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.