was having a problem with her asthma (as the notes record) and asthma can be life threatening.
As I have already indicated the appellant saw Dr Espinosa-Cassanellii on 28 January 2009. It was put to her in cross-examination that there was no mention of the problems with her legs, knees or back at that consultation to which she responded:
"No, they were the furthest from my mind, believe me".
At [15] of her reasons, the primary judge noted that the appellant sought medical assistance from the same medical practice in January 2009, but no complaint was made about her legs. Her Honour acknowledged that at that time she was five months pregnant with an ectopic pregnancy and that she was transferred to hospital by Dr Heslop on 2 January 2009 when she underwent a caesarean section, her baby dying a few minutes after birth. In those circumstances, it is somewhat difficult to understand why, as she apparently did, for otherwise why mention it, her Honour relied upon the fact that on that occasion as well as at the follow-up on 28 January 2009, the appellant made no complaint about her legs or, for that matter, her lower back.
The next consultation was with Dr Gull Herzberg on 29 July 2009. I record hereunder his notes of that consultation taken from [16] of her Honour's reasons:
1 script for Ventolin and seretide
which she got at hospital
4 weeks for her asthma
is going well with the seretide
2 has been going to weight watchers for 8 weeks
walking 18 000 steps per day
is jogging
riding
requesting sibutramine having done her own research
discussed
she will take it and Review:
in a month
Actions:
Prescription added: SERETIDE ACCUHALER 250/50 POWDER
INH 250mcg-50mcg/dose 2 b.d. m.d.u
Prescription added VENTOLIN CFC-FREE INHALER
100mcg/dose 1-2 puffs 4hrly as required
Prescription printed:
SERETIDE ACCUHALER 250/50 POWDER INH 250mcg-50mcg/dose 2 b.d. m.d.u.
VENTOLIN CFC-FREE INHALER 100mcg/dose 1-2 puffs 4hrly as required
Prescription added: SIBUTRAMINE HYDROCHLORIDE CAPSULE 10mg 1 daily m.d.u Prescriptions printed SIBUTRAMINE HYDROCHLORIDE CAPSULE 10mg 1 daily m.d.u.

The appellant was cross-examined with respect to Dr Hertzberg's note "walking 18,000 steps per day". She said that she was wearing a pedometer and she was walking throughout the day doing housework and looking after her children. The cross-examiner put to her that what the doctor had written was "walking 18 000 steps per day is jogging". The question was misleading as the words "is jogging" are on a different line in the notes to the reference to "18 000 steps per day". The appellant denied that 18,000 steps was jogging and said that she told Dr Hertzberg about walking and having 30 seconds of jogging every five to eight minutes during a half hour walk because it was something she was trying to do in order to get her fitness and muscle agility back. As to the reference to "riding", she said that she used a stationary bike inside the house. It was then put to her that she made no physical complaint at all to Dr Hertzberg on the occasion of the consultation of 29 July 2009 with respect to her legs, back, shoulder or arms to which she responded as follows:
A. No, that's not true, I've always maintained when I've spoken to any of the doctors the same as my most recent doctor that anything like that does cause pain in my back and I was offered an increase in pain relief as far as painkillers go at one stage and I chose not to have them because I know that they are drugs of addiction and can affect my mental alertness.
The appellant also saw Dr Hertzberg on 26 August 2009. The entry in his records on that occasion as recorded by the primary judge at [17] was as follows:
started reductil after last visit
lost 3.3kg in week 1
has dropped a dress size
continues with weight watchers
satiety comes earlier
Plan:
continue on 10mg reductil
continue all her other weight loss measures
Examination:
General
BP(Sitting): 101/75
Pulse(Sitting): 76
Actions:
Prescriptions printed
SIBUTRAMINE HYDROCHLORIDE CAPSULE 10mg 1 daily m.d.u.
The appellant was cross-examined with respect to both consultations with Dr Hertzberg in the following exchange:
Q. There would be no hesitation for you to tell him if you had any physical problems, that's right, isn't it?
A. That's correct but when I go there for a specific thing I speak about that specific thing, you're lucky to have five minutes in there with them.
Q. You're lucky to have five minutes with them?
A. At the most you get a ten minutes consultation unless you want to pay for or book a double.
. . .
Q. When he gave the plan, "Continue on other weight loss measures" you made no complaint to him about any difficulties with your legs or back or shoulders or arms, did you?
A. No. I was not there for that. He Just said stay on that level of medication continue what you're doing.
Q. But see if you had had problems with them you would have told him, wouldn't you?
A. No, that's not true because I have problems to this day and if I go to a doctor for a specific reason and I have other problems I don't discuss those problems at that time.
. . .
Q. Can I suggest to you that from an examination of the records, it reveals the only time you made any complaint about your left leg was on the occasion of the 6 June 2008 otherwise no complaint at all to any of those three doctors about your left leg?
A. I haven't complained to any medical practitioners officially as that being a direct appointment, no, but I have spoken to them on a social aspect about it.
Q You have made no complaints at all about your right leg to any of the doctors at all at your general practitioner's practice had you?
A. No, that's not correct because I have spoken to them about it and that's how the Sibutramine Hydrochloride came up as a possible helper with my - with things that were happening with me my rapid weight loss.
Q. Are you sure that's correct?
A. Yes.
. . .
Q. Could I suggest to you at no occasion after 28 May 2008 did you ever complain about your knee to the doctor?
A. That's not true because I have on two occasions been up to Bellingen Hospital with problems with my right knee.
Q. You made no complaints to your general practitioners about your wrist or thumb?
A. That's not true because I know I spoke to Trevor about that in depth.
Q. You made a complaint in respect of your right shoulder after a fall?
A. Yes.
Q. After this event not at the time of the event?
A. Yes, that's correct, because I was on crutches.
Q. You mention the injuries you suffered at this incident, are you sure you suffered the injuries you've been complaining of?
A. I'm absolutely certain.
The cross-examiner returned to the issue of the appellant's back, that being her major problem at the time of trial, suggesting to her that it was no longer causing her pain, a proposition she denied. The following exchange then occurred:
Q. You have never sought treatment for your back have you?
A. No, I have not been in a financial position, I bring up five children now on my own for the time being.
Q. But the fact is you've attended the doctor's for asthma and other complaints?
A. Yes, asthma can kill you, a sore back won't kill you.
Q. And you had the opportunity on those occasions to mention your back didn't you?
A. No, because the appointment is for specific things.
The appellant's attitude to seeking medical assistance was also the subject of cross-examination to the following effect:
Q. Who has your general practitioner been between 2009, August 2009 and October 2011?
A. The local Accident and Emergency Department if there's any serious.
Q. Of which hospital?
A. It's either been Coffs Harbour, Bellingen, Belmont.
Q. And you've had no general practitioner-
A. That's correct-
Q. -at all?
A. That's correct, I have -I had spoken to Trevor about referring me to a GP. As far as it goes, I only see a GP when I absolutely have to. I don't just go to them for the sake of going to them. I actually need to have something really serious and have a problem.
Q. But you only go to the hospitals if it's an emergency, that's right, isn't it?
A. They have GP Access clinics they call them now, but they have clinics up at the hospitals where you can go in regards to getting treatment for asthma and issues like that.
Q. Well who has been the person - have you gone to them for that or not?
A. To the Accident and Emergency Departments, yes I have.
Q. Yes, but have you gone to this GP system that you referred to a moment ago?
A. The GP Access, yes I have.
Q. When?
A. The most recent time was possibly three months - two to three months ago at Belmont. (emphasis added)
From this evidence it is probable that the consultations with Dr Ashton referred to by Dr O'Neill were at the GP Access Clinic at Belmont Hospital. However, as noted at [37] above, the appellant was not asked whether this was so, let alone her purpose in seeing Dr Ashton.
In the same vein as the extracts from her cross-examination set out above, was the following exchange between the appellant and her Honour:
HER HONOUR
Q. Do you think perhaps if you saw a doctor about ways to minimise pain, it might have made your life a little bit easier?
A. Yes.
Q. Well why didn't you?
A. Well I, I just it's me, I'm not a cripple, I don't like being an invalid. I just deal with my pain.
Q. But if you were prepared to take up that suggestion from Dr O'Neill about how to go up and down steps, might not there be other ways that doctors can help you?
A. Yes there would be and doctors like that cost a lot of money though. There's a very long waiting list like at the moment I'm waiting three years on a public health waiting list to see a Medicare funded orthopaedic surgeon.
The point of the foregoing references is that the appellant's response to the suggestion that she did not complain about her right knee, ankle and lower back to Drs Heslop, Cheney and Hertzberg and particularly the last two, was that first, she could only afford short appointments; secondly, they fitted her in and the consultations were extremely limited in their scope; thirdly, she only sought a consultation in relation to a particular matter such as her asthma and her weight loss; and fourthly, she attended Dr Cheney and Dr Hertzberg with respect to her asthma because that "can kill you, a sore back won't kill you".
Thus, the evidence of the appellant in cross-examination, if accepted, established first, that she was extremely stoic; secondly, that she had to look after her partner, who was a schizophrenic, and five young children with little or no money; thirdly, she could not afford to see a specialist; fourthly, the doctors who she saw in the general practice at Bellingen did not bulk bill; fifthly, her main concern was to lose weight as she thought that that would assist with her knee and lower back problems; and, sixthly, she dealt with the pain in her lower back, which was her main problem, by taking 12 Panadol tablets a day as she did not regard herself as a cripple and did not wish to be treated as an invalid.
Her attitude to her ailments was best summarised in the following exchange in circumstances when her response to the question was not challenged:
Q. So at some time this, so through the balance of 2009 and through all of 2010, you didn't see the need to go and see a general practitioner in the new premises you've moved to?
A. No, I'm -I have been brought up with a mother and father who even to this day when they are sick or injured or anything, they go about their life - my mother hardly goes to a doctor. I don't even think she's been to a doctor in the last few years, other than seeking treatment for cancer which she had no choice to do. My father is the same. Growing up, whether I was ill or injured, I still continued with my life. I played soccer with a broken - they thought a break in the left ankle at some stage. It turned out that it was tendon damage or something. I still played soccer. I've had other things where I've hurt my arm, I've still gone on about my life. I'm not the kind of person that's going to go and whinge to some doctor and say, "I have all these problems." I can't take care of my children because the implications of that in today's society, she is by law required to report that to Department of Community Services and any other social welfare that is out there, that can then allow them to come into my home and remove my children. (emphasis added)
It would be fair to say that the primary judge did not make reference to any of the passages from the appellant's cross-examination which I have set out above. Obviously, it was open to her Honour to reject them on the basis that the appellant was simply not telling the truth. Unfortunately she made no such finding as to whether she accepted or rejected these particular responses which, at the very least, went some way to explaining why she did not always complain to the general practitioners she saw with respect to her right knee, ankle and lower back. Her case was that she did not do so because there was little point: she had no choice but to deal with it as best she could given the domestic responsibilities to which she was subject. She simply had to get on with her life. Her evidence called for a finding, one way or the other, as to whether she was telling the truth. If it was accepted, then a finding to that effect could reflect positively on her credibility with respect to the causation issue. It could not therefore be ignored, but regrettably it was.

The approach of the primary judge on the issue of causation and the appellant's credit

After listing at [2] of her reasons the particulars of the injuries sustained by the appellant as pleaded in her statement of claim filed on 18 December 2009 (and which included injury to her right leg), the primary judge under the heading "The circumstances of the plaintiff's injury" stated that at 10pm on 28 May 2008 the appellant trod on two floorboards on the veranda of the premises in which she was living which had rotted and which gave way causing her to fall into the gap which was sufficiently narrow to prevent her falling right through. Her Honour then noted that the appellant proceeded to the Coffs Harbour Health Campus, being the local hospital, the following morning and then set out both the triage and medical entries in the hospital notes to which reference has already been made.
At [9] her Honour referred to the fact that in May 2010, some two years later, the appellant's doctors provided medico-legal reports stating that her right leg, not her left leg, had gone through the hole, and that that leg had suffered an injury of considerable severity.
After summarising what the appellant had informed the medico-legal consultants as to how she fell and that it was her right leg that went through the floorboards and not her left leg, the primary judge noted (at [11]) that the difficulty with the descriptions of the accident and consequent injuries given by the appellant two years after the event to the medico-legal consultants, was that they were inconsistent both with the treating entries in the hospital notes and with her subsequent treatment in 2008 and 2009 by her general practitioners. Her Honour then set out the relevant entries of Dr Heslop, Dr Cheney and Dr Hertzberg which I have already recorded.
At [19] the primary judge referred to that part of the report of Dr O'Neill where he noted two medical entries by Dr Ashton dated 10 November 2009 contained in the file provided to him by the Coffs Harbour Health Campus Emergency Department and which were to the effect that the appellant went to the Emergency Department complaining of left knee/leg pain.
However, her Honour makes no reference to the fact that the appellant was not cross-examined on these entries. For all one knows, she may have sustained a frank injury to her left knee in November 2009 which had nothing to do with the accident on 28 May 2008. After all, 18 months had passed and it was common ground that any injury to her left leg in the subject accident had resolved itself at least 12 months before she saw Dr Ashton. Yet her Honour appears (at [19]) to have regarded the reference to the appellant's left leg by Dr Ashton as some objective evidence that it was the left and not her right leg which went through the rotted floorboards. At the very least she appears to have accepted that the reference in Dr Ashton's notes that the appellant was complaining of left knee and leg pain to be inconsistent with her evidence that it was her right knee and leg that was injured in the accident.
At [20] the primary judge noted that the appellant's evidence was that she:
not only injured her right (not left) leg, back and wrist, but that she had complained to hospital staff about injury to her right leg, and asked for the right leg (although not, apparently, her back or wrist) to be x-rayed.
This summary of the appellant's evidence contained two errors. First, her evidence both in chief and in cross-examination was that she had injured both legs and that she had informed the triage nurse not only that she had injured her left leg and ankle but also her right leg, her back, her right shoulder and her left wrist. Secondly, her evidence in cross-examination was that she did request an x-ray of her left wrist as well as of both legs. These factual errors on the part of her Honour were not the only ones as will appear. Nevertheless she relied, at least in part, upon these erroneous facts when determining whether to accept the appellant's version of events.
At [21] her Honour said:
The [appellant], throughout her evidence, paints a picture of substantial and serious injuries to her back, shoulder, wrist, thumb and right leg being not only not recorded but ignored by the hospital staff for the duration of the time that she was in the emergency department, and when she returned the next day. She made similar claims in relation to her visits to her general practitioners, although an alternative explanation was given in relation to the latter, in that she was lucky to have five minutes with the doctor when she saw him, as he only had time to deal with one issue, otherwise she had to pay for a longer consultation.
I interpolate that at no point did the primary judge make a finding as to whether the "alternative explanation" referred to was one that she accepted as true or false. Furthermore, the appellant did not say that she had made "similar claims" to Drs Cheney and Hertzberg when she saw the former on 16 July 2008 and the latter on 29 July and 26 August 2009. Although she said that she had spoken to her general practitioners, in effect, informally with respect to her complaints, she denied that she had done so "officially" on the occasion of what she referred to as "a direct appointment". If this evidence was accepted, then it would explain the absence of any reference to her injuries or complaints of pain from those injuries in the notes of those consultations in July 2008 and July and August 2009 upon which her Honour relied.
The primary judge nevertheless took the view that there were inconsistencies in the appellants' evidence. In order to reconcile them she considered (at [23]) that
. . . it is necessary to examine with care her evidence, demeanour and consistency of answers in cross--examination.
The objective so referred to by the primary judge was clearly correct but as will appear, it was not one that she ultimately adopted.
Under the heading "The plaintiff's evidence", the primary judge noted that both in opening and closing submissions counsel for the appellant accepted that the central issue in the case was her credibility. This notwithstanding, at [25] her Honour observed:
Ultimately the question of whether or not I accept the plaintiffs evidence depends not upon her credibility or demeanour, but upon how I reconcile her version of events as told to the court in these proceedings with the contemporaneous records of the time.
Her Honour then proceeded at [26] to [32] of her reasons to summarise the appellant's evidence as to her pre-accident employment history observing (at [31]) that there were a number of inconsistencies between that evidence and contemporaneous records. There is no doubt that her Honour was justified in finding that there were such inconsistencies and that, to a degree, the appellant had exaggerated her pre-accident work history as well as her perceived abilities. One example will suffice. She asserted that she did exceptionally well in the School Certificate but in fact she left school before sitting for her School Certificate as she was about to give birth to one of her children. Nevertheless, as her Honour noted at [29], between 2002 and 2005, she attended Taree TAFE and "commendably" over this period succeeded in obtaining a Certificate 3 Aged Care Work qualification and undertook a twelve month medical receptionist course by correspondence In 2002 she had also obtained a Certificate 2 in Aged Care Work at Tuncurry TAFE.
The most significant inconsistency related to her statement to Professor Champion that at the time of the accident she was working as a casual nurse from 32-65 hours per week as well as working as a part time receptionist two days per week in a printing business. As I noted at [24] above, the latter was correct but the former was not. Two weeks after the accident she returned to work for the printing company where she remained until July 2009 when she was retrenched. It is true, as the primary judge noted at [32] of her reasons, that for nine months, while working two days a week at the printing company, she also worked part time (usually on a Saturday and Sunday) as a Care and Service Employee at Bellorana Nursing Home, but the nursing home's records indicate that she ceased that employment on 21 March 2007.
The next heading in her Honour's reasons was "The plaintiffs credibility as a witness". At [33] she reiterated the appellant's counsel's submission that the issue in the case was her Honour's assessment of his client's credibility. Her Honour did not seem to accept this, observing that:
. . . the issue for determination is the nature and extent of injury arising from the plaintiff's fall through the rotten floor boards of the veranda, and whether the injuries for which she complains are causally related to this accident.

At [34] her Honour then noted that the correct approach to a determination of causation in circumstances where a plaintiff's credit is an issue, was explained in Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [41] where the Court observed:
To disbelieve a party (or any witness for that matter) who swears his or her oath is a serious finding and not to be undertaken lightly without good and sufficient reasons.
After referring to the observation in Whalan relating to the problem of inadequacy of reasons, her Honour continued at [35]:
. . . I have accordingly set out at some length the basis upon which I have not accept [sic] the evidence of the plaintiff that she did in fact suffer injuries contrary or different to those described in the contemporaneous hospital and general practitioners' notes and my further finding that her problems with her right leg and shoulder, on the balance of the evidence, are not causally related to her fall through the floor boards.
At [36] - [38] her Honour referred to and cited from the judgment of Ipp JA in The Nominal Defendant v Kostic [2007] NSWCA 14 at [43] - [44]. As she noted at [39], the issue of causation in that case arose by reason of a delay by the plaintiff in complaining about a lower back pain several weeks after the accident and the issue in dispute between the parties' respective medical experts concerned the delayed onset of lower back pain which the plaintiff experienced; the doctors expressed differing views as to the implications arising from that delay. Accordingly, as her Honour noted at [37] those differences of opinion did not involve a credibility issue, but a medical question, and one which was clearly defined by the differing opinions of the doctors in their reports.
The present case is not one which involves differing medical opinions. Only Dr O'Neill referred to the medical entries in the notes of the hospital and the general practitioners whom the appellant had consulted in order to form the opinion that it was her left leg and not her right leg which fell through the floorboards. This was a finding of fact that did not involve any relevant medical opinion. The medico-legal practitioners who provided reports on behalf of the appellant accepted the history of the accident as conveyed by her, in so far as she asserted that it was her right leg that fell through the floorboards. They were not asked, nor would it have been appropriate for them, to comment on the entries in the medical notes upon which Dr O'Neill relied in coming to what was, in my view, a factual finding and not a medical opinion. As such, it was outside Dr O'Neill's area of expertise, as it did not involve the formulation of an opinion based on his professional observation or assessment of the appellant's reliability as an accurate historian.
On the contrary, Dr O'Neill simply rejected the appellant's version of events on the sole basis that it was not supported by the hospital and general practitioner's notes taken at face value. it is to be noted that Dr O'Neill does not suggest in his report that he sought any explanation from the appellant as to the apparent inconsistency on which he relied in order to conclude that she only injured her left leg and ankle in the accident.
At [39] her Honour observed that the first difficulty facing the appellant was the extent of the delay in her reporting her symptoms with respect to her right leg. She observed that unless she accepted the appellant's evidence that she informed the hospital and her general practitioners (or both) about her back, right leg and wrist problems during her visits in 2008 and 2009, the delay in complaint was one of two years. With respect, this is not entirely accurate as the delay was some 19 months given that she asserted injuries to her right leg, wrist and back in her statement of claim filed on 18 December 2009. However, the appellant's evidence was that she had informed the triage nurse and doctor at the hospital not only that her left leg had been injured but also her right leg and she had also so informed Dr Heslop on 6 June 2008.
As I have noted above at [71] above, the appellant did not assert that she had advised Dr Cheney on 16 July 2008 or Dr Hertzberg on 29 July and 26 August 2009 that she had injured her right leg in her fall as her attendances on those occasions related to other specific health problems with which she was then more concerned. The difficulty with which this Court has to grapple is that the primary judge did not indicate one way or the other whether she accepted the appellant's explanation as to why on those occasions she did not advise those general practitioners of the injuries to her right knee, ankle and lower back which were still causing her pain. Acceptance of that evidence would have minimised or even eliminated the significance of the alleged delay.
At [40] her Honour stated that the second problem on the issue of causation was the lack of information about the appellant's medical problems in the two years following the accident. She properly acknowledged the dangers of attaching excessive significance to medical notes of considerable brevity prepared for purposes other than litigation. That caveat notwithstanding, her Honour seems, with respect, to have regarded it as significant that the treating notes in the present case all refer to the left knee, there being no reports of "any treating doctors" to explain why they referred to the left knee rather than the right knee. However, it should be noted that apart from the hospital notes the only occasion when there is a reference in the notes of the general practitioners to the left leg is in that of Dr Heslop on 6 June 2008.
Her Honour then added the following:
In addition, the plaintiffs explanation for not consulting any doctors over this period (financial concerns) is inconsistent with her concession that the general practitioners' practice consulted by her did in fact bulk bill; she said in her evidence that these doctors were friends, and she referred to them by their first names. Mr Defina, the psychologist who prepared a medico-legal report for the defendants, notes the practice provided bulk-billing.
In my respective opinion, the foregoing findings were not supported by the evidence. First, the appellant did not concede that the practice of the doctors in Bellingen (Drs Heslop, Cheney and Hertzberg) bulk billed. In fact the respondent accepted in oral argument that there was no evidence that they did. Professor Champion records in his report of 31 May 2010 that she did not see any doctor after the initial hospital visit because the doctors in Bellingen did not bulk bill (Medicare only) and it was not affordable. Nor was she cross-examined to suggest that that practice did bulk bill. She did say in her evidence that she was on friendly terms with the three doctors in question and that she had spoken, in particular, to Dr Cheney in effect on social occasions about the problems with her right leg and lower back but not at any formal consultation, except on the occasion she saw Dr Heslop on 6 June 2008.
Secondly, there is nothing in Mr Defina's report that suggests that the Bellingen practice bulk billed. Given her acknowledgment that the appellant's explanation for not consulting with general practitioners over the two year period of "delay" was due to the fact that the practice in question did not bulk bill and, therefore, she could not afford to seek medical consultation unless it was absolutely necessary, her implicit rejection of that evidence upon the basis that the practice did bulk bill was, with respect, a significant error in her fact finding relevant to the appellant's credibility on the issue of causation.
Her Honour then observed (at [41]) that what she had previously said brought her to the question of her assessment of the appellant's evidence. She appropriately referred for this purpose to the following passages from the judgment of Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74] the relevant parts of which I record below:
[73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" ... Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.
(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness's evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.
[74] Lord Bingham then added these observations:
"In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented ... so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such."
In the present case it is difficult to see how the appellant could have been honestly mistaken as to which of her legs went through the rotted floorboards. Her consistent repetition to all the specialists she saw that it was her right leg does not permit of any such finding and her Honour did not make one. Unless what she related to them and in her sworn evidence was true, the only alternative finding must be that she was being deliberately dishonest; that her story was a concoction intended to mislead the court to award her substantial damages for injuries which were not caused by the negligence of the respondents. There was simply no other choice and it was stark. I return to this point at [124(e) and (j)] below.
At [42] the primary judge set out what she referred to as the "issues" relevant to the appellant's credibility as being the following:
(a) The inconsistency between the plaintiffs account of what she told the hospital on the day and the reports, including the investigations carried out, which were prepared contemporaneously by the hospital staff. This is not a case where the plaintiff tells the court that she did not realise on the day that she had suffered other injuries, her explanation is that she reported these injuries, which were obvious to the naked eye, and that nothing was done;
(b) Similarly, the discrepancy between the plaintiffs account of her reports concerning her injury (or lack thereof) to the doctors in the general practice which she consulted, over the period from the accident until the time she ceased to consult these doctors. Again, it is not the case that the plaintiff said she was unaware of suffering these injuries, her explanation was that when she referred to these injuries, she was told she just needed to lose weight;
(c) The plaintiffs failure to provide medical reports of other doctors in relation to other treatment she sought, such as acupuncture and moxibustion;
(d) The period of delay between the plaintiffs injury and her first report of these injuries to medico-legal experts in May 2000 [sic 2010];
(e) Inconsistencies in the information provided to these medico-legal experts by the plaintiff in relation to the circumstances of her accident, including such other matters as her work history;
(f) Inconsistencies in the information provided by the plaintiff to experts retained by the defendants to provide medico-legal reports;
(g) The impact of the surveillance film on the plaintiffs credibility.
These factors, if accepted by her Honour at face value, could only result in a finding that the appellant could not be believed on her oath and had lied not only to the court, but also to at least eight health professionals.
The next heading in her Honour's reasons is "Inconsistencies in the plaintiffs evidence, and their relevance to her credibility". At [45] she stated that the evidence given by the appellant that was unsatisfactory fell within the following categories
(a) Her claims to have suffered injuries which must have been noticeable to the emergency department at the time of the accident which are not noted, such as the scars on her knees and wrists and the injuries to her right leg and shoulder;
(b) Her explanation for her continuing failure to seek medical assistance in relation to her injuries and disabilities;
(c) Her explanation for the two year gap before telling medico-legal experts (rather than treating doctors) about her condition; and,
(d) Her description of her pain levels and what she can and cannot do, and over what period of time.
At [46] her Honour noted that the appellant was insistent in that she had told the hospital the full extent of her injuries. She had said that these were obvious and she still had the scars. Her Honour then continued:
... Her explanation for failing to seek medical assistance or advice about her ongoing pain or to obtain pain medication was her distrust of doctors, whom she feared would report her as an unfit mother; she preferred to go to the local hospital emergency department, and this is confirmed by the November 2009 entry found by Mr Defina (this entry also, I note, refers to the left leg).
The November 2009 entry was a reference to the notes of Dr Ashton found by Dr O'Neill rather than Mr Defina. However, there was no evidence as to the reason the appellant saw Dr Ashton. As I observed at [68] above, she was not asked. As I also there noted, it could not have had anything to do with the events of 28 May 2008, as it was common ground that the injury to her left leg as a result of her fall that day had resolved itself long before November 2009.
Furthermore, the primary judge has, it would seem, misinterpreted the appellant's evidence in so far as she appears to be asserting not only that her failure to seek medical assistance or advice about her on going pain was her mistrust of doctors, whom she feared would report her as an unfit mother, but also that that was the only explanation for failing to seek such assistance. The unfit mother point was made in the context of that part of her evidence which I have recorded at [62] above. In my view the primary judge has mistakenly taken that statement out of context.
Her Honour also seems to have overlooked the fact that the appellant did not give any evidence that she distrusted doctors. She did say that her preference was to go to the local hospital emergency department, due to financial reasons more than anything else. Her evidence relating to this aspect was contained in the exchange which I have recorded at [57] above.
Importantly as appears from that exchange, the appellant's evidence was that she did not visit her GP unless she absolutely had to; she did not seek a consultation just for the sake of doing so, but actually needed to have something really serious which was causing a problem. Thus in a number of the exchanges to which I have already referred, her evidence was that she only sought medical assistance when it was absolutely necessary such as when she had an asthma attack or one of her children was ill. Affordability was also an issue as appears from the exchange which I have recorded at [56] and [59] above. None of the explanations contained in that exchange were, with respect, dealt with by her Honour or seemingly taken into consideration or were the subject of findings by her when dealing with the issue of the appellant's creditability on the question of causation.
Under the heading "The evidence of the plaintiffs experts" her Honour proceeded to summarise each of the reports of the four specialists qualified by the appellant. Relevantly, with respect to Dr Teychenne, her Honour appears (at [56]) to have criticised him as having accepted everything the appellant said as to how the accident occurred "at face value". At [61] she again noted that Dr Teychenne had accepted, without any qualification, all of the appellant's claims about her injury and disabilities "however inconsistent". With respect, there was nothing inconsistent with the appellant's insistence that it was her right leg which went through the veranda floor and not her left leg or, if that was correct, with the injuries of which she complained.
The primary judge then turned to the report of Professor Champion. At [68] she referred to the appellant's medical records when visiting Dr Heslop in June 2008 noting that there was no reference to her right leg in the relevant entry. It is true that this was not known to Professor Champion. Although he was somewhat incredulous with respect to the appellant's pre-accident employment history and said that he was "not sure what to make of the left-right problem", he nevertheless came to the view that she was a reliable historian with respect to that issue. Of course, her Honour was not bound to accept that viewpoint.
Although at [73] her Honour observed that Professor Champion had addressed many of the "obvious inconsistencies in the plaintiffs description of events", there were in fact no such inconsistencies in so far as the appellant was adamant that it was her right leg which fell through the floorboards and not her left leg. In fact the only inconsistency seemed to be Professor Champion's recording of the appellant having informed him that she did not see any doctor after the initial hospital visit, which was incorrect, as she had seen Dr Heslop in particular on 8 June 2008. In this respect it would be reasonable to infer that Professor Champion was referring to the appellant not seeing a doctor after the initial hospital visit with respect to the injuries sustained by her in the accident rather than for any other medical problem.
There are other factual errors in Professor Champion's report in so far as what he was told by the appellant does not accord with the relevant entries by the general practitioners which she saw such as Dr Hertzberg. However, her Honour was correct when, at [73], she observed that Professor Champion had not been given accurate information as to the appellant's history of seeking treatment; nor had he been given an accurate pre-accident work history. Nevertheless, her Honour (at [74]) accepted Professor Champion's opinion that the injuries of which the appellant complained were, by their nature, consistent with the circumstances of her fall as she related it. Her conclusion with respect to Professor Champion was thus expressed as follows:
[75] While I accept Professor Champion's opinion that the plaintiffs injuries to her knee and back are injuries of the kind capable of being caused by the circumstances of her accident, I do not accept that they were in fact so caused. I have the benefit of additional objective evidence, including an accurate picture of the plaintiffs work history and the notes, however brief, of her treating doctors.
I pause to note that, subject to the surveillance video to which reference will be made below, her Honour's conclusion was essentially based on two factors; first, the inaccuracies in the appellant's pre-accident work history and, secondly, the brief notes of her treating doctors and the hospital. In the context of the second of these matters reference should be made to the observations of Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] in a case where, relevantly, the testimony of the plaintiff appeared to be inconsistent with the accounts given to various health professionals. Such apparent inconstancies, his Honour said, should be approached with caution for the following, amongst other, reasons:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording.

The foregoing considerations are of particular potency in the present case when considering notes made in a hospital emergency department where the triage nurse and attending doctors who wrote them are under considerable pressure, and treating general practitioners in an apparently busy practice who, according to the appellant, "fitted her in" for a short consultation.
The primary judge then turned to the report of Dr Buckley concluding that it was of little assistance given the inaccurate work history with which he was provided as well as the failure to provide him with the entries of the general practitioners whom the appellant had seen in 2008 and 2009. Her Honour found that Dr Bentivoglio's report was similarly of limited assistance for the same reasons.
In the result, it appears that the primary judge has rejected the reports referred to because they were generally based upon an inaccurate pre-accident work history provided to them by the appellant, and the failure to provide the doctors with the hospital notes and entries by the general practitioners whom the appellant consulted in 2008 and 2009. However neither of these matters can militate against the medical findings, opinions and prognoses expressed by each of the doctors concerned with respect to the injuries which the appellant asserted that she had sustained in the accident. Even if those practitioners had been made aware of the entries in the hospital notes as well as in the records of Drs Heslop, Cheney and Hertzberg, that would not have advanced the position as those doctors were not qualified to express a view as to whether it was her left leg or her right leg which fell through the floorboards. All they could do, and did do, was to express a view, which her Honour accepted, that her injuries were consistent with her right leg having fallen through the floorboards.
Furthermore, the only other relevance of the reports with respect to the issue of causation (as distinct from damages) was that the appellant was entirely consistent in asserting to each of the practitioners concerned that it was indeed her right leg that fell through the floorboards and not her left leg. The issue which then arose was whether her evidence in this respect was credible and reliable. The hospital notes and the entries of the general practitioners were obviously relevant to this issue but, in my opinion, whatever inconsistencies were contained in them needed to be assessed against the credibility of the appellant in terms of her oral evidence both in chief and in cross-examination. That required an analysis of that evidence and an assessment of how it impacted upon the inconsistencies upon which her Honour relied on the causation issue. The appellant was, in my opinion, entitled to such an assessment. She was entitled to know whether she was or was not believed on her oath. Unfortunately, she was deprived of that right. It follows that there was a failure to take account of the appellant's evidence in a number of critical respects when determining the causation issue.

The surveillance video

Shortly before trial, the respondents sought an order from her Honour that the respondents be permitted to rely upon a surveillance DVD of the appellant shot over several days in November 2010 and March 2011. The order was granted with the result that the appellant was aware, prior to giving evidence, that a surveillance film would be relied upon in relation to her claims of on-going disability. However, there was no suggestion that she actually saw the DVD before she was cross-examined with respect to its contents. She simply knew that it existed.
The appellant was taken through the video in cross-examination in some detail. However, prior to being shown the film, the appellant's evidence in cross-examination was that in 2010 she was able to walk approximately five kilometres provided the ground was not uneven or pot-holed or the gradient not too steep although after approximately half an hour the pain in her lower back would tend to increase. Her evidence, which was unchallenged, was that she took 12 Panadol a day and, in particular, always took Panadol before she was required to walk any distance such as taking her children to and from school and going shopping. She never suggested that she could not walk such a distance; only that after approximately 30 to 45 minutes her back became more painful but she was required to persevere as her children needed to be walked to school as they did not qualify, because of the distance of their house from the school, for a free Government bus pass.
The following exchange also took place between the appellant and the cross-examiner before the video was shown:
Q. Well you can drive long distances as well can't you?
A. If I stop yes.
Q. Even without stopping?
A. That's not correct. I drive with my left foot on the accelerator on occasion as well.
Q. What I want to suggest to you is that in relation to these complaints your back doesn't trouble you much, if at all, that's right isn't it?
A. No that's not correct, I don't accept that statement.
Q. You don't have trouble getting around walking do you?
A. I have trouble walking as far as comfortableness goes but I walk, I do what I have to do.
Q. In fact you can walk long distances pushing a pram can't you?
A. I can if I have to yes, I have children, I have no choice.
Q. You can push the pram to the children's school can't you? A. Yes I do that most days.
Q. And that's something like 3.6 kilometres round trip isn't it?
A. I think it's about 1.2 kilometres each way.
The primary judge dealt with the surveillance video in the following paragraphs of her reasons:
[94] The plaintiff said that she had to walk the children to school, despite being in constant pain, because she needed the exercise to lose weight, as well as to look after her children, but that to do so she had to take three or four Panadol each morning. She said she took a packet of 12 Panadol a day.
[95] The surveillance film shows the plaintiff walking briskly for several hours and, from concessions she made in her evidence, it would appear that she walks this much on a daily basis. Her claim that she was in constant pain when she did so is hard to reconcile with her unguarded gait and brisk pace, her ability to stoop down quickly and being able to push a pram containing a child for long periods.
[96] While the plaintiff does have knee and back findings indicating she has problems, the surveillance video shows she is able to go about her daily activities without any obvious restrictions. The surveillance video also shows that the plaintiffs claims to Ms Warner about the extent of her ongoing disabilities were grossly exaggerated.
Much if not most of the video related to the appellant walking her children to and from school including pushing a pram containing her youngest child. The thrust of her cross-examination when shown segments of the video was to attempt to demonstrate that the appellant's disabilities particularly with respect to walking on roads and ascending and descending stairs were exaggerated. This video did not extend to the appellant shopping.
Generally, her responses to the cross-examiner were first, that she had never suggested that she was unable to perform the activities depicted on the video; secondly, that although she could do them, they caused or exacerbated the pain in her lower back which the video did not and could not depict; thirdly, she dosed herself with Panadol before she was required to walk for any length of time or distance; fourthly, she had no choice but to perform the activities captured on the video due to her responsibilities to her family; fifthly, it was necessary for her to walk as much as she could in order to reduce her weight as this would aid her back pain; and sixthly, she was neither a hypochondriac nor a hypocrite.
A typical example of her response was when it was suggested that she only started to limp after she had been walking for one and a half to two hours:
Yes and my back was hurting before that anyway. It's just what I have to do pay bills, go to the shopping centre, it's a day in my life with five children.
Again when cross-examined with respect to her performing the cleaning and laundry about the house, it being suggested that she could easily unload a washing machine which she denied, the primary judge asked her whether she was suggesting that she was not able to do these tasks at all. She responded:
I am not saying I'm not able to do them at all, I'm able to do them but not without the ease that he's implying that I can do them with. And there are days where I can't do them at all. There are days where everything builds up and I get pressure in my back.
Her Honour then asked whether on those occasions she would see the doctor to which she responded in the negative. However, that answer was required to be taken in conjunction with the evidence I have recorded at [56] and [59] above.
I accept that the primary judge's findings which I have recorded at [106] above were capable of reflecting upon the credibility of the appellant's evidence as to her disabilities at the times the video was taken. In particular they were relevant to the issue of damages. Even so, there is nothing in her Honour's reasons to suggest that she made any findings with respect of the appellant's responses to the video to which I have referred.
The necessity to make those findings given that they went to the heart of the appellant's credibility as to her back pain which was her most significant on-going problem in 2010 and 2011, was all the more important if, as she apparently did (see [116] below), the primary judge utilised the video to undermine the appellant's credibility on the causation issue. In any event, and with all due respect, her Honour's failure to grapple with the appellant's evidence in response to the video is indicative of, and serves to emphasise, her more critical failure to directly engage with the appellant's evidence on the causation issue.
Under the heading "Conclusions as to the cause of the injuries complained of by the plaintiff" the primary judge noted at [106] that it was not uncommon for there to be problems of inconsistencies between a plaintiff's account of his or her injuries and the description (or omission) of such injuries in contemporaneous medical records. She correctly observed:
Doctors, especially treating doctors, do not write down information from a patient in a comprehensive fashion. Sometimes their records may fall well short of what should be noted.
At [107] her Honour observed that even if she were to accept Professor Champion's complaint about the inadequacy of the hospital notes, the evidence of Dr Heslop, who saw the appellant to remove the bandage (from what is recorded as her left leg), was persuasive
. . . as are the other factual issues upon which I have made findings, including the lengthy period of delay before the disabilities were raised, and the exaggerations as to their degree.
Her conclusion at [108] was as follows:
Taking all of the above into account, I am satisfied that the plaintiffs injuries were those set out in the medical records, namely the injury to her leg, which she "rehurt" the day after bandaging by the hospital staff, when she slipped on the mossy steps at the hospital, and for which she sought treatment from her general practitioner, who removed the bandage for DVT reasons.
As I understand this last finding it was simply due to the entries in the hospital notes and those of Dr Heslop on 6 June 2008 that it must have been the appellant's left leg that went through the floorboards and not her right, and this was so notwithstanding the essentially unchallenged evidence of the medico-legal practitioners that she did have injuries to her right knee, ankle and lower back which were consistent with the accident occurring in the manner that she described.

The submissions on the appeal

The appellant's submissions on the appeal may be summarised thus:
(a) The primary judge failed to take into account and assess the appellant's evidence that it was her right leg which fell through the rotted floorboards as a consequence of which she experienced pain in both legs but particularly in her right foot, right knee, left shoulder, lower back, left wrist and thumb;
(b) Her Honour did not grapple with the appellant's credit by analysing her evidence, determining whether or not her responses in cross-examination were acceptable and, in particular, whether those responses were consistent with her evidence in chief and with what she told the doctors;
(c) Her Honour made no finding as to the appellant's demeanour apart from a finding (at [88]) that she responded to the DVD with anger and at times tearful statements to the effect that she was in fact in constant pain throughout. In her costs judgment of 20 February 2012 (McGlen-McLeod v Galloway (No 2) [2012] NSWDC 11) at [37], while accepting that the appellant was vigorously cross-examined about the extent of her injuries, her Honour noted that it was not put to the appellant that she had brought a false claim or that her exaggerations of her injuries were intended to mislead the Court. It was therefore submitted that notwithstanding that it was clearly put to the appellant that it was her left leg and not her right leg which fell through the hole in the veranda, the fact that the appellant was adamant that it was her right leg required a finding that she was either telling the truth or was deliberately lying.
(d) The fact that her Honour was dealing with an issue of causation did not entitle her, in effect, to ignore the appellant's evidence including her demeanour in so far as it reflected upon her credibility in general and, in particular, her evidence with respect to how the accident occurred;
(e) The primary judge's rejection of the reports of the appellant's medico-legal experts was misconceived for they only provided a medical opinion based upon their examination of the appellant in the light of the history of her symptoms which they assumed to be accurate. So far as the issue of causation was concerned, their medical opinion did not reflect upon that issue. However, what did reflect upon that issue was the consistency of the appellant's history to those doctors that it was her right leg which fell through the rotted timber of the veranda. Accordingly, it was necessary for the primary judge to consider whether the appellant had been honest in the giving of her evidence in relation to that issue. It did not follow that simply because she may have exaggerated her pre-injury work experience or her own abilities as she perceived them in terms of her intelligence, that she was not telling the truth as to how the accident occurred in terms of the right-left leg issue;
(f) Having accepted at [23] of her reasons that it was necessary to examine with care the appellant's evidence including her answers in cross-examination as well as her demeanour, her Honour two paragraphs later (at [25]) came to the opposite conclusion, namely, that the issue of causation was not dependant upon the appellant's credibility or demeanour, but upon how she reconciled her version of events as told to the court with the contemporaneous records. This is not to suggest that those records were irrelevant but they ought not to have been given overriding weight in the absence of her Honour dealing with and analysing the appellant's evidence and, in particular, her answers in cross-examination in order to determine whether she was in fact an honest witness. In this respect, either the appellant was telling the truth or she was lying; there was no room for her to have been simply mistaken as to which leg went through the hole in the floorboards, and that possibility was not suggested;
(g) There were in any event a number of factual errors made by her Honour which vitiated her findings and which were relevant to the appellant's credibility on the causation issue;
(h) It therefore followed that by failing to properly assess the appellant's credibility in the light of her evidence as a whole, there has been a miscarriage of justice and the trial had miscarried.
The respondent's submissions on the appeal may be summarised as follows:
(a) It was not necessary for the primary judge to find that the appellant had concocted her evidence; nor was it necessary for her to comment upon her demeanour. It was not unusual for judges to avoid embarrassing a party against whom they proposed to make an adverse finding without expressly finding they were not telling the truth or were seeking to mislead the court. In the present case her Honour expressed herself "very, very mildly";
(b) Even if the primary judge fell short of finding that the appellant was a liar, she was entitled to reject her evidence on the issue of causation based upon her finding that she had exaggerated her pre-injury employment as well as her symptoms and disabilities and so had invented how she fell in order to inflate her damages. [The difficulty with this submission is that there was no finding of invention; nor was that suggested to the appellant];
(c) The findings her Honour did make were more than sufficient to indicate that she had given proper consideration to the issues in the case. The inconsistencies which she identified in the appellant's evidence, when coupled with the entries in the hospital notes and in those of Drs Heslop, Cheney and Hertzberg, were more than sufficient to justify a finding that the appellant's evidence was not acceptable given the clear exaggeration of her pre-accident employment history provided to her medico-legal consultants and the exaggeration of her claimed disabilities as revealed by the surveillance video. In these circumstances, it was unnecessary for her Honour to make a demeanour finding which is the only finding she failed to make and which, if she had made it, would have served no purpose.
The appellant's submissions in reply may be summarised thus:
(a) Her Honour was required to look at the totality of the evidence on the left-right leg issue which she had failed to do. Further, she accepted at [113] that the appellant did have knee and lower back findings indicating that she had problems. There was no reason not to accept Professor Champion's evidence as to the inadequacy of the notes of the triage nurse and the doctor who examined the appellant in the emergency department at the hospital on the day following the accident. Given that the appellant's evidence was that she had to wait a lengthy period before she was seen that morning, it was apparent that the emergency department was busy and in those circumstances the very scanty notes that were taken could well have failed to record everything that the appellant had stated to the doctors and in respect of which she had given evidence.
(b) As to Dr Heslop's notes, he was concerned with the fact that on the previous Monday the appellant had re-hurt her sore left leg and right shoulder. The reference to the word "re-hurt" in the notes is indicative of the fact that in the original accident she had in fact hurt her left leg and her right shoulder which is exactly what she told the doctor in the emergency department at the local hospital. The focus of the consultation with Dr Heslop appeared to be on the re-injury of her left leg when the appellant had fallen on the previous Monday. It accordingly does not follow from Dr Heslop's notes that the appellant did not injure her right leg when the accident occurred.

The appellant's submissions should be accepted

In my view, the appellant's submissions should, in general, be accepted. Whilst dealing with the primary judge's findings and the matters referred to at [68], [83], [85], [86] and [92] above a number of factual errors which were of significance were revealed. Furthermore, in my view her Honour seems to have misunderstood the relevance of the medico-legal reports obtained on behalf of the appellant on the causation issue. None of those consultants were in a position to express a medical opinion on that issue as it was not amenable to such an opinion. It was a factual matter. What her Honour apparently failed to appreciate was the consistency with which the appellant had made it clear when reciting the history of her accident that it was her right leg which had fallen through the veranda floor.

Furthermore, if her Honour was to rely on the surveillance video, as she did, it was necessary for her to consider the appellant's responses to what she was shown and which involved matters that would not, of their nature, be evident by viewing the video. In so doing, she had to engage with the appellant's evidence as to the type of person she said she was when it came to dealing with matters such as pain. Her evidence as to her stoicism; that she was not a whinger; that she only saw her general practitioner for a specific purpose when absolutely necessary; that with the aid of 12 Panadol a day she simply had to get on with life as she had an invalid partner and five young children to care for, her inability to afford medical attention and her desire to lose weight in order to assist her knee and lower back pain were all matters which with respect, the primary judge ignored but which she was required to consider for the purpose of determining the credibility and reliability of the appellant's version of events. Her failures to make what were necessary findings are referred to at [63], [70], [82] and [113]-[114] above.
There are a number of other matters to which I have referred above which, for convenience, I now summarise:
(a) Her Honour relied on the lack of any complaint by the appellant about her right leg not only in Dr Heslop's notes but also in those of Drs Cheney and Hertzberg where there was no reference to the incident of 28 May 2008 at all. Yet as noted at [50] above, it was conceded on the appeal by the respondents that her consultations with the general practitioners other than Dr Heslop were in a different category and that the lack of any reference in their notes to the subject accident was explicable;
(b) Her Honour failed to approach with caution not only the hospital notes but also those of the general practitioners as adumbrated by Basten JA in Mason v Demasi: see [100]-[101] above;
(c) The first reason for exercising caution referred to by Basten JA is of particular relevance to Dr Heslop's notes. Although the appellant was adamant she told him that she had injured both legs, the notes only refer to the left leg. But that leg had been re-injured four days before she saw Dr Heslop. It does not follow that her right leg did not fall through the floorboards merely because she was complaining about her swollen left leg on the Friday which she had re-injured the previous Monday. In other words, in those circumstances, it does not necessarily follow that her evidence about her right leg going through the floorboards was inaccurate merely because it is not referred to in Dr Heslop's notes;
(d) Contrary to the submissions of the respondents, the failure of the primary judge to make credit findings after having assessed the appellant's evidence went beyond a mere failure to make a demeanour finding: it was, with respect, a failure to properly engaged with the appellant's substantive evidence on the critical issue of causation;
(e) It was not suggested that the appellant's evidence that it was her right leg which fell through the rotted floorboards was merely a mistake on her part. Nor was it suggested that it was a gross exaggeration in the sense that she was fantasising that there was a causal relationship between the accident and her injuries. Nor can her evidence be explained on the basis that she had, due to some unidentified psychiatric condition, convinced herself into honestly believing that it was her right leg which fell through the floorboards. The only other explanation is that she deliberately concocted her evidence in order to mislead the court into inflating her damages: see [88] above;
(f) But even if there was an explanation which did not involve dishonesty on her part, it behoved the primary judge to focus on it and to make a finding with respect to it. This she regrettably did not do. In fact, as her Honour concluded at [25] of her reasons, she did not find it necessary to make findings with respect to the appellant's credibility on the issue of causation. In this she was, with respect, in error;
(g) To the extent to which she did, her Honour's reliance on Dr O'Neill's conclusion on the causation issue was misplaced. As that conclusion was not based on any expression of a medical opinion within Dr O'Neil's area of expertise, it carried no weight and ought to have been disregarded.
(h) In a number of instances to which I have referred at [71], [93], [94] and [96] above, her Honour has misstated or misunderstood the appellant's evidence;
(i) It must be remembered that it is no answer to the obligation, if required, of a judge to make an adverse findings on credibility to avoid doing so in order, as it were, to let the witness down lightly by making a more tactful finding which does not honestly reflect the judge's real assessment of the witness's evidence. This point was well made by Campbell JA, with whom Giles and Hodgson JJA agreed, in Adamson v Ede [2009] NSWCA 379 at [146] where his Honour said:
I do not accept that the judge was in error in this way. One reason why the judge was not in error is that the obligation of a trial judge in giving reasons for decision is to state the reasons that he or she really has for deciding the case, not to give a bowdlerised or sanitised version of those reasons. There may well be cases where a judge regards it as sufficient reason for concluding the case in one particular way to make a soft finding rather than a harsher finding - but a judge is justified in so doing only if the soft finding is at the end of the day the judge's real reason for concluding the case that way. There is no legal obligation on a judge to choose the soft finding, when a case could be decided by either a soft finding or a harsher finding.
(j) Finally, as noted at [104] above, the appellant gave lengthy evidence particularly in cross-examination. She was entitled to have that evidence carefully assessed and a finding as to whether or not she was telling the truth. It never having been put to her that she had concocted or invented her evidence on the causation issue (see [119 (c)] above), it was not open to her Honour to make such a finding in any event and she properly did not. Nevertheless the finding of the primary judge not to accept the appellant's version was thus based on the flimsiest of evidence which, absent a consideration of the appellant's evidence as to its credibility, only told part of the story.
In my view, therefore, the errors of the primary judge as well as her failure to consider in any direct way the appellant's evidence on the crucial issue of causation resulted in a miscarriage of justice. As her Honour has not dealt adequately with the appellant's credibility, it is not possible for this court to deal with that issue and there must, therefore, be a new trial. The court is prohibited from ordering a new trial pursuant to UCPR Part 51.53(1) unless it appears that some substantial wrong or miscarriage has been thereby occasioned. In my opinion, that requirement is satisfied.

Conclusion

In my view, the appellant has succeeded in establishing that the trial miscarried and that there has been a miscarriage of justice for the reasons that I have indicated. The appeal should therefore be allowed.
It follows that Order 1 made by the primary judge giving judgment for the appellant in the sum of $700 should be set aside. However, I see no reason why Order 2 pursuant to which her Honour ordered the respondents to pay the appellant's costs of the trial should be disturbed; nor should the orders made by her Honour in her costs judgment of 20 February 2012. The costs orders made by her Honour should therefore remain unaffected.
I would therefore propose the following orders:
1. Appeal allowed.
2. Set aside Order 1 of the District Court made on 14 October 2011.
3. There be a new trial confined to the issues of causation and damages.
4. The respondents to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act 1951, if otherwise qualified.
*********

Amendments

13 Nov 2012

"amendable" changed to read "amenable"

Paragraphs: 122

Case Title:	McGlen-McLeod v Galloway
Medium Neutral Citation:	[2012] NSWCA 368
Hearing Date(s):	9 October 2012
Decision Date:	09 November 2012
Jurisdiction:
Before:	Allsop P at [1]; Campbell JA at [2]; Tobias AJA at [3]
Decision:	1. Appeal allowed. 2. Set aside Order 1 of the District Court made on 14 October 2011. 3. There be a new trial confined to the issues of causation and damages. 4. The respondents to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act 1951, if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	NEGLIGENCE - appellant fell through rotted floorboards of veranda - respondents breached duty of care - appeal in relation to causation and damages - whether the primary judge failed to take into account and assess the appellant's evidence that it was her right leg which fell through the rotted floorboards - whether the primary judge was required to made an assessment of the appellant's credibility in the light of her evidence as a whole NEGLIGENCE- whether the primary judge's failure to consider in any direct way the appellant's evidence on the issue of causation resulted in a miscarriage of justice - Uniform Civil Procedure Rules Part 51.53(1) - whether a substantial wrong or miscarriage had been occasioned
Legislation Cited:	Suitors Fund Act 1951
Cases Cited:	Adamson v Ede [2009] NSWCA 379 Mason v Demasi [2009] NSWCA 227 McGlen-McLeod v Galloway [2011] NSWDC 163 McGlen-McLeod v Galloway (No 2) [2012] NSWDC 11 The Nominal Defendant v Kostic [2007] NSWCA 14 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Whalan v Kogarah Municipal Council [2007] NSWCA 5
Texts Cited:
Category:	Principal judgment
Parties:	Anne McGlen-McLeod (Appellant) Nathan David Galloway (First Respondent) Daniel Eli Galloway (Second Respondent)
Representation
- Counsel:	Counsel: C Curtin SC (Appellant) G M Watson SC (Respondents)
- Solicitors:	Solicitors: CMC Lawyers (Appellant) McCabe Terrill Lawyers (Respondents)
File number(s):	CA16658 of 2012
Decision Under Appeal
- Court / Tribunal:
- Before:	Gibson DCJ
- Date of Decision:	14 October 2011
- Citation:	McGlen-McLeod v Galloway [2011] NSWDC 163
- Court File Number(s)	DC 2009/338654
Publication Restriction: