Afoa v McBride

HEADNOTE [This headnote is not to be read as part of the judgment] On 8 April 2012, the appellant, Vai Afoa (who was then 3½ years old) suffered serious injuries when he ingested a highly corrosive substance by drinking from a glass that was on an outside table at a barbeque. By his tutor (who is his mother), he commenced proceedings in the District Court claiming damages for negligence from the respondent. The respondent was the owner of the premises, but not present at the barbeque. The appellant's case was that some days before the barbeque the respondent left a glass containing a caustic soda product, similar to the product sold under the brand name "Drano", on the kitchen bench of the premises. The appellant alleged that on the day of the barbeque, water was unwittingly put in the glass, and given to the appellant. He then left the glass on a table in the garden, and when he came to drink it later he suffered serious injury. By judgment of 6 October 2016 Harrison AsJ rejected the appellant's claim and directed the entry of judgment for the respondent ([2016] NSWSC 1415). The case before her Honour involved major factual disputes and the credibility of the lay witnesses was strongly in issue. Her Honour found that the appellant had not discharged his onus of proving that the events occurred in the manner he alleged. Particularly significant to her Honour's conclusion was that when the appellant was first given the glass in the kitchen he sipped from it but suffered no reaction, but when he later drank from what he alleged was the same glass he suffered an immediate adverse reaction. Her Honour was not satisfied that the appellant drank from the same glass on each occasion. On appeal, the appellant argued that certain findings made by the primary judge were glaringly improbable, and therefore the decision itself was also glaringly improbable. These findings were that: (1) the appellant's uncle (Martin Taylor) did not taste the liquid in the glass from which the appellant had drunk; (2) Mr Taylor admitted to another person present at the barbeque that Mr Taylor was the source of the corrosive substance; (3) the substance that the appellant ingested was most likely hydrochloric acid; (4) the histories recorded at the hospitals to which the appellant was taken were of assistance in resolving the conflicts in the lay evidence; and (5) that the respondent did not take caustic soda to the premises and use it to unblock the kitchen sink drain. Held, dismissing the appeal with costs, (per Macfarlan JA, Payne JA and Sackville AJA agreeing): (1) The circumstances that are clearly established by evidence that is wholly or substantially uncontroversial strongly indicate that the appellant did not drink from the same glass on each of the two occasions. At the very least, if the appellant did drink from the same glass, the circumstances indicate that the contents of the glass were different when he drank from it the second time. Both of these propositions contradict the appellant's case. Therefore, the evidence establishes that the primary judge's decision was not "glaringly improbable". On the contrary, it was clearly correct: [58]-[61]. Fox v Percy (2003) 214 CLR 118 applied. (2) Regard to the evidence of Ms Hazel Taylor may well have caused the primary judge to conclude, contrary to what her Honour found in her judgment, that Martin Taylor did in fact taste the substance in the glass which caused the appellant's adverse reaction. Nevertheless, a different finding on this issue would not have been of importance to the ultimate outcome of the proceedings: [64]-[65], [87]. (3) The appellant failed to demonstrate that any of the primary judge's other challenged findings were "glaringly improbable", nor did the appellant demonstrate that the judgment was open to challenge on any other basis: [67], [70]-[75], [89]. Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 considered.

Judgment

1. MACFARLAN JA: On 8 April 2012 the appellant suffered serious injuries when he ingested a highly corrosive substance by drinking from a glass that was on a table at a barbeque at which nine adults were present. He was then 3½ years old.
2. By his tutor (who is his mother), the appellant commenced proceedings in the District Court claiming damages for negligence from the respondent. The respondent was the owner of the premises, but was not present at the barbeque. The appellant's case was that the following events occurred: • some days prior to the barbeque the respondent used a product containing caustic soda, similar to the product sold under the brand name "Drano", to unblock a sink in a kitchen at the premises; • the respondent left a glass containing that product on the kitchen bench; • on the day of the barbeque, water was unwittingly put in the glass, and given to the appellant when he was in the kitchen; • the appellant then left the glass on a table in the garden, and when he came to drink it later he suffered serious injury.
3. By judgment of 6 October 2016 Harrison AsJ rejected the appellant's claim and directed the entry of judgment for the respondent ([2016] NSWSC 1415). Her Honour found that the appellant had not discharged his onus of proving that the events occurred in the manner he alleged. Particularly significant to her Honour's conclusion was that, when the appellant was given the glass in the kitchen he sipped from it but suffered no reaction, but when he later drank from what he alleged was the same glass he suffered an immediate adverse reaction. Her Honour was not satisfied that the appellant drank from the same glass on each occasion.
4. On appeal, the appellant argued that the following findings made by the primary judge were glaringly improbable, and that therefore the decision itself was also glaringly improbable: 1. After the appellant had an adverse reaction to drinking the liquid, his uncle, Mr Martin Taylor, did not taste the substance in the glass from which the appellant had drunk. 2. Mr Taylor admitted to Mr Gary McBride that he (Mr Taylor) was the source of the corrosive substance. 3. The substance that the appellant ingested was most likely hydrochloric acid. 4. Histories recorded at the hospitals to which the appellant was taken were of assistance in resolving the conflicts in the lay evidence. 5. The respondent did not take caustic soda to the premises and use it to unblock the kitchen sink drain.
5. For the reasons given below, I consider that the appellant's challenge to her Honour's judgment fails and that his appeal should be dismissed with costs.

THE EVIDENCE AT FIRST INSTANCE

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

Ms Christine Taylor

1. Ms Christine Taylor is the appellant's mother. She made witness statements which were tendered in the proceedings. Her first witness statement included the following.
2. Between the end of March and early April 2012 the respondent engaged Ms Kylie Burridge to do cleaning and general maintenance work at his vacant property to prepare it for renting out. In turn, Ms Burridge engaged Ms Taylor and her son to assist. Whilst they were working at the property, Christine's brother, Mr Martin Taylor, became aware that the property was for rent. The respondent agreed to let it to him and Mr Taylor commenced to move in soon after.
3. On 8 April 2012 a barbeque was held at the property. Whilst Ms Taylor and others were in the kitchen, the appellant asked for a drink of water. He was given a glass in to which water had been put, and took it outside.
4. Ms Taylor continued: "After 15 minutes or so Vai came back to the table [in the garden] 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 [Mr Gary McBride] and tried to wipe his mouth and grabbing his tongue, seeing something was wrong my brother grabbed the water and tasted it, burning (sic) instantly shouting it was burning."
5. Ms Taylor accompanied the appellant to Gosford Hospital. She recalled saying to a nurse "we were at a barbeque at my brothers (sic) place, he was given a drink and there was acid in it". The appellant was subsequently taken to Westmead Children's Hospital. Ms Taylor could not recall how the histories noted in that hospital's records were obtained. The glass from which the appellant drank was subsequently lost.
6. Ms Taylor's supplementary witness statement included the following.
7. On 26 March 2012 she heard the respondent complain loudly to the previous tenant's mother about the tenant having blocked "the drain" (a reference to the kitchen sink).
8. At about the same time, Ms Taylor saw the respondent bring a container of "Drano" from his home, which was situated next door. She continued: " … I then saw Barry open the lid of the container and shake granules from it into the kitchen sink hole. He then asked, 'Has anyone got a glass?' I handed him a drinking glass like the one in photographs attached to Hazel's Statement ('the glass'). I then saw him pour granules from the container into the glass, add water from the kitchen tap, and then pour the liquid in the glass down the kitchen sink hole. Barry then left the container and the glass next to each other on the kitchen sink stainless steel sidebench."
9. Whilst present in the kitchen on the day of the barbeque, Ms Taylor heard Ms Burridge say to the appellant "I'll get that for you, darling" when the appellant asked for a drink of water.

Ms Catherine Hogan

1. Ms Hogan was present at the barbeque on 8 April as a friend of the Taylor family.
2. Ms Hogan recalled that whilst she was sitting at a table outside, the appellant took a glass from the table and drank from it. She said: "He then ran away back to play with [another child] but came back a minute or two later and said to me 'a spider bit my tongue'". She said that someone, she thought it was Martin Taylor, had a taste of the liquid in the glass "and told everyone it was poison".
3. She did not know how long the glass was sitting on the table before the appellant drank from it, but she did have a recollection of Ms Burridge coming out of the house with a glass in her hand and of the appellant asking Ms Burridge for a drink at some stage.

Mr Martin Taylor

1. Mr Martin Taylor is Christine Taylor's brother and the appellant's uncle. He made multiple statements in connection with the proceedings brought by the appellant. The appellant tendered three of Mr Taylor's statements; one handwritten and two typed. The respondent tendered three other statements (including two drafts). Mr Taylor was extensively cross-examined about alleged inconsistencies between these statements.
2. In his principal statement (part of Exhibit E), Mr Taylor said that at some stage during the barbeque the appellant "came outside with a glass of water which he sipped and put it on the table in front of everyone then ran off to play". In his handwritten statement he said that the appellant "drank out of the glass", and one of his draft statements says that the appellant first "took a big gulp" from the glass. In cross-examination however, Mr Taylor described this first drink as a "sip".
3. Mr Taylor continued: "Roughly half an hour later I said the food was ready and we should feed the kids first as they came to the table I was sitting near, watching the proceedings, when Vai in full view of everybody grabbed his glass of water, after running and puffing he had a big gulp and immediately put the glass down on the table and ran screaming making his way inside. As I saw the whole thing I picked up the glass and took a mouth full [sic], 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 its caustic soda get the milk, unfortunately the milk never induced vomiting for Vai who was then taken to Gosford hospital by Christine and Faausu [his father]."
4. In a statement tendered by the respondent (Exhibit 8), Mr Taylor gave the following account: "I recall that just before lunch I was sitting at a table outside. I do not recall who was with me but I think there were a few blokes sitting around the table drinking beer. I saw Vai come out from the house holding a schooner glass with what appeared to be water. The glass was about ¾ full. I recognized the schooner glass because I didn't own any glasses like that at the time. It must have been one that Barry had left in the house. I saw Vai take a big gulp of water. He drank perhaps 1/3 or ½ of the glass. He had been running around. I saw Vai then put the glass on the table I was sitting at. It sat there for another ½ hour or so, I saw Vai come back and pick up the glass which he had put down. I am sure it was the same glass because it was quite close to me. We were drinking beer from bottles and not from glasses. I saw Vai take a drink from the glass then … almost immediately he screamed and started running around like he had been electrocuted. I saw all that happen. I saw Vai put the glass down, I reached for it and tasted the contents. It burnt my mouth, lip and tongue. I spat the contents out and rinsed my mouth with beer but that seemed to make it worse. Immediately after I tasted the contents of the glass and spat it out I was watching Vai run off and I said 'that's like caustic soda'. I had never actually tasted caustic soda before. I immediately tipped the contents of the glass out onto the grass and put it back on the table. We tried to look after Vai and somebody rang the poisons information hotline."
5. A draft statement of Mr Taylor (Exhibit 9) included the following passages: "[On a day prior to that of the barbeque] … I saw Barry pouring the caustic soda down the kitchen drain from a glass a little bit at a time and watching it as he poured it right into the sink. I saw him put the glass down on the back part of the sink. I can't say exactly how much was left in the glass but there was quite a bit of liquid left in the glass. I would say at least 2 inches whereas the glass was well over half full when he started pouring. I was not paying that much attention when I saw him pouring except that I thought I did not want to get splashed with it and thought he might get burned as from recollection he did not even have gloves on as he was pouring. The first time I was caused to really think about what I saw Barry doing was a week or so later when my nephew Vai had his throat burned from drinking from that glass."
6. In a supplementary statement (also part of Exhibit E), Mr Taylor said that, prior to him agreeing to rent the property, the respondent complained to him about the previous tenants leaving the kitchen drains blocked. The respondent showed him a container of "Drano" and said, "I've had to use this to clear the drains, and if it happens again, use this!".
7. In his handwritten statement, Mr Taylor said that the respondent had said that he had unblocked the drains "with caustic soda which he left on the kitchen sink". Mr Taylor also said that, after tasting the liquid that the appellant had drunk, his "first reaction was [that it was] caustic soda. I said that's caustic soda".
8. In the course of Mr Taylor's cross-examination, the following exchange took place: "Q. The barbeque that you were using on the day was brought over by your brother-in-law. Is that right? A. That's correct. Q. … You indicated that you had used acid for brick cleaning over the years? A. Yes. Q. What sort of acid are we talking about? A. Hydrochloric. Q. What I want to suggest to you is that you used hydrochloric acid at the house on the day of the barbeque, didn't you? A. No. Q. You used it to clean the barbeque? A. No. Q. If you didn't use hydrochloric acid, you used some other corrosive substance to clean the barbeque, didn't you? A. No. … Q. You had hydrochloric acid at the house at the time of this incident, didn't you? A. No. Q. Are you sure? A. Yes, I'm sure. Q. Where do you get the hydrochloric acid that you use for brick cleaning from? A. Generally from brick cleaners. Q. You bought hydrochloric acid from brick cleaners before? A. No, I don't buy it, I ask for a litre or two if I need it. Q. A litre or two and then use what you need and when you run out you get some more. Correct? A. That's correct. We only use it for barbeques. Q. Beg your pardon? A. We only use it for barbeques, aciding (as said) down brick barbeques. Q. To be fair to you, you mean the brick outside barbeques? A. That's correct, yes."

Ms Hazel Taylor

1. Ms Hazel Taylor is the mother of Christine and Martin Taylor. She is the appellant's grandmother.
2. Ms Hazel Taylor recalled that, while she was working in the kitchen on 8 April 2012, she heard the appellant say "drink of water". She did not see what happened next, but heard Christine Taylor say "get that drink outside". She continued: "Some time later - maybe 10 minutes I was still in the kitchen and I heard a commotion outside. Vai came in rubbing his mouth against my leg. I went outside and sat down. Vai had run out before me, he was very agitated at that point. Martin said 'it's acid' indicating that his mouth had been burnt. I saw a glass on the table. It was not as big as a schooner glass and probably not as big a middy glass. It was smaller than that. I had been shown a glass while making this statement and I attach a photograph of the glass I was shown. I confirm that it is identical to the glass I saw on the table next to Martin when he had indicated its contents was acid. The next thing that happened was that Kylie rang the Poisons Information Hotline. Fuzz and Tinny [the appellant's parents] took Vai to hospital. I went to the local chemist to see if I could get something to relieve the burning in Martin's mouth. I don't recall any particular conversation with the others after Vai had been taken to Hospital but I was very upset at that point in time."
3. She added that, from her knowledge of the appellant, she could say that "when he was handed the glass of water he would have gulped a drink straight away".

Mr Faausu Afoa

1. Mr Afoa is the appellant's father. His statement included the following: "I remember Vai came to the table outside and said he was thirsty, I did not say anything to him. He picked up a glass off the table in the backyard and drank it, he straightaway started spitting and grabbing his tongue, he was screaming and running around in circles."
2. In cross-examination, Mr Afoa said that Christine Taylor accompanied the appellant to Gosford Hospital in an ambulance whilst Mr Afoa followed in a car. The ambulance arrived at the hospital well before he did.
3. In the course of Mr Afoa's cross-examination he was referred to the history recorded at Westmead Children's Hospital (see [42] below), to which the appellant was later transferred. Mr Afoa said that he could not recall giving that history. The following exchange then occurred: "Q. What I want to suggest to you is that history accurately records what happened that day, doesn't it? A. I assume so, yeah."

Mr Barry McBride

1. Mr Barry McBride is the respondent and the owner of the premises upon which the appellant's injury occurred. He was interstate at the time of the barbeque. His statement included the following: "Kylie and Christine used their own cleaning equipment and cleaning products. I am not aware what products they used. Christine used her gerni [sic] to clean the exterior of the house and windows. I recall that the kitchen sink was slow to drain. It was not completely blocked. I removed the flyscreen and the S trap from under the sink and inserted the hose by about 2.5 to 3 metres. I then turned the hose on and blasted the muck out the pipe. I did this three times and refilled the sink with hot water. On the third time the drain was cleared. At no time did I use any chemical product or acidic substance to unblock the kitchen drain. I unblocked the drain using a high pressure garden hose with water alone. I do not have acid in any form on the both premises owned by myself. … I first became aware of Vai [Afoa's] injury caused by swallowing an acidic substance on the Wednesday 27 February 2013 when I received the Statement of Claim. At no time prior to this did any person make me aware of Vai [Afoa's] injuries."
2. After Mr McBride heard about the accident, he spoke to his son (Mr Gary McBride) about it. His statement continued: "My recollection of Gary's version is that he was sitting in the backyard with Kylie and Martin Taylor was cooking on the barbeque. Gary said he saw a glass on the plastic outdoor table located near the barbeque. Vai [Afoa] walked up to the table and drank from the glass. Immediately the child began to scream and would not open his mouth."
3. In a supplementary statement, Mr McBride said that he became "well acquainted with the properties of caustic soda over the many years of working at Alcan" (which operated a fabrication plant including furnaces for remoulding aluminium). He said that he regarded caustic soda "as an extremely dangerous substance and never used it in a domestic setting at all".

Mr Gary McBride

1. Mr Gary McBride attended the barbeque but did not see anything of relevance until he heard the appellant scream and indicate that there was something wrong with his mouth, that it was burning. He saw the appellant holding a glass with a small amount of liquid in it. He said that Martin Taylor picked up the glass, "sniffed it" and "reacted by pulling his head away and pulling a face". In his supplementary witness statement Mr McBride recorded that Mr Taylor then said: "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."
2. In cross-examination, Mr McBride confirmed that in his supplementary statement he made no reference to caustic soda. He also conceded, however, that in a portion of his original witness statement that was not pressed, he said that Mr Taylor's admission regarding the cause of the incident identified caustic soda as the substance in the glass. Mr McBride then confirmed that his recollection was that Mr Taylor had referred to caustic soda, and had not mentioned hydrochloric acid.

Ms Alexandra Bryant

1. Ms Alexandra Bryant is a qualified social worker. She worked at Gosford Hospital in April 2012.
2. Ms Bryant had no recollection of the appellant's attendance at the hospital on 8 April 2012, but confirmed that notes she made in the hospital records on that day included the following: "PT [patient] referred by NUM [Nursing Unit Manager], to support parents, Pt and parents seen R1 [in Resuscitation Room Number 1]. PT was at 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 weeks of age when he had whooping cough, so parents are familiar with protocol and how to access hospital etc. Action: 1. Crisis intervention support contact. 2. Practical assistance to mother. Mother given thongs as she had no shoes and toiletries. 3. Family offered transfer information pack, but not required due to previous experience. 4. Patient encouraged to access SW at Westmead Children's Hospital for support as required. 5. Consult with treating Dr Krishnan. Story consistent with injury. Parents sought treatment appropriately. Parents were unaware that acid was present as they were at patient's uncle's. Nil child protection concerns identified."
3. Ms Bryant said that she would not have recorded this history unless she was satisfied that it came from a reliable source. She added: "The reference to the uncle and the fact that he 'does not have small children' fits entirely with my function. For example, if I had been told that the uncle had simply left a glass of acid on the kitchen bench and he himself had the care of small children, I would have made a report to DOCS concerning his conduct. The fact that he did not have small children was a material matter for me to consider in making a decision not to make such a report. There is no doubt that on 8 April [2012] I did have direct discussions with the child's parents. It is my practice to record histories that are given to me in records of this nature as accurately as I possibly can and I have no reason to doubt the accuracy of what I have recorded."

Dr Alexandra Thorburn

1. Dr Alexandra Thorburn is a medical practitioner. She was practising at Westmead Children's Hospital in April 2012.
2. Dr Thorburn's notes contained in the hospital records include the following: "3 year old boy transfer from Gosford following hydrochloric acid ingestion". "At uncle's place today, uncle had poured hydrochloric acid from a glass earlier, some had crystallized in the bottom of the glass. Uncle poured water into same glass (accidentally) for use in cooking. Pt saw glass of water and drank it - complained of pain immediately, vomiting … "
3. Dr Thorburn continued: "I have a recollection of obtaining that history although I now cannot be certain from whom I took it. I can say that from the terms of the history recorded I obtained that information either from the child's parents or other people who either witnessed the incident or were present or thereabouts when the incident occurred. It is not a history that I believe I have taken from another member of hospital staff or an ambulance driver for example."
4. In cross-examination, Dr Thorburn stated that if she had been told that the appellant had ingested caustic soda from a Drano container, she would have regarded such information as significant and would have documented it.
5. In addition to Dr Thorburn's notes, the following triage notes were contained in the hospital records: "History from escort nurse and mother: At approximately 17.00 hrs child ingested approximately 100 - 150 ml hydrochloric acid. Taken to Gosford hospital."

THE JUDGMENT AT FIRST INSTANCE

1. The primary judge stated at the outset that the case before her involved major factual disputes and that the credibility of the lay witnesses was strongly in issue (Judgment [4]). Her Honour noted that the appellant's particulars of negligence included an allegation that the respondent negligently caused a dangerous chemical to be placed in a clear vessel, left that vessel in a kitchen, and failed to warn the appellant and others of that fact (Judgment [28]). Her Honour stated that if the appellant's pleaded version of events was accepted, he would have established negligence pursuant to the Civil Liability Act 2002 (NSW) (Judgment [34]). This proposition was not contested on appeal.
2. The primary judge undertook an extensive examination of the evidence, including of the alleged inconsistencies in Martin Taylor's evidence. Having referred to Ms Bryant's evidence, her Honour stated: "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 [Mr Afoa] had no recollection of speaking to anybody at Gosford hospital about the incident" (Judgment [104]).
3. As to the exchange regarding the accuracy of the Westmead Children's Hospital records, which took place during Mr Afoa's cross-examination and is quoted in [32] above, her Honour stated: "Counsel for the plaintiff stressed that this statement should … 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" (Judgment [113]).
4. Her Honour noted that the outcome of the case largely depended on her evaluation of the credit of each witness, "but critically, that of Christine, Martin and the defendant and, to a lesser extent that of Hazel" (Judgment [124]). Her Honour concluded that Christine Taylor was either mistaken as to what occurred on the day of the barbeque, or had tailored her evidence "to present the plaintiff's case at its highest" (Judgment [129]). Her Honour said that she had serious reservations about the reliability of Christine's evidence (Judgment [135]). Her Honour made the following further credibility findings: "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. … I accept that the conversation took place between Gary and Martin where Martin said, "There must have been some residue in the glass after I cleaned the barbeque with it" and Martin identified the substance to Gary as caustic soda. During cross examination Gary said, 'Well, to my recollection, a year after it happened, [Martin] said caustic soda to me' (T199.8-9). This accords with Martin's evidence as to what Martin said when he tasted the substance. However, so far as Martin's reference to caustic soda in this conversation is concerned, I do not accept Martin's identification of the substance being caustic soda as reliable. It would be inexplicable that after smelling a substance that Martin knew caused immediate pain to the plaintiff, he then tasted that substance. The latter part of Gary's version of the conversation with Martin, namely, 'I cleaned the barbeque with it', is consistent with the history given to Gosford and Westmead hospital staff. Hence, while I accept Gary's evidence that Martin said 'caustic soda', I do not accept that the substance was actually caustic soda based on Martin's statement" (Judgment [181], [184]).
5. The primary judge summarised her conclusions as follows: "185 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. 186 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. 187 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. 188 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. 189 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. 190 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'. 191 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. 192 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."

DETERMINATION OF THE APPEAL

1. As the findings that led to the primary judge's rejection of the appellant's case were credit-based, the principles stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28] and [29] are applicable to this Court's determination of the appeal. According to those principles, to successfully challenge the primary judge's credit-based decision the appellant must show that the decision is contrary to "incontrovertible facts or uncontested testimony", is "glaringly improbable" or is "contrary to compelling inferences".
2. It is convenient to commence by assessing the likelihood that the appellant's version of events is correct by reference to evidence that is wholly or substantially uncontroversial.
3. There is no doubt that, whilst in the kitchen, the appellant was given a glass of water in response to his request for a drink, and told to take the glass outside. Both Christine and Hazel Taylor gave evidence to this effect. Martin Taylor's evidence is consistent with this being the case.
4. It is clear that the appellant drank from the glass almost immediately. Martin Taylor indicated this when he said that the appellant "came outside with a glass of water which he sipped and put it on the table in front of everyone and ran off to play" ([20] above). Although neither Christine nor Hazel Taylor gave evidence of seeing the appellant drink from the glass immediately after he was given it, that sequence of events is consistent with their evidence. Moreover, as the appellant asked for a drink and was given one, the obvious inference is that he drank from the glass before he went off to play. Hazel Taylor (who, as the appellant's grandmother, no doubt knew him well), said that, from her knowledge of the appellant, "he would have gulped [the] drink straight away" ([29] above).
5. It is also clear that the appellant did not suffer any immediate adverse reaction when he drank from the glass at this time. As Martin Taylor said, the appellant drank from the glass and then ran off to play.
6. A significant time passed before the appellant was seen to have another drink. Unsurprisingly, because of the difficulty of estimating time, the witnesses gave differing estimates of the length of that period of time. Christine Taylor gave evidence that it was "15 minutes or so" ([10] above), Martin Taylor said it was "roughly half an hour" ([21] above), and Hazel Taylor referred to it as "maybe 10 minutes" ([28] above).
7. When the appellant had this second drink (whether it was from the same glass is a matter in issue), he immediately started screaming. Christine Taylor gave evidence to this effect ([10] above), as did Martin Taylor who said that the appellant "almost immediately … screamed and started running around like he had been electrocuted" ([22] above). Mr Afoa said that the appellant "straight away started spitting and grabbing his tongue, he was screaming and running around in circles" ([30] above). When recounting the incident, Gary McBride told the respondent that "immediately the child began to scream" ([34] above). Ms Hogan's seemingly contrary recollection that there was a gap of "a minute or two" before the appellant had a reaction to his drink ([17] above) cannot be accepted in light of the wealth of contrary evidence, nor did the appellant suggest it should be.
8. These circumstances (which are clearly established by the evidence) strongly indicate that the appellant did not drink from the same glass on each of the two occasions that I have identified. If the appellant did drink from the same glass, these circumstances indicate that the contents of the glass must have been different when he drank from it the second time.
9. I note that neither party suggested that there was a change in the contents of the glass. If that did occur, however, it contradicts the appellant's case, because acceptance of that sequence of events depends upon the corrosive substance being added after the glass left the kitchen on the day of the barbeque. This is entirely different to the appellant's contention that some days before the barbeque the respondent left the glass, the contents of which caused the appellant injury, in the kitchen with a corrosive substance in it.
10. Acceptance of the appellant's case that the corrosive substance was already in the glass when it was given to the appellant in the kitchen would involve accepting that it was possible that the appellant could have at least sipped from the glass (when he first drank from it) without having an adverse reaction to it, or at least only a reaction that was delayed for a long period until after he had finished playing and took his second drink (to which he had an immediate adverse reaction). There was no medical or other evidence to suggest that the appellant could have sipped or drunk from the glass yet not experienced any adverse reaction until at least ten minutes later. That hypothesis seems very unlikely, given that drinking from the glass with the same substance a second time immediately caused the appellant to scream in agony. Accordingly, the appellant's case cannot be accepted as correct.
11. This analysis accords with the primary judge's reasoning at [188] and [192] of her judgment (see [50] above). It does not depend upon the resolution of any conflicts in the evidence, and indicates that her Honour's decision was not, as the appellant contends, "glaringly improbable". On the contrary, it suggests that her Honour's decision was clearly correct.
12. I turn then to the primary judge's findings that were the subject of particular challenge by the appellant. I note that, even if the appellant was successful in challenging some, or even all, of these findings, this success would not in my view lead to the conclusion that her Honour's decision was "glaringly improbable". This is because error in the making of any of those subsidiary findings would not detract from my analysis set out in [51]-[60] above.

Whether Martin Taylor tasted the liquid in the glass

1. In his written submissions, the appellant first contended that the primary judge overlooked important, unchallenged evidence given by Hazel Taylor that she went to the local chemist to obtain medication to relieve the burning sensation in Martin Taylor's mouth. Mr Taylor gave evidence that this burning sensation occurred after he drank from the same glass from which the appellant had drunk ([21] above). I agree that regard to this evidence may well have caused her Honour to conclude, contrary to what she found in her judgment ([49] above), that Mr Taylor did in fact taste the substance.
2. The appellant submitted to this Court that the primary judge's failure to find that Mr Taylor tasted the substance was important because "[i]t is fanciful to suggest that Martin would have drunk from a glass that he knew contained hydrochloric acid or caustic soda" (written submissions [24]). However, even if Mr Taylor had used the corrosive substance to clean the barbeque, or for some other purpose, it might not have been obvious to him that this substance was in the glass from which the appellant drank. Further, it cannot be assumed that in such circumstances Mr Taylor would have refrained from testing the contents of the glass by tasting them as, even on Mr Taylor's evidence, he was rash enough to taste something that he knew had caused a violently adverse reaction to the appellant. It is therefore not inconceivable that he would have taken a sip of the liquid, even if he suspected that it contained the corrosive substance he had used to clean the barbeque.
3. Further, even if the primary judge had made a different finding in relation to this issue, her Honour had before her considerable evidence of Mr Taylor's responsibility for the substance's presence in the glass. First there was Gary McBride's evidence of Mr Taylor's admission. Her Honour's acceptance of this evidence was credit-based and is the subject of a separate challenge (see [67] below). Secondly there were the medical records from the two hospitals. Whilst such records must be treated with caution (see [70] below), it is hard to imagine that both Ms Bryant and Dr Thorburn, on independent occasions, wrongly recorded that a person (almost certainly Christine Taylor) informed them that the appellant's uncle (that is, Martin Taylor) was the source of the corrosive substance. Such information was of particular importance to Ms Bryant because, as she indicated, her role as a social worker required her to find out who was responsible for the accident and whether that person had responsibilities to care for children (which Mr Taylor did not) (see [40] above).
4. In any event, the onus of proving his case lay on the appellant. Her Honour therefore had to determine whether the appellant had proved, on the balance of probabilities, that the corrosive substance was in the glass he was given in the kitchen, and that the respondent was responsible for the substance's presence in the glass. It was not incumbent on the respondent to prove what the substance was and where it came from.

Martin Taylor's admission

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

Whether the substance was hydrochloric acid

1. Thirdly, the appellant challenged the primary judge's finding that the substance the appellant ingested was most likely hydrochloric acid.
2. There was conflicting evidence on this issue. For example, Martin Taylor described the substance as caustic soda ([21] above) and Gary McBride recalled Mr Taylor describing it as a "caustic soda solution" ([36] above). On the other hand, Christine Taylor said that she recalled telling a nurse at Gosford Hospital that the appellant drank "acid", and both Gosford Hospital and Westmead Children's Hospital contained histories referring to "hydrochloric acid".
3. For the reasons given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], care must be taken in relying upon medical records as evidence of facts in issue in court proceedings. Relevant considerations to which his Honour referred included that the author of the notes might not have been cross-examined and that medical histories might have been "taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort".
4. In the present case, the authors of the principal hospital records referring to the appellant's ingestion of hydrochloric acid were cross-examined. Further, it should be concluded that the identification of the substance ingested was of potential importance to the manner in which the appellant was to be treated in hospital, and would have been regarded as significant by the hospital staff. In fact, Dr Thorburn gave evidence to the effect that she would have considered such information to be significant (see [44] above). In these circumstances, there was in my view no reason for the primary judge not to attribute some weight to the relevant notes. Nevertheless, in respect of the references to the hydrochloric acid, it seems appropriate for that weight to be limited because there was room for the hospital's informant, probably Christine Taylor, to be mistaken about the nature of the substance that injured the appellant. Presumably Ms Taylor was relying in this respect on what she was told by others. On the other hand, it seems unlikely that she would, without good cause, blame her brother for the catastrophic injury to her child. Therefore the notes were entitled to greater weight so far as they related to the origin of the substance.
5. The appellant further submitted that there was "no evidence that hydrochloric [acid] was on the premises on or before 8 April 2012" (written submissions [32]). However, there is no reason why such evidence was essential to her Honour's finding that the substance was hydrochloric acid. Martin Taylor was clearly a potential source as he had used it "over the years" for brick cleaning, including to clean the brickwork on barbeques (see [26] above). He said that if he needs hydrochloric acid he obtains it from brick cleaners and asks "for a litre or two" at a time (ibid).
6. The appellant also submitted that Dr Thorburn's note in the Westmead Children's Hospital records, which stated that the appellant's "uncle had poured hydrochloric acid from a glass earlier, [and] some had crystallised in the bottom of the glass" ([42] above), was inconsistent with the evidence that Martin Taylor had only moved into the premises on the day of the barbeque. The appellant submitted that the timing of Mr Taylor's move was "far more congruent with the appellant's case that, in fact, the respondent's caustic soda from some days before 'had crystallised in the bottom of the glass'" (written submissions [34]). However, whether hydrochloric acid could crystallise and how quickly that might occur were issues not dealt with in the evidence. In any event, I note that Mr Taylor's evidence (in Exhibit E) was that he commenced to move his belongings into the premises on Friday 6th April 2012. Further, to say that a different conclusion as to the nature of the substance would be "far more congruent" with the appellant's case falls well short of establishing that her Honour's subsidiary finding that the substance was likely to have been hydrochloric acid was "glaringly improbable". Finally, as I pointed out earlier, the setting aside of this subsidiary finding, or any of the other findings to which I have referred, would not in any event require acceptance of the appellant's case. The analysis at [51] to [60] above would remain as a refutation of that case.

Whether the respondent brought caustic soda to the premises

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

CONCLUSION AND ORDER

1. As I have indicated, the sequence of events apparent from uncontroversial evidence contradicts the appellant's claim that he ingested a corrosive substance that the respondent had left in a glass in the kitchen of the premises some days earlier. As a result, the primary judge's decision was not "glaringly improbable". Further, the decision was not demonstrated to be open to challenge on any other basis. As I have noted, even if the appellant had been successful in any of his challenges to the primary judge's subsidiary findings, he would not have been successful in his challenge to her Honour's ultimate finding.
2. In these circumstances, I propose that the appeal be dismissed with costs.
3. PAYNE JA: I agree with Macfarlan JA.
4. SACKVILLE AJA: This is an unfortunate case arising out of serious injuries sustained by a three year old boy when he drank water from a glass which contained a corrosive substance.
5. I have had the advantage of reading the judgment of Macfarlan JA in draft. I agree with his Honour that the appeal must be dismissed and I also agree with his Honour's reasons. Because this is such an unfortunate case, I add the following comments.
6. As Mr Cummings SC submitted on behalf of the respondent, the critical issue at trial was not whether the appellant's injuries were caused by ingesting hydrochloric acid, but whether the appellant could establish that his injuries were caused by drinking water from a glass which the respondent had left on the rental premises and which contained a residue of caustic soda. Nonetheless, the hypothesis advanced by the respondent by way of defence and which he sought to support by evidence, was that the appellant drank from a glass containing hydrochloric acid which had been brought onto the premises by his uncle, Mr Martin Taylor.
7. The primary Judge noted that it was impossible to reconcile the competing accounts as to the method used by the respondent to unblock the drain in the kitchen of the rental property and the circumstances in which the appellant came to ingest a corrosive substance. A great deal therefore turned on her Honour's assessment of the credibility of the witnesses called by each party.
8. The respondent, who was aged 82 at the date of the trial, emphatically denied that he had used Drano (containing caustic soda) to unblock the sink on the premises. He also denied keeping caustic soda either on the premises where the accident occurred or on the neighbouring property, which he also owned. When asked why he had never used Drano granules, the following exchange took place: "A. 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. Q. And yet it's sold in supermarkets and hardware stores? A. We don't know how many accidents occurred off that, but I certainly never used it and I wouldn't use it". The respondent was challenged on this evidence but steadfastly maintained his position.
9. The appellant's counsel submitted to the primary Judge that the respondent's evidence was unconvincing and should not be accepted. In assessing this submission, her Honour acknowledged that the respondent presented "as a man of very definite black and white opinions" and that he had displayed a somewhat defensive attitude in giving his evidence. Nonetheless, her Honour, having carefully observed the respondent in the witness box, [1] accepted his evidence that he did not take Drano from his residence to the neighbouring rental property and did not use Drano to clear the partially blocked drain.
10. By contrast, the primary Judge did not accept key elements of evidence given by the witnesses called on behalf of the appellant. Her Honour gave detailed reasons for concluding that Christine Taylor, the appellant's mother, was either mistaken about the circumstances of the accident or had tailored her evidence to present the appellant's case at its highest. [2] Crucially, her Honour also identified a number of significant inconsistencies in Mr Taylor's evidence and found that he had resorted to "evasion" to explain some of the inconsistencies. [3] In the light of these inconsistencies, it is not surprising that her Honour did not accept Mr Taylor's evidence as to the circumstances in which the accident occurred [4] or his claim that the respondent told him that he (the respondent) had cleared the blockage in the sink using Drano. [5]
11. Her Honour's preference for the evidence of the respondent over that of the appellant's witnesses did not solely rest on her assessment of the demeanour of the witnesses or inconsistencies in their evidence. The objective evidence in the form of the records prepared by the social worker at Gosford Hospital (Ms Bryant) and the paediatric specialist who saw the appellant at Westmead Hospital (Dr Thorburn) supported the respondent's case that the applicant's injuries resulted from ingesting hydrochloric acid.
12. As Macfarlan JA points out, [6] care must be taken before relying on a patient's history or the circumstances of an accident recorded in clinical notes or other medical records as cogent evidence of disputed facts. In this case, however, both Ms Bryant and Dr Thorburn gave evidence and were cross-examined. Ms Bryant's evidence, in particular, was to the effect that she had direct discussions with the appellant's family and that she had a specific reason to record accurately the information given to her concerning the substance ingested by the appellant. The primary Judge accepted Mr Bryant's evidence. Her Honour was entitled to take this evidence and the medical records into account as reinforcing her assessment of the credibility and reliability of the various witnesses.
13. I agree with Macfarlan JA that the primary Judge appears to have overlooked unchallenged evidence given by Hazel Taylor that she went to the local chemist to see if she could get something to relieve the burning in Mr Taylor's mouth. If this evidence was accepted, it strongly supported Mr Taylor's claim that he tasted the liquid in the glass after the appellant drank from it, although it would not necessarily support his claim that he thought the corrosive substance was caustic soda.
14. As the primary Judge found, [7] neither Hazel Taylor nor Christine Taylor said that Mr Taylor identified the substance as caustic soda. Hazel Taylor's evidence was that Mr Taylor, after tasting the liquid, said that "it's acid". Christine Taylor said only that her brother tasted the liquid and immediately shouted that it was burning him.
15. The primary Judge took into account her finding that Mr Taylor did not taste the liquid in making other findings. Assuming that this finding was in error, there are two reasons for concluding that the error does not interfere with the ultimate findings made by her Honour. The first, as Macfarlan JA has explained, is that the objective evidence and her Honour's assessment of credibility (independently of whether Mr Taylor tested the contents of the glass) support the findings, which cannot be regarded as glaringly improbable or contrary to the compelling inference. The second is that even if Mr Taylor tasted the contents of the glass, bearing in mind the unreliability of his evidence, that fact does not establish that the glass contained caustic soda rather than hydrochloric acid.

Endnotes

1. Primary Judgment at [125].
2. Primary Judgment at [72], [129].
3. Primary Judgment at [76]-[77], [154], [159].
4. Primary Judgment at [168].
5. Primary Judgment at [78], [167].
6. See at [70] above.
7. Primary Judgment at [165]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2017