Townsend v Townsend [2001] NSWCA 136 | Case summary

Townsend v Townsend [2001] NSWCA 136 | Case summary | Zoe

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Overview 4 The appellant and the respondent were married on 8 October 1983. Each had previously been married. As at November 1995 the appellant was aged 49 and the respondent was aged 52. 5 At some time prior to November 1995 the appellant became aware that the respondent had been keeping company with another woman. Hosking DCJ recorded that this "led to what, on her version, were arguments between them and what, on the defendant's version, consisted of abuse directed towards him by the plaintiff but not reciprocated". 6 On the evening of 22 November 1995 the appellant intended to have a shower in a shower recess in the laundry area of their home before going to the airport to collect her daughter. She found the respondent already in the shower. Even on the appellant's version, she began shouting and swearing at the respondent "for cheating and lying", and told him that she wanted him to leave. According to the appellant, she and the respondent were shouting at each other, and the respondent said that he was not leaving because it was his house and was very angry. According to the respondent, the appellant was the one who was angry, and he did not reply to her. 7 The respondent stepped out of the shower recess in order to dry himself. Although it had been the subject of some dispute, Hosking DCJ found that the ceramic tiled floor was wet with soapy water where the respondent was standing. Expert evidence from Professor Yandell supported what might otherwise have been plain, that the wet floor was very slippery. The findings in this respect were not contested on appeal. 8 There then occurred the incident in which the appellant was injured. The respondent is a big, man about 188 cm in height and then weighing of the order of 100 kg; the appellant is much smaller, then weighing about 53 kg. According to the appellant, the respondent picked her up and dropped her. According to the respondent, when the appellant raised an iron and appeared to be about to throw it at him he grabbed at her wrist, and in the course of doing so slipped and fell, pulling the appellant down with him. I will return to the competing accounts in more detail later in these reasons. 9 In whatever manner it came about, the appellant's injury was quite severe. Its nature was important to the appellant's submissions on appeal. She suffered a L1 crush fracture with protrusion of a fragment of bone into the spinal canal. The fracture was of a kind caused by vertical compression of the spine, and the fracture was predominantly to the anterior parts of the vertebra. On subsequent exploration and testing there was no evidence of malignancy or abnormal lack of bone density, and the fracture was the result of trauma in the incident without pathological contribution.

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The incident in more detail 10 After saying that the respondent picked her up and dropped her, the appellant gave the evidence - "A. I did leave something out. I'm sorry. As he approached me the iron sat on the work bench. It hadn't been turned on and I picked it up by the handle. I don't know why I did it but I put it straight down again and then he came and put his left arm under my neck/shoulder area and his right arm under my knee area and picked me up and dropped me, threw me to the ground. Q. When you say picked you up, to what height? A. Not right up in the air but certainly enough to - I suppose that much. HIS HONOUR: Q. I'm sorry he picked you up? A. About a foot I suppose or 15 inches. MCDONALD: Q. Was he bending over or standing up or what? A. No, as he came towards me he -- Q. Did he pick you up? A. Yes he picked me up. Q. Well his hands went up about a foot? A. Yes and dropped me. Q. At what height on his body were you when he dropped you? A. Around here. Q. Around the chest? A. About there I would think, yes. HIS HONOUR: Q. At his chest level? A. Yes. … Q. When he picked you up was your head facing the ceiling or the floor? A. The ceiling. Q. Did you say anything to him as he picked you up? A. I said stop it. Q. Did he say anything to you? A. No. Q. When he dropped you - what was the floor of the laundry constructed of? A. Ceramic tiles. Q. When you fell onto the floor did you feel something? A. I felt instant agony in my back." 11 The appellant later amplified this - "HIS HONOUR: Q. Mrs Townsend, so that I make sure that I understand your evidence, when you say that your husband picked you up and dropped you on the floor, do I understand you to say that at the time when your feet left the ground, that your head was upper most? A. Yes, I suppose it would be. He had his hand under - his left hand under my neck, shoulder area and yes and my - I was curved under this knee area because -- Q. At the highest point when you say he lifted you, where were your feet relative to your head, do you understand what I'm asking you? A. When I was being lifted you mean? A. Yes, at the highest point that you say he lifted you to, where were your feet in relation to your head, were you upright or were you -- A. No, they'd be lower. Q. - parallel to the ground or what? A. Well, as far as I could tell almost parallel but my legs would have been hanging down under my head. Q. What, with your back arched to some degree? A. Yes, my back was arched." 12 In the light of the evidence of Dr Matheson to which I will come, it seems that according to the appellant her torso was almost parallel to the ground and her back was "arched", as I understand her evidence curved downwards between the points where the respondent held her. 13 In the respondent's account of the incident, after leaving the shower recess he was drying himself and being subjected to abuse from the appellant, and saw the appellant pick up the iron in her right hand and lift it to level with her ear in a throwing position. His evidence in chief continued - "Q. When you saw her with the iron in that position what belief, if any, did you form? A. I thought she was going to throw it at me. Q. After you formed that belief what did you do? A. I was close enough to her to walk forward and grab her right arm with my left hand to stop her from throwing it. Q. Did you do that? A. I did. Q. Whereabouts on her arm did you grab. Perhaps if I come over you can show me with my arm. I'll just hold my right hand up beside you and you can show me where you grabbed her. You're grabbing round my right wrist with your left hand. When you did that, what next did you do, what was the next thing you did. You did that? A. As I did it and grabbed her hand I slipped on the wet floor. Q. And what happened to you? A. I pulled Carolynne across in front of me and fell down with her on to the floor. Q. When you were on the floor where was she? A. She was beside me at that stage. Q. Where were you facing up or down? A. Down. Q. Where was she facing up or down? A. She'd gone forward and laid down on her back. Q. Can you perhaps stand up if you wouldn't mind. You might just demonstrate there would you without falling over please, but demonstrate what the movement was? A. I'd put the towel down. As she went to lift it up, I went to go forward and went like that and slipped in this direction. Q. And you're indicating a -- A. I still had hold of Carolynne's arm. Q. Indicating a turning motion of your body from right to left? A. Correct. HIS HONOUR: Anti clockwise. DONOVAN: Q. Indicating almost turning side-on and indicating your left arm going further beyond your body. A. Correct. Q. After you fell in that position was any part of you actually on top of her as your remember? OBJECTION. QUESTION WITHDRAWN. Q. Where were you in relation to her on the floor? A. Beside her. … Q. Can you tell us when, if at all, you let go of her arm? A. Obviously during the fall. Q. Can you remember any further details about the fall and the position of the two of you as you fell? A. Only that as I fell, I fell on her and on to the side. Q. What part of you fell on what part of her? A. My upper body fell on her side, this right-hand side of her because she came around my body. Q. Indicating something of the right-hand shoulder? A. Somewhere there yes. Q. That's her right-hand shoulder? A. Yes her right-hand shoulder on my chest." 14 In cross-examination the respondent said - "Q. You took your wife by her arm by - in your left hand and, from your evidence given today about the iron, I take it the iron was still in your wife's hand? A. Yes, it was. Q. And what happened then? A. As I moved forward, I -- Q. I'm sorry, I'll ask the question again. Your wife is standing facing you, you're there. You put the towel down. You see the iron in her right hand. Did you move forward to her and then grab her arm , or what did you do first? A. I moved forward. Q. And that's when you took hold of her arm? A. Correct. Q. And what happened then? A. As I took hold of her arm, I slipped and pulled her across my body. Q. You slipped in which direction and - one foot, both feet, what happened? A. It all happened in a split second, and, to be honest with you, I don't know, but I think both my feet slipped together. Q. They slipped forward? Backwards? A. My recollection of it was that I slipped in a forward motion. Q. So the feet went forward or you went forward? A. My feet and body went forward to the side." 15 In answer to further questions the respondent agreed that he fell twisting around anti-clockwise, and that he must have pulled the appellant around with him; he said that he fell over with her and "she finished on her back", and that he ended up face down. 16 In re-examination the respondent gave a demonstration, which unfortunately was not fully described in the transcript - "Q. With his Honour's leave I wonder if I might step out into the body of the court and have you demonstrate, using me as the model, as it were, as if I were the plaintiff on the night, exactly what happened in terms of how you grabbed her and the directions of rotation and so forth. A. I can try that, if you like. HIS HONOUR: Yes, you go ahead, Mr Townsend, would you like to walk down here and do it. ANDERSON: Q. Omitting the actual fall to the ground if you would, please Mr Townsend. You say, I think, that she lifted up the iron with her right hand? A. Correct. Q. To the height of her ear, approximately in the position that I have it now, is that right? A. Approximately. Q. Could you just demonstrate to his Honour what you did and the directions that you both turned and fell? A. I went like so, slipped in this direction and she came around my body this way and spun around and I fell on top of her."

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Other descriptions of the incident 17 Each of the appellant and the respondent was taxed in cross-examination with having given a different account or accounts of the incident on other occasions. In the appellant's case there were a number of such occasions, and his Honour thought them of some significance. 18 It is convenient first to go to what was put to the respondent in this respect. 19 The respondent's solicitors engaged UniSearch to provide the opinion about slipperiness of the floor which was in due course provided by Professor Yandell. Their letter of 20 October 1999 said that the respondent "will also be able to describe the particular circumstances that took place immediately prior to the fall including the position and twisting of his body when he slipped on the wet tiles". Professor Yandell went to the home. The respondent was present, and Professor Yandell agreed with a question from counsel for the appellant that the respondent "gave a version of what happened on the day, you put that in your report". 20 Professor Yandell's report dated 24 October 1999 relevantly said, "As he moved from the shower recess to the central part of the bathroom he was standing near his then wife when suddenly his feet shot forward on the wet floor and he and his wife fell heavily". This was put to the respondent, who said that he did not recall telling Professor Yandell what had happened and that the description just set out was not what had happened. The cross-examination did not explore whether this was because the respondent did not consider what Professor Yandell had recorded as complete, whether he did not consider it accurate, or otherwise why the respondent said it was not what had happened. 21 I go then to what was put to the appellant in this respect. 22 On realising that the appellant had been injured the respondent telephoned Dr Toni Clarkson, a personal friend of the appellant and her general practitioner, and then called an ambulance. 23 The appellant was taken by ambulance to Sutherland Hospital. According to the report of one of the ambulance officers, Ms Lindy Baldwin, written in the ambulance on the way to the hospital, the appellant complained of strong pain to the lower back "post fall". The report went on, "Stated later was pushed backwards by husband & fell directly onto lower back". The report also noted, "Husband present. Pt requests confidentiality re complaint", but other evidence established that the respondent was not present at the time of the "later" description given to Ms Baldwin. 24 The appellant agreed in cross-examination that it would be false to say that she was pushed. When asked about what she had told the ambulance officers, she said that she did not remember exactly but that she told them that the respondent had caused the injury and "something along the lines that it was an assault". Her evidence included - "Q. I'll continue with the record, 'Stated later was pushed backwards by husband and fell directly onto lower back'. Do you deny you told them that version? A. I don't remember exactly what I told them but I know I told them that he had thrown me -- Q. Thrown? A. I would have thought that - I think I would have said that I threw but I wouldn't have said that I fell because I didn't. Q. You started off that answer by saying that you had told them he'd thrown didn't you? A. Well I would've given the impression. I've said that I didn't remember the exact phrase that I used. Q. You would have given them the impression that he'd thrown you? A. Yes." 25 The appellant was definite that she did not say that she fell, and said that although she was embarrassed about telling anyone what had happened she did not want to hide from them that the respondent had caused the injury. 26 The appellant was seen by Dr Clarkson on 23 November 1995. The appellant's evidence was that she told Dr Clarkson "exactly what had happened", that "we'd been arguing and that David had thrown me to the floor"; she repeated that she told Dr Clarkson that she was thrown, and denied that she told Dr Clarkson that she was shoved. A report from Dr Clarkson was tendered in the appellant's case. It included - "At that time she confided to me that she and her husband had been arguing the previous night and that he had shoved her to the floor causing the injury. She did not want her family to know this." The appellant did not explain the divergence. 27 The appellant said in her evidence in chief that when she got to Sutherland Hospital she "told them what had happened", but that she did not tell her family or anyone else other than Dr Clarkson at this time because she felt embarrassed and ashamed. 28 The Sutherland Hospital record of the appellant's admission noted "Pushed by husband, landing on ceramic tiled floor - full impact via back", and included - "Alleged assault. Pushed onto ceramic tiled floor. C/o pain to lumbar back region. Neuro vascular intact. Upset re circumstances surrounding incident. Does not want incident to be discussed while husband is present."

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It is not clear whether this information came from the appellant or was taken from the ambulance report, although its phrasing and associated notations suggest that it came from the appellant. 29 Other of the hospital's records note "Pushed by husband - landed squarely on back - tiled floor", and "Pushed by husband. Onto lower back. Immediate pain in back." These again appear to have come from questions asked of the appellant. The Sutherland Hospital informal discharge summary noted "Fall onto hard floor onto back after pushed." 30 The appellant initially came under the care of Dr Kalev Wilding, orthopaedic surgeon, at Sutherland Hospital. She told Dr Wilding that she fell over on the laundry floor. 31 On 24 November 1995 the appellant was transferred to Kareena Private Hospital. The discharge report when she was transferred from that hospital noted "Fell onto hard floor resulting in lower back pain". 32 The appellant was seen by Dr John Matheson, consultant neurosurgeon, on 30 November 1995, and was then transferred to Prince of Wales Hospital. The hospital's records noted, apparently as information coming from the appellant, "Fell onto hard floor". Dr Matheson explored the fracture surgically on 1 December 1995, and put a rib graft into the body of the vertebra. The appellant said that she wanted to tell Dr Matheson what had happened. In fact she told him that she fell on her back on a ceramic floor. She did not tell Dr Matheson that she had been thrown to the floor until a consultation on 26 September 1996. 33 The appellant was seen by a social worker at the hospital on 1 December 1995. The social worker's notes included - "Pt had disclosed that her injury had resulted from an incident with husband. Interview - Pt told me that her husband had thrown her onto the floor following an incident. She explained that this was the first time that he had shown any violence towards her. Pt is concerned that her husband may find out that she disclosed this information. It is important that her husband is not aware of this." 34 According to the appellant, two or three weeks after leaving hospital she accused the respondent of picking her up and throwing her and asked if he was sorry; she said that he told her not to be silly, "everyone knows my back is too bad to lift you, I fell arse over tit on top of you". The appellant's evidence took this no further. It was not raised with or put to the respondent.

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39 Dr Matheson gave oral evidence; Dr Hume did not. Dr Matheson also said that the appellant's injury was consistent with the history she gave on 26 September 1996, that is, the history that she was "thrown on the ground by her husband". He said that in the absence of any pathology in the bone the appellant's injury was not consistent with the history she had earlier given to him, that is, that she fell over in a bathroom. 40 Dr Matheson was reminded of the description of the incident in the report of Professor Yandell, and there was put to him what was described as another version apparently formulated by the appellant's counsel from what had been put to the appellant by counsel for the respondent in cross-examination. That version, which I will call "the further version", was - "That the defendant grabbed the plaintiff's right arm with his left arm. He slipped on the floor twisted to the left and slipped and still had the plaintiff's arm. The plaintiff fell onto the ground and the defendant, the plaintiff of course being Mrs Townsend, fell onto the ground and the defendant fell face down partly on top of the plaintiff." 41 Dr Matheson said that it would be very hard to see how a fall as in the further version increased the amount of trauma, although it could have increased the amount of trauma slightly above the appellant slipping by herself, and that he did not believe it would have been sufficient to produce the fracture. 42 Counsel for the appellant then asked Dr Matheson - "Q. So of the different versions that you've now been given, which includes the version where the plaintiff was held, head and knees or head and legs, at about chest height of a man who's six foot two, and thrown to the ceramic tile floor with an arched back. Which of those versions is more likely to have caused the injury that you saw in surgery. HIS HONOUR: Mr McDonald is it thrown or dropped? MCDONALD: Well I think the plaintiff said thrown your Honour but-- HIS HONOUR: Thrown. MCDONALD: I don't know whether it was thrown or dropped. What did I say to the witness your Honour? HIS HONOUR: You asked the witness thrown -- MCDONALD: I'll put it both ways if I may your Honour. Q. If the plaintiff had been dropped from that height onto the floor with her back in the arched position, would you compare that with the other versions that you've been given and my question then is, which is the more likely to have caused the injury? A. The more likely version is that she was dropped to the ground."

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43 There was not a further question dealing with being thrown to the ground as distinct from dropped. In fact Dr Matheson had not been given a version which included details such as the appellant being held at chest height and having an arched back. This version was clearly enough taken from the appellant's evidence in the proceedings. By "arched" it seems Dr Matheson understood flexed or bent forwards, because he went on to say that the type of injury with predominantly fracture to the anterior parts would indicate that the appellant was flexed at the time of the impact, that is, bent forwards. 44 The cross-examination of Dr Matheson relevantly extended over some pages of the transcript. Like the examination in chief, it was at times unclear. 45 Dr Matheson did not agree that, if the appellant was pushed backwards by the respondent and fell directly onto her lower back (as recorded in the ambulance report), that would be consistent with the injury he saw. He thought it "a little bit difficult" that a fall in the manner counsel for the appellant had put to him (that is, the further version), with the respondent "partially on top of" the appellant when she fell, could have caused the injury, because he would need to know the position the appellant was in when the respondent fell on her. Importantly, he said that the respondent could have caused the injury "if he'd fallen onto her back with her in - falling in an upright and flexed position", that is, the appellant vertical and with her knees drawn up and falling onto her buttocks and the respondent falling across her back while she was in the vertical position. Dr Matheson said that if the appellant was "lying on the ground" it would not produce the fracture. 46 After reference to compression fracture of a vertebra caused by an ordinary fall onto the buttocks, which in Dr Matheson's view would occur only if the person falling had abnormal vertebrae, the evidence continued - "Q. You have no post graduate qualifications, or tertiary qualifications in bio-mechanics do you? A. No. Q. You're aware that the mechanics and the dynamics of falls vary enormously from case to case? A. Yes. Q. One can never do better than try and reconstruct what happened by their nature falls occur in fractions of a second and the body contorts involuntary [sic] in ways to try and react to the fall? A. Yes. Q. The best you can come up with is to [sic] a reconstruction and the expression of a possibility or a probability in regard to the dynamics of this fall? A. Yes. Q. You can't exclude in absolute terms, the possibility that this fracture occurred, when the plaintiff fell in the manner that I have suggested to you, fell on her back on a hard ceramic floor, with the plaintiff [sic: defendant] on top of her. You can't exclude that absolutely as a possibility. A. That's correct." 47 The fall "in the manner I have suggested to you" seems to have picked up the further version, originally put by counsel for the appellant, with the respondent partially on top of the appellant as she fell; this had earlier been acknowledged by Dr Matheson as a possible way the appellant's injury came about if she had fallen an in upright and flexed position and the respondent fell across her back. 48 Dr Matheson's evidence continued -

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"Q. The likelihood of the fracture occurring that way would have been increased would it not if the plaintiff's back was arched rather than straight or indeed is it hyper-extended when she fell? A. Yes those, those other positions change the patterns of your fractures. Q. What I'm suggesting in very simple terms is, that it's more probable that the fracture occurred in that way if her back was arched in such a way that that vertebra hit the ground first before the rest of her body so it took the initial impact? A. No. HIS HONOUR: More probable, so I understand the question Mr Anderson, more probable than the latter history given by the plaintiff? ANDERSON: No, that it increases the probabilities of the fracture occurring in the manner that I've described, namely a fall, with Mr Townsend on top of her, the probabilities of the fracture occurring in those circumstances would be increased would they not if one adds in the element that her back was arched such that the vertebra came into contract with the ground first? A. No, no. That would stop a fracture occurring entirely. This fracture is caused by vertical compression of the spine. In other words the fracture is caused by the blow being taken on the buttocks and the sacrum and the pelvis and being flexed forwards. If she fell onto her back onto the vertebra itself she would have sustained no injury. She would have landed flat on her back, that would not have produced it. This is a flexion and crush. That would have opened her back up. The most she could have done in that situation was chip her spine as process. So the, the mechanism that you put cannot produce the fracture. Q. That the fall, you already agreed with the proposition that the fall in the manner that I've described could? A. No, the manner you've just described could not. Q. No I'm sorry Doctor, withdrawing the element of arched back? A. If she falls flat on her back she's not going to produce this fracture. This fracture is going to be produced by either falling, by falling on her buttocks, and her body going forward. I mean it could be produced by falling on her head and her shoulders. It cannot be produced by falling on her back. Q. I think you've already answered this, but the added force created if her husband were partially on top of her would increase the probability of fracture on such a fall? A. Yes, provided he was on her shoulders and pushing her forwards while she's vertical. Q. Or indeed if the forces were resolved [sic] in such a way. A. Yes. Q. In other words you wouldn't have to be sitting directly on top of the shoulders if some part of the force of his fall were transmitted vertically through the spine? A. He would have to be on the upper part of her back above the level of the fracture. Q. Pushing down through her arms and shoulders? A. Yes. Q. But he wouldn't have to be sitting on her arms and shoulders is what I'm putting to you? A. No, no. It could be any part of his body." 49 From this evidence in particular, Dr Matheson saw it as important that the appellant fell in such a manner that there was vertical compression of the spine. When he was told in September 1996 that the appellant had been thrown to the floor, he must have taken her to have been thrown with her torso more or less vertical; so also when he gave his evidence in chief on the assumption that the appellant was dropped onto the floor with her back arched, understood by him to mean that she was flexed or bent forwards. Referring back to the appellant's description of the incident in her evidence, I have noted that it seems that her torso was almost parallel with the ground and her back was arched in the sense of curved downwards - that also is consistent with the emphasis on being dropped from chest height, since if the respondent had lifted the appellant about a foot with her torso more or less vertical it would be strange to say that she was dropped from chest height. It may be that on Dr Matheson's evidence the injury as found was not consistent with the incident even as the appellant described it. This was not otherwise taken up by counsel for the respondent.

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The trial judge's reasons 50 Hosking DCJ gave detailed reasons. It is sufficient for the present to go to part of where he particularly referred to the evidence of Dr Matheson and to the culmination of the reasons. I add emphasis and identification to certain passages to which I will later specifically refer. 51 The part of the particular reference to the evidence of Dr Matheson was - "Dr Matheson said in evidence-in-chief that he did not think that the defendant falling face down on top of the plaintiff would have caused the injury that he treated. In his view the more likely version was that she was, as she now claims, dropped onto the floor. Dr Matheson said that we all fall onto our buttocks on occasion but these falls do not produce compression fractures in the absence of underlying pathology. However, Dr Matheson agreed in cross-examination that he was not trained in what he described as bio-dynamics. [passage 1] It was put to Dr Matheson that it was possible that the plaintiff sustained her injury in a fall in the manner described by the defendant. Dr Matheson said that he could not exclude that possibility absolutely. He said that for that to have happened the defendant would have had to have been on her upper back or shoulders. I note that the defendant said in fact that he fell and landed onto the plaintiff towards the top of her shoulders. [passage 2]" 52 The culmination of the reasons was - "In terms of the critical question of causation it appears to me that there are three possible causes of the plaintiff striking the floor and fracturing her spine. Firstly, that she was pushed. Secondly, that she was picked up and dropped and thirdly, that she fell following her husband slipping when he grabbed her hand which was then holding an iron. It appears to me that, in the abstract, any of these three are reasonable possibilities. I will examine each of them. In relation to the first possibility that she was pushed, that possibility is supported, strongly supported, by the ambulance records, by Dr Clarkson's report and by the initial hospital records. A push would fit in with an argument between the two of them and with the defendant reacting to an iron raised against him. However, that is not the way the plaintiff put her case. Despite what she said initially to Dr Clarkson and to the ambulance officers, the plaintiff expressly disavowed being pushed to the floor. As I have earlier recounted she said in evidence that the incident did not happen in that way and that to maintain that it did would be false and a lie. Accordingly I discount the possibility that she was pushed to the ground. Secondly, there is the possibility, as she says, that she was picked up and dropped onto the floor. She claims now that this is how the incident happened. In support of that proposition she gave an account similar to that, but not identical, to the social worker on 1 December 1995 more than a week after the incident itself. In that account she said, according to the social worker, she was thrown to the floor. That version is supported as a medical matter by Dr Matheson . [passage 3] However, it is not what she told her friend Dr Clarkson. It is not what she told the ambulance officers. The plaintiff said in evidence that she did not mention being dropped or being thrown to the ground at first because she was too embarrassed to do so. However, she seems to have been prepared to say initially, to at least Dr Clarkson and the ambulance officers, that she was pushed to the floor by her husband. Both acts being pushed to the floor or being picked up and being dropped on the floor are deliberate acts. It seems curious to me that she would be embarrassed about saying that she was dropped onto the floor but not be embarrassed by telling people, and she did, that she was pushed onto the floor by her husband. Moreover, if the defendant had in fact thrown her to the floor or even dropped her to the floor as she describes, it is unlikely that he would have registered surprise at the time and queried that she was hurt at all. The third possibility is that as the defendant says that the two of them fell while he was grabbing her arm. That is the account as I have said given by the defendant. It is an account given not long after the incident itself and in that respect I note that the plaintiff said in her evidence-in-chief that after her release from hospital some weeks after the incident she asked the defendant whether he was sorry for what happened. She said that the defendant said words to the effect, "Well, I fell arse over tit and fell on top of you" or words to that effect. The plaintiff did not say in evidence that she responded to that proposition in any way. She did not say words to the effect, "Well that is simply untrue or that is a lie". It was put in submissions by Dr Donovan of Queen's Counsel who appeared for the defendant that it is a remarkable thing that the defendant would say a barefaced lie to the plaintiff's face about how this incident occurred and only a matter of weeks after it happened. Mr Donovan submitted, in my view, with some substance that while the defendant might give a false account of how this incident happened to a third party, it would be unusual if he would have the gall to do so directly to the plaintiff's face. In my view there is some substance in that contention. In my view it is more probable than not that the plaintiff was holding the iron aloft immediately preceding her fall. In my view it is unlikely that it was, as she said, that she simply picked the iron and then immediately put it down again. That account seems less likely than more likely to me in the circumstances. In my view it is likely that the floor was slippery and thus sufficiently so to have in fact produced a fall when the defendant moved forward to grab his wife's arm holding the iron. Having regard to Professor Yandell's report it is not surprising that he slipped taking the plaintiff with him in those circumstances. It was submitted on behalf of the plaintiff that the defendant's evidence showed considerable prevarication on his part in evidence. However, that was not my impression. Dr Matheson allowed that the way the defendant described the incident as happening was a possibility and I note that the defendant is a big man and that the plaintiff was only about half his weight. It appears to me that it is quite possible that she injured herself in the way the defendant describes bearing in mind the factors that I have mentioned and their considerable disparity in weights . [passage 4] Having considered the various competing contentions I am unable to say with any confidence why the plaintiff fell and fractured her spine on this occasion. As I have said she expressly denies being pushed by the plaintiff. That leaves only the possibility that she was either dropped as she said or that, as the defendant said, she simply fell as he fell. I am not confident that the version she now gives is in fact what happened. Of the remaining two possibilities I find it impossible to say which is the more likely. The plaintiff must show that this assault was a deliberate one. In my view she has not established on the balance of probabilities that this was so." The only available conclusion? 53 As I have said, it was submitted that the only available conclusion on the balance of probabilities was that the injury came about in the manner claimed by the appellant. The appellant argued that Hosking DCJ was in error in saying that Dr Matheson accepted that the way the respondent described the incident as happening was a possibility; that his Honour was in error in concluding that it was quite possible that the appellant injured herself in the way the respondent described; and that in any event if there was such a possibility his Honour had erroneously elevated it to a finding on the balance of probabilities. 54 The appellant argued that Dr Matheson had not accepted that the way the respondent described the incident as happening was a possibility because what Dr Matheson had agreed he could not exclude absolutely as a possibility (part of passage 2) was not the way the respondent described the incident as happening. According to the argument, the manner of the fall suggested to Dr Matheson differed from the respondent's description of the incident in that the respondent's description of the incident had the appellant falling flat on her back with the respondent only partially on top of her. In consequence, it was argued, the possibility which found favour with his Honour was in truth not open on the evidence. In my opinion that is a misunderstanding of his Honour's reasons. It is necessary to pay regard to more than the part of passage 2 and the one question referring to an absolute possibility. 55 On a reading of his evidence as a whole, Dr Matheson accepted that the appellant's injury could have come about if the respondent had fallen on her in such a way that some of his weight was transmitted vertically through her spine when her buttocks hit the floor. Dr Matheson did not accept that a fall on the appellant as she was "lying on the ground" would produce the fracture, that is, with the appellant prone. Nor did he accept that a fall in which the appellant fell flat on her back with the addition of the respondent's weight would produce the fracture. What could make a difference, in his opinion, was a fall in which the appellant was flexed, that is, bent forwards, at the time of the impact, with her torso more or less vertical and additional weight "pushing down through her arms and shoulders". His Honour was clearly referring to this in passage 2, and again at the commencement of passage 4. 56 I do not think that the respondent's description of the incident had the appellant falling flat on her back. As the respondent said, it all happened in a split second. His accounts of the incident had the appellant ending up on her back, but were not inconsistent with a fall in such a way that the appellant was flexed and with her torso more or less vertical and the respondent's weight bearing downwards on her right hand shoulder as her buttocks contacted the floor, the appellant then going to lying on her back under the continued effect of the fall and the respondent's weight. Hosking DCJ seems to have accepted that this might have been so when he said in passage 2 that the respondent would have had to have been on the appellant's upper back or shoulders, clearly enough referring to that part of Dr Matheson's evidence in which he contemplated part of the force of the appellant's fall being transmitted vertically through the spine, and when he said that the respondent said that he fell and "landed onto the plaintiff towards the top of her shoulders". In passage 4 his Honour emphasised the respondent's weight and the slipping as recounted by the respondent. 57 As I have said, referring to the printed word in the transcript, the evidence was at times unclear, and Hosking DCJ had the advantage of seeing the partial re-enactments of the incident by the respondent. He rejected the suggestion that the respondent had prevaricated in his evidence, and so must have been prepared to act on the re-enactments. It is readily understandable that Professor Yandell's brief record of the incident did not properly reflect what he had been told by the respondent, and the respondent consistently ascribed the incident to his slipping. The re-enactments would have enabled his Honour to assess the applicability of Dr Matheson's evidence and whether that evidence allowed of the possibility of the injury coming about in an incident as described by the respondent. I am not persuaded that his Honour erred in his view of Dr Matheson's evidence or of the possibility which found favour with him. I consider that it was open to his Honour to conclude that the injury could have come about otherwise than as claimed by the appellant, and in an incident as described by the respondent. 58 I do not think it correct that his Honour then erred in wrongly elevating such a possibility to the height of a finding on the balance of probabilities. His Honour clearly took account of the evidence of Dr Matheson as supportive of the appellant's account of how the injury came about, saying in passage 3 that her version was supported as a medical matter by Dr Matheson. His Honour paid regard to many other matters coming to his conclusion. Indeed, he did not find on the balance of probabilities that the incident had been as described by the respondent. He found that the appellant's version had not been established on the balance of probabilities. 59 This conclusion was in my opinion open to his Honour. The appellant's evidence was not accepted on at least the state of the floor of the laundry and the handling of the iron, and the discrepancies between her evidence of what she told the ambulance officers, hospital staff and doctors about the incident and what the records indicate she told them case grave doubt on her reliability as a witness. It is true that she told the social worker that the respondent had thrown her to the floor, but a slipping fall could well have been described at times by an upset and hostile wife variously as a push or a shove, or even as a throwing, when in truth much less than the deliberate lifting and dropping claimed by the appellant in the proceedings. The appellant had no love for the respondent, and if subjected to such a deliberate lifting and dropping would be unlikely to hold back from immediately giving (for example) Dr Clarkson, the ambulance officers and the doctors a full account of what had occurred. Hosking DCJ saw this as significant. In my opinion his Honour's conclusion has not been shown to be incorrect.

[18]

The further evidence 60 The appellant asked the Court to receive the affidavits of Mr Ian Coyle sworn 30 March 2001, Dr Matheson sworn 2 April 2001 and Professor Ronald Sekel sworn 2 April 2001. The Court declined to receive the evidence, with reasons to be given in the judgment disposing of the appeal. 61 The affidavit of Mr Coyle distinguished between bio-dynamics and bio-mechanics. Mr Coyle said that the former involved the study of the force or energy of living organisms and the actions of living organisms, and that the latter was the scientific study of the actions of forces on the living body. He said that the mechanism of injury was within bio-mechanics, and expressed the view that Dr Matheson's experience in anatomy, physiology and medicine qualified him to assess the mechanism of a particular type of injury. Mr Coyle went on to describe at length why, in his opinion, it was impossible "from a biomechanical viewpoint" for the incident as described by the respondent to have brought pressure from the respondent's arm or body along the long access of the respondent's spinal column, and to offer the opinion that Hosking DCJ had misinterpreted Dr Matheson's evidence. 62 Dr Matheson said that he had read Mr Coyle's report and agreed with it, and made reference to a small part he had played in developing some aspects of a curriculum for university courses in bio-dynamics. 63 Professor Sekel said that he was unaware of the word bio-dynamics as applied to a science or speciality, and that bio-mechanics was the scientific study of mechanics as applied to living organisms and explained the mechanics of fracture patterns. He said that the appellant's description of the incident could have caused the fracture pattern in the x-ray of her vertebra, but that the fracture pattern could not have been caused by the appellant "falling with her back arched backwards". (This seems to have involved a third, and on any view incorrect, view of the arching of the appellant's back.) 64 The appellant accepted that, in accordance with s 75A(8) of the Supreme Court Act 1970, this evidence could only be received if special grounds were shown. In general, three conditions must be met before further evidence can be received, namely (i) that the evidence could not have been obtained with reasonable diligence for use at the trial; (ii) the evidence is such that there must be a high degree of probability that there would be a different verdict; and (iii) the evidence is credible ( Akins v National Australia Bank (1994) 34 NSWLR 155 at 160). These conditions are only guides, and special grounds may be made out in particular circumstances ( Commonwealth Bank v Quade (1991) 178 CLR 134 at 140), but the public interest in the finality of litigation calls for some "insistent demand of justice" ( Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444). 65 The appellant submitted that the further evidence should be received because the question to Dr Matheson, "You have no post-graduate qualifications, or tertiary qualifications in bio-mechanics?" had taken her by surprise and had brought into the proceedings an issue which had not previously been raised; that issue had then had some influence in Hosking DCJ's decision when his Honour had said in passage 1 that Dr Matheson agreed in cross-examination that he was not trained in what he described as bio-dynamics. The appellant referred to Council of the City of Greater Wollongong v Cowan at 444 and McDonald v McDonald (1965) 113 CLR 529 at 533. 66 His Honour used the word "bio-dynamics" rather than the word "bio-mechanics", and the appellant's submission included that he had erred in that respect. But it is clear that his Honour was referring to the question to Dr Matheson last mentioned, which must be read with the succeeding questions and answer. The slip in his Honour's use of expressions is not of significance. 67 Dr Matheson was called by the appellant to give evidence of the mechanism of the appellant's injury, and of whether the fracture pattern was consistent with the appellant's or the respondent's account of the incident. There was no question of surprise, certainly not of surprise as spoken of in the cases to which the appellant referred. Dr Matheson was called to give an expert opinion, and it was for the appellant to ascertain his qualifications to give that opinion and, to the extent necessary, satisfy herself that he was appropriately qualified. 68 The appellant argued that there was surprise because no issue relating to "bio-dynamics", which in the circumstances must be understood as bio-mechanics, was raised on the pleadings, by way of expert's report (apparently meaning from the respondent), or in the respondent's case. This can not be accepted. The qualifications of an expert called by the appellant were not a matter to be raised on the pleadings or by way of a competing expert's report. Nor were they necessary to be raised in the respondent's case, the time for which had in any event not arrived when Dr Matheson was under cross-examination. 69 Even if there had been some question of surprise, the evidence of Mr Coyle, Dr Matheson and Professor Sekel in the affidavits went far, far beyond meeting the asserted surprise. It amounted to a wholesale revisiting and elaboration of the case originally presented through Dr Matheson, a case that the appellant's injury could not have come about as a result of an incident as described by the respondent and had to have come about in the manner claimed by the appellant. The further evidence was not fresh evidence, and could have been obtained with reasonable diligence for use at the trial. 70 Moreover, I do not think that there is a high degree of probability that there would be a different verdict if the evidence were now received. Dr Matheson's opinions were taken into account, and were seen by his Honour as supporting the appellant's account "as a medical matter" (see passage 3), and the opinions he expressed were adequately so described. It is not easy to see that Dr Matheson's opinions were discounted by his Honour for want of tertiary qualifications in bio-mechanics. Perhaps more important, the opinions in the further evidence were erected on a flawed foundation. They proceeded on the basis that the respondent's account of the incident involved the appellant falling on her back, rather than ending up on her back on the floor; that is, that she did not fall in the manner I have earlier described with her torso more or less upright at the time her buttocks hit the floor and the respondent's weight to some extent bearing vertically downwards. If that basis falls away, so does the impact of the further evidence.

[21]

(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." 77 It appears that the evidence of Mrs Townsend was led to prove that the respondent had a tendency to act in a particular way, that is, by not being physically violent towards his wife despite arguments with her. Whether it was properly tendency evidence need not be considered. The appellant submitted on appeal that the evidence should not have been admitted, saying that it could not by its nature have significant probative value or any evidential value at all; she submitted that the evidence was irrelevant. 78 Assuming that the evidence was tendency evidence, it was admissible unless his Honour considered that it would not have significant probative value. His Honour considered that it did have significant probative value, although with a qualification which tended to cast doubt on that status. I am inclined to the view, still assuming that it was tendency evidence, that the evidence should have been rejected as not having significant probative value. So far as appeared, the circumstances of the respondent's conduct towards Mrs Townsend were very different from the circumstances in which the incident between the appellant and the respondent took place; certainly the evidence was of such generality that little meaningful tendency was established. The not very volatile arguments during the first marriage, of unknown frequency and subject matter, in all probability bore little relationship to the intensity and bitterness of the relationship between the appellant and the respondent in November 1995. The respondent had been unfaithful to the appellant, and the appellant was on her own account at the time of the incident shouting and swearing at the respondent and telling him that she wanted him to leave. 79 However, it is not necessary to explore this further. His Honour said that he would be surprised if the case turned on the evidence. In a judgment which carefully analysed many matters bearing one way or the other on the competing accounts of the incident, his Honour made no reference to the respondent's treatment of his first wife. In my opinion, the proper conclusion is that the evidence was not taken into account by his Honour in reaching his decision. Even if it was wrongly admitted, a substantial wrong or miscarriage was not thereby occasioned (see Pt 51 r 23 of the Rules). At the hearing of the appeal the appellant readily, and with respect correctly, accepted this position.

[22]

The result 80 In my opinion the appeal should be dismissed with costs. 81 HODGSON JA: I agree with the judgment of Giles, JA. 82 In his submissions for the appellant, Mr. Miller QC made two points in relation to which I would add a few comments. 83 First, he submitted that the respondent had given a number of different versions of the incident in which the appellant was injured, none of which coincided with the scenario that was put to Dr. Matheson by the respondent's Counsel as possibly explaining the appellant's injury. Mr. Miller referred to the version put to the appellant in cross-examination; versions given by the respondent in chief, in cross-examination, and in re-examination; and the version reportedly given by the respondent to the respondent's expert, Professor Yandell, which the respondent disavowed in cross-examination. None of these versions, Mr. Miller submitted, involved the "arching" of the appellant's back, which was put to Dr. Matheson, leading to Dr. Matheson discussing the possibility that the appellant fell to the floor in a foetal position, with her back upright, with the weight of the respondent pushing down vertically through her shoulders. 84 In my opinion, there was no inconsistency of any significance in what was put to the appellant in cross-examination and the versions given in evidence by the respondent in different parts of his evidence. As regards the version reported as given to Professor Yandell, that version omitted one important aspect of the other versions, namely the appellant picking up an iron in her right hand and the respondent grabbing and holding onto the appellant's right hand. However, it was not otherwise inconsistent with them, and in circumstances where the reasons for the respondent's disavowal of that version were not explored in cross-examination, in my opinion the difference has no significance. 85 Furthermore, the incident happened very quickly, and it would not be surprising that the respondent could not specify the configuration of the appellant's body as she went down to the floor. In those circumstances, in my opinion it was perfectly proper to explore with Dr. Matheson scenarios consistent with the respondent's evidence, though not positively supported by it. 86 The second point made by Mr. Miller was that the relevant expert evidence as to causation was all the one way, and accordingly it was an error not to accept it. As shown by Giles JA, the support from Dr. Matheson to the appellant's version was in fact not altogether clear. However, even if one accepts that Dr. Matheson's evidence provided strong support to the appellant's case, the Court had to be satisfied affirmatively, on the whole of the evidence, that the appellant's injury occurred by reason of assault. On this point, the Court was faced not only with the respondent's denial, but also unquestioned evidence strongly suggesting that the appellant at first gave descriptions of the occurrence wholly inconsistent with the version ultimately relied on by her in the proceedings. 87 First, there was the note made by the ambulance officer to the effect that the appellant stated she "was pushed backwards by husband and fell directly onto lower back". This cannot be explained as something inhibited by the presence of the respondent, because the appellant gave clear evidence that she made no complaint at the time in the respondent's presence. The circumstantial detail of that account, wholly inconsistent with the appellant's version at the trial of being picked up and dropped or thrown to the floor, counts against a misunderstanding. The appellant's next clearly recorded complaint, to her friend Dr. Clarkson, was recorded by Dr. Clarkson in terms that the respondent "had shoved her to the floor causing the injury"; and the similarity of this to the earlier recorded complaint further counts against mistake or misunderstanding in either record. 88 The appellant saw a social worker just over a week after the accident, and according to the notes of the social worker said that the respondent "had thrown her onto the floor". That account is not inconsistent with the respondent picking her up, as were the two earlier accounts which I have referred to; but by the same token, it does not positively suggest that the respondent did pick her up. So far as the evidence goes, the first positive suggestion by the appellant that the respondent picked her up was made very much later. 89 In those circumstances, the suggestion that the trial judge's decision of fact involved appellable error is in my opinion not made out. 90 DAVIES AJA: I need not describe all the facts and issues which are adequately set out in the reasons of Giles JA. 91 Senior counsel for Mr Townsend submitted that this was a classic case of credibility and had been so determined by the trial Judge, notwithstanding that, in his reasons for judgment, the trial Judge did not express his findings in terms of credibility and demeanour. It seems to me, however, that although he had views as to the credibility of some of the evidence, the trial Judge was not satisfied as to who was telling the substantial truth, Mrs Townsend or Mr Townsend. It was for this reason that he dismissed the claim on the onus of proof. 92 In the circumstance that a judgment below did not turn on matters of credibility and demeanour, it is the duty of an appellate court to review the trial judge's findings of fact for itself (see McLaughlin v Daily Telegraph Newspaper Co. Ltd (No. 2) (1904) 1 CLR 243; Warren v Coombes (1979) 142 CLR 531 and State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306). If an appellate court is, in such a case, satisfied that the view of the trial judge on matters of fact was wrong, it is the duty of the appellate court to substitute its own view, although, in coming to that conclusion, it must pay due regard to the findings of the trial judge and to any advantage that the trial judge may have had through seeing the witnesses and hearing the whole of the evidence. An appellate court is reluctant to differ from a trial judge on a question of fact. 93 In a case such as the present, where the trial Judge has been unable to choose between the conflicting oral evidence of the parties, it is important, in my opinion, to pay particular regard to such facts as were not in dispute or were established by the evidence of independent witnesses or by the findings of the trial Judge. In my opinion, there were several such facts, which I may call objective facts, all of which were important and which supported Mrs Townsend's case and none of which supported Mr Townsend's case.

[26]

The Medical Evidence 97 The specialist who operated on Mrs Townsend's back, Dr J M Matheson, a neurosurgeon, explained that Mrs Townsend had suffered a compression fracture of her spine at the L1 site. Dr Matheson said that the fracture was caused by the vertical compression of the spine, that is, the fracture was caused by the blow being taken on the buttocks, the sacrum and the pelvis and being flexed forward. Dr Matheson said that what occurred was a flexion and a crush. Dr Matheson said that this would not result from an ordinary fall onto the buttocks. He gave this evidence, inter alia:- "Q. And compression fractures commonly occur when people fall on their buttocks don't they? A. No. An ordinary fall onto the buttocks does not produce a compression fracture unless there is underlying pathology present within the bone. That's the whole issue that - that involved us in the beginning. Q. But of course if the plaintiff fell with her back in an arched position so that the vertebra itself took the whole of her weight in - directly as she fell onto the ceramic floor, you're not saying that that wouldn't be sufficient in some patients to cause a fracture such as that that you observed? A. Not just falling from their feet no, it needs more trauma. We all fall onto our buttocks from time to time. Q. You're not saying Doctor that it's impossible surely? HIS HONOUR: I'm sorry I just didn't that last part of the answer Mr Anderson. Sorry Doctor, we all fall onto our buttocks? A. We all fall onto our buttocks from time to time. It needs another factor to produce the fracture." 98 Dr Matheson also said, in his reports and in his oral evidence, that, prior to the operation, he had not been informed that Mrs Townsend had been thrown onto the floor. He operated because he understood that she had suffered a fall. He had thought that the likely cause of her problems was pathological deterioration of the spine due to malignancy. A biopsy was obtained. This showed that no cancer was present. Dr Matheson then suspected osteoporosis. Subsequent tests showed that Mrs Townsend's bone density was satisfactory. Dr Matheson remained troubled about the cause of the fracture until, about September 1996, he was informed by Mrs Townsend that she had been thrown to the ground and a report of December 1998 shows that he was informed by Mrs Townsend that she had been lifted up under her legs and neck and thrown onto the laundry floor. Dr Matheson said that Mrs Townsend's version of the incident explained her injury. He said that, had he had the information at the time of the operation, it is possible that he would have treated her conservatively rather than operating. 99 There was no medical evidence which expressed a contrary view. Indeed, Dr K F Hume, a surgeon who reported to Mrs Townsend's solicitors, said that Mrs Townsend had informed him that she was lifted up and dropped onto her back whilst she was in the bathroom. Dr Hume said that Mrs Townsend had sustained a very serious fracture of the first lumbar vertebra, which had caused protrusion of a fragment of bone into the spinal canal and that the fracture was consistent with the history given to him. He said that Mrs Townsend had informed him that there was some concern about the type of fracture that she had sustained and that it seemed to him to be likely that she had described a fall onto her back and that the doctors who saw her considered it unlikely that the fracture she had sustained could be consistent with a fall unless there was some underlying abnormality in the lumbar spine. His evidence was entirely consistent with that given by Dr Matheson. 100 In the cross-examination of Dr Matheson, a version of the evidence which Mr Townsend proposed to give was put to him. Dr Matheson said that he thought it was unlikely that the injury happened in that way. During the cross-examination, Dr Matheson gave this evidence:- "Q. You can't exclude in absolute terms, the possibility that this fracture occurred, when the plaintiff fell in the manner that I have suggested to you, fell on her back on a hard ceramic floor, with the plaintiff (sic)(defendant) on top of her. You can't exclude that absolutely as a possibility? A. That's correct."

[27]

The Descriptions of the Incident 101 I need not discuss Mrs Townsend's version of the incident. It was, as Dr Matheson said, a probable explanation of how the injury was caused. 102 Mr Townsend gave this evidence in chief, inter alia, about the incident:- "Q. After you formed that belief what did you do? A. I was close enough to her to walk forward and grab her right arm with my left hand to stop her from throwing it [the iron] . Q. Did you do that? A. I did. Q. Whereabouts on her arm did you grab. Perhaps if I come over you can show me with my arm. I'll just hold my right hand up beside you and you can show me where you grabbed her. You're grabbing round my right wrist with your left hand. When you did that, what next did you do, what was the next thing you did. You did that? A. As I did it and grabbed her hand I slipped on the wet floor. Q. And what happened to you? A. I pulled Carolyn (ne) across in front of me and fell down with her on to the floor. Q. When you were on the floor where was she? A. She was beside me at that stage. Q. Where were you facing up or down? A. Down. Q. Where was she facing up or down? A. She'd gone forward and laid down on her back. … Q. Can you tell us when, if at all, you let go of her arm? A. Obviously during the fall. Q. Can you remember any further details about the fall and the position of the two of you as you fell? A. Only that as I fell, I fell on her and on to the side. Q. What part of you fell on what part of her? A. My upper body fell on her side, this right-hand side of her because she came around my body. Q. Indicating something of the right-hand shoulder? A. Somewhere there yes. Q. That's her right-hand shoulder? A. Yes her right-hand shoulder on my chest." 103 His evidence in cross-examination was, inter alia:- "Q. Well, how did it happen? A. As I just said. As I held her arm and pulled and slipped, I slipped in that anti-clockwise movement. Q. And did you pull her around with you? A. I must have for her to end up near the work bench. Q. And did she finish on her back or her face? A. She finished on her back. Q. So you pulled her around this way? A. Correct. Q. Anti-clockwise? A. Correct. Q. And you then fell? A. I fell over with her. Q. Yes, and she fell? A. Correct. Q. And you fell on your back? A. No, I didn't. Q. You fell forward? A. I fell down .. (not transcribable) .. Q. Face down? A. Face down and that's where I ended up face down." 104 In his re-examination, Mr Townsend said, inter alia:- "Q. Could you just demonstrate to his Honour what you did and the directions that you both turned and fell? A. I went like so, slipped in this direction and she came around my body this way and spun around and I fell on top of her." 105 Mr Townsend prepared a sketch which described what he said was the position of himself and Mrs Townsend when they had fallen to the floor. This showed that Mrs Townsend, who had been standing near the ironing board close to the wash basin on one side of the room, had fallen close to the workbench on the other side of the room, a few feet away, with her head away from the shower. Mr Townsend's body was also pointing away from the shower. On this version, Mrs Townsend must have been pulled from near the ironing board, across Mr Townsend, and down to the floor near the workbench. Mrs Townsend was on her back. Mr Townsend was lying next to her, face down, with his right shoulder on Mrs Townsend's right shoulder. 106 It is necessary to examine Mr Townsend's evidence for an indication of an event which was likely to have caused Mrs Townsend's crush fracture. In his evidence in chief, he mentioned, "I fell on her" and, "My upper body fell on her side" and, in re-examination, he said, "I fell on top of her" . In his cross-examination, Mr Townsend said, "I fell over with her" . No clear picture is conveyed by this evidence of an event which was likely to have caused a crush fracture of a vertebra. Mr Townsend did not say that he fell on top of Mrs Townsend and crushed her with his weight. 107 There are two aspects of Mr Townsend's evidence which seem to me to be significant. The first is that the evidence gives the impression of a pull on Mrs Townsend, which caused her to fall, rather than the picture of Mr Townsend's body falling onto Mrs Townsend in such a way as to cause her compression fracture. Although Mr Townsend gave evidence that he fell onto Mrs Townsend's right side, that evidence conveys to me the impression of his ending up on the floor on Mrs Townsend's right shoulder, rather than his falling on top of her with sufficient force to cause the crush fracture. 108 I have the same impression as did Dr Matheson. Mr Townsend's explanation was not a likely cause of Mrs Townsend's fracture. 109 Dr Matheson gave this evidence as to how the injury could conceivably have occurred if Mr Townsend had fallen on top of Mrs Townsend:- "Q. I understand that you've given evidence in those terms, namely you find it a little difficult, my question is, it could have caused it couldn't it? A. He could have caused it if he'd fallen onto her back with her in - falling in an upright and flexed position. Q. I'm sorry? A. It could have caused it if he fell on her as she went to the ground and he was on her back and she was vertical. In other words, if she had a - if she was in the foetal position with her knees drawn up and falling to the ground onto her buttock and he fell across her back while she was in the vertical position, that could conceivably produce this fracture. If she was lying on the ground it would not."

[29]

Statements Made 112 Although Mrs Townsend made many statements that she fell or that she was pushed, it does not seem to me that this factor affects the veracity of her story. It was not suggested by anyone that Mrs Townsend was injured in a simple fall, or that she was pushed or pushed backwards by her husband. It is a fact of life that many wives who are assaulted are embarrassed or scared about telling the truth. Mrs Townsend's statements were entirely consistent with that pattern of behaviour. 113 What is significant, however, is that neither Mr nor Mrs Townsend said to anyone words to the effect of, "we fell" . Mrs Townsend did not say or imply that she had been injured when her husband had fallen on top of her. Mr Townsend, for his part, merely said, when speaking to Dr Clarkson who was Mrs Townsend's friend and general medical practitioner and when speaking to Mrs Townsend's daughter, that Mrs Townsend had fallen. I regard this matter as significant for, although the substance of his case was that he fell onto Mrs Townsend in such a way as to cause her crush fracture, Mr Townsend made no statement to that effect to anyone. On the contrary, Mrs Townsend did make some statements which either expressed, or from which can be inferred, a complaint of an assault by her husband. 114 The statements made by Mrs Townsend to the ambulance officers shortly after the incident, to Dr Clarkson when Dr Clarkson visited her in hospital and to a social worker who interviewed her at Prince of Wales Hospital on 1 December 1995, about a week after the incident, all constituted complaints of assault. A note in the file of the Sutherland Hospital also recorded, "ALLEGED ASSAULT" . Moreover, when she returned home, Mrs Townsend sought an apology from her husband for throwing her to the floor. Mr Townsend's response was that everybody knew that his back was too bad to lift Mrs Townsend (which fact was not found by the trial Judge) and that "I fell arse over tit on top of you" . Accordingly, the statements which Mrs Townsend made in subsequent years to Dr Matheson and Dr Hume were not recent inventions.

Townsend v Townsend

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (35 paragraphs)

Parties

Cases Cited (7)

Cited By (19)