Afoa v McBride

1. [1]

   MACFARLAN JA: On 8 April 2012 the appellant suffered serious injuries when he ingested a highly corrosive substance by drinking from a glass that was on a table at a barbeque at which nine adults were present. He was then 3½ years old.

2. [2]

   By his tutor (who is his mother), the appellant commenced proceedings in the District Court claiming damages for negligence from the respondent. The respondent was the owner of the premises, but was not present at the barbeque. The appellant’s case was that the following events occurred:

3. [3]

   By judgment of 6 October 2016 Harrison AsJ rejected the appellant’s claim and directed the entry of judgment for the respondent ([2016] NSWSC 1415). Her Honour found that the appellant had not discharged his onus of proving that the events occurred in the manner he alleged. Particularly significant to her Honour’s conclusion was that, when the appellant was given the glass in the kitchen he sipped from it but suffered no reaction, but when he later drank from what he alleged was the same glass he suffered an immediate adverse reaction. Her Honour was not satisfied that the appellant drank from the same glass on each occasion.

4. [4]

   On appeal, the appellant argued that the following findings made by the primary judge were glaringly improbable, and that therefore the decision itself was also glaringly improbable:

   1. (1)

      After the appellant had an adverse reaction to drinking the liquid, his uncle, Mr Martin Taylor, did not taste the substance in the glass from which the appellant had drunk.

   2. (2)

      Mr Taylor admitted to Mr Gary McBride that he (Mr Taylor) was the source of the corrosive substance.

   3. (3)

      The substance that the appellant ingested was most likely hydrochloric acid.

   4. (4)

      Histories recorded at the hospitals to which the appellant was taken were of assistance in resolving the conflicts in the lay evidence.

   5. (5)

      The respondent did not take caustic soda to the premises and use it to unblock the kitchen sink drain.

5. [5]

   For the reasons given below, I consider that the appellant’s challenge to her Honour’s judgment fails and that his appeal should be dismissed with costs.

THE EVIDENCE AT FIRST INSTANCE

1. [6]

   The hearing before Harrison AsJ took place over three days in 2016. There was considerable cross-examination, during which the evidence-in-chief of a number of witnesses was challenged. I set out as follows the evidence I consider material to the disposition of the present appeal.

Ms Christine Taylor

1. [7]

   Ms Christine Taylor is the appellant’s mother. She made witness statements which were tendered in the proceedings. Her first witness statement included the following.

2. [8]

   Between the end of March and early April 2012 the respondent engaged Ms Kylie Burridge to do cleaning and general maintenance work at his vacant property to prepare it for renting out. In turn, Ms Burridge engaged Ms Taylor and her son to assist. Whilst they were working at the property, Christine’s brother, Mr Martin Taylor, became aware that the property was for rent. The respondent agreed to let it to him and Mr Taylor commenced to move in soon after.

3. [9]

   On 8 April 2012 a barbeque was held at the property. Whilst Ms Taylor and others were in the kitchen, the appellant asked for a drink of water. He was given a glass in to which water had been put, and took it outside.

4. [10]

   Ms Taylor continued:

5. [11]

   Ms Taylor accompanied the appellant to Gosford Hospital. She recalled saying to a nurse “we were at a barbeque at my brothers (sic) place, he was given a drink and there was acid in it”. The appellant was subsequently taken to Westmead Children’s Hospital. Ms Taylor could not recall how the histories noted in that hospital’s records were obtained. The glass from which the appellant drank was subsequently lost.

6. [12]

   Ms Taylor’s supplementary witness statement included the following.

7. [13]

   On 26 March 2012 she heard the respondent complain loudly to the previous tenant’s mother about the tenant having blocked “the drain” (a reference to the kitchen sink).

8. [14]

   At about the same time, Ms Taylor saw the respondent bring a container of “Drano” from his home, which was situated next door. She continued:

9. [15]

   Whilst present in the kitchen on the day of the barbeque, Ms Taylor heard Ms Burridge say to the appellant “I’ll get that for you, darling” when the appellant asked for a drink of water.

Ms Catherine Hogan

1. [16]

   Ms Hogan was present at the barbeque on 8 April as a friend of the Taylor family.

2. [17]

   Ms Hogan recalled that whilst she was sitting at a table outside, the appellant took a glass from the table and drank from it. She said: “He then ran away back to play with [another child] but came back a minute or two later and said to me ‘a spider bit my tongue’”. She said that someone, she thought it was Martin Taylor, had a taste of the liquid in the glass “and told everyone it was poison”.

3. [18]

   She did not know how long the glass was sitting on the table before the appellant drank from it, but she did have a recollection of Ms Burridge coming out of the house with a glass in her hand and of the appellant asking Ms Burridge for a drink at some stage.

Mr Martin Taylor

1. [19]

   Mr Martin Taylor is Christine Taylor’s brother and the appellant’s uncle. He made multiple statements in connection with the proceedings brought by the appellant. The appellant tendered three of Mr Taylor’s statements; one handwritten and two typed. The respondent tendered three other statements (including two drafts). Mr Taylor was extensively cross-examined about alleged inconsistencies between these statements.

2. [20]

   In his principal statement (part of Exhibit E), Mr Taylor said that at some stage during the barbeque the appellant “came outside with a glass of water which he sipped and put it on the table in front of everyone then ran off to play”. In his handwritten statement he said that the appellant “drank out of the glass”, and one of his draft statements says that the appellant first “took a big gulp” from the glass. In cross-examination however, Mr Taylor described this first drink as a “sip”.

3. [21]

   Mr Taylor continued:

4. [22]

   In a statement tendered by the respondent (Exhibit 8), Mr Taylor gave the following account:

5. [23]

   A draft statement of Mr Taylor (Exhibit 9) included the following passages:

6. [24]

   In a supplementary statement (also part of Exhibit E), Mr Taylor said that, prior to him agreeing to rent the property, the respondent complained to him about the previous tenants leaving the kitchen drains blocked. The respondent showed him a container of “Drano” and said, “I’ve had to use this to clear the drains, and if it happens again, use this!”.

7. [25]

   In his handwritten statement, Mr Taylor said that the respondent had said that he had unblocked the drains “with caustic soda which he left on the kitchen sink”. Mr Taylor also said that, after tasting the liquid that the appellant had drunk, his “first reaction was [that it was] caustic soda. I said that’s caustic soda”.

8. [26]

   In the course of Mr Taylor’s cross-examination, the following exchange took place:

Ms Hazel Taylor

1. [27]

   Ms Hazel Taylor is the mother of Christine and Martin Taylor. She is the appellant’s grandmother.

2. [28]

   Ms Hazel Taylor recalled that, while she was working in the kitchen on 8 April 2012, she heard the appellant say “drink of water”. She did not see what happened next, but heard Christine Taylor say “get that drink outside”. She continued:

3. [29]

   She added that, from her knowledge of the appellant, she could say that “when he was handed the glass of water he would have gulped a drink straight away”.

Mr Faausu Afoa

1. [30]

   Mr Afoa is the appellant’s father. His statement included the following:

2. [31]

   In cross-examination, Mr Afoa said that Christine Taylor accompanied the appellant to Gosford Hospital in an ambulance whilst Mr Afoa followed in a car. The ambulance arrived at the hospital well before he did.

3. [32]

   In the course of Mr Afoa’s cross-examination he was referred to the history recorded at Westmead Children’s Hospital (see [42] below), to which the appellant was later transferred. Mr Afoa said that he could not recall giving that history. The following exchange then occurred:

Mr Barry McBride

1. [33]

   Mr Barry McBride is the respondent and the owner of the premises upon which the appellant’s injury occurred. He was interstate at the time of the barbeque. His statement included the following:

2. [34]

   After Mr McBride heard about the accident, he spoke to his son (Mr Gary McBride) about it. His statement continued:

3. [35]

   In a supplementary statement, Mr McBride said that he became “well acquainted with the properties of caustic soda over the many years of working at Alcan” (which operated a fabrication plant including furnaces for remoulding aluminium). He said that he regarded caustic soda “as an extremely dangerous substance and never used it in a domestic setting at all”.

Mr Gary McBride

1. [36]

   Mr Gary McBride attended the barbeque but did not see anything of relevance until he heard the appellant scream and indicate that there was something wrong with his mouth, that it was burning. He saw the appellant holding a glass with a small amount of liquid in it. He said that Martin Taylor picked up the glass, “sniffed it” and “reacted by pulling his head away and pulling a face”. In his supplementary witness statement Mr McBride recorded that Mr Taylor then said:

2. [37]

   In cross-examination, Mr McBride confirmed that in his supplementary statement he made no reference to caustic soda. He also conceded, however, that in a portion of his original witness statement that was not pressed, he said that Mr Taylor’s admission regarding the cause of the incident identified caustic soda as the substance in the glass. Mr McBride then confirmed that his recollection was that Mr Taylor had referred to caustic soda, and had not mentioned hydrochloric acid.

Ms Alexandra Bryant

1. [38]

   Ms Alexandra Bryant is a qualified social worker. She worked at Gosford Hospital in April 2012.

2. [39]

   Ms Bryant had no recollection of the appellant’s attendance at the hospital on 8 April 2012, but confirmed that notes she made in the hospital records on that day included the following:

3. [40]

   Ms Bryant said that she would not have recorded this history unless she was satisfied that it came from a reliable source. She added:

Dr Alexandra Thorburn

1. [41]

   Dr Alexandra Thorburn is a medical practitioner. She was practising at Westmead Children’s Hospital in April 2012.

2. [42]

   Dr Thorburn’s notes contained in the hospital records include the following:

3. [43]

   Dr Thorburn continued:

4. [44]

   In cross-examination, Dr Thorburn stated that if she had been told that the appellant had ingested caustic soda from a Drano container, she would have regarded such information as significant and would have documented it.

5. [45]

   In addition to Dr Thorburn’s notes, the following triage notes were contained in the hospital records:

THE JUDGMENT AT FIRST INSTANCE

1. [46]

   The primary judge stated at the outset that the case before her involved major factual disputes and that the credibility of the lay witnesses was strongly in issue (Judgment [4]). Her Honour noted that the appellant’s particulars of negligence included an allegation that the respondent negligently caused a dangerous chemical to be placed in a clear vessel, left that vessel in a kitchen, and failed to warn the appellant and others of that fact (Judgment [28]). Her Honour stated that if the appellant’s pleaded version of events was accepted, he would have established negligence pursuant to the Civil Liability Act 2002 (NSW) (Judgment [34]). This proposition was not contested on appeal.

2. [47]

   The primary judge undertook an extensive examination of the evidence, including of the alleged inconsistencies in Martin Taylor’s evidence. Having referred to Ms Bryant’s evidence, her Honour stated:

3. [48]

   As to the exchange regarding the accuracy of the Westmead Children’s Hospital records, which took place during Mr Afoa’s cross-examination and is quoted in [32] above, her Honour stated:

4. [49]

   Her Honour noted that the outcome of the case largely depended on her evaluation of the credit of each witness, “but critically, that of Christine, Martin and the defendant and, to a lesser extent that of Hazel” (Judgment [124]). Her Honour concluded that Christine Taylor was either mistaken as to what occurred on the day of the barbeque, or had tailored her evidence “to present the plaintiff’s case at its highest” (Judgment [129]). Her Honour said that she had serious reservations about the reliability of Christine’s evidence (Judgment [135]). Her Honour made the following further credibility findings:

5. [50]

   The primary judge summarised her conclusions as follows:

DETERMINATION OF THE APPEAL

1. [51]

   As the findings that led to the primary judge’s rejection of the appellant’s case were credit-based, the principles stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28] and [29] are applicable to this Court’s determination of the appeal. According to those principles, to successfully challenge the primary judge’s credit-based decision the appellant must show that the decision is contrary to “incontrovertible facts or uncontested testimony”, is “glaringly improbable” or is “contrary to compelling inferences”.

2. [52]

   It is convenient to commence by assessing the likelihood that the appellant’s version of events is correct by reference to evidence that is wholly or substantially uncontroversial.

3. [53]

   There is no doubt that, whilst in the kitchen, the appellant was given a glass of water in response to his request for a drink, and told to take the glass outside. Both Christine and Hazel Taylor gave evidence to this effect. Martin Taylor’s evidence is consistent with this being the case.

4. [54]

   It is clear that the appellant drank from the glass almost immediately. Martin Taylor indicated this when he said that the appellant “came outside with a glass of water which he sipped and put it on the table in front of everyone and ran off to play” ([20] above). Although neither Christine nor Hazel Taylor gave evidence of seeing the appellant drink from the glass immediately after he was given it, that sequence of events is consistent with their evidence. Moreover, as the appellant asked for a drink and was given one, the obvious inference is that he drank from the glass before he went off to play. Hazel Taylor (who, as the appellant’s grandmother, no doubt knew him well), said that, from her knowledge of the appellant, “he would have gulped [the] drink straight away” ([29] above).

5. [55]

   It is also clear that the appellant did not suffer any immediate adverse reaction when he drank from the glass at this time. As Martin Taylor said, the appellant drank from the glass and then ran off to play.

6. [56]

   A significant time passed before the appellant was seen to have another drink. Unsurprisingly, because of the difficulty of estimating time, the witnesses gave differing estimates of the length of that period of time. Christine Taylor gave evidence that it was “15 minutes or so” ([10] above), Martin Taylor said it was “roughly half an hour” ([21] above), and Hazel Taylor referred to it as “maybe 10 minutes” ([28] above).

7. [57]

   When the appellant had this second drink (whether it was from the same glass is a matter in issue), he immediately started screaming. Christine Taylor gave evidence to this effect ([10] above), as did Martin Taylor who said that the appellant “almost immediately … screamed and started running around like he had been electrocuted” ([22] above). Mr Afoa said that the appellant “straight away started spitting and grabbing his tongue, he was screaming and running around in circles” ([30] above). When recounting the incident, Gary McBride told the respondent that “immediately the child began to scream” ([34] above). Ms Hogan’s seemingly contrary recollection that there was a gap of “a minute or two” before the appellant had a reaction to his drink ([17] above) cannot be accepted in light of the wealth of contrary evidence, nor did the appellant suggest it should be.

8. [58]

   These circumstances (which are clearly established by the evidence) strongly indicate that the appellant did not drink from the same glass on each of the two occasions that I have identified. If the appellant did drink from the same glass, these circumstances indicate that the contents of the glass must have been different when he drank from it the second time.

9. [59]

   I note that neither party suggested that there was a change in the contents of the glass. If that did occur, however, it contradicts the appellant’s case, because acceptance of that sequence of events depends upon the corrosive substance being added after the glass left the kitchen on the day of the barbeque. This is entirely different to the appellant’s contention that some days before the barbeque the respondent left the glass, the contents of which caused the appellant injury, in the kitchen with a corrosive substance in it.

10. [60]

    Acceptance of the appellant’s case that the corrosive substance was already in the glass when it was given to the appellant in the kitchen would involve accepting that it was possible that the appellant could have at least sipped from the glass (when he first drank from it) without having an adverse reaction to it, or at least only a reaction that was delayed for a long period until after he had finished playing and took his second drink (to which he had an immediate adverse reaction). There was no medical or other evidence to suggest that the appellant could have sipped or drunk from the glass yet not experienced any adverse reaction until at least ten minutes later. That hypothesis seems very unlikely, given that drinking from the glass with the same substance a second time immediately caused the appellant to scream in agony. Accordingly, the appellant’s case cannot be accepted as correct.

11. [61]

    This analysis accords with the primary judge’s reasoning at [188] and [192] of her judgment (see [50] above). It does not depend upon the resolution of any conflicts in the evidence, and indicates that her Honour’s decision was not, as the appellant contends, “glaringly improbable”. On the contrary, it suggests that her Honour’s decision was clearly correct.

12. [62]

    I turn then to the primary judge’s findings that were the subject of particular challenge by the appellant. I note that, even if the appellant was successful in challenging some, or even all, of these findings, this success would not in my view lead to the conclusion that her Honour’s decision was “glaringly improbable”. This is because error in the making of any of those subsidiary findings would not detract from my analysis set out in [51]-[60] above.

Whether Martin Taylor tasted the liquid in the glass

1. [63]

   In his written submissions, the appellant first contended that the primary judge overlooked important, unchallenged evidence given by Hazel Taylor that she went to the local chemist to obtain medication to relieve the burning sensation in Martin Taylor’s mouth. Mr Taylor gave evidence that this burning sensation occurred after he drank from the same glass from which the appellant had drunk ([21] above). I agree that regard to this evidence may well have caused her Honour to conclude, contrary to what she found in her judgment ([49] above), that Mr Taylor did in fact taste the substance.

2. [64]

   The appellant submitted to this Court that the primary judge’s failure to find that Mr Taylor tasted the substance was important because “[i]t is fanciful to suggest that Martin would have drunk from a glass that he knew contained hydrochloric acid or caustic soda” (written submissions [24]). However, even if Mr Taylor had used the corrosive substance to clean the barbeque, or for some other purpose, it might not have been obvious to him that this substance was in the glass from which the appellant drank. Further, it cannot be assumed that in such circumstances Mr Taylor would have refrained from testing the contents of the glass by tasting them as, even on Mr Taylor’s evidence, he was rash enough to taste something that he knew had caused a violently adverse reaction to the appellant. It is therefore not inconceivable that he would have taken a sip of the liquid, even if he suspected that it contained the corrosive substance he had used to clean the barbeque.

3. [65]

   Further, even if the primary judge had made a different finding in relation to this issue, her Honour had before her considerable evidence of Mr Taylor’s responsibility for the substance’s presence in the glass. First there was Gary McBride’s evidence of Mr Taylor’s admission. Her Honour’s acceptance of this evidence was credit-based and is the subject of a separate challenge (see [67] below). Secondly there were the medical records from the two hospitals. Whilst such records must be treated with caution (see [70] below), it is hard to imagine that both Ms Bryant and Dr Thorburn, on independent occasions, wrongly recorded that a person (almost certainly Christine Taylor) informed them that the appellant’s uncle (that is, Martin Taylor) was the source of the corrosive substance. Such information was of particular importance to Ms Bryant because, as she indicated, her role as a social worker required her to find out who was responsible for the accident and whether that person had responsibilities to care for children (which Mr Taylor did not) (see [40] above).

4. [66]

   In any event, the onus of proving his case lay on the appellant. Her Honour therefore had to determine whether the appellant had proved, on the balance of probabilities, that the corrosive substance was in the glass he was given in the kitchen, and that the respondent was responsible for the substance’s presence in the glass. It was not incumbent on the respondent to prove what the substance was and where it came from.

Martin Taylor’s admission

1. [67]

   Secondly, the appellant challenged the primary judge’s acceptance of Gary McBride’s evidence that Martin Taylor said to him “there must have been some residue in the glass after I cleaned the barbeque with it” (see [36] above). The appellant submitted that it is “inconceivable that Martin would have cleaned the barbeque hotplate with a substance as corrosive as either hydrochloric acid or caustic soda, given that his family and friends were going to eat sausages cooked on the hotplate that afternoon” (written submissions [26]). However her Honour’s acceptance of the evidence to the effect that Mr Taylor did clean the barbeque as alleged was a credit finding made after extensive cross-examination of the relevant witnesses. Contrary to the appellant’s submission, this finding is not implausible. Mr Taylor may have thought that a wash down after the substance had been used, in combination with the intense heat generated in cooking on the barbeque, would remove any problem of contamination from the corrosive substance. It was for her Honour to consider this possibility in light of the whole of the evidence, including the hospital records which suggested that Mr Taylor was the source of the corrosive substance (see above). The appellant has not shown her Honour’s finding to be glaringly improbable.

Whether the substance was hydrochloric acid

1. [68]

   Thirdly, the appellant challenged the primary judge’s finding that the substance the appellant ingested was most likely hydrochloric acid.

2. [69]

   There was conflicting evidence on this issue. For example, Martin Taylor described the substance as caustic soda ([21] above) and Gary McBride recalled Mr Taylor describing it as a “caustic soda solution” ([36] above). On the other hand, Christine Taylor said that she recalled telling a nurse at Gosford Hospital that the appellant drank “acid”, and both Gosford Hospital and Westmead Children’s Hospital contained histories referring to “hydrochloric acid”.

3. [70]

   For the reasons given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], care must be taken in relying upon medical records as evidence of facts in issue in court proceedings. Relevant considerations to which his Honour referred included that the author of the notes might not have been cross-examined and that medical histories might have been “taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort”.

4. [71]

   In the present case, the authors of the principal hospital records referring to the appellant’s ingestion of hydrochloric acid were cross-examined. Further, it should be concluded that the identification of the substance ingested was of potential importance to the manner in which the appellant was to be treated in hospital, and would have been regarded as significant by the hospital staff. In fact, Dr Thorburn gave evidence to the effect that she would have considered such information to be significant (see [44] above). In these circumstances, there was in my view no reason for the primary judge not to attribute some weight to the relevant notes. Nevertheless, in respect of the references to the hydrochloric acid, it seems appropriate for that weight to be limited because there was room for the hospital’s informant, probably Christine Taylor, to be mistaken about the nature of the substance that injured the appellant. Presumably Ms Taylor was relying in this respect on what she was told by others. On the other hand, it seems unlikely that she would, without good cause, blame her brother for the catastrophic injury to her child. Therefore the notes were entitled to greater weight so far as they related to the origin of the substance.

5. [72]

   The appellant further submitted that there was “no evidence that hydrochloric [acid] was on the premises on or before 8 April 2012” (written submissions [32]). However, there is no reason why such evidence was essential to her Honour’s finding that the substance was hydrochloric acid. Martin Taylor was clearly a potential source as he had used it “over the years” for brick cleaning, including to clean the brickwork on barbeques (see [26] above). He said that if he needs hydrochloric acid he obtains it from brick cleaners and asks “for a litre or two” at a time (ibid).

6. [73]

   The appellant also submitted that Dr Thorburn’s note in the Westmead Children’s Hospital records, which stated that the appellant’s “uncle had poured hydrochloric acid from a glass earlier, [and] some had crystallised in the bottom of the glass” ([42] above), was inconsistent with the evidence that Martin Taylor had only moved into the premises on the day of the barbeque. The appellant submitted that the timing of Mr Taylor’s move was “far more congruent with the appellant’s case that, in fact, the respondent’s caustic soda from some days before ‘had crystallised in the bottom of the glass’” (written submissions [34]). However, whether hydrochloric acid could crystallise and how quickly that might occur were issues not dealt with in the evidence. In any event, I note that Mr Taylor’s evidence (in Exhibit E) was that he commenced to move his belongings into the premises on Friday 6th April 2012. Further, to say that a different conclusion as to the nature of the substance would be “far more congruent” with the appellant’s case falls well short of establishing that her Honour’s subsidiary finding that the substance was likely to have been hydrochloric acid was “glaringly improbable”. Finally, as I pointed out earlier, the setting aside of this subsidiary finding, or any of the other findings to which I have referred, would not in any event require acceptance of the appellant’s case. The analysis at [51] to [60] above would remain as a refutation of that case.

Whether the respondent brought caustic soda to the premises

1. [74]

   Finally, the appellant challenged the primary judge’s finding that the respondent did not bring a container of caustic soda to the premises and use it to unblock the kitchen sink drain. These submissions do no more than seek to re-argue an issue that was essentially determined by the primary judge by reference to her conclusions as to the credit of the witnesses. None of the matters to which the appellant referred in support of this submission render her Honour’s finding “glaringly improbable”, or otherwise satisfy any of the tests stated in Fox v Percy (see [51] above). In particular, the appellant’s submission that it would not have been logical for the respondent to use a hose to unblock the sink drain rather than use a product such as “Drano” cannot be accepted. In the absence of relevant expert evidence, this Court is not in a position to determine what would or would not be a logical way to unblock such a drain. In any event, it cannot be assumed that the respondent would necessarily have acted logically.

CONCLUSION AND ORDER

1. [75]

   As I have indicated, the sequence of events apparent from uncontroversial evidence contradicts the appellant’s claim that he ingested a corrosive substance that the respondent had left in a glass in the kitchen of the premises some days earlier. As a result, the primary judge’s decision was not “glaringly improbable”. Further, the decision was not demonstrated to be open to challenge on any other basis. As I have noted, even if the appellant had been successful in any of his challenges to the primary judge’s subsidiary findings, he would not have been successful in his challenge to her Honour’s ultimate finding.

2. [76]

   In these circumstances, I propose that the appeal be dismissed with costs.

3. [77]

   PAYNE JA: I agree with Macfarlan JA.

4. [78]

   SACKVILLE AJA: This is an unfortunate case arising out of serious injuries sustained by a three year old boy when he drank water from a glass which contained a corrosive substance.

5. [79]

   I have had the advantage of reading the judgment of Macfarlan JA in draft. I agree with his Honour that the appeal must be dismissed and I also agree with his Honour’s reasons. Because this is such an unfortunate case, I add the following comments.

6. [80]

   As Mr Cummings SC submitted on behalf of the respondent, the critical issue at trial was not whether the appellant’s injuries were caused by ingesting hydrochloric acid, but whether the appellant could establish that his injuries were caused by drinking water from a glass which the respondent had left on the rental premises and which contained a residue of caustic soda. Nonetheless, the hypothesis advanced by the respondent by way of defence and which he sought to support by evidence, was that the appellant drank from a glass containing hydrochloric acid which had been brought onto the premises by his uncle, Mr Martin Taylor.

7. [81]

   The primary Judge noted that it was impossible to reconcile the competing accounts as to the method used by the respondent to unblock the drain in the kitchen of the rental property and the circumstances in which the appellant came to ingest a corrosive substance. A great deal therefore turned on her Honour’s assessment of the credibility of the witnesses called by each party.

8. [82]

   The respondent, who was aged 82 at the date of the trial, emphatically denied that he had used Drano (containing caustic soda) to unblock the sink on the premises. He also denied keeping caustic soda either on the premises where the accident occurred or on the neighbouring property, which he also owned. When asked why he had never used Drano granules, the following exchange took place:

9. [83]

   The appellant’s counsel submitted to the primary Judge that the respondent’s evidence was unconvincing and should not be accepted. In assessing this submission, her Honour acknowledged that the respondent presented “as a man of very definite black and white opinions” and that he had displayed a somewhat defensive attitude in giving his evidence. Nonetheless, her Honour, having carefully observed the respondent in the witness box, [1] accepted his evidence that he did not take Drano from his residence to the neighbouring rental property and did not use Drano to clear the partially blocked drain.

10. [84]

    By contrast, the primary Judge did not accept key elements of evidence given by the witnesses called on behalf of the appellant. Her Honour gave detailed reasons for concluding that Christine Taylor, the appellant’s mother, was either mistaken about the circumstances of the accident or had tailored her evidence to present the appellant’s case at its highest. [2] Crucially, her Honour also identified a number of significant inconsistencies in Mr Taylor’s evidence and found that he had resorted to “evasion” to explain some of the inconsistencies. [3] In the light of these inconsistencies, it is not surprising that her Honour did not accept Mr Taylor’s evidence as to the circumstances in which the accident occurred [4] or his claim that the respondent told him that he (the respondent) had cleared the blockage in the sink using Drano. [5]

11. [85]

    Her Honour’s preference for the evidence of the respondent over that of the appellant’s witnesses did not solely rest on her assessment of the demeanour of the witnesses or inconsistencies in their evidence. The objective evidence in the form of the records prepared by the social worker at Gosford Hospital (Ms Bryant) and the paediatric specialist who saw the appellant at Westmead Hospital (Dr Thorburn) supported the respondent’s case that the applicant’s injuries resulted from ingesting hydrochloric acid.

12. [86]

    As Macfarlan JA points out, [6] care must be taken before relying on a patient’s history or the circumstances of an accident recorded in clinical notes or other medical records as cogent evidence of disputed facts. In this case, however, both Ms Bryant and Dr Thorburn gave evidence and were cross-examined. Ms Bryant’s evidence, in particular, was to the effect that she had direct discussions with the appellant’s family and that she had a specific reason to record accurately the information given to her concerning the substance ingested by the appellant. The primary Judge accepted Mr Bryant’s evidence. Her Honour was entitled to take this evidence and the medical records into account as reinforcing her assessment of the credibility and reliability of the various witnesses.

13. [87]

    I agree with Macfarlan JA that the primary Judge appears to have overlooked unchallenged evidence given by Hazel Taylor that she went to the local chemist to see if she could get something to relieve the burning in Mr Taylor’s mouth. If this evidence was accepted, it strongly supported Mr Taylor’s claim that he tasted the liquid in the glass after the appellant drank from it, although it would not necessarily support his claim that he thought the corrosive substance was caustic soda.

14. [88]

    As the primary Judge found, [7] neither Hazel Taylor nor Christine Taylor said that Mr Taylor identified the substance as caustic soda. Hazel Taylor’s evidence was that Mr Taylor, after tasting the liquid, said that “it’s acid”. Christine Taylor said only that her brother tasted the liquid and immediately shouted that it was burning him.

15. [89]

    The primary Judge took into account her finding that Mr Taylor did not taste the liquid in making other findings. Assuming that this finding was in error, there are two reasons for concluding that the error does not interfere with the ultimate findings made by her Honour. The first, as Macfarlan JA has explained, is that the objective evidence and her Honour’s assessment of credibility (independently of whether Mr Taylor tested the contents of the glass) support the findings, which cannot be regarded as glaringly improbable or contrary to the compelling inference. The second is that even if Mr Taylor tasted the contents of the glass, bearing in mind the unreliability of his evidence, that fact does not establish that the glass contained caustic soda rather than hydrochloric acid.