Townsend v Townsend - [2001] NSWCA 136

No judgment structure available for this case.

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.

Overview

4 The appellant and the respondent were married on 8 October 1983. Each had previously been married. As at November 1995 the appellant was aged 49 and the respondent was aged 52.

5 At some time prior to November 1995 the appellant became aware that the respondent had been keeping company with another woman. Hosking DCJ recorded that this “led to what, on her version, were arguments between them and what, on the defendant’s version, consisted of abuse directed towards him by the plaintiff but not reciprocated”.

6 On the evening of 22 November 1995 the appellant intended to have a shower in a shower recess in the laundry area of their home before going to the airport to collect her daughter. She found the respondent already in the shower. Even on the appellant’s version, she began shouting and swearing at the respondent “for cheating and lying”, and told him that she wanted him to leave. According to the appellant, she and the respondent were shouting at each other, and the respondent said that he was not leaving because it was his house and was very angry. According to the respondent, the appellant was the one who was angry, and he did not reply to her.

7 The respondent stepped out of the shower recess in order to dry himself. Although it had been the subject of some dispute, Hosking DCJ found that the ceramic tiled floor was wet with soapy water where the respondent was standing. Expert evidence from Professor Yandell supported what might otherwise have been plain, that the wet floor was very slippery. The findings in this respect were not contested on appeal.

8 There then occurred the incident in which the appellant was injured. The respondent is a big, man about 188 cm in height and then weighing of the order of 100 kg; the appellant is much smaller, then weighing about 53 kg. According to the appellant, the respondent picked her up and dropped her. According to the respondent, when the appellant raised an iron and appeared to be about to throw it at him he grabbed at her wrist, and in the course of doing so slipped and fell, pulling the appellant down with him. I will return to the competing accounts in more detail later in these reasons.

The incident in more detail

“A. I did leave something out. I’m sorry. As he approached me the iron sat on the work bench. It hadn’t been turned on and I picked it up by the handle. I don’t know why I did it but I put it straight down again and then he came and put his left arm under my neck/shoulder area and his right arm under my knee area and picked me up and dropped me, threw me to the ground.

…

12 In the light of the evidence of Dr Matheson to which I will come, it seems that according to the appellant her torso was almost parallel to the ground and her back was “arched”, as I understand her evidence curved downwards between the points where the respondent held her.

HIS HONOUR: Anti clockwise.

Q. After you fell in that position was any part of you actually on top of her as your remember?

OBJECTION. QUESTION WITHDRAWN.

…

15 In answer to further questions the respondent agreed that he fell twisting around anti-clockwise, and that he must have pulled the appellant around with him; he said that he fell over with her and “she finished on her back”, and that he ended up face down.

HIS HONOUR: Yes, you go ahead, Mr Townsend, would you like to walk down here and do it.

Other descriptions of the incident

17 Each of the appellant and the respondent was taxed in cross-examination with having given a different account or accounts of the incident on other occasions. In the appellant’s case there were a number of such occasions, and his Honour thought them of some significance.

18 It is convenient first to go to what was put to the respondent in this respect.

19 The respondent’s solicitors engaged UniSearch to provide the opinion about slipperiness of the floor which was in due course provided by Professor Yandell. Their letter of 20 October 1999 said that the respondent “will also be able to describe the particular circumstances that took place immediately prior to the fall including the position and twisting of his body when he slipped on the wet tiles”. Professor Yandell went to the home. The respondent was present, and Professor Yandell agreed with a question from counsel for the appellant that the respondent “gave a version of what happened on the day, you put that in your report”.

20 Professor Yandell’s report dated 24 October 1999 relevantly said, “As he moved from the shower recess to the central part of the bathroom he was standing near his then wife when suddenly his feet shot forward on the wet floor and he and his wife fell heavily”. This was put to the respondent, who said that he did not recall telling Professor Yandell what had happened and that the description just set out was not what had happened. The cross-examination did not explore whether this was because the respondent did not consider what Professor Yandell had recorded as complete, whether he did not consider it accurate, or otherwise why the respondent said it was not what had happened.

21 I go then to what was put to the appellant in this respect.

22 On realising that the appellant had been injured the respondent telephoned Dr Toni Clarkson, a personal friend of the appellant and her general practitioner, and then called an ambulance.

23 The appellant was taken by ambulance to Sutherland Hospital. According to the report of one of the ambulance officers, Ms Lindy Baldwin, written in the ambulance on the way to the hospital, the appellant complained of strong pain to the lower back “post fall”. The report went on, “Stated later was pushed backwards by husband & fell directly onto lower back”. The report also noted, “Husband present. Pt requests confidentiality re complaint”, but other evidence established that the respondent was not present at the time of the “later” description given to Ms Baldwin.

25 The appellant was definite that she did not say that she fell, and said that although she was embarrassed about telling anyone what had happened she did not want to hide from them that the respondent had caused the injury.

“At that time she confided to me that she and her husband had been arguing the previous night and that he had shoved her to the floor causing the injury. She did not want her family to know this.”

27 The appellant said in her evidence in chief that when she got to Sutherland Hospital she “told them what had happened”, but that she did not tell her family or anyone else other than Dr Clarkson at this time because she felt embarrassed and ashamed.

“Alleged assault. Pushed onto ceramic tiled floor. C/o pain to lumbar back region. Neuro vascular intact. Upset re circumstances surrounding incident. Does not want incident to be discussed while husband is present.”

29 Other of the hospital’s records note “Pushed by husband - landed squarely on back - tiled floor”, and “Pushed by husband. Onto lower back. Immediate pain in back.” These again appear to have come from questions asked of the appellant. The Sutherland Hospital informal discharge summary noted “Fall onto hard floor onto back after pushed.”

30 The appellant initially came under the care of Dr Kalev Wilding, orthopaedic surgeon, at Sutherland Hospital. She told Dr Wilding that she fell over on the laundry floor.

31 On 24 November 1995 the appellant was transferred to Kareena Private Hospital. The discharge report when she was transferred from that hospital noted “Fell onto hard floor resulting in lower back pain”.

32 The appellant was seen by Dr John Matheson, consultant neurosurgeon, on 30 November 1995, and was then transferred to Prince of Wales Hospital. The hospital’s records noted, apparently as information coming from the appellant, “Fell onto hard floor”. Dr Matheson explored the fracture surgically on 1 December 1995, and put a rib graft into the body of the vertebra. The appellant said that she wanted to tell Dr Matheson what had happened. In fact she told him that she fell on her back on a ceramic floor. She did not tell Dr Matheson that she had been thrown to the floor until a consultation on 26 September 1996.

Interview

The evidence of Dr Matheson

35 Dr Matheson’s reports show that prior to the consultation on 26 September 1996 he was puzzled by the appellant’s injury. He thought that there had to be a tumour or osteoporosis to provide a pathological explanation for the fracture he saw from what he had been told was a fall in a bathroom.

“Mrs Townsend’s studies for osteoporosis were negative and she does not have osteoporosis. I have been searching around for a reason for her fracture. Mrs Townsend tells me that you already know the reason but I have only just discovered it today. She was thrown on the ground by her husband thus there was frank trauma that produced this fracture.”

“I reviewed the report of Professor Yandell, In this he describes the mechanism for the fall in which Mr Townsend slipped on wet floor causing himself and his wife to fall.

Comment

The next point I want to deal with is the question of whether or not my treatment would have been different had I known different information at the time of Mrs Townsend’s operation …

Summary

In other words I cannot accept the description of the accident that Professor Yandell gives could have led to Mrs Townsend sustaining the vertebral facture.”

“ … was lifted up and dropped onto her back while she was in a bathroom. She said that as far as she knows, she dropped onto the floor. She did not strike a raised ledge.”

39 Dr Matheson gave oral evidence; Dr Hume did not. Dr Matheson also said that the appellant’s injury was consistent with the history she gave on 26 September 1996, that is, the history that she was “thrown on the ground by her husband”. He said that in the absence of any pathology in the bone the appellant’s injury was not consistent with the history she had earlier given to him, that is, that she fell over in a bathroom.

“That the defendant grabbed the plaintiff’s right arm with his left arm. He slipped on the floor twisted to the left and slipped and still had the plaintiff’s arm. The plaintiff fell onto the ground and the defendant, the plaintiff of course being Mrs Townsend, fell onto the ground and the defendant fell face down partly on top of the plaintiff.”

41 Dr Matheson said that it would be very hard to see how a fall as in the further version increased the amount of trauma, although it could have increased the amount of trauma slightly above the appellant slipping by herself, and that he did not believe it would have been sufficient to produce the fracture.

“Q. So of the different versions that you’ve now been given, which includes the version where the plaintiff was held, head and knees or head and legs, at about chest height of a man who’s six foot two, and thrown to the ceramic tile floor with an arched back. Which of those versions is more likely to have caused the injury that you saw in surgery.

HIS HONOUR: Mr McDonald is it thrown or dropped?

MCDONALD: Well I think the plaintiff said thrown your Honour but--

HIS HONOUR: Thrown.

MCDONALD: I don’t know whether it was thrown or dropped. What did I say to the witness your Honour?

HIS HONOUR: You asked the witness thrown --

MCDONALD: I’ll put it both ways if I may your Honour.

43 There was not a further question dealing with being thrown to the ground as distinct from dropped. In fact Dr Matheson had not been given a version which included details such as the appellant being held at chest height and having an arched back. This version was clearly enough taken from the appellant’s evidence in the proceedings. By “arched” it seems Dr Matheson understood flexed or bent forwards, because he went on to say that the type of injury with predominantly fracture to the anterior parts would indicate that the appellant was flexed at the time of the impact, that is, bent forwards.

44 The cross-examination of Dr Matheson relevantly extended over some pages of the transcript. Like the examination in chief, it was at times unclear.

45 Dr Matheson did not agree that, if the appellant was pushed backwards by the respondent and fell directly onto her lower back (as recorded in the ambulance report), that would be consistent with the injury he saw. He thought it “a little bit difficult” that a fall in the manner counsel for the appellant had put to him (that is, the further version), with the respondent “partially on top of” the appellant when she fell, could have caused the injury, because he would need to know the position the appellant was in when the respondent fell on her. Importantly, he said that the respondent could have caused the injury “if he’d fallen onto her back with her in - falling in an upright and flexed position”, that is, the appellant vertical and with her knees drawn up and falling onto her buttocks and the respondent falling across her back while she was in the vertical position. Dr Matheson said that if the appellant was “lying on the ground” it would not produce the fracture.

47 The fall “in the manner I have suggested to you” seems to have picked up the further version, originally put by counsel for the appellant, with the respondent partially on top of the appellant as she fell; this had earlier been acknowledged by Dr Matheson as a possible way the appellant’s injury came about if she had fallen an in upright and flexed position and the respondent fell across her back.

HIS HONOUR: More probable, so I understand the question Mr Anderson, more probable than the latter history given by the plaintiff?

The trial judge’s reasons

50 Hosking DCJ gave detailed reasons. It is sufficient for the present to go to part of where he particularly referred to the evidence of Dr Matheson and to the culmination of the reasons. I add emphasis and identification to certain passages to which I will later specifically refer.

“Dr Matheson said in evidence-in-chief that he did not think that the defendant falling face down on top of the plaintiff would have caused the injury that he treated. In his view the more likely version was that she was, as she now claims, dropped onto the floor. Dr Matheson said that we all fall onto our buttocks on occasion but these falls do not produce compression fractures in the absence of underlying pathology.

However, Dr Matheson agreed in cross-examination that he was not trained in what he described as bio-dynamics.

It was put to Dr Matheson that it was possible that the plaintiff sustained her injury in a fall in the manner described by the defendant. Dr Matheson said that he could not exclude that possibility absolutely. He said that for that to have happened the defendant would have had to have been on her upper back or shoulders. I note that the defendant said in fact that he fell and landed onto the plaintiff towards the top of her shoulders.

“In terms of the critical question of causation it appears to me that there are three possible causes of the plaintiff striking the floor and fracturing her spine. Firstly, that she was pushed. Secondly, that she was picked up and dropped and thirdly, that she fell following her husband slipping when he grabbed her hand which was then holding an iron. It appears to me that, in the abstract, any of these three are reasonable possibilities. I will examine each of them.

In relation to the first possibility that she was pushed, that possibility is supported, strongly supported, by the ambulance records, by Dr Clarkson’s report and by the initial hospital records. A push would fit in with an argument between the two of them and with the defendant reacting to an iron raised against him. However, that is not the way the plaintiff put her case. Despite what she said initially to Dr Clarkson and to the ambulance officers, the plaintiff expressly disavowed being pushed to the floor. As I have earlier recounted she said in evidence that the incident did not happen in that way and that to maintain that it did would be false and a lie. Accordingly I discount the possibility that she was pushed to the ground.

That version is supported as a medical matter by Dr Matheson

The third possibility is that as the defendant says that the two of them fell while he was grabbing her arm. That is the account as I have said given by the defendant. It is an account given not long after the incident itself and in that respect I note that the plaintiff said in her evidence-in-chief that after her release from hospital some weeks after the incident she asked the defendant whether he was sorry for what happened. She said that the defendant said words to the effect, “Well, I fell arse over tit and fell on top of you” or words to that effect. The plaintiff did not say in evidence that she responded to that proposition in any way. She did not say words to the effect, “Well that is simply untrue or that is a lie”.

It was put in submissions by Dr Donovan of Queen’s Counsel who appeared for the defendant that it is a remarkable thing that the defendant would say a barefaced lie to the plaintiff’s face about how this incident occurred and only a matter of weeks after it happened. Mr Donovan submitted, in my view, with some substance that while the defendant might give a false account of how this incident happened to a third party, it would be unusual if he would have the gall to do so directly to the plaintiff’s face. In my view there is some substance in that contention.

Dr Matheson allowed that the way the defendant described the incident as happening was a possibility and I note that the defendant is a big man and that the plaintiff was only about half his weight. It appears to me that it is quite possible that she injured herself in the way the defendant describes bearing in mind the factors that I have mentioned and their considerable disparity in weights

Having considered the various competing contentions I am unable to say with any confidence why the plaintiff fell and fractured her spine on this occasion. As I have said she expressly denies being pushed by the plaintiff. That leaves only the possibility that she was either dropped as she said or that, as the defendant said, she simply fell as he fell. I am not confident that the version she now gives is in fact what happened. Of the remaining two possibilities I find it impossible to say which is the more likely. The plaintiff must show that this assault was a deliberate one. In my view she has not established on the balance of probabilities that this was so.”

The only available conclusion?

53 As I have said, it was submitted that the only available conclusion on the balance of probabilities was that the injury came about in the manner claimed by the appellant. The appellant argued that Hosking DCJ was in error in saying that Dr Matheson accepted that the way the respondent described the incident as happening was a possibility; that his Honour was in error in concluding that it was quite possible that the appellant injured herself in the way the respondent described; and that in any event if there was such a possibility his Honour had erroneously elevated it to a finding on the balance of probabilities.

54 The appellant argued that Dr Matheson had not accepted that the way the respondent described the incident as happening was a possibility because what Dr Matheson had agreed he could not exclude absolutely as a possibility (part of passage 2) was not the way the respondent described the incident as happening. According to the argument, the manner of the fall suggested to Dr Matheson differed from the respondent’s description of the incident in that the respondent’s description of the incident had the appellant falling flat on her back with the respondent only partially on top of her. In consequence, it was argued, the possibility which found favour with his Honour was in truth not open on the evidence. In my opinion that is a misunderstanding of his Honour’s reasons. It is necessary to pay regard to more than the part of passage 2 and the one question referring to an absolute possibility.

55 On a reading of his evidence as a whole, Dr Matheson accepted that the appellant’s injury could have come about if the respondent had fallen on her in such a way that some of his weight was transmitted vertically through her spine when her buttocks hit the floor. Dr Matheson did not accept that a fall on the appellant as she was “lying on the ground” would produce the fracture, that is, with the appellant prone. Nor did he accept that a fall in which the appellant fell flat on her back with the addition of the respondent’s weight would produce the fracture. What could make a difference, in his opinion, was a fall in which the appellant was flexed, that is, bent forwards, at the time of the impact, with her torso more or less vertical and additional weight “pushing down through her arms and shoulders”. His Honour was clearly referring to this in passage 2, and again at the commencement of passage 4.

56 I do not think that the respondent’s description of the incident had the appellant falling flat on her back. As the respondent said, it all happened in a split second. His accounts of the incident had the appellant ending up on her back, but were not inconsistent with a fall in such a way that the appellant was flexed and with her torso more or less vertical and the respondent’s weight bearing downwards on her right hand shoulder as her buttocks contacted the floor, the appellant then going to lying on her back under the continued effect of the fall and the respondent’s weight. Hosking DCJ seems to have accepted that this might have been so when he said in passage 2 that the respondent would have had to have been on the appellant’s upper back or shoulders, clearly enough referring to that part of Dr Matheson’s evidence in which he contemplated part of the force of the appellant’s fall being transmitted vertically through the spine, and when he said that the respondent said that he fell and “landed onto the plaintiff towards the top of her shoulders”. In passage 4 his Honour emphasised the respondent’s weight and the slipping as recounted by the respondent.

57 As I have said, referring to the printed word in the transcript, the evidence was at times unclear, and Hosking DCJ had the advantage of seeing the partial re-enactments of the incident by the respondent. He rejected the suggestion that the respondent had prevaricated in his evidence, and so must have been prepared to act on the re-enactments. It is readily understandable that Professor Yandell’s brief record of the incident did not properly reflect what he had been told by the respondent, and the respondent consistently ascribed the incident to his slipping. The re-enactments would have enabled his Honour to assess the applicability of Dr Matheson’s evidence and whether that evidence allowed of the possibility of the injury coming about in an incident as described by the respondent. I am not persuaded that his Honour erred in his view of Dr Matheson’s evidence or of the possibility which found favour with him. I consider that it was open to his Honour to conclude that the injury could have come about otherwise than as claimed by the appellant, and in an incident as described by the respondent.

58 I do not think it correct that his Honour then erred in wrongly elevating such a possibility to the height of a finding on the balance of probabilities. His Honour clearly took account of the evidence of Dr Matheson as supportive of the appellant’s account of how the injury came about, saying in passage 3 that her version was supported as a medical matter by Dr Matheson. His Honour paid regard to many other matters coming to his conclusion. Indeed, he did not find on the balance of probabilities that the incident had been as described by the respondent. He found that the appellant’s version had not been established on the balance of probabilities.

The further evidence

60 The appellant asked the Court to receive the affidavits of Mr Ian Coyle sworn 30 March 2001, Dr Matheson sworn 2 April 2001 and Professor Ronald Sekel sworn 2 April 2001. The Court declined to receive the evidence, with reasons to be given in the judgment disposing of the appeal.

61 The affidavit of Mr Coyle distinguished between bio-dynamics and bio-mechanics. Mr Coyle said that the former involved the study of the force or energy of living organisms and the actions of living organisms, and that the latter was the scientific study of the actions of forces on the living body. He said that the mechanism of injury was within bio-mechanics, and expressed the view that Dr Matheson’s experience in anatomy, physiology and medicine qualified him to assess the mechanism of a particular type of injury. Mr Coyle went on to describe at length why, in his opinion, it was impossible “from a biomechanical viewpoint” for the incident as described by the respondent to have brought pressure from the respondent’s arm or body along the long access of the respondent’s spinal column, and to offer the opinion that Hosking DCJ had misinterpreted Dr Matheson’s evidence.

62 Dr Matheson said that he had read Mr Coyle’s report and agreed with it, and made reference to a small part he had played in developing some aspects of a curriculum for university courses in bio-dynamics.

63 Professor Sekel said that he was unaware of the word bio-dynamics as applied to a science or speciality, and that bio-mechanics was the scientific study of mechanics as applied to living organisms and explained the mechanics of fracture patterns. He said that the appellant’s description of the incident could have caused the fracture pattern in the x-ray of her vertebra, but that the fracture pattern could not have been caused by the appellant “falling with her back arched backwards”. (This seems to have involved a third, and on any view incorrect, view of the arching of the appellant’s back.)

64 The appellant accepted that, in accordance with s 75A(8) of the Supreme Court Act 1970, this evidence could only be received if special grounds were shown. In general, three conditions must be met before further evidence can be received, namely (i) that the evidence could not have been obtained with reasonable diligence for use at the trial; (ii) the evidence is such that there must be a high degree of probability that there would be a different verdict; and (iii) the evidence is credible ( Akins v National Australia Bank (1994) 34 NSWLR 155 at 160). These conditions are only guides, and special grounds may be made out in particular circumstances ( Commonwealth Bank v Quade (1991) 178 CLR 134 at 140), but the public interest in the finality of litigation calls for some “insistent demand of justice” ( Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444).

65 The appellant submitted that the further evidence should be received because the question to Dr Matheson, “You have no post-graduate qualifications, or tertiary qualifications in bio-mechanics?” had taken her by surprise and had brought into the proceedings an issue which had not previously been raised; that issue had then had some influence in Hosking DCJ’s decision when his Honour had said in passage 1 that Dr Matheson agreed in cross-examination that he was not trained in what he described as bio-dynamics. The appellant referred to Council of the City of Greater Wollongong v Cowan at 444 and McDonald v McDonald (1965) 113 CLR 529 at 533.

66 His Honour used the word “bio-dynamics” rather than the word “bio-mechanics”, and the appellant’s submission included that he had erred in that respect. But it is clear that his Honour was referring to the question to Dr Matheson last mentioned, which must be read with the succeeding questions and answer. The slip in his Honour’s use of expressions is not of significance.

67 Dr Matheson was called by the appellant to give evidence of the mechanism of the appellant’s injury, and of whether the fracture pattern was consistent with the appellant’s or the respondent’s account of the incident. There was no question of surprise, certainly not of surprise as spoken of in the cases to which the appellant referred. Dr Matheson was called to give an expert opinion, and it was for the appellant to ascertain his qualifications to give that opinion and, to the extent necessary, satisfy herself that he was appropriately qualified.

68 The appellant argued that there was surprise because no issue relating to “bio-dynamics”, which in the circumstances must be understood as bio-mechanics, was raised on the pleadings, by way of expert’s report (apparently meaning from the respondent), or in the respondent’s case. This can not be accepted. The qualifications of an expert called by the appellant were not a matter to be raised on the pleadings or by way of a competing expert’s report. Nor were they necessary to be raised in the respondent’s case, the time for which had in any event not arrived when Dr Matheson was under cross-examination.

69 Even if there had been some question of surprise, the evidence of Mr Coyle, Dr Matheson and Professor Sekel in the affidavits went far, far beyond meeting the asserted surprise. It amounted to a wholesale revisiting and elaboration of the case originally presented through Dr Matheson, a case that the appellant’s injury could not have come about as a result of an incident as described by the respondent and had to have come about in the manner claimed by the appellant. The further evidence was not fresh evidence, and could have been obtained with reasonable diligence for use at the trial.

The tendency evidence

71 The evidence was that of the respondent’s first wife. The respondent and the first Mrs Townsend were married in 1961. They had four children. They separated in 1980, and their marriage was dissolved two or three years later.

72 After eliciting these details counsel for the respondent asked Mrs Townsend, “During the course of your marriage was he ever violent to you?” The transcript records “Objection. Legal argument.”

73 Counsel for the appellant “sought a short adjournment in order to locate a document with respect to the objection”. The document was found, was tendered by counsel for the respondent, and was admitted without objection. It was a letter from the respondent’s solicitors to the appellant’s solicitors dated 21 October 1999. The transcript records his Honour saying to counsel for the appellant, “I think that makes it fairly clear, doesn’t it … ”. What was made fairly clear is not known to us, as the letter was not amongst the appeal papers, but in the light of what followed was probably that reasonable notice of the intention to adduce the evidence had been given in accordance with s 97(1)(a) of the Evidence Act 1995 (“the Act”).

“FURTHER LEGAL ARGUMENT ON OBJECTION

HIS HONOUR: Mr McDonald, I think I will allow it. While I think it has, within subsection (b), significant probative value I would be surprised if the case turns on it, but I will allow it.”

“97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind, if:

(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence, or

77 It appears that the evidence of Mrs Townsend was led to prove that the respondent had a tendency to act in a particular way, that is, by not being physically violent towards his wife despite arguments with her. Whether it was properly tendency evidence need not be considered. The appellant submitted on appeal that the evidence should not have been admitted, saying that it could not by its nature have significant probative value or any evidential value at all; she submitted that the evidence was irrelevant.

78 Assuming that the evidence was tendency evidence, it was admissible unless his Honour considered that it would not have significant probative value. His Honour considered that it did have significant probative value, although with a qualification which tended to cast doubt on that status. I am inclined to the view, still assuming that it was tendency evidence, that the evidence should have been rejected as not having significant probative value. So far as appeared, the circumstances of the respondent’s conduct towards Mrs Townsend were very different from the circumstances in which the incident between the appellant and the respondent took place; certainly the evidence was of such generality that little meaningful tendency was established. The not very volatile arguments during the first marriage, of unknown frequency and subject matter, in all probability bore little relationship to the intensity and bitterness of the relationship between the appellant and the respondent in November 1995. The respondent had been unfaithful to the appellant, and the appellant was on her own account at the time of the incident shouting and swearing at the respondent and telling him that she wanted him to leave.

The result

80 In my opinion the appeal should be dismissed with costs.

81 HODGSON JA: I agree with the judgment of Giles, JA.

82 In his submissions for the appellant, Mr. Miller QC made two points in relation to which I would add a few comments.

83 First, he submitted that the respondent had given a number of different versions of the incident in which the appellant was injured, none of which coincided with the scenario that was put to Dr. Matheson by the respondent’s Counsel as possibly explaining the appellant’s injury. Mr. Miller referred to the version put to the appellant in cross-examination; versions given by the respondent in chief, in cross-examination, and in re-examination; and the version reportedly given by the respondent to the respondent’s expert, Professor Yandell, which the respondent disavowed in cross-examination. None of these versions, Mr. Miller submitted, involved the “arching” of the appellant’s back, which was put to Dr. Matheson, leading to Dr. Matheson discussing the possibility that the appellant fell to the floor in a foetal position, with her back upright, with the weight of the respondent pushing down vertically through her shoulders.

84 In my opinion, there was no inconsistency of any significance in what was put to the appellant in cross-examination and the versions given in evidence by the respondent in different parts of his evidence. As regards the version reported as given to Professor Yandell, that version omitted one important aspect of the other versions, namely the appellant picking up an iron in her right hand and the respondent grabbing and holding onto the appellant’s right hand. However, it was not otherwise inconsistent with them, and in circumstances where the reasons for the respondent’s disavowal of that version were not explored in cross-examination, in my opinion the difference has no significance.

85 Furthermore, the incident happened very quickly, and it would not be surprising that the respondent could not specify the configuration of the appellant’s body as she went down to the floor. In those circumstances, in my opinion it was perfectly proper to explore with Dr. Matheson scenarios consistent with the respondent’s evidence, though not positively supported by it.

86 The second point made by Mr. Miller was that the relevant expert evidence as to causation was all the one way, and accordingly it was an error not to accept it. As shown by Giles JA, the support from Dr. Matheson to the appellant’s version was in fact not altogether clear. However, even if one accepts that Dr. Matheson’s evidence provided strong support to the appellant’s case, the Court had to be satisfied affirmatively, on the whole of the evidence, that the appellant’s injury occurred by reason of assault. On this point, the Court was faced not only with the respondent’s denial, but also unquestioned evidence strongly suggesting that the appellant at first gave descriptions of the occurrence wholly inconsistent with the version ultimately relied on by her in the proceedings.

87 First, there was the note made by the ambulance officer to the effect that the appellant stated she “was pushed backwards by husband and fell directly onto lower back”. This cannot be explained as something inhibited by the presence of the respondent, because the appellant gave clear evidence that she made no complaint at the time in the respondent’s presence. The circumstantial detail of that account, wholly inconsistent with the appellant’s version at the trial of being picked up and dropped or thrown to the floor, counts against a misunderstanding. The appellant’s next clearly recorded complaint, to her friend Dr. Clarkson, was recorded by Dr. Clarkson in terms that the respondent “had shoved her to the floor causing the injury”; and the similarity of this to the earlier recorded complaint further counts against mistake or misunderstanding in either record.

88 The appellant saw a social worker just over a week after the accident, and according to the notes of the social worker said that the respondent “had thrown her onto the floor”. That account is not inconsistent with the respondent picking her up, as were the two earlier accounts which I have referred to; but by the same token, it does not positively suggest that the respondent did pick her up. So far as the evidence goes, the first positive suggestion by the appellant that the respondent picked her up was made very much later.

89 In those circumstances, the suggestion that the trial judge’s decision of fact involved appellable error is in my opinion not made out.

90 DAVIES AJA: I need not describe all the facts and issues which are adequately set out in the reasons of Giles JA.

91 Senior counsel for Mr Townsend submitted that this was a classic case of credibility and had been so determined by the trial Judge, notwithstanding that, in his reasons for judgment, the trial Judge did not express his findings in terms of credibility and demeanour. It seems to me, however, that although he had views as to the credibility of some of the evidence, the trial Judge was not satisfied as to who was telling the substantial truth, Mrs Townsend or Mr Townsend. It was for this reason that he dismissed the claim on the onus of proof.

92 In the circumstance that a judgment below did not turn on matters of credibility and demeanour, it is the duty of an appellate court to review the trial judge’s findings of fact for itself (see McLaughlin v Daily Telegraph Newspaper Co. Ltd (No. 2) (1904) 1 CLR 243; Warren v Coombes (1979) 142 CLR 531 and State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306). If an appellate court is, in such a case, satisfied that the view of the trial judge on matters of fact was wrong, it is the duty of the appellate court to substitute its own view, although, in coming to that conclusion, it must pay due regard to the findings of the trial judge and to any advantage that the trial judge may have had through seeing the witnesses and hearing the whole of the evidence. An appellate court is reluctant to differ from a trial judge on a question of fact.

The Injury

(sic)

COMMENT: Burst type injury affects the upper half of the body of L1 and this is associated with substantial retropulsion of bone fragment. A more linear fracture through the inferior half of L1 extends to include the left lamina.”

“L2”

“L1”

“burst”

“The compression fracture of L1 appears to be united. This has resulted in an acute kyphosis at the T12/L1 and the T12/L1 disc is narrowed. No associated protrusion is seen. The spinal kinked over this kyphosis. The loss of height in the anterior vertebral body of L1 approximates 50%. There is a one third loss of height posteriorly.

The L1/2 disc is narrowed with minor bulging of the disc.’

Conclusion:

The Medical Evidence

Q. You’re not saying Doctor that it’s impossible surely?

98 Dr Matheson also said, in his reports and in his oral evidence, that, prior to the operation, he had not been informed that Mrs Townsend had been thrown onto the floor. He operated because he understood that she had suffered a fall. He had thought that the likely cause of her problems was pathological deterioration of the spine due to malignancy. A biopsy was obtained. This showed that no cancer was present. Dr Matheson then suspected osteoporosis. Subsequent tests showed that Mrs Townsend’s bone density was satisfactory. Dr Matheson remained troubled about the cause of the fracture until, about September 1996, he was informed by Mrs Townsend that she had been thrown to the ground and a report of December 1998 shows that he was informed by Mrs Townsend that she had been lifted up under her legs and neck and thrown onto the laundry floor. Dr Matheson said that Mrs Townsend’s version of the incident explained her injury. He said that, had he had the information at the time of the operation, it is possible that he would have treated her conservatively rather than operating.

99 There was no medical evidence which expressed a contrary view. Indeed, Dr K F Hume, a surgeon who reported to Mrs Townsend’s solicitors, said that Mrs Townsend had informed him that she was lifted up and dropped onto her back whilst she was in the bathroom. Dr Hume said that Mrs Townsend had sustained a very serious fracture of the first lumbar vertebra, which had caused protrusion of a fragment of bone into the spinal canal and that the fracture was consistent with the history given to him. He said that Mrs Townsend had informed him that there was some concern about the type of fracture that she had sustained and that it seemed to him to be likely that she had described a fall onto her back and that the doctors who saw her considered it unlikely that the fracture she had sustained could be consistent with a fall unless there was some underlying abnormality in the lumbar spine. His evidence was entirely consistent with that given by Dr Matheson.

(sic)(defendant)

The Descriptions of the Incident

101 I need not discuss Mrs Townsend’s version of the incident. It was, as Dr Matheson said, a probable explanation of how the injury was caused.

[the iron]

(ne)

…

105 Mr Townsend prepared a sketch which described what he said was the position of himself and Mrs Townsend when they had fallen to the floor. This showed that Mrs Townsend, who had been standing near the ironing board close to the wash basin on one side of the room, had fallen close to the workbench on the other side of the room, a few feet away, with her head away from the shower. Mr Townsend’s body was also pointing away from the shower. On this version, Mrs Townsend must have been pulled from near the ironing board, across Mr Townsend, and down to the floor near the workbench. Mrs Townsend was on her back. Mr Townsend was lying next to her, face down, with his right shoulder on Mrs Townsend’s right shoulder.

106 It is necessary to examine Mr Townsend’s evidence for an indication of an event which was likely to have caused Mrs Townsend’s crush fracture. In his evidence in chief, he mentioned, “I fell on her” and, “My upper body fell on her side” and, in re-examination, he said, “I fell on top of her” . In his cross-examination, Mr Townsend said, “I fell over with her” . No clear picture is conveyed by this evidence of an event which was likely to have caused a crush fracture of a vertebra. Mr Townsend did not say that he fell on top of Mrs Townsend and crushed her with his weight.

107 There are two aspects of Mr Townsend’s evidence which seem to me to be significant. The first is that the evidence gives the impression of a pull on Mrs Townsend, which caused her to fall, rather than the picture of Mr Townsend’s body falling onto Mrs Townsend in such a way as to cause her compression fracture. Although Mr Townsend gave evidence that he fell onto Mrs Townsend’s right side, that evidence conveys to me the impression of his ending up on the floor on Mrs Townsend’s right shoulder, rather than his falling on top of her with sufficient force to cause the crush fracture.

108 I have the same impression as did Dr Matheson. Mr Townsend’s explanation was not a likely cause of Mrs Townsend’s fracture.

110 The other aspect of Mr Townsend’s evidence that causes me trouble is that, on his evidence, the fall was initiated by his feet slipping. In this event, it seems to me that Mr Townsend would have hit the floor first. I cannot picture how it could have come about that Mrs Townsend was pulled from near the ironing board, around Mr Townsend’s body, across to near the workbench and down to the floor underneath Mr Townsend. If Mr Townsend slipped as Mrs Townsend was pulled, she should have ended up on top of him. It seems to me more likely that, if Mr and Mrs Townsend both fell, as Mr Townsend alleged, his feet slipped with the effort of throwing Mrs Townsend onto the floor. In such a case, he could well have fallen onto her side, as he said, for she may have been falling at the moment his feet slipped.

Statements Made

112 Although Mrs Townsend made many statements that she fell or that she was pushed, it does not seem to me that this factor affects the veracity of her story. It was not suggested by anyone that Mrs Townsend was injured in a simple fall, or that she was pushed or pushed backwards by her husband. It is a fact of life that many wives who are assaulted are embarrassed or scared about telling the truth. Mrs Townsend’s statements were entirely consistent with that pattern of behaviour.

113 What is significant, however, is that neither Mr nor Mrs Townsend said to anyone words to the effect of, “we fell” . Mrs Townsend did not say or imply that she had been injured when her husband had fallen on top of her. Mr Townsend, for his part, merely said, when speaking to Dr Clarkson who was Mrs Townsend’s friend and general medical practitioner and when speaking to Mrs Townsend’s daughter, that Mrs Townsend had fallen. I regard this matter as significant for, although the substance of his case was that he fell onto Mrs Townsend in such a way as to cause her crush fracture, Mr Townsend made no statement to that effect to anyone. On the contrary, Mrs Townsend did make some statements which either expressed, or from which can be inferred, a complaint of an assault by her husband.

“ALLEGED ASSAULT”

“I fell arse over tit on top of you”

Summary

115 The nature of the injury and the medical evidence given by Dr Matheson and by Dr Hume strongly favour Mrs Townsend’s version that she was picked up and thrown or dropped to the floor. Counsel for Mr Townsend did not call any medical evidence to the contrary. Upon Mrs Townsend’s return from hospital, she and Mr Townsend both made a statement to the other which was consistent with their respective evidence at the trial, but, apart from that one statement, Mr Townsend made no statement to any person indicative of an incident in which he had accidentally fallen onto and injured his wife. Mrs Townsend, on the other hand, although she suffered from the embarrassment which affects many assaulted wives, made enough statements at the time to indicate a complaint of assault by her husband. Therefore, the objective facts seem to me to weigh heavily in favour of Mrs Townsend’s version of events. There is no such fact which weighs in favour of Mr Townsend’s version.

116 As to the versions of the incident itself, I have already indicated my view that Mrs Townsend’s explanation of the incident was a probable explanation of her injury. It was supported by the nature of the injury and the evidence of Dr Matheson and Dr Hume. Moreover, it seems unlikely that the incident could have occurred as Mr Townsend said it occurred, or that Mrs Townsend would have been injured in that way.

Contributory Negligence

118 Contributory negligence was alleged against Mrs Townsend. However, Mrs Townsend’s action of taking hold of an iron and raising it up in her right hand was not an action which justified Mr Townsend’s response. If he had been truly worried about the iron, Mr Townsend could have taken hold of her right wrist, as he said he did. On Mrs Townsend’s version, which I accept, he lifted her up and threw her or dropped her to the floor. In my view, the claim for contributory negligence should be dismissed.

Orders

1. I would set aside the judgment below and would substitute therefore a declaration that Mr Townsend is liable to pay Mrs Townsend damages for his assault on her.

2. I would remit the matter to the District Court of New South Wales for an assessment of damages.

___________

Citations

Townsend v Townsend [2001] NSWCA 136

Most Recent Citation

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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.