Davis v Council of the City of Wagga Wagga

[2004] NSWCA 34

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appellate review of findings of fact
3. › Credibility findings of trial judge
4. › Whether adverse credibility assessment fairly open on the evidence
5. › Whether inconsistencies relied upon were put to witness in cross-examination
6. › Fox v Percy [2003] HCA 22
1. Evidence
2. › Cross-examination
3. › Rule in Browne v Dunn
4. › Failure to put inconsistencies to witness
5. › Medical histories inconsistent with testimony
6. › Whether witness entitled to opportunity to explain alleged inconsistencies
1. Negligence
2. › Occupier's liability
3. › Playground equipment
4. › S-hooks on swings
5. › Whether accident occurred in manner alleged by plaintiff

Quick Take

An appellate court is not bound by Fox v Percy to defer to a trial judge's adverse credibility findings where those findings are based on perceived inconsistencies in medical histories that were never put to the witness in cross-examination. The rule in Browne v Dunn requires that suggested contradictions between medical records and a witness's testimony be put to the witness before they can be used to challenge credibility. Medical histories recorded in a treatment context may not accurately reflect the mechanics of an accident, and a witness of limited intelligence and communication skills is particularly entitled to the opportunity to explain apparent discrepancies.