New South Wales Court of Appeal CITATION: KINNELL v CONNELLY & ANOR [2007] NSWCA 17 HEARING DATE(S): 8 February 2007 JUDGMENT DATE: 8 February 2007 JUDGMENT OF: Mason P at 1; Bryson JA at 43; Gzell J at 47 EX TEMPORE JUDGMENT DATE: 8 February 2007 DECISION: Appeal dismissed with costs. CATCHWORDS: NEGLIGENCE – essentials of cause of action – breach of duty of care – slip and fall – entering house – adjustment of latch or spring device on door – where familiarity with door through extended use. - EVIDENCE – Credibility and weight – alleged admission – denial of admission. - APPEAL AND NEW TRIAL – general principles – when court will intervene – credibility finding – error going to matter at issue in trial – mere presence of error – process error – whether findings on mechanics of fall based on credibility taint finding of negligence. Jones v Dunkell (1959) 101 CLR 298 CASES CITED: Fox v Percy (2003) 214 CLR 118 Rosenberg v Percival (2001) 205 CLR 434 Debbie KINNELL PARTIES: Christopher CONNELLY Dell CONNELLY FILE NUMBER(S): CA 40185/2006 COUNSEL: Appellant: S Norton SC/ M Fraser Respondents: D P O'Donnell SOLICITORS: Appellant: Brydens Law Office Respondents: Sparke Helmore LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1661/2005 LOWER COURT JUDICIAL OFFICER: Naughton DCJ LOWER COURT DATE OF DECISION: 8 March 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40185/06 DC 1661/2005 MASON P BRYSON JA GZELL J Thursday 8 February 2007 Debbie KINNELL v Christopher CONNELLY JUDGMENT 1 MASON P: The appellant and the second respondent are twin sisters born in 1957. They are close friends and, since 2000, have lived next door to each other in Plume Close, Macquarie Fields. 2 The proceedings relate to injuries suffered by the appellant on 1 August 2004 when she injured her foot as she entered the house of her sister and brother-in-law (the respondents). The appellant had used an accustomed route through a gate in the back fence that gave access into the respondents' house through the laundry door. The doorway is approximately opposite the gate in the fence and up one step. 3 A screen door had been in place from the time when the respondents moved in, in 2000. It is hinged on the left side of the doorway as one faced from the outside. It consists mainly of wire mesh surrounded by what appears to be an aluminium frame. A spring device at the top of the door causes the door to close automatically. The mechanism can be adjusted to accelerate or retard the speed of closing. 4 The appellant alleged that the screen door closed unexpectedly quickly and trapped her trailing left foot thereby causing her to fall over and suffer injury. The bone of the fifth metatarsal in her left foot was fractured. That the appellant suffered serious injury is not in dispute, but the mechanics of the fall and negligence are. 5 This appeal is brought from a verdict for the defendant entered in the District Court by Naughton DCJ. 6 The nub of the appellant's claim as to negligence was that the closing mechanism had been changed by or on behalf of the respondents from "slow speed" to a "fast speed". This was said to have occurred, without her knowledge, during the period of six or seven weeks she had been nursing and visiting her husband during the terminal period of an illness that caused his death two days before the accident. The change was alleged by the appellant to be contrary to the mechanism she had come to expect over long usage. The accident occurred on the first occasion the appellant had visited next-door in about seven weeks 7 The appellant was barefoot and wore a tracksuit. She was not carrying anything. The second respondent was in the laundry as the appellant entered and she definitely saw her sister down on the floor with her left leg between the now largely closed door. 8 The judgment concludes with a positive finding that rejects the appellant's case in the following terms: "I have found that the cause of the plaintiff's accident was her own unfortunate lack of sufficient care, on the subject occasion, in attempting to step into the defendant's laundry. I found that because she was not, on that particular occasion, sufficiently watching where she was stepping she tripped against the laundry step and, as a result of that trip, lost her balance and fell over. I have found that the closing of the screen door was not, in any way, causative of her fall and consequent injury." 9 This positive finding as to the mechanics of the fall and the irrelevance of the closing of the screen door is effectively explained earlier in the reasons by primary findings that include the judge being unimpressed with the vagueness and absence of detail in the appellant's evidence about the fall; some reasoning concerning the position of the left foot relative to the left shoulder said to be based upon "common knowledge and experience" that was not apparently ventilated at trial; a finding that the second respondent actually witnessed the fall as distinct from its immediate aftermath, based on preference for what the second respondent said in an insurance claim form over her express and unqualified statements to the contrary under oath, albeit during a part of the cross-examination when the witness was not surprisingly distressed and confused by some vigorous cross-examination by counsel representing the appellant at trial; and some reasoning based upon the appellant not having stopped the closing of the door with her left hand, itself a theory that does not appear to have been put squarely to the appellant. 10 Senior counsel for the appellant, with customary clarity, has put a powerful argument as to why the conclusion about the mechanics of the fall cannot stand and/or are based upon process errors that occasioned miscarriage. We have not heard from counsel for the respondents, but I shall proceed on the basis that this part of the appeal succeeds. 11 I would nevertheless dismiss the appeal because I am unconvinced of appealable error touching a separate but vital aspect of the case. In addressing that aspect I shall therefore assume that the closing of the door contributed to the injury and not the appellant's failure to watch her step. 12 As indicated, the allegation of negligence that was pressed was that the closing mechanism had been adjusted by or on behalf of the respondents, during the period of the appellant's absence with her dying husband, by making it faster than the appellant was used to. This was said to create a hidden danger to one accustomed to simply flinging open the door and walking through as it closed behind her slowly. 13 This case barely appears in the statement of claim which comes closest to it in the particular of negligence referring to "adjusting the screen door so that same closed quickly". The second respondent said that it had not been suggested to her in the many friendly discussions between the two sisters that addressed the fall between the accident and the trial. The second respondent also gave evidence that immediately after the fall, she ran out and asked her sister what had happened, to be told "I don't know, I don't know, I don't know" (Black 84, 114). This evidence was not challenged. The appellant said that she did not remember saying that. 14 The appellant's evidence about the changed condition of the door came, essentially, from three sources: her own evidence, including evidence about a conversation she had with her sister on the day of the accident a few hours after it; a sentence in a statement given by the second respondent to an insurance investigator; and the evidence called belatedly at trial from her deceased husband's brother, Mr R E Kinnell. 15 The opposing testimony on the topic was that of the two respondents. 16 The appellant's own evidence relevantly had two parts: her recounted observation of the state of the door before and after the accident and, most importantly, the account of the abovementioned conversation with her sister on the day of the fall. The appellant swore that on the night of the accident the two respondents "came over" and that her sister said to her: "The door was taken off slow close and was put onto fast close. I changed the door from slow close to fast close because of the traffic through the two houses. I have now changed the door back to slow close." 17 This conversation was repeatedly denied by the second respondent in her evidence. There is a slight ambiguity as to whether the appellant was contending that the admission was made in the presence of the first respondent assuming that that was what she was conveying when she said the two respondents had "come over". I observe that the first respondent gave no evidence directly on that topic. He did however say (at Black 144) that it had been Dell, his wife, who had gone over to see the appellant on the night of the accident. There the matter seems to have been allowed to rest and I am not aware of any submission made at trial or in this Court on the topic of some inference being drawn from what the first respondent did or did not say on the topic. 18 The appellant's evidence as to the last part of the alleged admission namely about the door having been changed back to slow close later on the day of the accident was, as the judge pointed out, inconsistent with an answer given by the appellant's solicitor by way of particulars in which the appellant said she did not know when the door had been adjusted back to "slow" after the accident. The solicitor had consulted the appellant about the answers. The evidence was also inconsistent with the clear thrust of two written statements about the accident provided by the second respondent for insurance purposes that his Honour found to be true and accurate. 19 While those statements do not in terms address any suggestion of the mechanism having been changed, that is explicable by reference to the fact that allegation does not appear to have been squarely in play by the time the two statements were prepared. I also observe that the very clear thrust of both statements was to the effect that it had just been an unfortunate accident that had caused the injury to the appellant. 20 Apart from the disputed admission, there was by the close of the case for the defendants at trial, no evidence beyond the disputed admission to indicate how or when or by whom the closing mechanism of the screen door may have been changed before the accident, if it had been changed at all. Nor was there any evidence, apart from the disputed admission, to support the appellant as to the allegation pleaded in para 5 of the statement of claim, namely: "The Plaintiff will rely upon the fact that post accident the Defendants adjusted the screen door so that same closed slowly as an admission of negligence by conduct." 21 The second respondent firmly denied in cross-examination that at the time of the accident the door closing mechanism was on "fast", that she herself had put it on "fast", and that after the accident she put it back onto "slow close". This evidence was closely and vigorously tested at trial. The judge held that those denials were true, observing that they were consistent with both of the statements signed by that witness to which I have already made reference. 22 The first respondent also gave evidence that the door speed mechanism had never been altered since the respondents went into occupation, either before or after the accident. His Honour expressly accepted that evidence. 23 One matter that was relied upon both as an admission against interest by the respondents and as a matter tending to harm the credit of the second respondent is a portion of para 15 of the statement prepared for insurance purposes and signed by the second respondent on 5 February 2005. In para 15 she said: "As Debbie climbed our one back step into the laundry she tripped and lost her footing. Her right foot slid from under her and she fell face down, leaving her left foot down outside the laundry door, caught between the screen door and the step. The screen door unfortunately was set on 'fast close'." 24 It is the last sentence of the passage just quoted that is said to be a significant plank in the appellant's case. The trial judge ruled that it represented an admission and it was on that basis that the document, and ultimately (he ruled) the entire document, got into evidence. Admission it may be, but it is not, as I read it, an admission of the central allegation relied upon to ground the claim in negligence. There is no statement that the screen door had ever been changed to put it from slow to fast close. I am not saying that that was not a possible interpretation of the statement. But it is a far from clear one and when the second respondent was tested in evidence about it she was quite firm that it was intended to convey nothing more than the door was on what she called "fast close". In the same breath she repeated her adamant denial that there had ever been any change in the mechanism from anytime after the couple had moved in to occupation. 25 The third plank in the appellant's case on the negligence part of the trial was a piece of evidence led from the appellant's brother-in-law, Mr R E Kinnell. He is the brother of the appellant's deceased husband. Mr Kinnell was called after the defendants had closed their case and ostensibly to give evidence in reply. He said that there had been a family meeting in August or September 2005 at which he, his wife, the appellant and the second respondent were present. There was obviously talk about the accident and the then pending proceedings. He said, without any elaboration or further detail, that the second respondent said at this meeting, "I changed the door closer". The appellant had not given any evidence to that effect nor was any request made to recall her to do so, nor had this conversation been put to the second respondent during her cross-examination. Because it was by then clear the evidence was not really evidence in reply the judge indicated that he would permit the respondents to reopen their case. The second respondent was recalled and she baldly denied having made the alleged statement. She was not cross-examined in respect of this evidence. 26 I omitted to record that Mr R Kinnell was challenged in cross-examination about the admission allegedly made by the second respondent albeit and not unsurprisingly it was a pretty perfunctory challenge with Browne v Dunn (1893) 6 R 67 rather than any compelling material primarily in mind. 27 It is convenient at this stage to address a specific ground of appeal being ground 13 which provides as follows: The trial judge erred in drawing an adverse reference against the appellant for failing to cross-examine the second respondent as to her denial of an admission to the appellant's brother (sic) in circumstances where the trial judge was told by counsel for both parties that it was agreed that such cross-examination was not necessary and the failure to do it would give rise to no such reference. 28 The basis for this ground is the submission that the trial judge as part of his reasoning towards accepting the second respondent and rejecting Mr Kinnell on this 2005 conversation said the following (at Red 46): "In her re-call evidence in chief Mrs Connolly denied having made that alleged statement. She was not cross-examined in respect of her said re-call evidence. I have accepted her said denial." 29 The second sentence which is the nub of the matter complained of is historically correct and with respect to the submissions to the contrary I do not think it is pregnant with some reasoning perhaps a la Jones v Dunkell (1959) 101 CLR 298 to the effect that the evidence gained weight because there was no confrontation on it or further presentation of evidence to rebut it. When the second respondent was called and answered the pretty leading question: "Do you deny that the conversation took place?" with the words, "Yes I do", counsel for the respondents at trial informed his Honour that that was all he wished to ask, that to assist the Court and his learned friend the defendants took it that the plaintiff has a different view about it. Mr O'Dowd said: "I won't take the Browne v Dunn point if my opponent doesn't wish to go through the formality of cross-examining on that point." 30 Trial counsel for the appellant was then invited to cross-examine and she indicated that she had nothing to ask. 31 In my view it is one thing to have an arrangement about not taking a Browne v Dunn point (which relates to the fairness of challenging by submission otherwise unchallenged testimony). It is another thing altogether to say that the tribunal of fact is bound to accept unchallenged sworn testimony or that error of process occurs if the tribunal of fact observes that there was no cross-examination. The fact of the matter is that, like a medieval trial based upon how many oaths you can accumulate in favour of opposing viewpoints, the parties chose to leave the judge to do the best he could with the oath and counter oath on this very late piece of evidence that came into the trial. I have indicated that the respondents' case on what I have termed the negligence issue amounted to clear, express and adamant evidence that they and by inference nobody else had not changed the door mechanism. 32 It was submitted that the trial judge's preference for the respondent's case on this issue is not to be assessed in this Court by reference to the well known principles expounded, for example, in Fox v Percy (2003) 214 CLR 118. Essentially the argument was that his Honour had not expressly said that his preference for one case over the other was based upon his view of the demeanour of the witnesses. There is another point to which I will come in a minute but I cannot accept the demeanour submission. A trial judge does not have to spell it out. In many cases it is very clear that demeanour assessment must have entered into the equation and if that is the situation, indeed arguably unless it is proved not to be the situation, then the appellate restraint embodied in what I will call the Fox v Percy principles apply. I emphasise the word restraint, it is not suggested that it is an appellate no-go area. 33 This was however a case where I am comfortably satisfied that the trial judge would have taken account of his assessment of the cogency and credibility of the oral testimony. After all, the case was in essence fought on that basis with vigorous cross-examination. Even more to the point, the critical matter in which the appellant's case ultimately foundered was the rejection of the admission she contended for as having been made by her sister on the evening of the accident, as senior counsel for the respondents frankly and properly admitted. While his Honour may have let the appellant down gently on this point, there could have been no mistake on the issue. Her evidence was very explicit, very significant. It could not have been a matter of poor reconstruction and its rejection will inevitably have preceded from his Honour not being satisfied of her truthfulness on that point. 34 I think it pertinent also to observe that in addressing the appellate role in these proceedings that these were somewhat unusual proceedings. The contending parties were at all times the closest of siblings and the best of friends. It is obvious that there was a lot of talk about the accident and in latter times about the litigation as the trial emerged. The respondents were insured and in saying that I do not overlook the ultimately unsuccessful attempt in the cross-examination of the second respondent to suggest to the Court that her testimony was coloured by the fact that she feared that she would not be covered or perhaps that she feared that she would have to switch insurers if the case were lost. 35 The fact that a sister, who in those circumstances remained very sympathetic to the cause of her badly injured fellow sister, was nevertheless very firm and adamant in her denials of certain allegations that were critical to the success of the case means that it would be a bold appellate court that would readily find any error in the trial judge's assessment of such a delicately nuanced credibility issue. 36 The other main thrust of the appellant's argument against the rejection of the negligence case was to point to the errors, including process errors, that formed the nub of Naughton DCJ's attack on the finding about the mechanics of the accident. As I have indicated we have not heard from the respondents but for present purposes I proceed on the basis that that attack succeeds and succeeds in all of the variants that were put to which I referred earlier in my reasons. 37 It is not the law as I understand it that a credibility-based finding is dragged down by the mere presence of error. As in all matters, an appellate court looks for what the Americans call dispositive error. I think the principles are clearly stated in Rosenberg v Percival (2001) 205 CLR 434 at [43] in the judgment of McHugh J, [166] in the judgment of Kirby J and at [222]-[223] in the judgment of Callinan J. There is also a reference to them in Fox v Percy itself in McHugh J's reasons at [90]. 38 The basic principle as I understand it is that the so called Abalos or Fox v Percy principles do not cease to be applicable simply because some error is established, even as occurred in those cases, an error going to the very matter at issue in the relevant part of the trial that attracted the relevant credibility findings. As McHugh J put it in Rosenberg at [43] referring to the facts of that case: "No doubt the trial judge erred in one respect...but it is impossible to conclude that this issue played a decisive part in the judge's assessment of the patient's credibility." 39 I do not think that the errors and process errors that presumptively have been found in the part of the judgment going to the mechanics of the fall taint the reasoning or the cogency of the reasoning or the material on which it is based going to the negligence issue. In essence there was a single point: were the respondents responsible for changing the mechanism? For reasons I have given, his Honour's view on that matter passes appellate review and basically nothing in the other part of the case really casts any cloud over that portion of the reasoning in the court below. 40 Finally there was a further discrete ground of appeal, ground 8, which reads: That the trial judge erred by descending into the arena of the trial and suggesting to counsel for the respondents that she should bring an application that the second respondent be treated as a hostile witness. He had already refused such an application when made without his invitation earlier in the trial. 41 To suggest that a judge descends into the arena is a conclusion of a pejorative nature that requires analysis of what actually happened. I do not read what his Honour put to counsel as a suggestion amounted to "descending into the arena" whatever that means in the present context. The issue had been previously ventilated. His Honour had given a ruling, but like all interlocutory rulings was available to be revisited. Simply because a judge invites one side rather than the other to consider a particular situation, where that happens in open court, entails no clear evidence of any impropriety and in this case certainly none. I do not think that ground has any substance. Furthermore the point goes nowhere. The invitation was thought about over the weekend and the suggested application to treat the second respondent as a hostile witness was not taken up. Nothing further of consequence flowed from the matter. 42 For these reasons I propose the appeal be dismissed with costs. 43 BRYSON JA: I agree with the judgment that has been given. I add the observation that there were unusual patterns of relationships among parties and witnesses and unusual patterns of interests affecting the evidence of respondents, particularly the second respondent. The evidence took some strange courses, particularly the evidence of the second respondent. The question which is ultimately of the greatest importance relating to whether or not there was any recent adjustment to the door mechanism fell to be answered on the trial judge's decision whether he should accept evidence of the appellant on the one hand with respect to her observation about the speed of the door closing and with respect to an alleged admission, or should on the other hand accept evidence inconsistent with that of the appellant, most particularly the evidence in the statements of the second respondent relating to the door mechanism, taken too with her evidence about the alleged admission. 44 Clearly, there were some points of emotion and distress in the course of the hearing, particularly in the adduction of the evidence of the second respondent who was subjected to a cross-examination of surprising severity, to some degree a poorly framed cross-examination. It is not surprising to me to see that she exhibited signs of distress. 45 When the trial judge had to address these unusual circumstances and come to a conclusion in which credibility must have been very important, indeed dominating, the trial judge's opportunity to make observations of demeanour and to allow influences of those observations to affect decision has an unusually high part in the appellate court's consideration. There may be subtle influences and there may be influences so subtle as to be beyond exposition. 46 With these additional observations I agree with the judgment that has been given. 47 GZELL JA: I agree with the reasons and orders proposed by the President. 48 MASON P: The appeal is dismissed with costs. ********** 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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