Afoa BHNF Christine Taylor v McBride - [2016] NSWSC 1415 - NSWSC 2016 case summary — Zoe

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Afoa BHNF Christine Taylor v McBride

[2016] NSWSC 1415

Supreme Court of NSW|2016-05-18|Before: Wilson J, Ex J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-05-18

Before

Wilson J, Ex J

Source

Original judgment source is linked above.

Judgment (37 paragraphs)

[1]

Judgment

HER HONOUR: This is a tragic case. On 8 April 2012 the plaintiff, who was three years of age, suffered serious injuries when he accidently ingested a highly corrosive substance. The plaintiff is presently aged 7 years. This is a judgment on liability only.
The plaintiff is Vai Afoa by his tutor, his mother, Christine Ann Taylor. The defendant is Barry Anthony McBride.
On 13 May 2015, Wilson J made an order that separate hearings were to be conducted to determine firstly the issue of liability and subsequently the issue of quantum.
There are major factual disputes as to the circumstances by which the plaintiff came to ingest a corrosive substance at the barbeque held on Easter Sunday 2012. Credibility of all the lay witnesses (but not the medical staff) is strongly in issue.

[2]

The evidence

Christine Taylor relied on her statement dated 19 August 2015 ("CT") and her supplementary statement dated 13 May 2016 ("CTS") (Ex B); the statement of Hazel Ann Taylor dated 7 February 2015 ("HT") (Ex H); the statement of Martin Christopher Taylor dated 21 August 2015 ("MT") and his supplementary statement dated 13 May 2016 ("MTS") (Ex E); the statement of Catherine Hogan dated 19 August 2015 ("CH") (Ex D); and the statement of Faausu Afoa dated 15 August 2015 ("FA") (Ex J). Catherine Hogan was unable to attend Court to be cross examined as a member of her family passed away shortly before the hearing. Her statement was admitted into evidence by consent. The remainder of the plaintiff's witnesses gave evidence and were cross examined.

[3]

Background

The defendant owns two adjoining properties; one at 12 XXX Road, Wamberal, where the defendant resides, and the other at 14 XXX Road, Wamberal ("the rental property"). There is no dividing fence between these properties. The rental property consists of a two bedroom timber fibro home with a detached laundry/garage that has been converted into bedsitter accommodation. (BM, [14]-[15]; Ex 3).
Hazel had been to the rental property a number of times before the plaintiff's accident. She occasionally visited her friend, Kylie Burridge ("Kylie"), when Kylie lived there for "some years." Hazel did not recall seeing any poisons in the rental property during these visits. (HT, [2]; Ex H).
The property had been leased to a couple whose lease expired on 18 March 2012. These tenants vacated the premises sometime during the week prior to 18 March 2012. On 18 March 2012, the defendant held a final inspection. The former tenants did not attend. (BM, [22]; Ex 3).
The plaintiff alleges that between 19 and 25 March 2012, the defendant undertook clean up and repair work on the property. (ASC, [4]). Before the former tenants had moved out the defendant compiled a list of jobs he would need to attend to prior to the next tenant moving in. Between the end of March 2012 and early April 2012, the defendant hired Kylie to undertake painting in the property. Soon after, Kylie sub hired her son and Christine. They were instructed to clean, repaint, mow, whipper snip, gurney and prepare the property for rental. (CT, [2]-[3]; Ex B). From the defendant's records, Kylie and Christine worked from Monday 19 March 2012 to Thursday 22 March 2012 from 9.00 am to 2.00 pm on each day. The defendant recalls that Christine brought her children along and they wandered between the rental property and the defendant's residence. (BM, [25]-[26]; Ex 3). Christine denies that the children were present at the property while she was cleaning the house (T39.33-38); however nothing turns on this factual dispute.
While Christine was cleaning the rental property, Martin visited her to retrieve something he had left in her ute. He became aware that the property was for rent. He approached the defendant to enquire about renting the property. (CT, [7]; Ex B). On 24 March 2012 and 25 March 2012, Martin inspected the rental property, signed a lease which commenced on 31 March 2012 and paid two weeks' rent in advance. Martin informed the defendant that he would be moving into the property on 31 March 2012. On 26 March 2012, Martin received the keys and paid a rental bond. (BM, [18]-[20]; Ex 3).
Hazel also visited the rental property once or possibly twice while Christine and Kylie were cleaning to say hello and give them assistance with the cleaning. Hazel cleaned the shed, shower and laundry that were in a separate building attached to the garage in the backyard. She did not wish to be paid for her contribution. She does not recall seeing the defendant during her visits as she only attended the rental property for a "couple of hours" during this time. (HT, [3]-[4]; Ex H).
Between 24 March 2012 and 27 March 2012, Kylie and Christine carried out further work but at the defendant's residence. They used their own cleaning equipment and cleaning products. (BM, [28]-[30]; Ex 3).
On 26 March 2012, the defendant was told by his nephew that his sister, who was critically ill, had been admitted to hospital in Brisbane. From 29 March 2012 until 24 April 2012, the defendant was absent from New South Wales.
On 8 April 2012, which was Easter Sunday, Martin held a barbeque ("the barbeque") to thank those who had assisted him with moving into the rental property. At this barbeque the plaintiff ingested a corrosive substance, causing him serious internal injuries, and was rushed to hospital.

[5]

The allegations in the amended statement of claim ("ASC")

The allegations in the ASC can be summarised as follows.
On the morning of 19 March 2012, while Kylie and Christine were waiting to enter the rental property, they heard the defendant remonstrating loudly with an older woman who had been tidying the rental property about the drain in the kitchen sink of the rental property being blocked and that he would have to unblock it. (ASC, [5]).
Later that day the defendant returned with a large container of caustic soda (known colloquially as "Drano"), poured some of it into a glass and then from the glass down the sink. The defendant left the partially empty glass on the window ledge of the kitchen and indicated that he would carry out further treatments to the blocked drain in the days to come. (ASC, [7]).
The defendant returned to the premises the following day or the day after. He used the caustic soda again, pouring it into the same glass he had used on the previous occasion. He had obtained the glass from his premises. (ASC, [8]).
Once the process was repeated the defendant returned the glass to the kitchen sink/window ledge and left the rental property. On this occasion the glass was left with a quantity of caustic soda in it. (ASC, [9]).
The defendant left the glass on the kitchen bench and/or window sill where it remained after Christine finished the work inside the rental property, which she did on her own as Kylie had ceased working at the rental property after approximately the second day. (ASC, [10]).
On Sunday 8 April 2012, the plaintiff was given the glass with a small quantity of water added to it from the sink next to where it had been left by the defendant. When the plaintiff started screaming and spitting moments after consuming the contents of the glass, Christine recognised the glass as the glass which the defendant had used with the caustic soda and left on the kitchen bench and/or window sill. (ASC, [11]).
In the circumstances: (a) There was a foreseeable risk of harm to the plaintiff; (b) The risk was not insignificant; (c) A reasonable person in the defendant's position would have taken precautions against the risk of harm; (d) Further, the risk of harm was very serious and there was a probability that the harm would occur if the defendant did not exercise reasonable care. (ASC, [12]).
The plaintiff alleges that there was a foreseeable risk that he would suffer harm in circumstances where the defendant left caustic soda in a clear vessel, that the risk of the plaintiff drinking from the same in the belief that it contained water was not insignificant and a reasonable person in the defendant's position would have ensured that the vessel was not left within reach of children, the risk of the plaintiff suffering harm was very serious and there was a probability that the plaintiff would suffer serious bodily injury if the defendant left a clear vessel containing acid within an area that the plaintiff could access. (ASC, [13]). It is important to note that this pleading refers to the clear vessel containing acid yet the case the plaintiff ran at trial was that the plaintiff swallowed caustic soda.
It is alleged that the injuries suffered by the plaintiff was caused by negligence on the part of the defendant. (ASC, [14]).
The particulars of negligence are that the plaintiff alleges that the defendant, by his servants, agents and/or sub contractors, was guilty of negligence in that he: (a) Failed to ensure that dangerous chemicals were not left within reach of children; (b) Caused a dangerous chemical to be situated within reach of children; (c) Negligently caused a dangerous chemical to be placed in a clear vessel left in a kitchen; (d) Failed to ensure that dangerous chemicals were adequately secured; (e) Carried out work involving dangerous chemicals in close vicinity to children; (f) Failed to take any or any adequate precautions for the safety of the plaintiff; (g) Expose the plaintiff to a risk of injury that could have been avoided by the exercise of reasonable care on his part; (h) Failed to observe that the plaintiff was in a position of peril under the circumstances; (i) Failed to warn the plaintiff or others of the existence of a dangerous chemical in a clear vessel. (ASC, [15]).
The plaintiff alleges that, by reason of the abovementioned negligence, the plaintiff has suffered injury, loss and damage. (ASC, [16]).

[7]

Relevant law

It is convenient that I set out the relevant law in relation to liability under the Civil Liability Act 2002 (NSW).
Section 5B of the Civil Liability Act is contained in "Division 2 Duty of Care". It states: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
Section 5D is contained in "Division 3 Causation". It relevantly states: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."
If the plaintiff's version of events as pleaded is accepted, the plaintiff will have established negligence pursuant to ss 5B and 5D of the Civil Liability Act.
The plaintiff's and defendant's versions of events are starkly different, so the focus of this judgment is on making factual findings. I shall set out my judgment in the following order. Firstly, I will set out the evidence of the witnesses as to what they say happened at the barbeque on Easter Sunday in chronological order; secondly, I will make findings as to the witnesses' credibility; and finally, I will draw my conclusions.

[8]

The two conversations and Christine's version of the unblocking of the kitchen drain

Christine says that she saw the defendant bring from his residence to the rental property a container of caustic soda, like the one in the photograph attached to Hazel's statement (HT; Ex H) ("the container").
In terms of how the defendant poured the caustic soda down the sink hole, Christine says that she saw the defendant open the lid of the container and shake granules from it into the kitchen sink drain hole. She says that he then asked, "Has anyone got a glass?" Christine says she handed him a glass, like the one in the photographs attached to Hazel's statement (HT; Ex H) ("the glass"), into which she saw him pour granules from the container. He then added water from the kitchen tap and poured the liquid from the glass down the kitchen sink drain hole. The defendant then left the container and the unwashed glass next to each other on the stainless steel side of the kitchen sink. (CTS, [3]; Ex B).
Christine says that she definitely saw the defendant use the Drano on 19 March 2012, which was the first day she arrived to clean the rental property. She says that she saw the defendant pour caustic soda down the kitchen sink drain hole on three occasions; twice during the first week and a third time during the following week. She was certain about the first two dates but cannot remember the date of the third. She says that she just happened to be walking through the kitchen on those three occasions and saw the defendant putting Drano down the sink. She said it could have happened on more occasions but she only saw three. (T55-T56).
She says that she did not leave the Drano on the stainless steel side of the kitchen sink, nor did she use it or touch it. She says that she did not clean the kitchen sink. (T38.49-50; T39.1-26).
In cross examination, Christine gave the following evidence: "Q. Do you know at what point in that transition that he left to go to Queensland or are you not sure? A. It'd be like a week before the accident, I guess. Q. What I want to suggest to you that if there really was a glass containing some degree of caustic soda and a product that you knew to be dangerous sitting on the kitchen sink you would have put it out of harm's way. A. It was not mine to touch. Q. That's not what I asked you. I'm suggesting to you that you would have put it out of harm's way? A. When? Q. Any time. A. Not necessarily, no. We were all working and cleaning. It was not - I didn't, I didn't bring it in, I didn't need to touch it. It's not mine to move. Q. The process of cleaning a property must necessitate you touching and moving things from time to time, mustn't it? A. Not necessarily, no. It depends on what job it is that I have which you'll see I had a lot of external jobs more so and painting. Q. Did it concern you that you say these objects were sitting on the kitchen sink? A. Well, we're all adults. It does not, no. Q. Do you say they were still sitting on the kitchen sink on 8 April? A. I don't know that. Q. Do I take it from your evidence that you were absent from the property from 26 or 27 March until the day of the barbecue? A. Yes. Q. Do you say to her Honour that on the day of the barbecue you have no recollection of those items being on the kitchen sink? A. That's right. I did not see them." (T40.12-47).

[11]

The defendant's version of clearing the drain

The defendant agrees that there was a problem with the kitchen sink drain. He recalls that the kitchen sink was slow to drain, although importantly he says that it was not completely blocked. The method by which he says that he cleared the blockage from the kitchen sink was as follows. He removed the flyscreen on the window above the sink and the S trap from under the sink, brought the hose in through the window and inserted the hose down into the drain by about 2.5 to 3 metres. He then turned the hose on full and blasted the "muck" out of the pipe. He did this three times and refilled the sink with hot water. The drain was cleared after he put the hose down the drain for the third time. All those attempts took place on the same day. The defendant is adamant that he did not use any chemical product or acidic substances to unblock the kitchen drain. Rather, he used a high pressure garden hose with water alone. He says that he does not keep any acid in any form in either his residence or the rental property. (BM, [32]; Ex 3).
When cross examined about his alleged use of caustic soda, the defendant emphatically denied that he shook caustic soda crystals down the sink hole and that he put the crystals into a glass, added water and then poured the mixture down the sink. He said that to use the latter method is more dangerous because "A glass is a drinking vessel and it should never be used for anything other." (T184.33-34). He denied that on 19 March 2012, the day the previous lease expired, he brought onto the property a container of caustic soda. When asked why he had not used it, he said, "It's a last resort in my engineering experience. Part of our first aid training is such that Drano is a hazardous chemical and it shouldn't be used." (T185.1-2). He also said, "When you use a hose in the pipes to clear a drain, the last thing you do is use your bare hands on the water that came bubbling out of the pipe and into the kitchen, on my hands and on my knees. It's a dangerous chemical and I would never use it." (T185.14-17).
On 8 March 2012, in order to clean up the residential property, the defendant purchased materials from Bunnings. He has produced receipts of his purchases. There is no record of caustic soda being purchased, although those receipts in themselves do not necessarily establish he never purchased caustic soda.
While the defendant said he has no experience with caustic soda (T178.43-44), he was familiar with its properties and what it can do. He says he was aware of the problems with HAZ chemicals and that there was no way in the world he would have used it on a pipe. (T179.1-8). He said he had no need to use caustic soda before or after the incident.
The defendant gave evidence about his qualifications, experience and knowledge in relation to caustic soda. The defendant says that he was an electrical engineer employed by Alcan, where he had worked for 45 years. He retired in 1997. Alcan operated a fabrication plant which included furnaces for remoulding aluminium. He says caustic soda was used in the process of remoulding aluminium to extract chlorine gas which was liberated during the melting of aluminium. Although the defendant was not involved in this side of the operation, he was well acquainted with the properties of caustic soda. He regarded it as an extremely dangerous substance that he would not use in a domestic setting at all. (BM, [3]-[4]; Ex 3).
The defendant says that he undertook a number of safety courses and supervised workers handling battery acid and other caustic liquids. His TAFE qualification in electrical engineering involved a chemistry component in which he learned about the properties of caustic liquids, how they should be handled and what dangers they posed if not handled properly. He says that he has had "a great respect for dangerous liquids" throughout his working life. (BM, [6]; Ex 3).
The defendant tendered a "Material Safety Data Sheet" relating to "Caustic Soda Pearl" compiled by CBC Cleaning Products Pty Ltd. (Ex 7). This document states that caustic soda has a pH level of 13, meaning it is basic, as opposed to acidic. It also indicates that the uses for this product are as follows: "For the removal of grease from drain pipes, concrete floors, barbeques, gully traps, kitchen utensils also for cleaning toilets or removing old paint." (Ex 7, p 1). Hence Drano can be used to clean grease from drain pipes and barbeques.
The lease and a condition report of the rental property made at the commencement of Martin's tenancy were also tendered. (Ex K). Nothing was recorded in relation to the kitchen sink other than it had been marked as satisfactory.
It is impossible to reconcile these differing accounts as to the method by which the drain in the kitchen sink was unblocked by the defendant. The defendant admitted that on 24 or 25 March 2012 he spoke to Martin complaining about the former tenants pouring fat down the sink and blocking it. While the defendant admitted he spoke to the former tenant's mother, the contents of that conversation are in dispute. Christine says that the defendant's conversation with the tenant's mother was about the kitchen drain while the defendant says it was about fishing gear. The method by which Christine and the defendant say the kitchen sink was unblocked are seriously at odds. Christine says that the defendant used Drano on three different days. The defendant says he put the hose down the sink, turned the high pressure water hose on full blast and refilled the sink with hot water three times all on the same day. He was emphatic that he did not use Drano to clear the kitchen sink. This conflict can only be determined by ascertaining what the most logical explanation is and taking into account the witnesses' credibility.

[13]

The drinking glasses and caustic soda

When Martin was in the process of moving into the rental property, he says that there was one glass on the sink and one glass in the cupboard and that these two glasses were borrowed from the defendant. (T95.24-39). Martin does not recall putting the container of caustic soda in the cupboard under the sink but agreed someone else could have done so. (T95.44-50; T96.1-23).
In relation to what happened to the two glasses after he moved in, in cross examination Martin said: "Q. … After you moved in on 6 April, I'm asking you whether you have any recollection of what happened to the glasses that were on the kitchen sink when you moved in? A. The glasses were put up in the cabinet space, opened area, to the left of the sink. Q. By whom? A. Whoever packed away. Q. I don't want to be silly about this, do you know who put them there? A. No, I do not. Q. All you know is that somehow the glasses got from where you say you saw them-- A. They were stored, packed away by someone cleaning up, doing the washing up and packed away, sitting on a bench, on a ledge. (T96.47-50; T97.1-12). … Q. Your recollection is that the glasses were moved, put away by people unknown from where you first saw them, correct? A. Yes, correct. Q. You could not say what happened to them between when you saw them on 6 April and the incident on 8 April could you? A. Well I know I never used them and - Q. You personally didn't use them? A. No one used them. We had coffee. Q. For all you know, indeed I think you suggested they had been washed up and put away, correct? A. Yes." (T98.1-15).
In other words, Martin's evidence is that by 8 April 2012, after he moved into the rental property, the two glasses that had been on the kitchen sink on 6 April 2012 had been put up in the cabinet space in an open area to the left of the sink by someone cleaning and that he did not move them.
In cross examination the following exchange took place: "Q. … Do you have a recollection of what you did with it [the container of caustic soda] after disregarding it when you first moved in or do you not? A. I, I recollect-- (T93.32-34). … Q. You say your recollection was it was put under the sink. A. Yes. Q. Did you put it under the sink? A. Well I don't remember. Q. When you say your recollection-- A. Through packing and unpacking I would have cleaned up and eventually I may have put it under the sink or someone's put it under the sink. Q. Why do you say that? A. Because that's my recollection. Q. Do you recall putting it under the sink yourself or not? A. I don't. Q. Then how can you say it was placed under the sink? A. Cause it was under the sink and through the course of opening and closing, looking in. HER HONOUR Q. In the cupboards under the sink? A. In the cupboard under the sink. … Q. So it got under the sink. You don't recall moving it yourself under the sink but someone else might have, is that right? A. That's correct." (T95.44-50; T96.1-30).
Overall, Martin's evidence is that he or someone else may have put the container of caustic soda under the sink or the two glasses on the ledge in the kitchen, although he has no recollection of putting the caustic soda container under the sink. Christine has no recollection of seeing the caustic soda container or the glass beside the kitchen sink on the day of the barbeque. None of the witnesses gave evidence to the effect that they put away either the container of caustic soda or the two glasses.

[15]

The actual barbeque

Martin asked if Christine could bring her barbeque "so he could feed everyone that helped [with the move]." (T50.25-26). Fuzz, Christine's former partner and the plaintiff's father, resided at Muswellbrook around this time, working at the Mount Arthur coal mine as a plant operator. He returned to the Central Coast on weekends to spend time with his children, including this Easter weekend. (FA, [3]). Martin asked Fuzz to help with the move and he did so. Fuzz was using Christine's ute to move some furniture from Erina to the rental property. (FA, [6] and [7]). He picked up Christine's ute from her house at Bateau Bay, loaded the barbeque onto it, drove to Erina to collect the furniture and then drove to the rental property at Wamberal. (T171-T172). This evidence is not in dispute.
There are two different descriptions of the appearance of the portable barbeque. Christine gave evidence that the barbeque was new, about six months old. She could not recall the brand but it was "just a square, nice neat square one with no grill. It was just a plate." (T51-T52). She said that Fuzz used it when he was at Christine's place to cook sausages for their children. Martin said that the barbeque was a three burner with an open grill and a flat plate. It was gas powered with a lid. The gas bottle fitted underneath and sat on a hook. (T99). While Christine and Martin's evidence as to what the barbeque looked like is inconsistent, there is no doubt that Martin was the only person using this portable barbeque in the backyard to cook sausages for the children on the day of the plaintiff's accident.
The barbeque was located in the back yard where there was an outdoor table nearby. The food for the barbeque was put on that table. Christine says that the outside table was made of white plastic but the other food and the drinks were on the table in the dining room. In cross examination, Martin said the outside table could have been a sheet of plywood over some wheelbarrows but he agreed that the table could have been a white plastic one. (T100). Nothing turns on this discrepancy.
Christine says that Martin possibly started cooking sausages for the children at about 3.00 pm. She did not see Martin start cooking sausages nor did she see him light the barbeque. She did not take notice. Christine explained, "Unless you want to put me under hypnosis I don't recall him lighting the barbeque." (T52.29-48). Christine said Martin placed the sausages on the outside table when he called the kids to eat. She said people were sitting on the grass using the pathway to balance their cups. (T52.4-19).

[16]

The events in the kitchen

That afternoon Christine was involved in cooking fried rice on a wok on the stove in the kitchen while Hazel and Catherine were preparing salads. (CT, [10]; Ex B) (HT, [6]; Ex H) (CH, [5]; Ex D). Christine has no recollection of seeing the caustic soda or the glass being on the sink at this time. (T40.47). She said she was facing the stove while she was cooking, with the kitchen sink on her right at a right angle to the direction in which she was facing. Christine said she did not use the sink at all on this day. (T41-T43). She says that she brought the fried rice from home in containers and did not wash them up. When the containers were empty she says that she put them back in her shopping bag. (T43.17-21). At the same time, Hazel was working at a bench with her back to the kitchen door that led outside.
Catherine stated that she was not in the kitchen when a glass was filled with fluid. Catherine does not recall seeing any poisons in the kitchen when she, Hazel and Christine finished preparing food in the kitchen. (CH, [6]). Christine says she heard the plaintiff ask for a drink of water but she did not get him one. The plaintiff was not tall enough to reach the bench to retrieve a glass himself as the benches were quite high. (HT, [8]; Ex H). Christine heard Kylie say to the plaintiff words to the effect, "I'll get that for you, darling." Christine told the plaintiff "to take the glass of water outside." (CTS, [4]; Ex B). Christine's statements do not record that she saw the plaintiff with the glass at this time. In cross examination, while Christine admitted that she did not actually see the plaintiff get his drink, nor where the glass came from, she said that she did see the plaintiff holding a glass after he bumped into her and she turned around. (T44; T45). Hence there is a discrepancy between what she said in her statements and the evidence that she gave in cross examination as to whether or not she actually saw the plaintiff with the glass in the kitchen.
In cross examination, Christine gave the following evidence: "Q. You say now you identified the glass in the kitchen? A. In the kitchen. Q. Where do we find that in any statement you ever made? A. Well, I - once again I apologise for not putting in a very detailed statement. Q. Wouldn't you agree with me that being able to identify the glass that leaves the kitchen in your son's hand as the same type of glass from which he subsequently drinks this poisonous substance-- A. Mm. Q. --is a very, very important piece of information? Wouldn't you agree with that? A. It was just a glass to me. Q. Please deal with my question if you possibly can. Wouldn't you agree with me that identifying a glass your son carried out of the kitchen as being of the same type from which he drank an apparently caustic substance is a very important piece of information in this case? A. Can you say that again a bit clearly? Q. Sure. If we read your statements there is no reference to you seeing the glass leave the kitchen, is there? A. There - well, I always, always saw the glass enough for me to say, "Get that glass outside." I always saw the glass. Q. Where do we see in your statements that you saw the glass? A. I proceeded to tell him to take it outside. I didn't fabricate in paragraph 10. Q. Yes. You said a moment ago to her Honour that you didn't see these things with your eyes but you knew what was happening. You knew he was being given a drink of water? A. Yes, because Kylie said, "Aunty Kylie will get that for you, darling." Q. That would be sufficient for you to say, "Take it outside"? A. I heard the water, then I got bumped behind me while I'm standing at a fire wok with fire and bumped behind me by my child for me to look over and just see him holding like this, the top, small baby, the top, "Get, hey," looks like a glass, "get that glass outside," end of story. Q. You now say to her Honour that you saw the glass? A. A glass. Q. A glass. Are you saying that the glass that you now say you saw is the same type as the one that he subsequently drank from immediately before he was injured? A. Yes. Yes. It's the only glass that was on the back table. Q. Would you agree with me that that was a very important piece of information in the case? A. I do now, yes. Q. Is there any explanation as to why it's not anywhere in your evidence? A. Because I didn't go to law school. I didn't know the rules and I apologise it wasn't broken down more better." (T45.7-50; T46.1-11).
Christine says that at this time it did not occur to her that the glass might have been the one containing caustic soda that she says the defendant used to clean the drain. (T48). It is my view that Christine did not actually see the glass but mentioned it for the first time in cross examination to bolster the plaintiff's case.
Hazel's evidence is that when the plaintiff was handed the glass of water, he would have gulped the drink straight away. (HT, [13]; Ex H). However, I take this statement to be merely an assumption on her part rather than evidence of her actually witnessing the plaintiff gulp the drink. Hazel recalls being in the kitchen for most of the time with Christine and Catherine, "probably a couple of hours" before the plaintiff's accident. Hazel says that the others were outside and the children were running around, playing. Hazel also recalls the plaintiff saying, "drink of water", but she does not recall what happened next, other than she heard Christine say, "get that drink outside". (HT, [6]; Ex H). This evidence confirms Christine's evidence that the plaintiff asked for a drink of water and that Christine said "get that drink outside".

[17]

The accident

On the topic of whether the plaintiff merely sipped or had a big gulp of the contents of the glass, Martin's evidence is contradictory. Martin was in the backyard when the plaintiff came outside with a glass of water. Martin said he saw the plaintiff consume some of the contents of the glass, put it on the table in front of everyone, then ran off to play. (MT, [11]; Ex E). Then, Martin says, after roughly half an hour, the plaintiff in full view of everybody grabbed his glass of water, had a big gulp of it and immediately put the glass down on the table and ran screaming while making his way inside. (MT, [12]; Ex E). However, in cross examination, Martin changed his evidence. I will set out the discrepancies below.
Martin made four draft statements before his final statement and supplementary statement. (Ex E). I shall refer to these statements in more detail later in this judgment. On the topic of the inconsistent evidence in Martin's statements, the following exchange took place in the course of his cross examination: "Q. Originally in exhibit G [Martin's first handwritten statement] you described him "sipping" from the glass, didn't you? A. No. Q. You didn't? A. I don't, I don't remember seeing him sipping. I only ever saw him once and that was when he came back from running, picked up his glass that was sitting there for, like, a half an hour or so and took a gulp and he got burnt. Q. Do you tell her Honour you only ever saw your nephew drink from the glass once on that day? A. He walked, he walked out of the kitchen, out of the back door with the glass and he put it on the table. He, he must have been drinking when he was on his way out I don't, I don't remember, but he did put it down on the table next to me walking up the back path. I was adjacent to the path sitting out the back. Q. You have in your evidence described how he drank from the glass-- A. Right. Q. --you describe in exhibit G how he sipped from the glass, you describe in exhibit E how he drank from the glass, and you say in this document here that we're discussing, which is part of MFI 3 [Ex 8], that he took a big gulp of water and drank perhaps a third or a half of the glass. This is about half an hour or so before he's injured. All those versions you have committed to. Do you now tell her Honour that you don't have a recollection of him drinking from the glass immediately prior to him falling ill? A. As I say, I, I'm, I'm sorry, I can't remember him drinking from the glass on the way out. It's just not in my mind. Q. Why have you given evidence to the effect that he did if you can't remember it? A. Yeah, he was given a drink of water from inside the house and he was walking out the back with a glass. Perhaps he was drinking still, unless he had a drink from inside. I'm sorry I, yeah, I can't - I'm not going to say one way or the other because I can't remember. Q. In exhibit E, paragraph 11, "But in full view of me, my nephew, Vai Afoa, came outside with a glass of water which he sipped and put on the table in front of everyone and then ran off to play;" is that not true? A. That's, that's written there. Q. I know it's written there; it's your evidence. Are you telling her Honour it's not true? A. I, I'm not saying - well, I will say it's true but I don't remember, I'm sorry. Q. Why did you give evidence about it if you can't remember? A. That was the events. Q. This is important, isn't it; you know it's important? A. I know it's important. Q. You know it's important when he drank from the glass, don't you? A. Yes. Q. You put something in your evidentiary statement that you now tell her Honour you do not recall happening; is that right? A. I, it is right. Q. Yes, you're just making this up, aren't you? A. I am not. Q. It couldn't be clearer from this statement, from exhibit E that I just read to you, that what you're telling this Court is that you recall seeing your nephew drink from that glass when he first brought it out from the kitchen about half an hour or so before he was injured; isn't that right? A. That's what I wrote down. Q. It's not something that you recall at all; is that what you now say? A. I, I could sit here and say I do recall it and move along but I, I, I don't want to and I'll just, I don't remember. I'm sorry, that's my final answer. Q. You don't remember because it didn't happen this way, did it? A. I, it, I can't say that and neither can you." (T238.33 to T240.5).
Originally, in Ex G, Martin's evidence was that the plaintiff came outside with a glass of water, "drank" out of it, then put it back on the table. Martin denied that he described the plaintiff as "sipping" from the glass in this statement. This is factually correct as Martin did not describe the plaintiff "sipping" from the glass in Ex G, but rather stated that the plaintiff "drank". It was in Ex E that Martin stated that the plaintiff "sipped" from the glass as he came outside from the kitchen. Nonetheless, Martin's evidence regarding whether the plaintiff "sipped" or "drank" before placing the glass of liquid on the back table is at odds with what Martin subsequently said in cross examination, namely that he only recalled the plaintiff once consume liquid from a glass, which was when he came back from running around, picked up his glass that had been sitting there for half an hour or so, took a big "gulp" and was burned. Then, faced with his conflicting accounts, Martin surmises that "he must have been drinking when he was on his way out". When Martin was asked whether he now had a recollection of the plaintiff drinking from the glass immediately prior to falling ill, he could not remember the plaintiff drinking from the glass on the way out from the kitchen.
Then, in response to a question concerning paragraph [11] in the final version of Martin's statement, Ex E, where Martin stated that the plaintiff "sipped" from the glass after bringing it from outside and before placing it on the table and running off to play, Martin choose not to answer the question but instead temporised by saying, "that's written there." (T239.19-22). When Martin realised that he had given two inconsistent versions in relation to firstly, the timing of when the plaintiff took a drink; and secondly, whether the plaintiff drank, sipped or gulped the contents from the glass, he resorted to evasion by answering that the version he wrote down in which he referred to the plaintiff "sipping" from the glass was true although now he did not remember it. Hence, I do not accept Martin's evidence as to the circumstances by which the plaintiff came to ingest a corrosive substance as being reliable, except where it is corroborated by someone other than Christine or Hazel.
Further, I have reservations about Martin's evidence contained in paragraphs [3] and [4] of his supplementary statement dated 13 May 2016 (MTS; Ex E) where, after many iterations of his original evidentiary statement, he recalled for the first time in May 2016 that the defendant showed him a container of Drano. (MTS, [3]; Ex E). Also for the first time, Martin expanded upon the conversation he had had with the defendant about the blockage to the drain (referred to earlier in this judgment) by adding that the defendant said words to the effect in relation to the container of Drano, "I've had to use this to clear the blocked drains, and if it happens again, use this!" (MTS, [3]; Ex E). The third piece of information that Martin recalled in his supplementary statement was that the container was on top of the stainless steel kitchen sink top next to a glass similar to the glass in a photograph attached to Ex H. (MTS, [4]; Ex E).
Hazel says that sometime after the plaintiff took the glass of water from the kitchen to the backyard, possibly 10 minutes later, while she was still in the kitchen, she heard a commotion outside. The plaintiff came inside, rubbing his mouth against her leg. Hazel went outside and sat down. She said that the plaintiff ran out before her and was very agitated. Hazel's evidence is that Martin said, "It's acid" and indicated that his (Martin's) mouth had been burnt. Hazel said she saw a glass on the outside table which she described as "not as big as a schooner glass and probably not as big as a middy glass. It was smaller than that." (HT, [7]; Ex H).
Gary's version is that he was standing about three metres away from a small child who was about three years old, when suddenly he heard the child scream. He looked around to see Christine, Kylie and another woman he did not know rush to the plaintiff. He went over straight away and tried to see what was wrong. He said the child was obviously very distressed and he kept screaming. The plaintiff indicated there was something wrong with his mouth and that it was burning. The plaintiff was holding a glass. There was a small amount of liquid left inside. (GM, [16]-[18]; Ex 5). Someone took the glass from the plaintiff. Gary observed that Martin appeared upset about the incident and was visibly shaken. Martin walked off with the glass. (GM, [24]; Ex 5).
Gary denied Christine's evidence that the plaintiff tried to wipe his mouth on his (Gary's) clothing. (T196.10-13). Christine's evidence is: "After 15 minutes or so Vai came back to the table where his water was to drink it and instantly put the glass down and ran to the nearest person who happened to be Barry's son and tried to wipe his mouth and grabbing his tongue, seeing something was wrong my brother grabbed the water and tasted it, burning instantly shouting it was burning." (CT, [11]; Ex B).
Catherine Hogan's version is that at the time of the plaintiff's accident, she was sitting around the table outside. She says Kylie, Christine, Hazel and Fuzz were present. (CH, [6]; Ex D). Contrary to Catherine's evidence, Hazel says that Catherine was inside at this time. (HT, [7]; Ex H). Catherine said Martin may have been at the barbeque at this time. A glass which she described as a "tumbler" or "high ball" glass had been put on the table. Catherine recalled the plaintiff coming up, taking the glass and drinking from it. She was not sure how long the glass had been sitting on the table before the plaintiff drank from it. She also recalls Kylie coming out of the house with a glass in her hand. The plaintiff then ran away to play with Talys. A minute or two later the plaintiff returned and said to Catherine, "a spider bit my tongue". Catherine took him into the bathroom and began to wash his mouth. Christine joined them in the bathroom. At this point, Catherine said, "it was realised by others and probably myself that Vai had drunk something bad." (CH [6]-[9]; Ex D). It should be noted that Catherine's evidence was not the subject of cross examination and that she refers to a second glass being the one in Kylie's hand.
Fuzz's version is that the plaintiff came to the table outside and said he was thirsty. Fuzz did not say anything to the plaintiff. Fuzz says that the plaintiff picked up a glass from the table in the backyard and drank from it and straightaway he started spitting and grabbing his tongue. The plaintiff screamed and ran around in circles. I accept Fuzz's version that when the plaintiff drank the substance out of the glass on the table outside, the plaintiff's reaction was immediate. Fuzz did not see the caustic soda container and only heard about it the next day. (FA, [12] & [14]; Ex J).
So far as the contents of the glass is concerned, Martin in his statement deposed the following: "As I saw the whole thing I picked up the glass and took a mouth full, the sensation was like soda water effervescing yet instantly burning, I spat it out and rinsed profusely even though it was in my mouth then out straight away I suffered burns to my lips, inside my cheeks. My first reaction was caustic soda. Telling everyone it's caustic soda get the milk, unfortunately the milk never induced vomiting for Vai who was then taken to Gosford hospital by Christine and Faausu." (MT, [13]; Ex E)
In cross examination, Martin confirmed that he said aloud, "Get the milk… It's caustic soda". (T103). Counsel for the defendant suggested to Martin that he said to Gary that he (Martin) thought it was caustic soda at the time because he had just used it to clean the barbeque, which he denied. (T105.29-49). Martin's evidence was that the liquid did not smell like acid. (T103.14). Martin's version conflicts with that of Hazel. Hazel says that Martin said, "It's acid" and indicated that his mouth had been burnt. Catherine's version differs from both Hazel and Martin. In her statement Catherine stated that she thinks Martin had a taste from the glass and that he told everyone it was "poison". (CH, [9]; Ex D). By using the word "think" in that sentence and commencing the next sentence with "In any event", I take it that Catherine did not see Martin taste the contents of the glass but rather she was told that information by someone else. Christine admits that she identified the substance that the plaintiff drank as acid later at Gosford hospital. (T59.47-50; T60.1).
Gary says that while he did not see Martin taste any of the contents of the glass, he does not deny that Martin may have done so. (T197.14-21). Gary did observed Martin pick up the glass the child had taken a drink from, sniff it, and react by pulling his head away and pulling a face. (GM, [21]; Ex 5). It is more likely than not that Martin sniffed the glass as it accords with the evidence of Gary.
In his supplementary statement, Gary recalls that Martin said words to the following effect: "There must have been some residue in the glass after I cleaned the barbeque with it. … There must have been some residue in the glass and they've filled it with water and the child drank from that glass." (GM, [4]; Ex 5).
In the above conversation, Martin did not identify the substance but merely referred to residue in the glass. Martin denies that he had a conversation with Gary McBride about using the caustic soda to clean the barbeque. (T75.41-50). During cross examination, Gary stated, "Well, to my recollection, a year after it happened, he said caustic soda to me". (T199.8-9). By "a year after it happened", Gary is referring to the point in time at which he made his statement. Gary denied that Martin mentioned hydrochloric acid. (T199.21-22). Gary described the liquid in the glass as a bit opaque, a little bit cloudy. (T196.23-28). He says that "It was just in the bottom of the glass, there was a film" and that it was not so much as a finger's width. (T196.38-42). Gary's evidence is that Martin picked up the glass and sniffed it. (T197.4-5). While Gary did not see Martin taste any of the contents of the glass he does not deny that Martin may have done so. (T197.14-21).
In cross examination Gary gave the following evidence: "Q. Did you see him taste it? A. No. Q. You don't deny that he may have done that? A. Well I didn't see him taste any content from the glass. Q. But you don't deny that he may have done that? A. No. Q. He went away with the glass and looked visibly shaken, is that right? A. Yes. Q. Did he appear to be in pain himself? A. No, he just seemed to be upset. Q. You maintain that he had a conversation with you about using the glass to contain something with which he cleaned the barbeque? A. Yes. Q. I put to you that that conversation did not take place? He never said that he used anything in the glass to clean the barbeque with. A. I heard him say it. Q. When did he say that? Before he took the glass away and looked visibly upset or before? A. When he had hold of the glass and he was upset. Q. Before he sniffed it, according to your evidence? A. No. Q. Or after? A. I'd say it was after he sniffed it." (T197.14-45).
None of the witnesses gave evidence that they saw Martin clean the barbeque, but I accept his evidence that he did so. Martin also denied using hydrochloric acid or some other corrosive substance to clean the barbecue on the day of the accident, but admitted to using hydrochloric acid for brick cleaning in his occupation as a bricklayer. (T243.19-35). He said that he had used hydrochloric acid to clean the brickwork on the outside of barbeques in the course of his work (T244.44-47), but there was no hydrochloric acid at the rental property in his possession on the day of the accident and that if there was, it was unlikely that someone would have used it on the property in the lead up to the barbeque. (T245.23-45).
Christine, Hazel and Catherine said that after the plaintiff ingested the substance, Kylie rang the poisons information hotline. Fuzz then drove the plaintiff and Christine to Gosford hospital. (CT, [12]; Ex B). Hazel says that she went to the local chemist to see if she could get something to relieve the burning in Martin's mouth. (HT, [8]; Ex H). I shall refer to the evidence of Alexandra Bryant, social worker at Gosford hospital and Dr Thorburn, paediatrician at Westmead hospital later in this judgment.

[18]

After the accident

Christine's evidence is that the glass that contained the caustic soda and the caustic soda container have been lost.
Hazel said she took a photograph of the container of caustic soda when it was on the top of the shelf in the kitchen of the rental property. (HT, [10]; Ex H). The photograph is attached to her statement. It depicts a white container with a red lid and black label. The brand on the label reads, "Mechanix". Below it, in large letters, the label reads, "CAUSTIC SODA" and at the very top, "POISON". Due to the low quality of the photo, the remaining words on the label are illegible.
Christine saw a photograph of the container in Hazel's mobile phone. When Christine accompanied Hazel to her consultation with Michael Evers, solicitor, Christine saw him photograph a glass beside a ruler on his desk. (CTS, [5]; Ex B). Hazel gave evidence that the glass depicted in the photograph was not the actual glass that the plaintiff had drank from, but a similar glass. (T159.86-42). In her evidence she said: "[Mr Evers, solicitor] wanted to know what the glass was like and I explained it to him and his side person went away and come back and I said, "That's it, that's it, that's it, it's just like that."" (T159.47-49)
Christine says that Martin gave her the glass when he moved out of the rental property about 10 months after the plaintiff's accident. Christine put it into a box in her garage, although she does not know what happened to it. (CT, [19]; Ex B). However, Hazel says that after Martin moved out of the rental property the glass "came over in a box" to her house. It was a little box and she and Christine put it "right up high in the garage" on top of shelves. (T158.25-27). Christine put it up on the shelf in the garage as Christine was taller than Hazel. (T158.35-39). Hazel and Christine's evidence as to what happened to the glass are at odds. Nevertheless, the glass is unable to re located and it is unable to be tested for any residue.
On 27 February 2013, about 10 months after the plaintiff's accident, the defendant was served with the statement of claim in these proceedings. (BM, [39]; Ex 3). During the time between the accident and the defendant being served with the statement of claim, the defendant says that Martin never mentioned the incident to him, even though, the defendant says, they "spoke and… had meals and drinks several times over that period". (T189.28-29).
Gary's evidence is that he never discussed the accident with his father, although he knew that the plaintiff had to be hospitalised for long periods of time as a result of what he drank on that day because it was a horrible situation, a traumatic thing for the plaintiff and he just did not like discussing something that was just really bad news. It was not something that he really wanted to talk about. (T200.22-25). His father had not shown him the statement of claim. Gary says that he did not mention the incident to his father between the day it occurred and when the defendant was served with the statement of claim because he did not think it had anything to do with them. (T200.10-16).

[19]

Alexandra Bryant - Gosford hospital social worker

The plaintiff, Christine and Fuzz were at Gosford hospital for a short time after the incident. The plaintiff saw a doctor and was given a sedative. Christine was told that the helicopter was unable to get to Westmead in time and, as the plaintiff needed to get to Westmead as soon as possible, a road ambulance was organised. Christine was present when the doctor at Gosford hospital rang Westmead hospital. She accompanied the plaintiff in the ambulance to Westmead hospital together with a nurse and two paramedics. (CT, [15]).
Ms Bryant, a social worker at Gosford hospital, provided a statement, was called to give evidence and was cross examined. She is a truthful witness.
In cross examination Ms Bryant stated that she first saw Christine, Fuzz and the plaintiff in Resuscitation Room 1 at Gosford hospital following the plaintiff's admission, after the Emergency Department (ED) Nursing Unit Manager (NUM) had referred them to her for support. (T120; T121).
Ms Bryant recorded her observations in her "Consult Notes" on the day the plaintiff came to the hospital. (T118.16-17). Under the heading "Progress Note" (Ex 1, [8]) she stated: "PT referred by NUM, to support parents. Pt and parents seen R1. PT was at a BBQ at his uncle's house for Easter. The uncle (who does not have small children), had left a glass of hydrochloric acid on the kitchen bench. PT was thirsty and was looking for a drink of water and drank whole glass of acid. PT immediately became extremely distressed and was brought to hospital. PT's parents were calm and coping well under the circumstances keeping their attention focussed on PT. They have other children who are at home being cared for by family members. PT is to be rushed urgently to Westmead Children's Hospital by ambulance. PT's mother going with him. PT's father is going to drive directly there. PT was rushed to Westmead previously at two week of age when he had whooping cough, so parents are familiar with protocol and how to access hospital etc."
In cross examination Ms Bryant said that could not remember hearing the words "hydrochloric acid" or whether she obtained a history of the plaintiff's ingestion of caustic soda or "Drano". She has no recollection of being told where the ingestion of the substance occurred. (T121.20-38). She does not know from whom she obtained the history in her "Consult Note", which she prepared on a computer in her office subsequently after meeting the plaintiff's parents in the Resuscitation Room. She agreed that it was possible that she obtained that history from the nursing unit manager. (T121.47-50; T122.1).
Christine states that she does not know how Gosford hospital got their history. She recalls speaking to the nurse at Gosford hospital, saying, "we were at a barbeque at my brother's place, [the plaintiff] was given a drink and there was acid in it." (CT, [14]; Ex B). Similarly, in cross examination, Christine stated that the history of the accident that she provided at Gosford hospital was that her son asked for a drink of water and "there was acid in it". (T59.50; T60.1). Counsel for the plaintiff submitted that in referring to "acid", Christine was speaking loosely and merely referring to a very corrosive chemical, without properly categorising it as acid or alkali. When giving evidence, Christine rejected the accuracy of the Gosford hospital history, in particular, that the plaintiff's injury resulted from ingesting hydrochloric acid. (T63.27). I do not agree with counsel for the plaintiff's submission. Hazel said that Martin identified the substance as "acid" shortly after the plaintiff swallowed the corrosive substance. Christine stated that she recalls speaking to the nurse at Gosford hospital and identified the substance that the plaintiff swallowed as being acid. (CT, [14]; Ex B). Hazel had also stated that Martin identified the substance as being acid.
It is my view that the contemporaneous records are likely to be more accurate than Christine's later evidence. Ms Bryant's records state that she was told that the uncle (Martin) left a glass of hydrochloric acid on the kitchen bench, the plaintiff was looking for a drink of water, drank the whole glass of acid and immediately became distressed. While this version differs from the other accounts of the accident, it is significant that Ms Bryant here identifies the substance as "acid" in circumstances where Christine's statement refers to her (Christine) telling a nurse at Gosford hospital that there was "acid" in the plaintiff's drink. Fuzz had no recollection of speaking to anybody at Gosford hospital about the incident. (T173.26-28).

[23]

This version differs from that taken by Ms Bryant at Gosford hospital. In the Westmead clinical notes there is no mention of the kitchen bench but there is more information, namely that "at the uncle's place today, uncle had poured hydrochloric acid from a glass earlier, some had crystalised in the bottom of the glass. Uncle poured water into the same glass (accidently) for use in cooking." The records of both Gosford hospital and Westmead hospital indicate that Martin had left a glass with hydrochloric acid in it at the rental property, either on the kitchen bench or elsewhere.
In cross examination, Dr Thorburn said that her usual practice is to take histories from a parent or carer and from the ambulance officer who has been involved with the transfer. They are the only two places from which a history would come. She said that she does not look at other people's documentation and copy their notes in making her history. (T126.1-7). She did not record from whom she obtained her history. While she has a recollection of Christine nursing the plaintiff on a hospital trolley she has no other independent recollection. Apart from the plaintiff's parents and the ambulance officer she does not remember speaking to anyone else. (T126.43-45). Dr Thorburn said it is possible she got a history of ingestion of hydrochloric acid from the ambulance driver. (T128.50; 129.1-2).
Fuzz's evidence is that he cannot recall speaking with any nurse or doctor at Westmead hospital. He does not recall anyone giving that history. Counsel for the plaintiff submitted that as Fuzz drove from Gosford hospital to Westmead hospital and arrived there "heaps" after the ambulance that had conveyed Christine and their son, it is virtually certain that Fuzz was not present when Dr Thorburn obtained her history. Fuzz's evidence that his son was his "number 1 concern" is completely understandable and it was more likely that the history was not taken at Westmead hospital. Counsel for the plaintiff submitted that Fuzz's evidence, as far as it goes, should be accepted.
Tellingly in cross examination, Fuzz was asked the following question: "Q. What I want to suggest to you is that history [given to the doctor at Westmead hospital] accurately records what happened that day, doesn't it. Fuzz paused before answering and then said: A. I assume so, yeah." (T174.14-18).
Counsel for the plaintiff stressed that this statement should not be interpreted as a mere assumption that the history recorded by a doctor at Westmead hospital was accurate. I do not think so. I observed Fuzz give evidence and being cross examined. It is my view that when Fuzz was asked that question he understood the implications of the answer he was about to give. He noticeably paused before answering and then gave a truthful answer.
On 27 November 2012, the plaintiff underwent elective oesophagectomy with gastric tube oesophagoplasty, according to a letter from Dr Albert Shun, the plaintiff's treating surgeon at Westmead hospital, dated 6 December 2012. (Ex C). Dr Shun records the plaintiff's diagnosis as "Oesophageal Stricture Following Accidental Hydrochloric Acid Ingestion".

[24]

Submissions

Counsel for the plaintiff submitted that the most likely scenario is that what the plaintiff drank in the backyard of the rental property on Easter Sunday 2012 was a glass of water run from a kitchen tap into a glass containing a residue of caustic soda, taken outside, put on a table and then subsequently gulped down by the plaintiff.
Senior counsel for the defendant submitted that Gary's evidence as to what Martin told him (GMS, [4]; Ex 5) should be accepted because it is tolerably consistent with contemporaneous histories given to the hospitals even though it is different (Gary firstly refers to poison and then identifies the substance as caustic soda) in terms of the substance mentioned in the conversation and because Gary has no "axe to grind" and he was unmoved under cross examination.
Senior counsel for the defendant also submitted that the evidence of Hazel, Catherine and Fuzz who were present at the time of the plaintiff's accident does not advance the plaintiff's case. He submitted that Hazel's, Catherine's and Fuzz's versions on this topic, together with those of Christine and Martin, establish that at some stage while adults were working in the kitchen the plaintiff entered the kitchen and requested a drink of water. (HT, [6]; Ex H) (CT, [10] and CTS, [3]; Ex B). Further, he submitted that Christine and Martin are the only two witnesses who give evidence supporting a finding that the defendant used caustic soda at the rental property.
Senior counsel for the defendant submitted that there are three evidentiary gaps in the plaintiff's case which cannot be overcome, each of which alone is fatal to the plaintiff's case. They are:

Firstly, there is no evidence that the plaintiff ingested caustic soda. He certainly ingested something highly corrosive which was reported to the hospitals by his parents on admission to have been "hydrochloric acid". This specific information would have been an important matter, especially to a paediatrician such as Dr Thorburn, and is unlikely to be wrong. If this proposition is correct then it follows that the defendant cannot be found liable.
Secondly, there is no evidence as to the provenance of the glass from which the plaintiff drank and its contents.
Thirdly, there is no evidence that any glass into which the defendant allegedly put caustic soda was that involved with the plaintiff's injuries. In fact, the evidence is probably to the contrary.

In relation to the second point, the defendant submitted that no witness can say from where the glass the plaintiff drank out of came before he picked it up from the outside table and drank from it before immediately reacting. No witness can say where the glass came from that was apparently given to the plaintiff in the kitchen. Even Christine could not say. (T44.45-46). It was, in all probability, not on the kitchen sink. (T41.37-40 and HT, [2]; Ex H). This suggests that even on the plaintiff's version it had been moved but when and by whom and what else had happened to it is speculation at best.
According to the defendant, by virtue of the fact that the plaintiff drank from the glass 10, 15, 30 or 40 minutes before he was injured, there is no logical connection between the glass he was given in the kitchen and the one from which he drank. The defendant says that this Court is unassisted by expert evidence and cannot speculate as to why the ingestion of water from the same glass 10 to 40 minutes apart in time would have had such starkly different consequences. The defendant submitted that the logical conclusion, and thus the probability, is that it was a different glass or at least different contents and this conclusion sits comfortably with the fact that no witness, other than Christine, identifies the glass the plaintiff drank from as the same type as the one he took from the kitchen. According to the defendant, this evidence, which is obviously important to the plaintiff's case, was only given under cross examination when extraordinarily, and for the first time, Christine volunteered that she saw the glass her son was given in the kitchen. (T44-T46). The defendant submitted that this evidence warrants careful attention in assessing credibility and should be rejected.
Counsel for the defendant also submitted that there is no suggestion that the glass that the plaintiff was given in the kitchen, or, on Martin's version, placed on the table, had any cloudiness about it even though it was apparently given to the plaintiff by some adult whose precise identity remains unclear and was allegedly seen by Christine while the plaintiff was carrying it outside. According to the defendant, one would think that in those circumstances the fact that there was a cloudiness about the solution would have been noticed. The defendant suggested that it was not the same glass or at least the same contents.
So far as the evidentiary gap in the plaintiff's case as to the provenance of the glass and the dangerous liquid is concerned, the defendant submitted that this gap cannot be easily filled by inference because of: (1) The gap in time between the plaintiff being given a glass in the kitchen and drinking a corrosive substance in the backyard; (2) The history given to the Gosford and Westmead hospitals which both implicate Martin and suggest that he was the source of the liquid (probably hydrochloric acid); (3) The evidence of Fuzz adopting the history given to Dr Thorburn at Westmead hospital (T147.15); (4) The evidence of Gary as to what Martin said; and (5) The lack of credibility of Christine and Martin.

[25]

Credibility of witnesses

The outcome of this case largely depends on my evaluation of each witness' credit, but critically, that of Christine, Martin and the defendant and, to a lesser extent, that of Hazel. Senior Counsel for the defendant submitted that there are serious credit issues in relation to Christine and Martin. Senior counsel says that unless the evidence of Christine and Martin is accepted and the defendant's and Gary's evidence rejected, the plaintiff cannot succeed. While I accept that it would have only been after the plaintiff drank the corrosive substance and the witnesses became aware of the serious consequences that they would have turned their minds to what had taken place earlier that afternoon and even earlier when Martin moved into the rental property, it is unrealistic to expect each witness to accurately recall all events including the seemingly insignificant ones and I do not hold that expectation. The witnesses were in different locations, some in the kitchen, others outside near the barbeque. Nevertheless, two competing and irreconcilable versions as to how the plaintiff came to swallow the corrosive substance have emerged from the evidence.
Throughout the trial, I carefully observed each witness when giving evidence and being cross examined. Starting with the hospital staff, I have no hesitation accepting the evidence of Ms Bryant and Dr Thorburn as to what they were told and recorded at Gosford hospital and Westmead hospital respectively. The histories given to Ms Bryant at Gosford hospital and Dr Thorburn at Westmead hospital are slightly inconsistent with each other but are definitely at odds with the versions given by Christine and Martin. Ms Bryant did not recall taking the history but had a particular reason for focusing on the role of Martin, as he was the plaintiff's uncle. Dr Thorburn had some recollection of the plaintiff. Both Ms Bryant and Dr Thorburn gave evidence that they believed their histories were correct. Both hospitals record that Martin put hydrochloric acid in the glass and that the plaintiff drank from the glass resulting in serious consequences.

[26]

Christine Taylor

Counsel for the plaintiff submitted that Christine was a witness of remarkable candour, lacking in sophistication or contrivance, and her clear and unshaken evidence of what she saw, heard and did concerning the plaintiff's accident is reliable and should be accepted. Also according to counsel for the plaintiff, a striking example of Christine's candour which demonstrates her credibility is her admission that she did not see the defendant's container of caustic soda and the glass which he had used to pour caustic liquid down the sink hole "still sitting on the kitchen sink" on 8 April 2012, the day of the plaintiff's accident. (T40.39).
Counsel for the plaintiff also submitted that it would have been easy for Christine to claim that she saw the glass and the container on the sink on the day of the plaintiff's accident, to bolster the plaintiff's case by strengthening the causal link between the defendant's use of them a fortnight or so previously and the plaintiff's accident. Counsel for the plaintiff says that Christine's admission that she did not see them there that day is truthful because it is consistent with Martin's evidence (T95.19; T96.21-23) that when he moved into the rental property on 6 April 2012 the container of caustic soda "was put under the sink" and that when he moved into the rental property, the glasses on the kitchen sink were put up in the open cabinet space to the left of the sink. (T96.50; T97.1-12; and T98.1-15).
Senior counsel for the defendant submitted that Christine's credibility must be seriously in doubt as her version of events is improbable in a number of respects. Examples of her improbable evidence include firstly, her view that she did not feel that the container of caustic soda which was on the bench was hers to move (T40.16-36); and secondly, her differing versions as to how the various witness statements came into being.
When Christine gave evidence and was cross examined, she presented as a person who was sure of her evidence and gave her answers in a forthright manner. At times she became defensive. I accept that Christine holds the opinion that she has a very clear recollection of the nature of what happened on the day of the accident (T16.2), but I think she is mistaken or has tailored her evidence to present the plaintiff's case at its highest. I have also taken into account that for some periods of time while the plaintiff's case was on foot, the plaintiff was unrepresented so this necessitated Christine preparing some of the plaintiff's witnesses' statements. (T18.11).

[27]

Preparation of the statements

Christine gave evidence that she prepared the statements of Martin, Hazel, Fuzz and Catherine. Christine initially said that she had requested all of the witnesses to provide statements and she had merely typed them out without amendment or discussing their contents. (T25.10-50; T25.1-39). Christine said that she simply typed up exactly what she was given. (T30.33-35). This evidence turned out to be inaccurate.
Hazel's evidence was that her statement was not prepared by Christine, but rather by Mr Evers, solicitor, to whom she told her version of events. Hazel said that he recorded it, had it typed up, and returned it to Hazel for her to sign. (T160.30-37).
Christine also did not prepare Fuzz's statement. Fuzz said that his statement had been prepared by a solicitor but that Christine had retyped it to make it look better. (T167.35 to T170.9).
Senior Counsel for the defendant submitted that were a number of occasions on which Christine gave inconsistent evidence without any reasonable excuse (not all of which I am in agreement), including: 1. The portion of transcript in which Christine gave evidence concerning the statement in her first statement (CT; Ex B) where she says that she did not wish to name the former tenant's mother. In fact, she did not know the former tenant's mother's name, although she did know the names of the former tenants. (T30-T31). While this stance is odd I do not regard her attitude here as having any significance. 2. Not mentioning in her first statement (CT; Ex B) critically important things which she subsequently raised in her supplementary statement (CTS; Ex B), such as witnessing Barry McBride pouring the caustic soda down the sink. (T31.50 to T33.44). 3. The inexplicable variation in an important detail, namely the number of times that she says the defendant poured the caustic soda down the sink: 1. Christine does not refer to it happening on more than one occasion in either of her written statements (T35.5-29); 2. Twice in the ASC ([7]-[9]); and 3. Three times in her evidence. (T56 to T57.37). 1. Inconsistencies in the description of the barbecue which was at the heart of the factual matrix concerning the use of acid or caustic soda on the day of the barbeque. Martin's description (T98.27-49) is irreconcilable with Christine's (T50.43-44). I agree that Martin's and Christine's descriptions of the barbeque are different. It is difficult to ascertain why this is so, but it has no real significance to the issues in dispute.
According to counsel for the defendant there was no reasonable explanation for the histories given to the two hospitals within hours of the event other than that they reflected the truth. I have already made findings regarding the histories given at both hospitals. While not completely consistent with each other, they reflect truthful evidence as to what the social worker at Gosford hospital was told and likewise what Dr Thorburn at Westmead hospital was told.
I agree that Christine increased the number of times she says the defendant poured caustic soda down the drain from one to three. In doing so she sought to deliberately tailor her evidence to improve the plaintiff's case. After the plaintiff swallowed the corrosive substance, Christine identified the substance as poison which is probably all she knew at that time. But critically she admits that she told the staff at Gosford hospital that the plaintiff had swallowed acid. Overall, I have serious reservations as to the reliability of her evidence.

[28]

Christine's changes to the statements of Martin Taylor

There are six statements of Martin's in evidence. In chronological order the first is a handwritten statement made by Martin Taylor. (Ex G). Martin recalled writing out his handwritten statement "maybe hastily" after being asked by his sister, Christine to write it. He said he did not ponder for days before writing his statement. (T205.24-25). The first typed draft has apparently been thrown away. The second and third typed statements are contained in Ex 8; the first of which appears to have been prepared by a lawyer. Martin did not recognise the second statement in Ex 8, although it bears his name and signature. The fourth typed statement is Ex 9. The fifth and sixth typed statements are contained in Ex E. The first statement in Ex E is the plaintiff's final statement ("MT"). The last statement in Ex E is the supplementary statement dated 13 May 2016 which Martin relied upon in this Court ("MTS").
Exhibit 8 was produced on 16 June 2016 during Martin's further cross examination. It is comprised of two statements. The first statement in Ex 8 is entitled "Statement of Martin Christopher Taylor" ("statement 1"). The second statement in Ex 8 ("statement 2") is entitled "DRAFT Statement of Martin Taylor". Martin's signature appears on the first page of statement 2, along with handwritten amendments. In Ex E Martin says that the defendant told him he had used caustic soda to clear the drains, showed him a container of caustic soda, told him that if the drain problem were to recur he should re-use the caustic soda and then left the caustic soda on the kitchen sink near a glass. In this statement he says that this took place on 25 March 2012, about two weeks before the plaintiff's accident.
Christine's original evidence was that the only original statement by Martin that she had was his handwritten one (Ex G). She says that she typed that statement up and amended it in some critical aspects, such as including the mention of a glass, after she says that she had discussions with Martin. (T139 to T142.43).
Christine admitted that she spoke to Martin about a couple of things in his statement, including, "Spelling and just his phrases" (T130.44). She admitted that she "corrected a couple of words to make it sound a bit more professional." (T132.7-8).
During cross examination, senior counsel for the defendant drew Christine's attention to a number of differences between the final version of Martin's statement (MT; Ex E) ("the final statement") and the handwritten version (Ex G) ("the first statement"). Firstly, paragraph 7 of the final statement contains the words, "with a glass" in relation to what Martin saw on the kitchen sink at the time the defendant interviewed Martin. In the corresponding paragraph in the first statement, there is no reference to there being a glass left on the sink. Christine said that she discussed this inclusion with Martin after she read the handwritten version of his statement and included it in the version she typed. (T139.41-50; T140.1-7).
Secondly, paragraph 11 of the final statement states, "Vai Afoa came outside with a glass of water which he sipped". The corresponding part of the first statement reads, "Vai came out with a glass of water which he drank out of". Christine said she would have discussed this change with Martin. She denied that the statement was being "massaged" to make it better for the plaintiff's case. (T141.7-10).
Thirdly, paragraph 12 of the final statement says, "Roughly half an hour later I said the food was ready". The first statement reads, "Roughly 40 mins later I said the food was ready". Christine agreed that the change from "40 mins" to "half an hour" was her input into Martin's statement. (T141.12-35).
In cross examination, Christine was asked how that change came about between the two versions, to which she replied: "A. Well, roughly, 40 minutes, because he can't decide, it would be around half an hour give or take ten, which is what I do." (T141.30).
Christine agreed these were her words, not Martin's, and that she "did type it up and … thought it would sound better." (T142.15). I do not regard this change as having any real significance.
Fourthly, paragraph 11 of the final statement reads, "all I had was a few coffee cups and limited cutlery I accepted gratefully". The corresponding part of the first statement reads, "considering all I had was coffee cups and limited cutlery it was helpful." Once again I do not regard this change as having any real significance.
Finally, paragraph 13 of Martin's final statement reads, "My first reaction was caustic soda. Telling everyone it's caustic soda get the milk". The corresponding part of the first statement reads, "My first reaction was coustic soda. I said thats coustic soda. Get the milk." Christine explained that she is not a skilled affidavit/statement writer and that "telling" was a better word than "I". (T142.20-30). The spelling of caustic was corrected. Again, there is no real significance in this change.
Christine disagreed that she had had a considerable input into Martin's final statement (MT; Ex E), but admitted that the evidence she had given the previous day about not making any amendments to Martin's handwritten statement was "not true at all". (T142.40-43).
I conclude that Christine was mistaken in her belief that she requested all witnesses to provide statements. From the above it is my view that she was also mistaken when she gave evidence that her changes to Martin's statement did not amount to more than just correcting Martin's spelling and grammar.

[29]

Martin Taylor

Martin was cross examined over two days, firstly, on 17 May 2016; secondly, on 16 June 2016.
Counsel for the plaintiff submitted that Martin corroborates Christine in a couple of critically important respects. They are firstly, on 25 March 2012, in the kitchen of the rental property, the defendant showed Martin a container of "Drano" like the one photographed in Ex H and said to him, "I've had to use this to clear the blocked drains, and if it happens again, use this!"; the container was beside the sink next to a glass like the one in photographs in Ex H; and on Easter Sunday, after the food was ready, Martin saw the plaintiff grab a glass of what appeared to be water off the outside table, have a big gulp, immediately put the glass on the table, and run off screaming.
Further, counsel for the plaintiff submitted that Martin was completely unshaken in cross examination in relation to the defendant's conversation with him on 25 March 2012 concerning the defendant's use of "Drano" to unblock the kitchen sink drain and concerning Martin's observation of the "Drano" container and glass "On the back on the right-hand side of the sink basin" during his inspection of the rental property on that day. (T85.23-46; T87.2; T91.23).
Paragraph 7 of Martin's final statement ends with the words, "caustic soda which he left and I witnessed on the kitchen sink with a glass." In his first statement, the words "with a glass" were omitted. Counsel for the defendant cross examined Martin on this discrepancy. Martin agreed that the glass was probably the most important question to be addressed in terms of what happened to the plaintiff. (T212.1-2).
Senior counsel for the defendant submitted that although Martin acknowledged that the glass was the most important factor in this case, he made no mention of it in his first handwritten statement (Ex G). However, he does mention the defendant telling him about travelling throughout the countryside and cooking in caravans. The defendant submitted that Martin's evidence was opportunistic and that the changes and twists in his evidence should cause very grave concerns as to his credit. While Martin makes reference to travelling and cooking in caravans, I do not think anything of it. I do accept that there is no mention of the glass until a later statement and that that is problematic.
When asked about the circumstances in which these words came into his final statement, Martin had difficulty in answering the questions put to him by senior counsel for the defendant. When prompted by this Court to say who typed his statement, he said, "My sister typed up my drafting. I handed all my paperwork to her. I'm pretty sure she did, if not it was the solicitor she was dealing with at the time." (T212.32-33). Christine denied that Mr Beale of counsel had any input in the preparation of Martin's statement. (T143.8-10). This is inconsistent with Martin's earlier evidence, where in cross examination he said he did not know who typed out his handwritten statement. (T78.16-17).
Martin said that he had not discussed the matter with Christine since he was first cross examined on 17 May 2016. But then he said his memory had changed since he first gave evidence and he had "given it more thought". (T215.23-33). Martin accepted that when his statement was typed up by Christine, the words "with a glass" were included. (T216. 30). He said that the words were included by Christine "Under my instruction". The second statement in Ex 9 is a document entitled "Statement of Martin Taylor" that appears to be similar to Ex G and Martin's final statement. (MT; Ex E). Martin did not recognise this document. (T218.23).
Martin said that after he provided his handwritten version (the first statement) to Christine, she typed it up. He then read this typed version and he "got [his] sister to change it". (T219.18). He said that he does not know where this document is, but he does recall that this version did not have the words "with a glass" in it at paragraph 7, or the equivalent paragraph. (T219). Senior counsel for the defendant called for any document that preceded Ex 9 and post dated Ex G, with the words "with a glass" at the end of paragraph 7. No document matching this description was produced. (T219 to T220).
Martin has no recollection of attending the offices of a firm of solicitors in Newcastle in December 2014, but said that he had had a telephone conference with lawyers, although he was not sure when it was. He did not recall the lawyers preparing a statement by him. He did recall Mr Beale of counsel taking a statement from him in Sydney but he did not remember seeing that statement. (T223.22). Martin admits that statement 1 in Ex 8 was prepared by some other lawyers, not Mr Beale, after statement 2 in Ex 8 was prepared by Mr Beale.
In cross examination, Martin said that he did not make the handwritten amendment to statement 2 of Ex 8, that the handwriting was not his and that he did not recognise it. (T224.13-17). He did not agree with parts of this statement as written, including paragraphs 19, 20, 21, 22, 23 and 24. (T230-231).
Martin does not know how statement 2 of Ex 8 came to state that he witnessed the defendant putting caustic soda down the sink. (T231.7-12). Martin's evidence is that the container of caustic soda was left on the sink by the defendant, after the accident it was in the cupboard under the sink and at some point Martin put it up on top of the cupboard. (T232.40-42). However, [8] of statement 2 of Ex 8 states, "I picked up the caustic soda which Barry left on the sink and put it on top of the cupboard in the kitchen. It stayed there until the day I moved out of the house. The drains worked perfectly after the treatment Barry gave them with the caustic soda."
In cross examination Martin gave the following evidence in relation to statement 2 of Ex 8: "Q. You don't accept that the way the statement reads you are saying that you picked up the caustic soda from the sink and put it on top of the cupboard in the kitchen? You don't think it says that? A. I can't see where it says that. I don't, I don't agree with that." (T233.34-37).
Martin said that statement 1 of Ex 8 is correct. (T235.21). Statement 2 of Ex 8 states at [10] that the defendant put the plastic jar of caustic soda under the sink with the other cleaning materials. Martin said that that version was incorrect and that the defendant did not put the caustic soda under the sink, rather he placed it on the sink. (T236.36).
In statement 1 of Ex 8 at [16], Martin states that when he moved into the house, he recalled "seeing two schooner glasses and possibly a middy glass as well left on a narrow shelf above left of the sink and next to the cupboard that holds the cutlery." When asked where else in his evidence he had referred to schooner glasses, Martin replied, "I don't know". (T237.27-30). He agreed that the glass depicted in Ex H did not look like a schooner glass. (T237.45-46). Martin also agreed that he could not say how many glasses were in the rental property on the day of the plaintiff's accident. (T243.6-12). It is my view that Martin, in reality, did not know how many glasses were in the rental property nor the sizes of those glasses. Martin's suggestion that those who helped him move into the rental property before the day of the barbeque did not use a glass because they only had coffee (T98.1-11) also seems unlikely.
Senior counsel for the defendant submitted that Martin's evidence that he tasted the liquid and concluded that it was caustic soda, firstly, without any experience of the substance; and secondly, based on an unmemorable conversation that allegedly took place two weeks before the accident, was so improbable as to most likely be a fabrication.
The plaintiff's counsel drew different conclusions. He submitted that there is no evidence of the presence or use of hydrochloric acid at the rental property prior to or on Easter Sunday 2012. Martin denied using anything from a glass to clean the barbeque that day. (T76.2-3). Counsel for the plaintiff says that of crucial importance is Martin's evidence that immediately after the plaintiff had drank from the glass, he took a sip from that glass and experienced immediate "direct burning ... an effervescence ... it burnt profusely" and he "spat it out". (T76.8-17; T102.31). According to the plaintiff's counsel, this evidence is very compelling and should be accepted.
I accept that Martin sniffed the residue in the glass. It follows that Martin could not identify the substance by its smell. However, I do not accept that he tasted the substance and was able to identify the residue as caustic soda. I find this evidence to be improbable. To reject Martin's evidence that he tasted the substance means that I also reject Christine and Hazel's evidence on this topic. Neither Christine nor Hazel say that Martin identified the substance as caustic soda.
Earlier in this judgment at [76] and [77] I analysed the contents of Martin's statements and the inconsistent evidence he gave.
I did not accept the expansion of Martin's evidence contained in his supplementary statement at [3] and [4] to the effect that the defendant showed him the container of Drano and gave him the explanation referred to paragraph [78] of this judgment.
Nor do I accept the plaintiff's counsel's submission that Martin's evidence was that he saw the plaintiff grab a glass of what appeared to be water off the table, have a big gulp, immediately put the glass on the table, and run off screaming. For the reasons I gave when I analysed Martin's evidence, I found that I do not accept Martin's evidence as to the circumstances by which the plaintiff came to ingest a corrosive substance as being reliable as his evidence as to the plaintiff drinking from a glass is most inconsistent.

[32]

The defendant

The defendant is now 82 years of age. He did not learn of the plaintiff's accident until 10 months later when he was served with the statement of claim. Counsel for the plaintiff submitted that a person's memory of events that happened 10 months earlier can be impaired by the passage of such a period, particularly if not exercised sooner and in the case of an elderly person. While I carefully observed the defendant giving evidence and being cross examined, I did not discern any impairment to the defendant's memory.
Counsel for the plaintiff referred to the defendant's evidence in cross examination where he agreed that "Drano" is a product that is sold in supermarkets and hardware stores and is specifically designed to unblock drains that are clogged with grease or fat. He also referred to the defendant's denials that firstly the simple way of unblocking a drain blocked with oil and fat is to use caustic soda (T178.41); and secondly, that he used it to unblock the sink drain at the rental property. (T179.15-18). This evidence, the plaintiff says, is not credible, given his training in the handling of caustic liquids in the course of his previous employment at Alcan. Further, the defendant's response to the suggestion that, with all his training, there was no reason why he could not have purchased and used a product such as "Drano" to clear blocked drains is perplexing and unconvincing, given his evidence that putting caustic soda crystals into a glass is "not the way you would use" that product, as "that's more dangerous than ever." (T179-184). According to the plaintiff's counsel this evidence indicates that the defendant knew how to use caustic soda granules to unblock a drain.
Counsel for the plaintiff also referred to the defendant's evidence in cross examination where he agreed that on 19 March 2012 the kitchen sink at the rental property was blocked, he had to unblock it and that putting a hose down the S pipe and turning it on would have caused a strong blast of water to come back up the S pipe into the defendant's face. The defendant agreed that "it was all over the place". (T178.31-34). In cross examination the defendant agreed that that process would only be an effective way of unblocking a drain that was blocked with oil and fat if you persist long enough. (T178.36-38). However, the plaintiff's submission overlooks the defendant's evidence, which I accept, that the drain was only partially blocked. (My emphasis). The defendant was in a position to know whether the drain was completely or partially blocked. Had the drain been completely blocked, the defendant's method of unblocking it may not have been successful.
According to senior counsel for the defendant, the defendant staunchly denies that he used caustic soda in the way alleged. He gives detailed evidence as to how he cleared the sink with a hose. By virtue of his background in engineering he had a particular insight into the dangers of caustic soda and did not believe that a substance that dangerous should to be brought onto domestic premises and he is adamant that he never did.
Counsel for the plaintiff submitted that this Court should have concern as to the reliability of the defendant's evidence as a whole. He highlighted the defendant's cross examination in which the defendant claimed that Christine "presumed that I was an insensitive, cruel, old bugger, that didn't care about the damage that was done to Vai", stated that Martin "has a cruel sister" and stated, "When I saw that claim from Westmead Hospital I decided that she was already declared me an enemy and I wasn't going to make the first approach", because the impression resulting from this evidence is that the defendant has a very defensive mentality. (T192.44-50; T193.11-13).
Senior counsel for the defendant submitted that where the defendant's evidence is in conflict with the evidence supporting the plaintiff's case, his evidence should be accepted.
Counsel for the defendant submitted that there is no reason to reject the evidence of the defendant. He gave his evidence in a clear and forthright fashion and was not moved one millimetre under cross examination. He has no motivation to lie, he has given consistent versions and he was very measured in his evidence. He properly conceded that he had a good regard for Martin as a tenant and, despite all that had occurred, even had the decency to provide Martin with a reference. (Ex 1).
It is my view that that the defendant presents as a man of very definite black and white opinions. This was demonstrated when he gave categorical evidence about the hazardous nature of Drano. It also appears to me that the defendant has a somewhat defensive attitude and this is reflected in his view of Christine as mentioned above. However, these aspects of the defendant's personality do not mean that he is an untruthful or unreliable witness. The defendant was unshaken in cross examination.
There is no doubt that the defendant said to Martin that the previous tenants were "dirty buggers", that they had left the drain blocked with fat or kitchen waste and that he (the defendant) had to clear the blockage.
In my view Christine and Martin's credibility is seriously in doubt. I accept and prefer the defendant's evidence to that of Christine and Martin. It is my view that the defendant did not take Drano from his residence to the rental property nor did he use Drano to clear the partially blocked drain in the kitchen.

[34]

Summary of my conclusions

After a careful analysis of all the evidence, I have made findings that firstly, the defendant did not bring caustic soda from his residence into the rental property; and secondly, he did not unblock the partially blocked drain by using caustic soda.
When Hazel and Kylie were in the kitchen, the plaintiff asked for a drink of water. It is much more likely than not that Kylie said, "I'll get it for you darling". Then, when the plaintiff bumped into Christine, Christine did not see the plaintiff holding a glass. Rather, this evidence is of recent invention. Christine knew the plaintiff had been given a drink of water when he bumped into her. She told him to take the glass outside.
Martin, whose credit is seriously in issue, initially said that when the plaintiff came outside with a glass of water, he saw the plaintiff sip some of the contents of a glass, put the glass on the table and then run off to play for about 30 minutes. Hazel says about 10 minutes after the plaintiff was handed a glass, while she was still in the kitchen, she heard a commotion outside and the plaintiff came running inside and started rubbing his mouth against her leg. Christine says that about 15 minutes later, after cooking the fried rice, she was outside, saw the plaintiff pick up a glass from the table near the barbeque and gulp three or four times from the same glass. She then saw the plaintiff immediately put the glass down, shouting and was obviously in extreme pain and distress.
I accept that the plaintiff sipped from the glass as he was going outside from the kitchen and put it on the table outside near the barbeque. It is my view that if the plaintiff drank from the same glass that Kylie filled in the kitchen when he was going outside, that glass was unlikely to have contained a corrosive substance in it because it would be unlikely that the plaintiff would have had such a delayed reaction.
Gary, Catherine, Christine, Martin and Fuzz all say they saw a glass sitting on the outside table near the barbeque. The preponderance of evidence, which I accept, is that when the plaintiff drank from a glass sitting on the outside table near the barbeque, he was in immediate pain.
After the plaintiff drank the liquid, Hazel and Christine identified the corrosive substance as acid, Catherine identified it as poison and Gary identified it as "some residue" in the glass. That only leaves Martin who identified it as caustic soda. As I stated earlier, I do not accept that evidence. The most likely substance that the plaintiff ingested is hydrochloric acid. This is the substance identified in the contemporaneous histories taken by Ms Bryant at Gosford hospital and Dr Thorburn at Westmead hospital, a history which Fuzz agreed was correct. Of lesser significance, but consistent with this evidence, is the identification by the plaintiff's treating surgeon at Westmead hospital, who performed an elective oesophagectomy with gastric tube oesophagoplasty and recorded the plaintiff's diagnosis as "Oesophageal Stricture Following Accidental Hydrochloric Acid Ingestion".
The plaintiff has not discharged his onus of proof. He has not proved on the balance of probabilities that the accident occurred in the manner pleaded in the amended statement of claim. Hence, the requirements of ss 5B and 5D of the Civil Liability Act are not satisfied. On the balance of probabilities, the plaintiff has not proved that the defendant was negligent.
If I am wrong and the defendant did bring caustic soda into the rental premises, cleared the kitchen drain in the manner described by Christine and then left the glass with residue on the kitchen sink, then there is conflicting evidence as to whether the plaintiff sipped some of the contents of the glass when he went out from the kitchen and had a delayed reaction, or whether the plaintiff drank from a glass that was placed on the outside table near the barbeque and had an immediate reaction. The latter view is the most likely. This, in my view, is another fatal flaw in the plaintiff's case.
The result is verdict and judgment in favour of the defendant.
Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs on an ordinary basis as agreed or assessed.

Afoa BHNF Christine Taylor v McBride

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