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 5Texts 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.…
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- AGLC
- McGlen-McLeod v Galloway [2012] NSWCA 368
- Case
- [2012] NSWCA 368
- Decision Date
CaseChat Overview and Summary
The appeal concerned a negligence claim brought by the appellant against the respondents after she fell through rotted floorboards on a veranda. The primary judge had found the respondents breached their duty of care but made findings on causation and damages that the appellant sought to challenge. The appeal court comprised Allsop P, Campbell JA, and Tobias AJA.
The central legal issues before the Court of Appeal were whether the primary judge erred in her assessment of causation and damages. Specifically, the appellant argued that the primary judge failed to adequately consider and assess her evidence regarding which leg fell through the floorboards, and whether this failure, in conjunction with an insufficient assessment of her credibility, resulted in a miscarriage of justice. The appellant contended that the primary judge wrongly determined that her credibility was not central to the issue of causation, instead focusing solely on reconciling her account with contemporaneous records.
The Court of Appeal allowed the appeal, finding that the primary judge had failed to properly assess the appellant's credibility in light of her evidence as a whole. The primary judge had stated that the question of causation depended not on credibility but on reconciling the appellant's version of events with contemporaneous records. However, the Court of Appeal held that the primary judge ought to have grappled with the appellant's credit by analysing her evidence, including her responses in cross-examination, to determine her honesty, particularly concerning the specific detail of which leg had fallen through the floorboards. The Court found that the primary judge's approach, which gave overriding weight to contemporaneous records without a thorough analysis of the appellant's evidence and demeanour, constituted a miscarriage of justice.
Consequently, the Court of Appeal set aside the primary judge's order and ordered a new trial confined to the issues of causation and damages. The respondents were ordered to pay the appellant's costs of the appeal.
The central legal issues before the Court of Appeal were whether the primary judge erred in her assessment of causation and damages. Specifically, the appellant argued that the primary judge failed to adequately consider and assess her evidence regarding which leg fell through the floorboards, and whether this failure, in conjunction with an insufficient assessment of her credibility, resulted in a miscarriage of justice. The appellant contended that the primary judge wrongly determined that her credibility was not central to the issue of causation, instead focusing solely on reconciling her account with contemporaneous records.
The Court of Appeal allowed the appeal, finding that the primary judge had failed to properly assess the appellant's credibility in light of her evidence as a whole. The primary judge had stated that the question of causation depended not on credibility but on reconciling the appellant's version of events with contemporaneous records. However, the Court of Appeal held that the primary judge ought to have grappled with the appellant's credit by analysing her evidence, including her responses in cross-examination, to determine her honesty, particularly concerning the specific detail of which leg had fallen through the floorboards. The Court found that the primary judge's approach, which gave overriding weight to contemporaneous records without a thorough analysis of the appellant's evidence and demeanour, constituted a miscarriage of justice.
Consequently, the Court of Appeal set aside the primary judge's order and ordered a new trial confined to the issues of causation and damages. The respondents were ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 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.
Ratio Decidendi
Legal Principle Established
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