New South Wales Court of Appeal CITATION : DAVIS v COUNCIL OF THE CITY OF WAGGA WAGGA [2004] NSWCA 34 HEARING DATE(S) : 2 February 2004 JUDGMENT DATE : 26 February 2004 JUDGMENT OF : Mason P at 1; Beazley JA at 40; Tobias JA at 41 DECISION : Appeal upheld. CATCHWORDS : NEGLIGENCE - appellate review - whether bound by trial judge's assessment of credibility - whether assessment of adverse credibility open on the facts - whether prior medical histories inconsistent with witness's evidence at trial - failure to confront plaintiff with alleged inconsistencies - principle in Brown v Dunn. (ND) PARTIES : John Bradley DAVIS v COUNCIL OF THE CITY OF WAGGA WAGGA FILE NUMBER(S) : CA 40426/03 COUNSEL : Appellant: B Toomey QC / A Black Respondent: P W Taylor SC SOLICITORS : Appellant: Walsh & Blair, Wagga Wagga Respondent: Phillips Fox, Sydney LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 20854/01 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40426 of 2003 MASON P BEAZLEY JA TOBIAS JA Thursday 26 February 2004 John Bradley DAVIS v THE COUNCIL OF THE CITY OF WAGGA WAGGA BACKGROUND The appellant severely injured his left arm when he fell or jumped from a swing in Emblen Park, Wagga Wagga. The respondent was sued as the occupier of the park responsible for installing and maintaining the swing. The appellant's version of the accident was that he noticed that the cross-bar on the swing was shaking and so thinking that it was going to fall, he attempted to jump off. As he attempted to do so, his shorts caught in the S-hook which connected the swing's seat to the chain which extended to the cross-bar. This interrupted his jump and caused him to fall and injure his arm. Dunford J found for the defendant because his Honour was not satisfied that the accident had occurred in the manner claimed by the appellant. In making this finding Dunford J gave significant effect to what his Honour perceived to be inconsistencies in a number of recorded medical histories. His Honour drew particular attention to the fact that none of the medical histories documented prior to the appellant's father discovering an opened S-hook on the swing, made any reference to the appellant's shorts having been caught in the swing. HELD: per Mason P up holding the appeal (Beazley andTobias JJA agreeing) (1) Although the appellant's credibility was not the only reason why his case failed before the primary judge, credibility was vital. It formed a substantial plank in the ultimate determination and it cannot be said that the case was doomed to fail regardless of the credibility issue. [31] [32] (2) The principles in Fox v Percy (2003) 77 ALJR 989 (considered) do not require that the appeal fail. [37] (a) The adverse credibility assessment of the trial judge was explicitly posited upon the findings of inconsistencies which were not fairly open to be made in the circumstances of the trial. [34] [37] (3) The appellant ought in fairness, to have been given the opportunity to explain the medical entries if they were inconsistent with his later testimony: Boston Clothing Co Pty Ltd v Margaronis (1992) NSWLR 580 (referred) [36] [38] ORDERS: (a) Appeal upheld (b) Judgement set aside and a new trial in the District Court ordered. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40426 of 2003 MASON P BEAZLEY JA TOBIAS JA Thursday 26 February 2004 John Bradley DAVIS v THE COUNCIL OF THE CITY OF WAGGA WAGGA JUDGMENT 1 MASON P: The appellant severely injured his left arm when he fell or jumped from a swing in Emblen Park, Wagga Wagga on 19 April 1999. The respondent was sued as the occupier of the Park responsible for installing and maintaining the swing. 2 There was a compound fracture of the left radius and ulna with complete transection of the median nerve requiring a median nerve graft, and consequent disabilities. During the trial damages were agreed in the sum of $350,000. 3 There was a verdict for the defendant because the judge was not satisfied that the accident had occurred in the manner claimed by the appellant (Davis v The Council of the City of Wagga Wagga [2002] NSWSC 911). This followed a trial in which the credibility of the appellant and of his father were critical, in the absence of any corroborating eyewitness testimony or contemporaneous photographic evidence. The appellate role of this Court is therefore constrained by the principles recently expounded by the High Court in Fox v Percy (2003) 77 ALJR 989. 4 Both the appellant and his father were fairly inarticulate and were found to be unimpressive witnesses, not that it was suggested that they were dishonest. 5 The appellant was 15 when injured and 18 when he gave evidence at trial before Dunford J. He was of low intelligence and had been a poor student, except in sports. He had difficulties in reading, writing and numbers. His memory was poor. His father, who was the next friend in the proceedings, was a sole parent who was unemployed and who appears on a reading of the transcript to have had difficulties in understanding questions and giving clear descriptions of events. When asked what his father did for a living, the appellant said: "Just sits at home. He has a sore back so he can't do nothing". 6 The accident occurred on a day when there was a teachers' strike at the appellant's school. He went to Emblen Park with a friend, Richard King. The two boys sat on adjacent, identical swings that were supported by a single frame. The boys' size and strength would have extended the carrying capacity of the swing, especially since the appellant was swinging to a height estimated as in excess of five feet from the ground. I do not suggest that their actions were inappropriate, but I infer that they may well have shaken the swing more vigorously than was acknowledged by the council employee whose evidence is recorded below. 7 The two swings were supported by a single cross-bar. That cross-bar rested at its ends upon two metal bars at right angles to it. The extremities of those bars were supported by four vertical poles. The seats were rigid, apparently made of rubber, supported on either side by a chain extending to the cross-bar. The chain's links were metal, coated with a plastic-type material. The chain was affixed by what were described as S-hooks. These were metal of apparently similar thickness to the links of the chain. Unlike the chain, the S-hooks were not coated in plastic. The top loop of the S passed through the lowest link. The bottom loop of the S passed through the triangular part of a metal piece shaped like a capital A whose bases were bolted to the seat. 8 The ends of the S-hooks were meant to be crimped such that neither the chain nor the seat could be detached. Nevertheless, the evidence (discussed below) showed that the hooks could wear and stretch over time. If this happened there were two possible consequences. In extreme cases, the seat could become detached because the opened S-hook would escape the link above or the attachment below. There was also the risk that a partially opened S-hook might catch clothing, jewellery or skin. 9 One of the tasks of those responsible for the periodical inspection of Council parks was to check the state of the S-hooks. Sometimes the hooks were replaced. At other times they were clamped tight again with a tool that required two people to operate. 10 The appellant's version of the accident, in evidence, was that he noticed the cross-bar shaking as he was swinging. He thought it was going to fall. He warned his companion, who jumped off. The appellant attempted to jump off as the swing was going up, but an S-hook caught the left-hand side of the shorts he was wearing and the outside of his thigh, temporarily interrupting his jump and causing him to fall with his left forearm across the front of his body (Black 5, 32-5, 38, 39, 40). 11 The appellant was challenged in cross-examination in various ways about his account of the accident. The cross-examination culminated in the suggestion that he had simply jumped off for fun and that he had not caught his left side at all (Black 41-2). These propositions were denied. 12 The appellant did not suggest that his shorts were torn, but they were not produced in evidence. Nor did he call his friend as a witness or explain his absence. According to the appellant, the friend had jumped off the swing first, apparently just before he attempted to do so (Black 31). Whether or not he saw the critical part of the accident is unknown. 13 Hospital and medical records were tendered at the start of the trial, when the quantum of damages was in issue. At the beginning of the second day the court was informed that damages had been agreed and that the doctors did not have to be brought to court (Black 69). Some of the medical records contained histories of the accident, apparently given by the appellant, that later assumed importance in the learned trial judge's reasons. But no questions were put to the appellant in chief or cross-examination about the accounts of the accident recorded in these records. 14 The severity of the injury was such that in the week following the accident the appellant had operations on his arm, first at the Wagga Wagga Base Hospital and then at Sydney Hospital. 15 The only expert evidence was that called by the appellant, from Mr Adrian Pilton. He was an architect with specialist qualifications and wide experience in landscape architecture. Mr Pilton had designed playgrounds for public parks over many years and was familiar with safety issues involved in such work. He gave evidence on the assumption that the accident had occurred as stated by the appellant in his evidence. He expressed the opinion that S-hooks were inherently capable of coming open because of the tremendous stress placed on them in swings. This gave rise to the risk of catching clothing, rings or fingers. An S-hook was not essential, and it was preferable in Mr Pilton's view to use a component that closed and could be welded (Black 54). He accepted in cross-examination that no Australian Standard prohibited the use of S-hooks in swings. 16 Photographic and other evidence also demonstrated the capacity of S-hooks to prise open. This phenomenon was well-known to the respondent and its employees concerned with park maintenance (see the photographic evidence, the bundle of Playground Inspection Reports and the evidence of Mr Johnson). 17 The appellant's father was understandably occupied in attending to his severely injured son in the days immediately following the accident. He stayed with him at the Wagga Wagga Base Hospital and went up to Sydney with him. Mr Davis' evidence that he was told about the circumstances of the accident by his son (Black 57) is of such high probability that it should be preferred to the contrary evidence of the appellant himself (Black 6), although nothing ultimately turns on this. 18 On 26 April 1999 - a week after the accident – the father went to look at the swings. He said that he noticed that the "hooks were open" on one of the swings (Black 58, 63-4). With some difficulty, he eventually identified the particular seat he had in mind (Black 66), but there was no evidence to establish whether that he had looked at the swing from which his son had jumped or the one occupied by Richard King. Mr Davis was incapable of sketching the open S-hooks that he had observed (Black 67). 19 It follows that his evidence about the opened S-hook that he saw was ultimately of little assistance to his son's case. It should however be observed that it corroborated the appellant in the sense that he made early complaint about the hook being the cause of his injury. The father was not challenged in cross-examination about having looked for and observed an open hook on one of the swings. 20 At least two months later, after consulting a solicitor, Mr Davis returned and took photos (Exhibit G, Blue 199). He said that the hooks he had previously observed had been replaced (Black 59). They certainly appear new in the photograph. This is consistent with the evidence of the respondent's witness, Mr Johnson, as I point out below. 21 The respondent's single witness was Mr Johnson who was the parks maintenance ganger for the Wagga Wagga City Council. He had been responsible for maintaining parks in the area for seven years. Mr Johnson produced his Playground Inspection Reports for Emblen Park dated 27/4/99 and 8/6/99. He had no actual recollection of these inspections, but gave evidence of usual practice and the interpretation of his own records. 22 Mr Johnson used to conduct a "shake and grab test" to make sure that the swing was structurally sound. His inspection of the seats used to include checking S-hooks "like just to see how much longer, they have still got enough metal wear to hold and there is no wear and tear" (Black 85). Mr Johnson confirmed that hooks could wear and stretch, needing to be closed by a double handed crimping tool, and ultimately to be replaced (Black 85-8). 23 Mr Johnson's Report for 27/4/99 describes the "Swing Frame Double" as "OK". The "Swing Seat" is described as "OK … Parts Req'd" ("S-hooks replace later on are worn") (Blue 243). Mr Johnson said that this meant that the hooks would have been checked and found closed (Black 88, 103). But he agreed in cross-examination that his primary concern was to check that the "U-bolt" (ie the A shaped piece attaching the chain to the seat via the S-hooks) could not come out, throwing a rider to the ground as the swing detached from the chain (Black 91K). Mr Johnson accepted that S-hooks sometimes open (Black 102) and that it would be dangerous if S-hooks opened enough to catch the clothing of a person using the swing (Black 91). 24 Towards the end of Mr Johnson's examination in chief, senior counsel for the appellant, Mr Toomey QC, flagged the point that it had never been suggested to Mr Davis that his estimate of a one inch opening of the S bolt was incorrect (Black 90). This was noted, with nothing being done to recall the witness. This was an early warning about the Brown v Dunn issues which now lie at the forefront of this appeal. 25 Mr Johnson's Report of 8/6/99 contained no reference to the need to replace the S-hooks previously listed as "worn". As indicated, this tends to corroborate Mr Davis' evidence that he saw fresh hooks when he inspected the swings the second time, at least two months after the accident. 26 The same Report shows, against the reference "Swing Frame Double" annotations that it was "OK… Parts Req'd (Needs Welding (Bracket)). This entry in a document that was not produced on discovery until after the appellant had given evidence is said to corroborate his testimony about the shaking cross-bar. This is possibly the case, although the question whether the cross-bar was shaking strikes me as fairly marginal because it was at most the occasion for the appellant jumping off the swing. It was part of the history, without being a relevant cause of the injury. 27 Counsel for the defendant addressed first. He submitted that the trial judge would not be satisfied that the accident had happened in the way the plaintiff said it had. It was perfectly open for this submission to be made. Senior counsel had cross-examined the appellant as to his version of the accident and had put to him that he had jumped off the swing and that he had not got his shorts caught in a vertically open S-hook. 28 However, the key element in the submission was a proposition that the appellant was an inconsistent historian. In support of this, counsel took his Honour to: (i) The appellant's solicitor's letter of instructions to Mr Pilton This stated that: When Master Davis was attempting to alight from the swing the bottom of his football shorts caught on the widened "S" bend causing him to fall heavily forwards onto his outstretched left hand. It was submitted that this was inconsistent with a version of events given in cross-examination to the effect that he landed in front of the swing, his pants weren't still caught on the swing, and he was clear of the swing on the ground, with the swing behind him (Black 108E). [This was a fair summation of the appellant's testimonial version, but the discrepancy between it and the account given by the solicitors in the letter of instructions to the expert is far from apparent.] (ii) Wagga Wagga Base Hospital Emergency Department Nursing Assessment Part of the bundle of medical records that had been tendered without objection or comment at the commencement of the trial (Ex A) were clinical notes from the Wagga Wagga Base Hospital. One such note is headed "Nursing Assessment Emergency Department" (Blue 10). It is dated 19/4/99, the day of the accident. The record includes: Presenting Problem/History fell off swing onto outstretch (sic) left arm …. The absence of any reference to being caught on the hook was said to be significant. (iii) History recorded by Dr Honner Dr Honner was a surgeon who examined the appellant on 21 February 2000 for medico-legal purposes. In a letter dated 20 July 2000 (part of Ex A) Dr Honner records the following history. On 19th April 1999 he was on a swing, the swing was supported from a transverse pole, which he noticed was starting to shake and vibrate, he thought the pole was going to fall down on him, and he tried to jump off the swing, he said that the hook of the swing caught his shorts and dragged him along the ground, and he suffered a compound fracture of both bones of the left forearm. Counsel submitted that this was further evidence of unreliability and inconsistency with its reference to being suspended by the hook and dragged along the ground (Black 109). (iv) History recorded by Dr Middleton Dr J S Middleton is a rehabilitation medicine physician who saw the appellant for medico-legal purposes on 13 March 2000. A report dated 27 March 2000 was included in the bundle of medical reports that became Exhibit A. The history recorded by Dr Middleton was as follows: He had been on a swing in a public park swinging himself and he reported he noted that the crossbar, supporting the swing, started shaking abnormally and feared it may be imminently about to fall or collapse so he jumped off the swing but hooks, holding the seat of the swing to the vertical supports, caught in his shorts and he recalled that with his next memory being of half-lying on the ground but with his shorts still attached to the swing, half suspending him, and being dragged backwards and forwards with the movement of the swing. He recalled detaching himself and being aware of blood seeping through his jumper in the region of his left forearm. Counsel submitted that this history was inconsistent in various ways with the account of the accident given in the appellant's evidence (Black 109-113). Once again, it is a little hard to identify each of the inconsistencies said to emerge from Dr Middleton's recorded history, although they certainly include the suggestion that the appellant was being dragged "backwards and forwards with the movement of the swing" due to being hooked up (Black 113W). 29 The so-called inconsistencies were a substantial part of counsel's submissions, as recorded. Counsel was at pains to indicate that it was not being suggested that anybody was deliberately lying (Black 115V), nor was recent invention raised in terms. But the point was hammered that the appellant "can only be regarded as about one the most unreliable historians that one could imagine" (Black 116H). 30 Dismissing the claim, Dunford J effectively adopted these submissions. In concluding that he was not satisfied that the appellant had satisfied the onus of proof, his Honour made no finding that the appellant or his father had given deliberately false evidence. But he found several inconsistencies in the recorded histories and gave them significant effect. His Honour said: 7 The plaintiff's first difficulty is that he did not at the time tell anyone that his shorts had become caught in the S-hook or in any part of the swing apparatus, nor that he jumped off because he saw the cross-bar shaking or vibrating. He told the ambulance officers who attended him (Ex. A, p 4) that he fell off a swing and put his hand out to break the fall. He gave the Wagga Wagga Base Hospital (Ex. A, p 6) a history that he fell off the swing onto his left forearm from a height of about two metres and that the fall was witnessed by his friend, and told the Nursing Assessment Emergency Department (Ex. A, p 7) that he fell off the swing onto his outstretched left arm. On arrival at Sydney Hospital on 21 April he gave a history (Ex. A, p 47) that he fell off a swing two days ago whilst waiting for his girlfriend (see also p 46). So it appears that until the time he left Sydney Hospital on 24 April he apparently told no one that the fall was precipitated by his shorts being caught on a hook or on anything else, although he did supply to Sydney Hospital the detail that it happened whilst he was waiting for his girlfriend. 8 The plaintiff's father gave evidence that a couple of days after he and the plaintiff returned to Wagga Wagga, that is about 26 April, he went by himself (without the plaintiff) to the park to have a look at the swings, and he noticed that on one of the swings the hooks that attached the seat were open at one end, indicating about an inch or three centimetres, and he drew a diagram (Ex. 3) showing how the hooks were said to be open at the end of the S-loop. Then a couple of months later, after he had given instructions to his solicitor, he went and took a photo of the swing (Ex. G). The photo was taken between 27 May and 30 July 1999. The photo does not show anything wrong with the S-hooks but Mr Davis said that the hooks then in place appeared to be new. 9 It is not clear from the evidence how he knew which swing to look at. He said a lady pointed something out (T 64), but there was no evidence of who the lady was, what she told him, or how she knew anything about the plaintiff's accident, and she was not called as a witness. 10 It was only after this that the plaintiff told anyone that his shorts had become caught in any part of the swing. On 27 March 2000, he told Dr JS Middleton (Ex. A, p 96) that whilst on the swing he noted the crossbar shaking abnormally and thought it might collapse so he jumped off but hooks holding the seat of the swing to the vertical supports, caught in his shorts, his next memory was of being half lying on the ground, but with his shorts still attached to the swing, half suspending him, and being dragged backwards and forwards with the movement of the swing, and he recalled detaching himself, this last assertion being a direct contradiction to what he said in cross-examination where he denied that he had been still stuck on the swing (T 41) and said that he was lying on the ground. 11 On 21 February 2000 he also told Dr Richard Honner (Ex. A, p 110) that after he saw the cross-bar shaking, he tried to jump off but the hook of the swing caught his shorts and dragged him along the ground. On 18 July 2001, he told Dr Bliss, who examined him on behalf of the defendant, that when he jumped, his shorts caught on a hook on the way down which threw him off balance and he landed heavily on his left arm (Ex. 1), whilst in their letter of instructions to Denton Corker Marshall Pty Limited (architects) seeking an expert opinion, the plaintiff's solicitors said that "when the plaintiff was attempting to alight from the swing the bottom of his football shorts caught on the widened S-bend causing him to fall heavily forwards onto his outstretched left hand". 12 So, in summary, the plaintiff's description of the accident initially included no reference to his shorts being caught or the unsteady cross-bar. After his father allegedly inspected the swing (query the correct swing) and purportedly found the S-bend partially open, the plaintiff told his solicitors and some doctors that when his shorts got caught he fell onto his outstretched hand, although in evidence he denied that his hand was outstretched to break the fall, and he also told Dr Middleton and Dr Honner that as a result of his shorts being caught, he was dragged backwards and forwards by the movement of the swing, which he also denied in his evidence, and he told Dr Middleton that he recalled detaching himself. 13 These descriptions contain a number of inconsistencies. There was evidence in the case that the plaintiff was of low intelligence with learning difficulties and his manner of giving evidence demonstrated very limited language and communication skills, but whilst one can make allowance for such disabilities, these inconsistencies do not provide a convincing history of what actually occurred or what caused him to fall. … 19 The plaintiff carries the onus of proving on the balance of probabilities that the accident occurred substantially as he claims in that his shorts got caught on a protruding or partially open hook or similar as he jumped off the swing. Having regard to the inconsistent histories given by the plaintiff, the total lack of corroboration, the evidence of Mr Johnson and the Council records to the effect that there was nothing wrong with the cross-bars or the hooks when they were inspected on 27 April, the plaintiff has failed to satisfy me of these matters, and accordingly he must fail. 31 The appellant's credibility was not the only reason why his case failed before the primary judge. His Honour had regard to the lack of corroboration, difficulties with the father's evidence and the evidence of Mr Johnson. It cannot however be said that the case was doomed to fail regardless of the credibility issue. There was a good deal of material supporting a case that it may have been negligent to continue using this type of S-hook and/or that Mr Johnson might have done more to have avoided what was recognised to be a potentially dangerous situation. 32 This was a case in which credibility was vital and in which the appellant's failure to persuade the trial judge that he had given an accurate and reliable account of the mechanics of the accidents formed a substantial plank in the ultimate determination. 33 The trial judge acknowledged that a significant aspect of his credibility assessment turned upon the inconsistencies that he identified in the passages set out above. 34 In my view it was not fairly open for these matters to be taken into account in the way they were. A challenge of this significance ought to have been taken to the witness by cross-examination, yet he was never confronted with a suggestion that he had held back the S-hook scenario until he saw Dr Middleton. Nor was it put to him that he had given inconsistent histories and that this was indicative of a lack of credibility casting doubt upon the critical question whether his clothing got caught on a partially-opened S hook. 35 Experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury. It is possible, and not merely speculatively so, that Dr Middleton misunderstood the precise mechanics of the immediate antecedent of the fall. 36 One can also envisage several reasons why the early hospital records make no mention of the mechanics of the fall. They had little to do with the diagnosis and treatment of an obviously serious injury. The plaintiff ought in fairness to have been given the opportunity to explain the entries if (which I doubt) they were inconsistent with his later testimony. 37 The respondent submitted that the judgment should stand in light of the principles in Fox v Percy. I do not agree. Here, the adverse credibility assessment is explicitly posited upon the findings of inconsistencies which were in my view not fairly open to be made in the circumstances of this particular trial. 38 There are obviously matters of degree in cases such as the present. But this case fell, in my view, on the wrong side of the line. In Boston Clothing Co Pty Ltd v Margaronis (1992) NSWLR 580 Kirby P said (at 590): I am inclined to agree with Burke CCJ that the practical rule of fairness enshrined in the Browne v Dunn principle required that the suggested contradictions in the worker's history should have been put to the worker before they were used as a basis not of challenging the opinions resting on them but of challenging the truth of the worker's evidence. No such challenge was put to the worker by counsel for the employer in his economical cross-examination. If the commissioner himself intended to rely upon the evidence in the way he did, procedural fairness required that he should have drawn the suggested inconsistencies which were troubling him to the notice of the worker or of counsel. Then the worker would have the opportunity of explaining the suggested inconsistencies. Her counsel would have had the chance of calling oral evidence from her medical advisers to supplement the written opinions which they had provided. In the course adopted by the commissioner there was a real risk of injustice to the worker. 39 I propose the following orders: 1. Appeal upheld. 2. Set aside the judgment for the defendant and the costs order that were ordered on 3 October 2002. 3. Order a new trial in the District Court. 4. Costs of the first trial to abide the result of the new trial. 5. Respondent to pay appellant's costs of the appeal. 40 BEAZLEY JA: I agree with Mason P. 41 TOBIAS JA: I agree with Mason P. ********** Last Modified: 03/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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