Townsend v Townsend

Case [2001] NSWCA 136
CITATION: Townsend v Townsend [2001] NSWCA 136
FILE NUMBER(S): CA 40344/00
HEARING DATE(S): 24 April 2001
JUDGMENT DATE:
11 May 2001

PARTIES :
Carolynne Townsend - Appellant
David George Townsend - Respondent
JUDGMENT OF: Giles JA at 1; Hodgson JA at 81; Davies AJA at 90
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) : 		DC 8434/98
LOWER COURT
JUDICIAL OFFICER :		 G S Hosking DCJ
COUNSEL: G T W Miller QC & M A Clifford - Appellant
B H Donovan QC with J O Anderson - Respondent
SOLICITORS: Paul & Paul - Appellant
Conway MacCallum - Respondent
CATCHWORDS: INTENTIONAL TORT - plaintiff suffered compression fracture of vertebra - plaintiff said was lifted and thrown to the floor by defendant - defendant said he slipped and fell with plaintiff - trial judge not satisfied that plaintiff's account correct or that she had established deliberate conduct by the defendant - whether injury consistent only with plaintiff's account - whether other facts supported plaintiff's account or defendant's account - whether error shown in trial judge's assessment of facts. ND.
CASES CITED:
 Akins v National Australia Bank (1994) 34 NSWLR 155;
Commonwealth Bank v Quade (1991) 178 CLR 134;
Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435;
McDonald v McDonald (1965) 113 CLR 529;
McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) (1904) 1 CLR 243;
State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306;
Warren v Coombes (1979) 142 CLR 531.
DECISION: Appeal dismissed with costs.


    IN THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL
    CA 40344/00
    DC 8434/98

GILES JA


HODGSON JA


DAVIES AJA


    Friday 11 May 2001

    Carolynne TOWNSEND v David George TOWNSEND
    JUDGMENT


    1    GILES JA: In proceedings against the respondent in the District Court the appellant claimed that on 22 November 1995, at their then home, the respondent ”wrongfully assaulted [the appellant] by lifting [the appellant] bodily and throwing her forcefully to the floor of the laundry”. It was not in dispute that the appellant was injured in an incident on that occasion, but the respondent gave a different account of how her injury came about.

    2    Hosking DCJ was not satisfied that the injury came about in the manner claimed by the appellant, and was not satisfied that the appellant had established on the balance of probabilities that the respondent had deliberately injured her. He found a verdict and gave judgment for the respondent.

    3    In this appeal from his Honour’s decision the appellant submitted that on a proper assessment of the evidence, and in particular with a proper appreciation of the nature of the appellant’s injury, the only available conclusion on the balance of probabilities was that the injury came about in the manner claimed by the appellant. She asked this Court to find a verdict and give judgment in her favour. In the alternative, the appellant submitted that this Court should…

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Townsend v Townsend [2001] NSWCA 136
Case
[2001] NSWCA 136
Decision Date

CaseChat Overview and Summary

The plaintiff, Townsend, alleged that the defendant, also Townsend, intentionally lifted and threw her to the floor, causing a compression fracture of her vertebra. The defendant, however, contended that he slipped and fell, and that the plaintiff was injured during this accidental event. The matter came before the court on appeal from a trial judge who was not satisfied that the plaintiff's account of deliberate conduct was correct, nor that she had established such conduct.

The central legal issues before the appellate court were whether the trial judge erred in assessing the facts, specifically in determining whether the plaintiff's injury was consistent only with her account, and whether other factual evidence supported either the plaintiff's or the defendant's version of events. The appeal therefore concerned the proper application of principles relating to the assessment of evidence in tort claims, particularly where intentional conduct is alleged.

The appellate court found no error in the trial judge's assessment of the facts. The judge had considered the evidence presented, including the plaintiff's account and the defendant's explanation, and concluded that the plaintiff had not discharged the onus of proving deliberate conduct. The court affirmed that it was within the trial judge's purview to make findings of fact based on the evidence before them, and that the appellate court should not interfere unless a demonstrable error in law or fact-finding was established. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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