Schultz v McCormack [2015] NSWCA 330

McColl JA at [1]; Macfarlan JA at [132], Beech-Jones J at [144]

    78 His Honour’s finding in this respect was that the respondents tailored their evidence in denying they had told the appellant she should claim on their insurance in respect of the incident. However, his Honour dismissed this finding as irrelevant on the basis that “nothing of significance turns on that conversation”. [71] His Honour does not appear to have turned his mind to the wider significance of his finding.
79 Depending on the circumstances, when a party lies, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. [72]
80 In Tobin v Ezekiel, [73] Meagher JA described the significance of a witness lying as follows:

“Whilst the fact that a witness has lied about some matter does not prove the opposite of the lie, the fact of the lie may indicate a consciousness that the truth in respect of those matters would not have assisted his or her case. Depending upon the subject matter of false or fabricated evidence and its significance in a case, such an inference may be available in relation to a specific fact: … The fact of a lie may also constitute an admission of criminal guilt or evidence which is corroborative of other evidence.” (Emphasis added.)

81 The respondents tailoring their evidence was capable of indicating they were conscious that to be seen as having told the appellant to make a claim would not have assisted their case. The most obvious reason for that would be that they realised it would be seen as an admission to the appellant that some act or omission on their part had caused her accident. Thus, this aspect of their evidence was capable of having a wider significance than that stated by the primary judge.
82 His Honour’s failure to appreciate this casts a cloud of doubt over his findings favourable to them that they were unaware the tiles were slippery or that this was the first time anyone had slipped on the tiles. It was a substantial issue his Honour ought to have addressed. It was clearly a material factor in determining whether favourable, as opposed to adverse, findings should be made.