Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Nominal Defendant v Cordin [2017] NSWCA 6 Hearing dates: 14 September 2016 Decision date: 03 February 2017 Before: Macfarlan JA at [1]; Emmett AJA at [134]; Davies J at [160] Decision: (1) Appeal upheld. (2) Set aside the judgment of the District Court (Judge Levy SC) of 26 February 2016. (3) Order a new trial of the action. (4) The respondent should pay the appellant's costs of the appeal. (5) The respondent should have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled. (6) The costs of the first trial should abide the costs of the re-trial. Catchwords: TORTS – negligence – motor vehicles – respondent found injured near his bicycle on unsealed road – whether fall caused by push from behind by unidentified motor vehicle or due to bicycle striking a pothole – whether requirement for appellate intervention in respect of credit-based finding satisfied - Fox v Percy (2003) 214 CLR 118 – whether primary judge erred in analysis of contemporaneous documents Legislation Cited: Evidence Act 1995 (NSW), ss 76, 78 Motor Accidents Compensation Act 1999 (NSW), s 34 Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 Cordin v The Nominal Defendant [2016] NSWDC 12 Duic v Duic [2013] NSWCA 42 Elayoubi v Zipser [2008] NSWCA 335; [2008] Aust Torts Reports 81-895 Fitzgibbon v The Waterways Authority [2003] NSWCA 294 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Gulic v O'Neill [2011] NSWCA 361 Jones v The Queen (1997) 191 CLR 439 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Plomp v The Queen (1963) 110 CLR 234 State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306; [1999] HCA 3 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 Toben v Nationwide News Pty Ltd [2016] NSWCA 296 Waterways Authority v Fitzgibbon [2005] 79 ALJR 1816; [2005] HCA 57 Category: Principal judgment Parties: The Nominal Defendant (Appellant) Michael Timothy Cordin (Respondent) Representation: Counsel: R Stitt QC / B Kelleher (Appellant) P Doherty SC / G Radburn (Respondent) Solicitors: Hall & Wilcox Lawyers (Appellant) Trenches McKenzie Cox Solicitors (Respondent) File Number(s): CA 2016/85337 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: [2016] NSWDC 12 Date of Decision: 26 February 2016 Before: Levy SC DCJ File Number(s): DC 2014/150247 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] At about 11.00am on 2 September 2012 the respondent, Mr Michael Cordin, fell from his mountain bicycle when riding it on Minyon Falls Road in the Nightcap National Park, north of Lismore in New South Wales. He suffered severe injuries, including to his head. He was aged 54 at the time of the accident. Mr Cordin knew the dirt road well. He had come down a steep part to where it levelled off and was aware that there was a large patch of potholes on the road ahead of him. He gave evidence that he believed that he was "shunted from behind" by a motor vehicle, causing him to fall forward from his bike. The motor vehicle that he believed to have pushed him was not able to be identified and Mr Cordin ultimately commenced District Court proceedings against the appellant, pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW). The appellant conceded that due enquiry and search had been made for the vehicle allegedly involved in the accident. No-one witnessed the accident but two motor vehicle drivers arrived at its scene soon after it occurred. Mr Cordin's wife arrived shortly after. On arrival of an ambulance, Mr Cordin was treated by paramedics and then transported to Lismore Base Hospital. That night he was taken by air ambulance to Princess Alexandra Hospital in Brisbane where he remained until 7 September 2012. Mr Cordin's proceedings were heard by Levy DCJ over five days. The appellant mounted a vigorous attack on Mr Cordin's credit, contending that the Court should reject his evidence that his accident resulted from a push from behind by what he believed to have been a vehicle. On 26 February 2016 the primary judge delivered a detailed judgment of 178 pages ([2016] NSWDC 12) accepting Mr Cordin's evidence and directing judgment in his favour in an agreed sum of $350,000. His Honour rejected the appellant's contention that Mr Cordin had been contributorily negligent. On appeal, the appellant contended that his Honour's largely credit-based findings should be set aside because the requirement for appellate intervention stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28] and [29] was satisfied. Held, by majority (per Davies J with Emmett AJA agreeing) allowing the appeal and ordering a new trial: (1) The primary judge's approach to the contemporaneous documents, in particular his failure to have proper regard to the evidence of two doctors from Princess Alexandra Hospital of their approach to history taking and the significance they placed on ascertaining how the accident happened, together with his Honour's failure to attach significance to the absence of Mr Cordin's daughter from the witness box, resulted in his Honour improperly minimising or dismissing the importance of the contemporaneous documents. (2) The primary judge's general approach to the contemporaneous documents either resulted in a reversal of the onus on Mr Cordin to demonstrate the involvement of a motor vehicle, or was an inappropriate treatment of the material. (3) In these circumstances there had not been a consideration of the real strength of the evidence. Per Macfarlan JA dissenting: (1) The appellant did not succeed in its attempt to establish that the contemporaneous documents upon which it relied plainly contradicted the primary judge's credit-based finding. (2) The primary judge did not err in finding that the expert evidence did not contradict Mr Cordin's case and in fact supported it. Judgment 1. MACFARLAN JA: At about 11.00am on 2 September 2012 the respondent, Mr Michael Cordin, fell from his mountain bicycle when riding it on Minyon Falls Road in the Nightcap National Park, north of Lismore in New South Wales. He suffered severe injuries, including to his head. He was aged 54 at the time of the accident. 2. Mr Cordin knew the dirt road well. He had come down a steep part to where it levelled off and was aware that there was a large patch of potholes on the road ahead of him. He gave evidence that in his opinion he was "shunted from behind", causing him to fall forward from his bike. What he believed to be a motor vehicle that pushed him was not able to be identified and Mr Cordin ultimately commenced District Court proceedings against the appellant, pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW). The appellant conceded that due enquiry and search had been made for the vehicle allegedly involved in the accident. 3. No-one witnessed the accident but two motor vehicle drivers, Mr Sathya Bessabava and Mr Kester Marshall, arrived at its scene soon after it occurred. Mr Cordin's wife, Mrs Brenda Cordin, arrived shortly after. On arrival of an ambulance, Mr Cordin was treated by paramedics and then transported to Lismore Base Hospital. That night he was taken by air ambulance to Princess Alexandra Hospital in Brisbane where he remained until 7 September 2012. 4. Mr Cordin's proceedings were heard by Levy DCJ over five days. The appellant mounted a vigorous attack on Mr Cordin's credit, contending that the Court should reject his evidence that his accident resulted from a push from behind by what he believed to have been a vehicle. 5. On 26 February 2016 the primary judge delivered a detailed judgment of 178 pages ([2016] NSWDC 12) accepting Mr Cordin's evidence and directing judgment in his favour in an agreed sum of $350,000. His Honour rejected the appellant's contention that Mr Cordin had been contributorily negligent. 6. On appeal, the appellant contended that his Honour's largely credit-based findings should be set aside because the requirement for appellate intervention stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28] and [29] was satisfied. This requirement is that the appellant demonstrate that the judgment below is contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable" or "contrary to compelling inferences". 7. As refined in oral argument, the appellant's contention was that the test was satisfied because the following contemporaneous records, whether considered individually or as a whole, plainly contradicted the primary judge's conclusion that a motor vehicle was involved in the accident: 1. Ambulance records. 2. Lismore Base Hospital records. 3. Air Ambulance records. 4. Princess Alexandra Hospital records. 5. A Patient Election Form signed by Mrs Cordin. 6. A Lismore City Council Customer Request Management Enquiry form. 7. Mrs Cordin's statement dated 23 October 2012 to the Lismore Police. 8. Mr Cordin's statement dated 23 October 2012 to the Lismore Police. 1. The appellant submitted that these documents contradicted Mr Cordin's evidence because "[i]n none of [them] is there recorded a history of [Mr Cordin] being struck from behind by a motor vehicle" and that, on the contrary, "in all of the contemporaneous documents, apart from the police statement, [Mr Cordin] gave a consistent history that he fell from his bicycle while he was riding down this rough bush road in the Nightcap Range" (Transcript p 2). 2. Expert engineering evidence had been given in the District Court by Dr Paul Carnavas for Mr Cordin and Mr Michael Griffith for the appellant. His Honour preferred the evidence of Dr Carnavas, leading to his Honour's conclusion that the expert evidence did not discredit Mr Cordin and in fact supported his claim that a motor vehicle struck his bicycle from behind (Judgment [610]-[611]). The appellant challenged these conclusions. 3. Before turning to the contemporaneous documents that the appellant relies upon, and to the expert evidence, I shall refer to the relevant lay oral evidence given before the primary judge. THE LAY ORAL EVIDENCE Mr Cordin's evidence 1. Mr Cordin said that immediately prior to the accident he was using the brakes on his bike to slow it down to enable him to negotiate some potholes in the road which he knew that he was approaching. He said that for this purpose he was standing "in the pegs of my bike" (apparently meaning standing up on the bike's pedals), using his "legs like shock absorbers over rough ground". He said that he then "had a feeling of going forward rapidly off my bike and I woke up with a fellow in the back of a car" (Transcript p 6) (referring to assistance rendered by a passer-by after the accident). He said that prior to receiving pain relief in Princess Alexandra Hospital his recollection of the accident was very hazy but that he believed that he was hit from behind by a motor vehicle when he was "slowing down virtually [to] walking speed to negotiate the potholes". In his opinion, he was "shunted from behind" (Transcript pp 8-9). 2. In cross-examination, Mr Cordin said that when his wife visited him in the Princess Alexandra Hospital the next day, he told her that he had been hit from behind. He repeated that evidence later but acknowledged that he could only speak as to his belief that a vehicle was involved because he did not see it. He said that he assumed that he fell over the handlebars (Transcript p 32). 3. Mr Cordin said that when in hospital he was "having a hard time remembering things, and putting things together mentally. … I was in nowhere land for a while" (Transcript p 55-6). He said that he had no recollection of his wife signing a consent form for him (Transcript p 11). Mr Cordin agreed that it was after he spoke to his solicitor that he went to the police (Transcript p 57). Mr Bessabava's evidence 1. Mr Bessabava was driving his vehicle in the direction in which Mr Cordin had been riding when he came across Mr Cordin lying face down on the road. There were several potholes in the area, one of which had a red colour. Mr Cordin's face was in that pothole. Mr Bessabava attempted to assist Mr Cordin until others arrived. He remained until Mr Cordin regained consciousness but said that Mr Cordin "wasn't really very coherent at all" (Transcript p 173). He did not hear Mr Cordin, or anyone else, say that a motor vehicle had been involved. Mr Cordin was helped to his feet but he appeared disoriented. Mr Marshall's evidence 1. When Mr Kester Marshall arrived at the accident scene, Mr Cordin was sitting on the bumper bar of a vehicle: "[H]e was very confused" and "he was mainly mumbling". 2. Mr Marshall gave evidence that Mr Cordin said "I must have come off my bike". He was "quite confused and obviously out of sorts" (Transcript p 167). He was very disoriented, agitated, flustered and "obviously a little bit shaky". 3. Mr Marshall had been driving in the opposite direction to Mr Cordin's riding. He said that it was possible that he had passed cars shortly before encountering Mr Cordin's accident scene. Mrs Cordin's evidence 1. Mrs Cordin was promptly notified of her husband's accident and arrived at its scene before the ambulance. She said that Mr Cordin "was trying to sit up, he had a towel on his head but nothing could touch his hands, he was basically screaming in pain" (Transcript p 87). 2. The next morning Mrs Cordin and her daughter visited Mr Cordin in the Princess Alexandra Hospital. When she asked him what had happened, he said "I was hit from behind by a car" (Transcript p 89). She said that on the following day she rang the Lismore police and told an officer that Mr Cordin had been struck from behind by a vehicle. The officer said that "[a]s soon as he's able to, come in and make a statement at the police station" and that it would be "an idea if you give Lismore City Council a ring to let them know about the state of the road up there" (Transcript p 92). 3. She also said that that day or the next she rang the Lismore City Council and spoke to Mr Jamie Davies. She told him that her husband had had an accident when his bike was struck from behind by a vehicle and that an officer from the Lismore police had suggested she ring the Council to get someone to "go out and have a look at the state of the road" (Transcript p 93). The following Wednesday (12 September 2012) she consulted a solicitor, Mr Steven Bull. Later that day she attended Lismore police station with her husband to make a statement. Constable Anquetil's evidence 1. The appellant called Constable Aaron Anquetil to give evidence. He said that police records showed that Mr and Mrs Cordin attended the Lismore police station on 12 September 2012 and reported Mr Cordin's accident. The police "COPS" record states that he was "struck from behind by an unknown vehicle". In evidence, Constable Anquetil said that Mr Cordin told him that prior to the accident he had felt "a strong sudden impact from behind". Constable Anquetil said he believed that Mr Cordin informed him that he had spoken with his solicitor prior to attending the police station. 2. There was no oral or documentary evidence corroborating Mrs Cordin's evidence of an earlier call (on or about 3 or 4 September 2012) to the Lismore police. THE CONTEMPORANEOUS RECORDS 1. For ease of reference, I include after a description of the various contemporaneous records relied upon by the appellant, the primary judge's significant findings in relation to them. 2. The primary judge made orders under s 136 of the Evidence Act 1995 (NSW) limiting the use of some of these records. As the precise content and operation of the orders was not clear to this Court from the Appeal Books, the parties were directed to lodge post-hearing written submissions dealing with them. However, for the purposes of this judgment I have made the assumption, favourable to the appellant, that there was no relevant restriction on use of the records. As I have concluded that the appellant is not entitled to succeed, even on that assumption, it is unnecessary to consider the parties' submissions concerning the orders. The ambulance records 1. An Ambulance Electronic Medical Record of an ambulance attendance on Mr Cordin on 2 September 2012 states that Mr Cordin was involved in a "bicycle collision", recording in relation to that collision: "fall of [sic] bike post hitting a pothole" and in the next line "fallen off his pushbike". It says that Mr Cordin "is orientated to place and time now". 2. An ambulance officer, Mr Terry Hartley, who with another officer, attended the accident scene in the ambulance gave oral evidence. The other officer did not give evidence. 3. Mr Hartley said that Mr Cordin told him that he had fallen off his bike and gave him some details of his past medical history. Mr Hartley said that Mr Cordin was "at the start … a little bit confused" but during the ambulance trip "his eyes were spontaneous, he was aware of place and time and he obeyed commands. If I ever asked him a question, he answered it" (Transcript p 81). 4. Later in his evidence, Mr Hartley referred to Mr Cordin having told him that "he had come off his bike" (Transcript p 82) and having given him a medical history including of a jaw replacement, epilepsy and diabetes. 5. In cross-examination, Mr Hartley confirmed that Mr Cordin did not say that he had fallen off his bike because his bike had hit a pothole. Rather Mr Cordin said that "he fell off his bike". The primary judgment 1. The primary judge considered that there was a question as to whether, as Mr Hartley said, Mr Cordin gave his medical history to Mr Hartley or "whether this information was conveyed to ambulance personnel over the telephone beforehand by someone else, and possibly later either confirmed or assumed by Mr Hartley from what he had been told". 2. Having referred to Mr Hartley's evidence at T82.47 denying that Mr Cordin had told him that he had hit a pothole, his Honour continued: "77 Accordingly, the possible explanations for the note to the effect the plaintiff had struck a pothole are either that the note was based on an admission made by the plaintiff, or that the author of the summary note had made an assumption or had drawn a conclusion to that effect from the described circumstances that were evident at the accident scene, including the apparent absence of any evidence of another vehicle being involved in the incident. In view of Mr Hartley's evidence at T82.47, I consider it unlikely that the source of the account in the ambulance records of the plaintiff striking a pothole came from the plaintiff himself at that time. In my view, given the plaintiff's described state of incoherence, I also consider it was unlikely that it came from him, having regard to Mr Hartley's specific evidence on that point." 1. His Honour added that the evidence suggested that Mr Cordin remained significantly affected by pain whilst he was in the care of the ambulance paramedics and that "it would have very likely affected his communications". 2. His Honour continued: "99 The impression I gained from Mr Hartley's evidence at T81/T82 in which he said the plaintiff 'had come off his bike' was that this account was a short form of explanation, which, in view of the plaintiff's state, did not appear to involve the products of an in depth questioning as to how this had occurred. In considering Mr Hartley's evidence at T82.14, no evidence was called to equate the plaintiff's level of consciousness with the appropriate functioning of his mental and communication faculties. In those circumstances I consider that the evidence of Mr Hartley to the effect that the plaintiff was appropriately obeying commands does not provide a useful insight into the plaintiff's mental functioning." 1. Later, the primary judge said: "437 As foreshadowed at paragraphs [76] – [77] above, I do not consider the statement in the ambulance records 'fall of (sic) bike post hitting a pot hole' to be probative of the defendant's assertion that the plaintiff's bicycle wheel had either struck a pothole leading to the plaintiff falling from his bicycle, or that the plaintiff had simply fallen from his bicycle. In my view, the ambulance records do not exclude the possibility of the plaintiff having been struck from behind by a motor vehicle whilst he was riding his bicycle, and then falling off the bicycle, as he claims." (See also [443]). The Lismore Base Hospital records 1. A note made by Dr Sumir Ahmed, timed at about 5.30pm on 2 September 2012, of a consultation with Mr Cordin contains statements: "Fall off from Push Bike" and "Fall from Push bike at about 12 noon this afternoon". It records comments by Mr Cordin as to the location and nature of his pain. 2. The triage notes of the Hospital refer to "Push Bike Accident. Pt over handlebars". The nursing notes state "Push Bike Accident. Pt over handlebars", and that of the orthopaedic consultant: "Fall from pushbike dirty road. Struck pot hole". The primary judgment 1. The primary judge made the following general observations concerning the ambulance and hospital records: "465 The circumstances of Mr Hartley's attendance on the plaintiff, and the effects of the plaintiff's head injury, allowed significant scope for variation, departure and adaptation from usual or routine professional practice due to the unusual intrinsic nature of those particular circumstances. In my view, this leaves significant uncertainties as to how Mr Hartley's conversation with the plaintiff had proceeded and the liability related content of that conversation: Elayoubi v Zipser [2008] NSWCA 335 at [86]. 466 In my view, the same conclusion applies to the significance of the hospital notes concerning the inferences the defendant seeks to have drawn regarding the content of the liability-related conversations the plaintiff might have had with hospital staff. I therefore consider the evidence comprising the ambulance and the hospital records provides an unsafe and an unreliable basis for drawing inferences or making findings to the effect that a motor vehicle was not involved in the plaintiff's accident: Mason v Demasi [2009] NSWCA 227, at [2]. That said, the question of whether a motor vehicle was involved still remains as a matter the plaintiff must prove, either by evidence, or available reasoned inferences: s 5E of the Civil Liability Act 2002." The Air Ambulance records 1. An Air Ambulance Retrieval Record dated 2 September 2012 states that Mr Cordin "came off pushbike". The primary judgment 1. The primary judge noted that these records contained no reference to any medications being administered to Mr Cordin. Princess Alexandra Hospital records 1. The appellant called Dr Udeni Welgama, a senior registrar at the Princess Alexandra Hospital, to give evidence. He did not have any independent recollection of treating or consulting Mr Cordin but was able to identify and interpret hospital records for which he was responsible. 2. Dr Welgama prepared a note early on 3 September 2012 about his observations of Mr Cordin which commenced at 22:18 the previous evening. The note says: "Went over the handle bars and landed on to his head and significant axial load this morning". Handwritten notes that he seemingly took during the consultation the previous evening refer to Mr Cordin having had a mountain bike accident and say that he "went over handlebars plus landed onto his head … ". The notes record that Mr Cordin was "speaking full sentences". 3. In evidence, Dr Welgama said that it was his practice to ask only essential questions of a patient who was in significant pain and was likely to have been questioned earlier. He said that if Mr Cordin had mentioned that he had been struck by a motor vehicle, he would certainly have recorded that statement (Transcript p 189). He said that, according to his documentation, Mr Cordin appeared to understand his questions and to give appropriate answers. 4. The appellant also called Dr Joel Lando, a registrar in the orthopaedics department at the Princess Alexandra Hospital, to give evidence. Dr Lando recorded in a note dated 3 September 2012 that Mr Cordin "fell over handlebars + axial loading on helmet". He said that he would have made a record of any statement by Mr Cordin that a motor vehicle had been involved (Transcript p 200). 5. A note dated 3 September 2012 made in the course of a plastic surgery review states: "Was riding mountain bike yesterday → hit pot hole & went over handlebars. Hit head. LOC". 6. There are other references in the Hospital notes to Mr Cordin falling off his bicycle or falling over the handlebars, without stating the cause of that occurring (see Judgment [119]). The primary judgment 1. The primary judge referred to evidence of Dr Welgama that medical staff usually spent at least an hour with the patient in obtaining history and in examination but noted that Dr Welgama said that the Hospital trauma unit was very busy on the relevant night and that he had only a very limited recollection of Mr Cordin. His Honour concluded: "154 In the circumstances of the leading questions asked of Dr Welgama, and his responses, which were founded upon considerations of usual practice rather than on actual recollection, I am not satisfied that the interchanges between Dr Welgama and the plaintiff on 2 September 2012, as summarised by Dr Welgama in his evidence, which was based on his notes, provide a sound or a reliable basis upon which to exclude the involvement of a motor vehicle in the plaintiff's accident. The evidence does not persuade me that the topic was either broached or explored by Dr Welgama or the plaintiff to enable the conclusion sought by the defendant that the evidence of Dr Welgama undermines the case the plaintiff seeks to make … " 1. The primary judge noted that Dr Welgama's records stated that Mr Cordin was "speaking full sentences" but observed that "the notes do not state whether he was coherent in speaking those sentences, or whether the content of those sentences was appropriate to the circumstances". 2. Later, his Honour said: "452 In my view, the defendant's reliance on [the hospital] records is problematic, as it is not known whether the questions asked on the topic of how the accident occurred were singular and focussed, or whether the questions included multiple or compound elements that were aimed at seeking medically oriented information, or whether the plaintiff's answers were responsive to the questions asked, or whether the answers comprised gratuitous or unresponsive content that was in any event noted, or whether some accident-related details had been assumed from the records, along the lines suggested in the evidence of Dr Welgama at T188.50 – T189.6. The documentary evidence does not permit a reasoned non-speculative resolution of such questions. … 474 I infer from the evidence of Dr Welgama that the general intent behind questioning the plaintiff at handovers was to avoid needless repeated questioning on matters already recorded unless necessary, where the plaintiff was critically ill, in significant pain, with a definite spinal cord injury, where he was lying on a bed for a number of hours, restrained and restricted from movement, and where out of respect to the patient's emotional status, only essential questions were asked, with reliance having been placed on the questions having been asked by others who provided the initial care: T188.50 – T189.6. 475 That explanation by Dr Welgama leads me to the view that the notes made in the ambulance and the hospital records are of only limited utility in identifying the underlying factual details of the mechanism of the plaintiff's injury insofar as a motor vehicle may have been involved in those events. In my view, those records are not definitive of that matter, and in fairness, they should not form the basis for rejecting the claim that a motor vehicle had struck the plaintiff's bicycle from behind in the events of the accident." 1. The primary judge concluded as follows in relation to Dr Lando's evidence: "163 Given that Dr Lando had for his purposes, relied heavily on the existing notes of how the plaintiff's accident had occurred, I do not consider his evidence provides a sound basis for excluding the possibility or rejecting the proposition that a motor vehicle had been involved in the events of the plaintiff's fall from his bicycle. Dr Lando's focus was the medical assessment and care of the plaintiff, and not a liability investigation." The Patient Election Form 1. A Patient Election Form was signed by Mrs Cordin at Princess Alexandra Hospital on 3 September 2012. It was completed so as to provide requested information relevant to payment of hospital expenses and to make an election for the patient to be public or private. In answer to a question of whether Mr Cordin's hospital admission was "in relation to an injury arising out of a motor vehicle accident" (emphasis in original), the "No" box was selected. 2. In evidence, Mrs Cordin said that she signed the document "at PA Hospital when I arrived there with my daughter" (Transcript p 94) and, although she signed it, her daughter filled it out. She said that she did not read the form. 3. Mr and Mrs Cordin's daughter, an adult, was not called to give evidence. The primary judgment 1. Having referred to Mrs Cordin's evidence that she did not read the form before signing it and that it had been filled out by her daughter, the primary judge concluded: "191 … In the stressful circumstances that prevailed at the time, where the form was presented to Mrs Cordin to sign, I do not consider her explanation was improbable or unlikely, where the priority in the circumstances was the consideration of arranging for the treatment being suggested for the plaintiff, which required her consent." 1. In response to the appellant's criticism that Mr and Mrs Cordin's daughter was not called to give evidence, the primary judge said that he did not consider Mrs Cordin's evidence "was of a kind that required corroboration on that point. Her evidence was capable of acceptance without corroboration". The Lismore Council records 1. The appellant tendered a Customer Request Management Enquiry form relating to a telephone call to the Lismore Council from Mrs Cordin on 6 September 2012. It relevantly says: "Called to report that Minyon [F]alls road is in need of gravel maintenance and pothole filling. She advises that her husband was involved in a serious accident on the weekend on that road. He was riding a pushbike and was found face down in a pothole. Subsequently was flown to Brisbane with head [and] spinal injuries (sic)." 1. Another document entitled "Workflow", which appears to have been completed on about 14 September 2012, contains the following: "Holes filled 10/9/12 Investigating further seems maybe wasnt holes at all that caused accident … Possibly an accident with another vehicle (P W Brewer-Childs – 14/9/2012) (sic)." 1. As noted earlier, Mrs Cordin gave evidence that she rang Lismore City Council and spoke to Mr Jamie Davies (Transcript p 92). This appears to have been on about 6 September 2012 but the precise date is not clear from her evidence. Her evidence was that she told Mr Davies that her husband had been involved in an accident on Minyon Falls Road and that he "was struck from [sic] a vehicle from behind" and that a police officer had suggested that she ring the Council to have someone look at the state of the road (Transcript p 93). 2. The reference to Mr Cordin being struck by a vehicle from behind does not appear in the Council's Customer Request Management Enquiry form of 6 September 2012 but does appear in the Workflow document in the note apparently dated 14 September 2012. Mrs Cordin did not give evidence about any further conversation that might have resulted in that note being made. The primary judgment 1. The primary judge said that the documents referred to in [55] and [56] above were "of neutral probative value on the question of whether or not a motor vehicle had been involved in the plaintiff's fall". He did not elaborate. 2. The primary judge did not consider that the absence of any reference in the note of 6 September 2012 to a motor vehicle was of significance "because the note relied upon by the defendant appears only to be a summary and it does not necessarily exclude the involvement of a motor vehicle". Mrs Cordin's police statement dated 23 October 2012 1. Mrs Cordin's statement included the following: "I was worried and very confused as to how the accident had happened. I was told Mick was found on the gravel road, face down in a pothole. I enquired as to where the other car is that hit him. No-one knew anything about another car. In my mind I knew he had not just fallen off his bike. I was standing near the pothole. I saw it was perhaps a watermelon size and I saw blood mixed with rainwater left from the last shower of rain. I had my camera in my hand and I took a photo of the pothole. … On Wednesday 5th September, 2012 I contacted Lismore Police station in relation to the motor vehicle accident, but at that time no-one knew anything, an Officer suggested I contact Lismore Council in relation to the state of the road surface, having several potholes as the officer had cause to be out in that area the previous day for a rescue operation. A couple of days later I spoke with Jamie DAVIS [sic] from Lismore Council and emailed him some photos of my husband's injuries and the section of road where the collision occurred. … About ten days after the accident we took a drive back up to the accident site on Minyon Falls Road and I saw Lismore Council had graded the gravel road up to the Minyon Grass turnoff. I took a photograph of the newly graded road at the accident site. I also took a photograph of my husband at home. On 12th September, 2012 we went to see a Solicitor and he advised us to place some signs around up near the accident site. I placed about six signs up around the accident site and the park. On 12th September, 2012 we attended Lismore Police station and spoke with Cst ANQUETIL he took details in his Official Police Notebook and created a COPS event. … On 23 October, 2012 we attended Lismore Police station and spoke with Senior Constable Helen CRAWFORD whereby I made this signed statement. I believe my husband's injuries have been caused by a motor vehicle, just by the injuries sustained to his head and his back. Damage caused to his helmet, bike and glasses indicates to me this is not from a simple fall." 1. In cross-examination, Mrs Cordin accepted that at the time she made the statement she had, according to her evidence, no doubt that Mr Cordin had been struck from behind by a motor vehicle and by that time she had no need to theorise about that (Transcript p 98). She rejected a proposition put to her that she did not say anything to Mr Davies at the Council about a motor vehicle being involved and that it was only after she and Mr Cordin saw their solicitor that she told the police that a motor vehicle had been involved (Transcript pp 107, 110). The primary judgment 1. The primary judge noted that the statement referred to Mrs Cordin's belief that Mr Cordin was injured in a motor vehicle accident "just by his injuries" and continued: "185 I do not regard Mrs Cordin's statement comprising Exhibit 'E' [the police statement of 23 October 2012] to be definitive of whether there was a motor vehicle involved in the plaintiff's accident. Nor do I regard that statement as being definitive of the evidence she could give in these proceedings as it was prepared for another purpose, namely a police investigation, and not by her, although she had signed the statement. In these circumstances, I do not consider the content of Exhibit 'E' to be contradictory of the evidence given by Mrs Cordin. I do not consider it to reflect adversely on her credit as a witness or on the reliability of her testimony." 1. Later, his Honour said: "200 The defendant was critical of the fact that Mrs Cordin did not include in that paragraph of her statement, a reference to the plaintiff's statement to her to the effect he had been struck by a motor vehicle: T113.5 – T113.17. Without specific evidence from Constable Crawford to establish the agenda or focus of the process and manner of construction of that statement, I am not prepared to accept that criticism of the credibility of the testimony of Mrs Cordin, as was submitted by the defendant on this point as I found her evidence otherwise convincing. 201 On a review of the entirety of Mrs Cordin's evidence I am not persuaded that her evidence was untrue, or incorrect, or that it was tailored to suit the plaintiff's case, or that it was of such a character that it required corroboration. I am satisfied that Mrs Cordin's evidence was truthful and reliable. I accept her evidence as cited in its entirety." 1. The primary judge did not consider Mr and Mrs Cordin's statements of 23 October 2012 to the police to be of any positive assistance to Mr Cordin's case as they were self-serving. He then said that in his view "their true evidentiary significance is that they do not contain any accounts of the accident that should be regarded as being inconsistent with [Mr Cordin's] evidence". Mr Cordin's police statement dated 23 October 2012 1. Mr Cordin's statement dated 23 October 2012 includes the following: "About 10.40am I left the Rummery Park turnoff to return home and got about 50 metres past the Minyon Grass turnoff, I was slowing down to negotiate some potholes, I was standing up on my pedals and applying the brakes. The next thing I remember is being in the back of a car, with a towel being held to my head. I can recall seeing a young man and a girl asking me questions. I did not know either of them. … I believe my accident was caused by a motor vehicle hitting my back wheel on my bicycle, which has caused me to propel some distance forward and causing my severe injuries. … Once I returned home from Brisbane Hospital I attended a local Solicitor to see some legal advice. It was suggested that I place some signs out near the area to establish if any witnesses saw the accident. After speaking with the Solicitor I was advised to attend Lismore Police Station. On 12th September, 2012 I spoke with Constable Aaron ANQUETIL who made notes in his Office Police Notebook." The primary judgment 1. The primary judge does not appear to have made any specific comments as to whether this statement is, as the appellant contends, inconsistent with Mr Cordin's case because it does not say that Mr Cordin told Mrs Cordin on 3 September 2012 that he had been hit from behind by a motor vehicle. THE EXPERT ENGINEERING EVIDENCE Dr Paul Carnavas 1. In his first report, dated 2 April 2014, Dr Carnavas noted the following observations he had made on an inspection of Mr Cordin's bike on 26 November 2013: "Overall the Bicycle appeared to be in rideable condition and without significant damage except for the rear wheel. The rear wheel could not be rotated because it was jammed against the right hand side brake pad; A closer inspection revealed that the rear wheel had a significant buckle and the right hand end of the axle had been displaced downwards in the dropout opening; … I reinstalled the rear wheel and correctly seated the axle. I found that the wheel could be rotated when the axle was correctly seated however the buckle meant that the rim and tyre sidewall would rub heavily on the brake pad." 1. He dealt as follows with the suggestion that Mr Cordin's bike may have hit a pothole: " … I would expect that the front end of the Bicycle would have been damaged if the front wheel had hit a pothole. If the Bicycle was jumped or 'bunny-hopped' over a pothole so that the front wheel cleared it but the back wheel made impact, then this could account for the buckle in the rear wheel. However, it would not account for the downward displacement of the rear axle on the right hand side because such an impact would force the wheel upwards." 1. Dr Carnavas concluded that the damage that he observed was consistent with the bicycle having been hit from behind by a motor vehicle. He concluded that this was the "most probable cause of the Accident". Mr Michael Griffiths 1. Mr Griffiths inspected the bike after Dr Carnavas' inspection, but on a date that is not revealed by the evidence. He noted the following: "Apart from the evident appearance of not having been used for some years, the bike appeared to be in reasonably good condition. Both wheels could be spun freely. The rear wheel had some moderate (less than 10 mm) left/right lateral movement as it spun, when measured laterally adjacent to the brake callipers. There were no observable radial variations, i.e. no radial buckling." 1. Having referred to Mr Cordin's assertions that the accident occurred whilst he was slowing down as he approached a potholed section of the roadway and that he was struck from behind by a motor vehicle, causing him to be thrown forward onto the roadway, Mr Griffiths concluded: "By reference to these photographs, it is deduced that the incident could not have occurred in the manner subsequently described by MICHAEL CORDIN, because if his bike had been struck from the rear, it would have tended to have been accelerated forward relative to his riding position and the fundamental laws of physics meant that he would have fallen backwards onto the front or bonnet of the striking vehicle, and then possibly slid off the vehicle as it braked, with initial contact with the roadway most likely being led by his lower limbs and buttocks. To fall forward off the bike onto the roadway, which his injury pattern clearly shows he did, then the bike needed to have stopped or suddenly slowed relative to the rider, so that the rider has then gone forward off the bike. This is what would occur if the wheels of the bike had struck potholes, and slowed and/or lost traction, so that the rider has then been propelled forward relative to the bike until he has come into contact with the road surface. The rider's pattern of injuries, particularly of the upper facial impact with the road surface, and sprained wrists and grazed knees, is most consistent with being thrown forward onto the roadway. The forward motion he described, and his pattern of frontal injuries are not consistent with being struck from the rear by a motor vehicle." 1. In a further report, of 2 March 2015, Mr Griffiths adhered to his earlier views and stated the following concerning the downward displacement of the rear axle reported by Dr Carnavas: "In Section 3.1(11) [Dr Carnavas] reports downward displacement of the rear axle on one side of the rear frame. As this can easily occur during handling if the lever is released, it is speculative to attribute this displacement to the crash under review. It could have occurred on other occasions such as transporting the bike from the crash scene, or when the bike was moved for the earlier photographs supplied by the plaintiff's reps, etc. Dr Paul Carnavas reports that he released it to remove the wheel and replaced the wheel correctly when he re-assembled the bike." Dr Carnavas' reply 1. Having stated that a pothole impact would not have displaced the bike's rear axle downwards to the position in which he observed it, Dr Carnavas' report in reply of 17 March 2015 added the following in relation to Mr Griffiths' comments concerning displacement downwards of the rear axle: "The fact that the axle was still tightly fixed to the frame after the quick release lever was fully opened and a number of turns of the axle (adjusting) nut were required in order to remove the wheel from the frame is significant. It is not possible, using normal methods (ie pressing with one's hand) to close a quick release lever and install a wheel if the axle (adjusting) nut has been overtightened – because the force required to close the lever is too high. Thus, the abnormal position of the wheel could only have occurred at a time when the wheel was already located in the frame. This wheel position could not 'easily occur during handling if the lever is released' as Mr Griffiths suggests. Additionally, it is exceptionally improbable that this axle position could have occurred (as Mr Griffith suggests) during normal transportation or handling as significant forces would be required to achieve this axle position." 1. Dr Carnavas disagreed with Mr Griffiths that a bike rider whose bike was hit from behind by a vehicle would necessarily fall backward, stating: "2. In Attachment 1, I have included some still frame images from a 'dashcam' video of a motor vehicle impacting the rear of a road bicyclist at a low relative speed. In this example, in distinct contrast to the descriptions by Mr Griffiths, the motor vehicle contact with the bicycle rear wheel: (a) Destabilises the rider so that he falls to the ground. In this accident example the rider falls to his right and front; (b) Is with insufficient velocity to cause the rider to fall rearward and contact the vehicle. … 4. When a motor vehicle impacts the rear of a bicyclist at a low relative speed and destabilises the rider it is difficult to predict how they will fall because it depends on many factors. These include: (a) The magnitude of the force of impact; (b) The direction of the force of impact – it would be unusual for the impact to be perfectly 'end on' (ie purely radial on the back wheel). There would normally be a lateral force component also applied to the bicycle. The lateral force component would push the bicycle sideways. (c) The extent of the 'braking' effect associated with the motor vehicle bumper contacting the tyre; (d) The cushioning and the resilience of the motor vehicle bumper and the inflated bike tyre/ bike wheel/ frame; (e) The initial position of the rider on the bicycle (ie. the location of the centre of mass) and how that position changes; (f) The bicycle steering inputs both initially and due to the destabilisation; 5. Mr Griffiths has not considered the type of vehicle impact shown in the Images in Attachment 1 and in the source video – viz. a low speed rear impact of sufficient speed and force to destabilise the rider but insufficient to cause him to fall backwards onto the vehicle. 6. In my opinion, this type of motor vehicle impact is most consistent with the accident scenario involving Mr Cordin." 1. In his oral evidence Dr Carnavas confirmed that the "steering inputs" to which he referred in this passage included a turning of the front wheel. He said that such a turn "would very dramatically change the motion of the cyclist and he would go over the handlebars …". 2. Dr Carnavas' response to Mr Griffiths' comments about the means by which Mr Cordin contended that the accident occurred included the following: "I note in [Mr Griffiths' report] (Page 39 Line 42) that Mr Griffiths records Mr Cordin's description of his Bicycle's motion just prior to being struck from behind by a motor vehicle as 'slowing down as he approached a potholed section of the roadway'. This confirms that Mr Cordin was braking and that his weight distribution was more on his front wheel than Mr Griffiths suggests and most probably significantly more – depending on: (a) The braking deceleration; (b) Mr Cordin's body position, and; (c) Whether Mr Cordin was sitting on his seat or standing on his pedals (the latter a more typical position for an experienced rider descending on a rough road); Further, if Mr Cordin had hit a pot hole whilst braking, he and his Bicycle would have experienced an additional, sudden deceleration from the pothole impact. The result of this would have been: (a) A significant proportion of the rider and bicycle's weight on the front wheel due to braking; (b) A correspondingly high probability of front end (front wheel, in particular) damage because of the higher front end weight support when the pothole was hit. (c) A possible 'over the handlebars' incident. However, there was no front end damage to Mr Cordin's Bicycle. As indicated in [my first report], I consider that a pothole impact most probably did not cause the Incident. I do not agree with Mr Griffiths that my 'expectation that the front end (wheel and forks?) of the bike would have been damaged if the bike passed over a pothole first is contrary to the laws of physics' because Mr Griffiths has failed to consider the effect of the likely deceleration forces on the Bicycle at the time of the Incident which would have caused the riders weight to shift forward and thus increase the load on the front wheel." 1. In oral evidence Dr Carnavas said it would be very unusual for a vehicle and bike which collided to be in perfect alignment and that he had assumed the possibility of "an oblique component to the impact" (Transcript pp 126 and 128). The primary judgment 1. So far as factual observations were concerned, the primary judge noted that Mr Griffiths would not have been able to observe the displacement of the rear axle described by Dr Carnavas because Dr Carnavas had replaced the wheel into its correct position following his inspection. His Honour considered that the difference in the experts' observations as to the extent to which the tyre sidewall rubbed against the rear right brake pad seemed to have resulted from Dr Carnavas' elimination of the downward displacement of the rear right axle in its mounting. 2. The primary judge was critical of a number of Mr Griffiths' assumptions, including his assumption that at the time of the accident, Mr Cordin "had been riding his bicycle whilst seated, with the mass of his body resting on the bicycle seat". In fact, so his Honour held, Mr Cordin was at the time standing on the pegs of his bicycle (presumably a reference to the pedals – see Transcript p 47.18-.25) and that Mr Griffiths accordingly proceeded upon an erroneous assumption as to Mr Cordin's centre of gravity. 3. His Honour concluded: "593 Given my finding that the plaintiff's bicycle was travelling slowly, and that he was in the course of steering in a manner in which he was seeking to avoid potholes that were ahead of him, I consider it is highly likely, and more probable than not that, that he undertook a steering or turning movement of the front wheel, and that the striking force from behind was applied at an oblique angle, as was postulated by Dr Carnavas. 594 In my view, as explained by Dr Carnavas, this accounts for the plaintiff being thrown forward in the events of the accident. I accept the evidence of Dr Carnavas concerning the dynamics of that process as being a plausible explanation for the plaintiff's fall after being struck from behind, most probably at an angle. I consider that evidence to be a convincingly acceptable answer to the claim by Dr Griffiths that the plaintiff's account was contrary to the laws of physics. 595 I have accepted that immediately before the accident, the plaintiff was standing on the pegs of his bicycle for the purposes of shock absorption whilst he was applying his brakes. This means that the assumptions by Mr Griffiths as to the distribution of the plaintiff's mass in the events leading to him falling from his bicycle are incorrect. If the plaintiff was standing on the pegs of his bicycle, as I have found to be the case, then Mr Griffiths' assumptions as to the downward distribution of the load of the plaintiff's mass, and location of the plaintiff's centre of gravity, fall away, thus rendering the opinion of Dr Griffiths incapable of acceptance. 596 In his two reports that were tendered, Mr Griffiths had not considered Dr Carnavas' explanation of a turning of the front wheel of the bicycle in conjunction with either being struck by a force directly from behind, or at an oblique angle. 597 I do not consider the cited explanations of Dr Carnavas to be far-fetched, fanciful or remote. This is because the plaintiff was riding on a road that was acknowledged to be in poor condition, with a gravel and potholed surface. In those circumstances, I consider it very unlikely that he would have been riding in a perfect straight line as he approached the field of potholes that were described in the evidence as being ahead of him." 1. His Honour accepted the opinion of Dr Carnavas that for the downward axle displacement that he observed to occur, "the force of an impact must have been applied from behind" Mr Cordin. In his Honour's opinion, the expert evidence therefore supported Mr Cordin's case (Judgment [611] and [633]). THE PRIMARY JUDGMENT 1. I have set out above those parts of the primary judgment that are critical to the disposition of the appeal. It is only necessary to add reference to the following findings in relation to statements attributed to Mr Cordin prior to 12 September 2012 in which he had not mentioned the involvement of a motor vehicle: "226 The plaintiff could not recall having received pain alleviating medication in Lismore Hospital: T19.13. However, he could recall receiving such medication at the Princess Alexandra Hospital: T19.16. In my view, because of his pain and incoherence until he was in that hospital in Brisbane where his pain had receded somewhat, and his thinking became clearer, he was unlikely to have been in a position to provide a full and lucid account of what had happened in the events of the accident. … 228 I accept the plaintiff's account as summarised above. That account strongly suggests that from the time the plaintiff became injured, and during the early stages of his hospitalisation, he was not in full command of his mental processes, and it was not until in the course of the day after the accident, in conjunction with pain relief, that he was able to piece together events in the manner he described in his evidence. … 230 The plaintiff said that his clear and continuous recollection after the event probably commenced when he had pain relief at the Princess Alexandra Hospital in Brisbane: T7.48. Before that, his recollection was 'very hazy': T8.1. … 234 The cross-examiner put to the plaintiff the suggestion that when medical personnel in hospital had asked him specific questions about what had happened to him, he most probably answered to the effect that he had a bike crash, and did not mention that he had been struck by a motor vehicle: T52.5 – T52.14. I considered the candour of that answer to be a matter that demonstrated the plaintiff's credit as a witness. 235 The plaintiff said, and I accept, that when he saw his wife in the hospital, he told her that he recalled being hit from behind in the accident: T11.11 – T11.34. 246 … The plaintiff said, and I accept, he was only able to think more clearly about the incident after he obtained pain relief at the Princess Alexandra Hospital: T8.1. I accept that evidence." 1. Later in his judgment, the primary judge said: "375 An issue emerged as to whether the plaintiff had retrograde amnesia: T52.18. There is no dispute that the term retrograde amnesia describes the phenomenon whereby a person experiences a loss of memory for events that occurred before the onset of an injury: T53.20 – T53.25; International Classification of Diseases, Version 10.R4(1.2). … 380 In the circumstances, on a commonsense analysis, where the expert medical evidence on such matters is silent, I infer from the described aftermath of the plaintiff's head injury, that he did have a short period of retrograde amnesia to the degree he has described, and as summarised in the preceding paragraphs: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538. … 422 I infer from the descriptions of Mr Bessabava and Mr Marshall, that whatever the severity of the plaintiff's head injury, the aftermath of that injury was having a significant impact upon his mental functioning, at least until Mr Hartley arrived, and most probably well beyond that time, given the content of parts of the Princess Alexandra Hospital notes, which recorded that the head injury involved the mechanism of a significant axial loading force with a loss of consciousness '+ +' (Exhibit '5', Tab 3, pp 26 and 31), and also because, 5 days later, on 7 September 2012, the plaintiff was then noted to have still been suffering cognitive deficits from the accident, with reduced mental control, memory, orientation and attention: Exhibit '5', Tab 3, pp 42 – 43. The plaintiff was mentally distressed for some time after the accident: T53.42. … 424 In coming to that conclusion I have not overlooked the content of the consolidated ambulance summary prepared by someone in the ambulance service based on Mr Hartley's notes, where it was stated that '… pt is oriented to place and time now …'. I take that description to mean that the plaintiff was aware of his surroundings. That notation throws no light on the level of functioning of the plaintiff's mental processes." 1. As the primary judge accepted Mr Cordin's evidence, he concluded that on the balance of probabilities Mr Cordin's bike was hit from behind by a motor vehicle whose identity has been unable to be ascertained despite due enquiry and search. In a finding not challenged on appeal, his Honour also found that, to have come into contact with Mr Cordin's bike, the driver of the unidentified vehicle must have driven negligently. His Honour rejected the appellant's contention that Mr Cordin had been guilty of contributory negligence. DISPOSITION OF THE APPEAL The contemporaneous records 1. Having referred to the eight categories of contemporaneous records listed above, Mr Stitt QC, who appeared with Mr Kelleher for the appellant, made the following general submissions: "Those are the relevant contemporaneous records. In none of those documents is there recorded a history of the respondent being struck from behind by a motor vehicle which is, of course, the essence of what this case is about. The police statement of the respondent plaintiff Mr Cordin, which is item number 8 makes plain that he has no recollection or memory of the circumstances of his fall but only his belief as to what happened and the same comment applies to Mrs Cordin's police statement on 23 October 2012. On the contrary, in all of the contemporaneous documents, apart from the police statement the plaintiff respondent gave a consistent history that he fell from his bicycle while he was riding down this rough bush road in the Nightcap Range. And the two police statements dated 23 October from Mr and Mrs Cordin, it is not without significance that those statements were made to the Lismore police after they had been to see their solicitor Mr Steven Bull on 12 September 2012, and those statements were tendered by the plaintiff." The ambulance records 1. Taken with the evidence of Mr Hartley who was one of the ambulance officers, these records at least constitute evidence of a statement by Mr Cordin, made whilst under the care of the ambulance officers, that his injuries had been suffered as a result of a fall from his bike. An important question is whether they are evidence that he went further and said that he fell off his bike after hitting (and therefore, because he hit) a pothole. 2. As noted above ([25]), the records include the statement "fall of [sic] bike post hitting a pothole". Mr Hartley did not give evidence that he made this note or that Mr Cordin made such a statement to him. Indeed, in cross-examination he denied that Mr Cordin had told him that he fell off his bike "because the front wheel of his bike had hit a pothole". Rather, Mr Cordin simply told Mr Hartley that "he fell off his bike" ([28] above). 3. Does the documentary reference to the bike hitting a pothole therefore have any evidentiary value? In my view, as held by the primary judge, it does not. First, it is not clear who was responsible for the note being made. Secondly, even if it could be inferred that that person was the ambulance officer who attended the scene of the accident with Mr Hartley, there is no basis for concluding that the note reflected a statement made to that officer by Mr Cordin, rather than the officer's inference as to what had occurred based on his own, or someone else's, observations of potholes on the roadway in the immediate vicinity of the accident. If it reflected the latter, it was lay opinion evidence that s 76 of the Evidence Act 1995 (NSW) rendered inadmissible, the exception contained in s 78 of that Act being inapplicable (see Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36). The only person present at the time of the accident was Mr Cordin himself. A lay person's subsequent observation of potholes and a bike on the ground did not provide the basis for the person to provide admissible evidence of how the bike came to be on the ground. 4. This conclusion confines the potentially significant evidence in the ambulance records to Mr Cordin's statement that he fell off his bike. Putting to one side the question of whether the trauma of Mr Cordin's accident and injuries precludes any reliance being placed upon what he did or did not say to the ambulance officers, the question is whether Mr Cordin's statement that he fell off his bike, without reference to the reason that he fell off his bike (namely, that he was hit by a motor vehicle), is significant evidence that he was not so hit. 5. If Mr Cordin's bike was hit by a motor vehicle, his statement that he fell off his bike was nevertheless true but in ordinary circumstances one would expect the further information as to why he did so to be volunteered. That it was not constituted some evidence against his case. However, being literally true, the statement fell well short of being starkly inconsistent with his evidence of the intervention of the motor vehicle, such as to render the primary judge's acceptance of his evidence glaringly improbable. Whilst not on its own reaching that level, the statement must nevertheless be considered with the other contemporaneous documents upon which the appellant relies to determine whether, taken together, they are plainly inconsistent with Mr Cordin's case. The Lismore Base Hospital records 1. These records contain statements apparently attributable to Mr Cordin that he fell from his bike. The same comments as I have made above in relation to similar statements made to Mr Hartley are applicable to these. Furthermore I do not consider that the additional recorded statement that Mr Cordin went "over handlebars" ([36] above) is significant as it is not inconsistent with his evidence given before the primary judge. In that evidence he said he had had "a feeling of going forward rapidly off my bike" ([11] above). 2. The statement "[s]truck pot hole" in the orthopaedic consultant's notes (see [36] above) was not the subject of any specific written or oral submissions by the appellant. As the maker of the note was not called to give evidence, and as Mr Cordin was in fact found face down in a pothole, the statement cannot be treated as of significant evidentiary value. It is not clear that it reflected a statement made by Mr Cordin and, even if it did, whether Mr Cordin was speaking about his body striking the pothole when he fell or the bike striking a pothole, causing him to fall off it. The point is accentuated by references in the medical records to Mr Cordin having suffered injuries to his head and face, presumably as a result of his head hitting the road in or on the side of the pothole in which it was found. The air ambulance records 1. The relevant record goes no further than a statement that Mr Cordin "came off pushbike" (see [38] above). Apart from being a repetition of the statements in the ambulance records, and therefore a further opportunity not taken by Mr Cordin to refer to the intervention of a motor vehicle, the record does not add to the records earlier discussed. The Princess Alexandra Hospital records 1. With one exception, these rise no higher for the appellant than evidence that Mr Cordin told doctors that he fell over the handlebars of his bike. 2. Senior Counsel for the appellant submitted in relation to them: "The description which was given is fell. Fell from the bicycle, fell over the handlebars. One would have thought that if it was seriously to be suggested that in some way or other he was knocked off his bicycle by a motor vehicle that, at the very least, he would have said so. That he wouldn't have said, 'I just fell off my bike' which is what he has said on a number of occasions in the course of giving clinical histories" (Transcript p 11). 1. For reasons given earlier in relation to other contemporaneous records, the absence of reference by Mr Cordin to the involvement of a motor vehicle is not of itself a plain contradiction of his evidence that a motor vehicle was involved. 2. The exception to which I referred is the statement made in the course of the plastic surgery review "hit pot hole & went over handlebars". Again this was not the subject of any specific submissions by the appellant and I do not consider that it can be regarded as of particular evidentiary significance: the maker of the note was not called to give evidence and it cannot be inferred that it reflected a precise statement made by Mr Cordin, as distinct from a hospital worker's inference based on what he or she had read in other hospital records based on what Mr Cordin might have said about falling from his bike and ending up with his head in a pothole. 3. Guidance on these issues can be obtained from the decision of the High Court in Waterways Authority v Fitzgibbon [2005] 79 ALJR 1816; [2005] HCA 57, particularly the observations made by Kirby and Heydon JJ at [68]-[71] suggesting the need for caution in utilising medical notes unsupported by oral evidence. Their Honours approved observations in the decision below in Fitzgibbon v Waterways Authority [2003] NSWCA 294 at [72] and [73] regarding the difficulty of determining the source of information recorded in such notes and the care to be taken in attaching significance to particular language used in the notes. For example, in that case the word "dive" used in medical notes in relation to the plaintiff's accident was not interpreted as excluding "a mode of entry into the water, which was not, at its outset, intentional" when there was no reference in the relevant note to the reason for the plaintiff's dive. Likewise here, a reference in medical notes to Mr Cordin having fallen from his bike should not necessarily be understood as excluding the possibility that he fell from his bike as a result of it being pushed from behind by a motor vehicle. 4. A number of other authorities in this Court have also emphasised the need for caution in placing reliance upon histories recorded by medical practitioners (see for example Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Gulic v O'Neill [2011] NSWCA 361 at [24]). The Patient Election Form 1. The negative answer given in this form to the question of whether Mr Cordin's injuries arose out of a motor vehicle accident ([50] above) is contrary to his case, but it was not suggested that he was a party to the completion of the form. Nevertheless, the form had the potential to contradict Mrs Cordin's evidence that Mr Cordin told her on the same day, 3 September 2012, that a motor vehicle had been involved because, although she did not complete the form, she signed it. 2. There were however a number of reasons why the form did not constitute a significant contradiction of Mr Cordin's evidence. 3. First, it was by no means clear that Mrs Cordin signed the form on 3 September 2012 at a time after Mr Cordin had told her of the involvement of a motor vehicle. On the contrary, Mrs Cordin's evidence that she signed the form when she arrived at the Hospital (see [51] above) pointed in the other direction. 4. Secondly, Mrs Cordin gave evidence that she did not read the form. Bearing in mind the form's formal character and the state of anxiety that Mrs Cordin must have been in about her husband's injuries, the primary judge's acceptance of that evidence was not surprising. 5. Thirdly, contrary to the appellant's submission, the primary judge did not err in not drawing a Jones v Dunkel inference from Mr Cordin's failure to call his daughter to give evidence. That inference would only have been available if the form required the daughter's explanation because there was at least clear evidence that Mr Cordin told Mrs Cordin and their daughter about the motor vehicle before the daughter completed the form. 6. Fourthly, an accident resulting from a motor vehicle hitting a bike from behind might not be thought by a lay person to be a motor vehicle accident, at least if careful attention were not given to the completion of the form. As Mrs Cordin suggested in evidence, it might be understood as a reference to someone having an accident whilst in a motor vehicle. The Lismore Council records 1. The document recording the call from Mrs Cordin on 6 September 2012 (see [55] above) states that she rang to inform the Council that Minyon Falls Road was "in need of gravel maintenance and pothole filling". Although the note also says that Mr Cordin was found "face down in a pothole", it is difficult to understand why Mrs Cordin would have made such a call if she thought her husband's accident was caused by his bike being hit from behind by a motor vehicle rather than it hitting a pothole. As put by senior counsel for the appellant, "the fact that you wind up in a pothole has nothing to do with the cause of the knock down. This complaint … seems to be a complaint as to the cause of the serious accident, namely that the gravel is in need of maintenance and the potholes need to be filled" (Transcript p 17). 2. This document accordingly raises doubt as to the veracity and reliability of the evidence of both Mr and Mrs Cordin that Mr Cordin told Mrs Cordin on 3 September 2012 that a motor vehicle had been involved. What Mrs Cordin is recorded as having said is all literally true (including that Mr Cordin was found face down in a pothole) but the record was of some assistance to the appellant's attack on Mrs Cordin's evidence because it does not include reference to Mrs Cordin mentioning involvement of a motor vehicle. 3. Nevertheless Mrs Cordin's evidence that she did in fact tell the Council on 6 September 2012 of the involvement of a motor vehicle was, at least implicitly, accepted by the primary judge. There were clearly potholes on the road which, whether or not they were the cause of Mr Cordin's accident, constituted a hazard to road users and Mrs Cordin said that a police officer had suggested that she ring the Council to have someone look at the state of the road (see [20] above). Moreover, it is possible that the Council officer to whom she spoke focused only on that part of what Mrs Cordin said that was of relevance to the Council, namely the state of the road. The document does not therefore stand as necessarily an absolute contradiction of Mrs Cordin's evidence. Mrs Cordin's police statement dated 23 October 2012 1. In oral argument, senior counsel for the appellant submitted that this statement was significant because it "does not contain any assertion that Mr Cordin … told her that he had been hit by a car, or been hit by a motor vehicle from behind", nor any reference to her husband informing her at the Princess Alexandra Hospital that he was "knocked down by a car" (Transcript p 18). Rather, it says that she believed that her husband's injuries had been caused by a motor vehicle "just by the injuries sustained to his head and his back. Damage caused to his helmet, bike and glasses indicates to me this is not from a simple fall". 2. However in my view this police statement is of limited significance because Mrs Cordin's evidence before the primary judge and that of Constable Anquetil, as well as the police records (see [21] above), indicated that Mrs Cordin had on 12 September 2012 told the police that Mr Cordin had been struck from behind by an unknown vehicle. She had been present with her husband at the police station on that day and had joined in conveying that information. Having referred earlier in her police statement to that attendance, there is no obvious reason why she should have included, in her police statement of 23 October, information as to when her husband first told her of his belief that his bike had been hit by a vehicle. Indeed, for all one knows, she may have told the police officers that, but they chose not to include it in her statement. 3. Moreover what Mrs Cordin said in the statement about her belief, and the matters that supported it, was also supportive of her husband's belief as to the cause of the accident; a belief that, at least from 12 September 2012, she undoubtedly knew her husband held. Being supportive of her husband's position it was rational for her to include it in the statement even if Mr Cordin had told her that his bike was hit from behind by a vehicle. Mr Cordin's police statement dated 23 October 2012 1. The appellant submitted that this document was significant because Mr Cordin's reference to his bike being hit by a motor vehicle was also expressed in terms of belief. Mr Cordin appears to state his recollection exhaustively by saying that the "next thing I remember", after standing up on his pedals and applying the brakes, was being treated for his injuries. He did not at this point in his statement assert a recollection of his bike being pushed from behind. The proposition that his bike was pushed appeared later in the statement and was expressed in terms of belief rather than recollection. 2. Bearing in mind that there does not appear to have been any evidence that Mr Cordin signed or otherwise adopted his statement (compare Transcript p 58 to p 100) and there was no evidence other than in the unsigned statement of what he said to the police, only limited significance can be attached to the document. Certainly, it does not stand, at least on its own, as a stark refutation of Mr Cordin's evidence at the hearing. The contemporaneous documents taken as a whole 1. There are a number of aspects of the evidence that raise doubts as to the merits of Mr Cordin's case. 2. First, his evidence that his bike was hit from behind by a motor vehicle was not strong. In chief, it went no further than statements that he "had a feeling of going forward rapidly" off his bike and that it was his "belief" or "opinion" that he was hit from behind by a motor vehicle. He made firmer statements in cross-examination, saying that he had told his wife that he was hit from behind, but nevertheless acknowledged that he could only speak as to his belief because he did not see the vehicle. Moreover his police statement (see [113] above) was expressed only in terms of belief. 3. The assessment of this evidence was a matter for the primary judge who saw and heard Mr Cordin give it. Whilst his evidence was on one view weak, the fact that it was, and could easily have been strengthened by Mr Cordin if he had been prepared to be less than frank, was arguably a factor supporting acceptance of what he did say. 4. Secondly, as I have indicated, the Patient Election Form and the Lismore Council records (see [101] to [109] above) present difficulties for Mr Cordin's case although those difficulties are not insurmountable. 5. Thirdly, it is perhaps surprising that, if Mr Cordin's bike was pushed from behind, and he told his wife on the day after the accident that that had occurred, the medical records do not suggest that he told any of his medical attendants of the push. Nevertheless, as I have said, the medical records are not directly inconsistent with the push having occurred. 6. Despite these matters, I have concluded that the contemporaneous documents that the appellant relies upon, whether considered individually or as a group, do not constitute direct and inexplicable contradictions of Mr Cordin's evidence such as to indicate that the primary judge's acceptance of that evidence was "glaringly improbable" or contrary to "incontrovertible facts or uncontested testimony" or "compelling inferences" (see [6] above). Nor do any other features of the evidence to which this Court was taken require that conclusion. 7. The present case is to be contrasted with State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 in which a primary judge's credit-finding was set aside and a new trial ordered. In that case the High Court found that the primary judge had failed to give sufficient attention to all of the evidence in the case and, in the words of Gaudron, Gummow and Hayne JJ, "there has not been a determination of the SRA's case upon a consideration of the real strength of the body of evidence it presented" (at [64]). That cannot be said of the present case in which the primary judge examined the evidence in great detail and considered its consistency or otherwise with Mr Cordin's case. 8. There are many points in the primary judgment at which his Honour opines on the question of whether particular evidence is inconsistent with Mr Cordin's case. Contrary to the appellant's submission, I do not consider that by doing this the primary judge effectively reversed the onus of proof. When the judgment is considered as a whole, it is in my view sufficiently clear that the primary judge recognised that it was for his Honour to consider whether, taking into account the whole of the evidence, Mr Cordin had established his case on the balance of probabilities. 9. I add in conclusion on this topic that in finding that the effect of the contemporaneous documents did not, for other reasons, rise to the level for which the appellant contended, it has been unnecessary for me to address the primary judge's references to the impact of pain, confusion and general trauma resulting from the accident on Mr Cordin's capacity to give a rational and complete account of it. The appellant strongly submitted in this context that the primary judge had wrongly drawn on his own medical knowledge in discounting the importance of the contemporaneous documents. The expert evidence 1. The appellant contended that the expert evidence was clearly against Mr Cordin's case and that, even standing on its own, it warranted setting aside the primary judgment. The primary judge however found that the expert evidence did not contradict Mr Cordin's case and in fact supported it. For two reasons, I do not consider that the appellant has established that these findings are erroneous. 2. First, Dr Carnavas opined in his first report that the downward displacement of the right-hand end of the bike's rear wheel axle that he observed was not consistent with Mr Cordin's fall from his bike resulting from it hitting a pothole. 3. In his response, Mr Griffiths said that it was speculative to attribute this displacement to the accident as such displacement "can easily occur during handling if the lever is released" ([73] above). In reply, Dr Carnavas gave apparently forceful reasons why displacement could not occur in this way. That reply was not contradicted by Dr Carnavas in cross-examination or by any further evidence from Mr Griffiths. In those circumstances, it was well open to the primary judge to accept Dr Carnavas' view, as he did (Judgment [342(2)]). 4. Secondly, Mr Griffiths' opinion that Mr Cordin's injuries, being most significantly to his head and face, were inconsistent with his fall resulting from a vehicle pushing his bike from behind was contradicted in an effective manner by Dr Carnavas. Dr Carnavas opined that "a low speed rear impact may not cause the bicyclist to fall backwards onto the motor vehicle but may result in destabilisation of the rider causing him to fall to the ground" and that the rider may fall "obliquely forward and to his right side and not backwards". He emphasised that "for any given circumstance it is difficult to predict how a rider will fall because it depends on many factors" (Second Report, p 10). He noted variables rendering prediction of the direction of fall difficult as including the magnitude of the impact from the rear, whether that impact was exactly straight from behind rather than having some lateral component, whether the bicycle rider was standing on his pedals and whether the bicycle's front wheel was exactly straight rather than to some extent turned at the moment of impact (ibid p 7). The last factor was by no means hypothetical in the present circumstances as immediately prior to the accident Mr Cordin was "slowing down virtually [to] walking speed to negotiate the potholes" ([11] above). 5. At least it can be said that the appellant did not demonstrate on the appeal that his Honour's acceptance of Dr Carnavas' response on this point was not open to his Honour on the evidence. 6. The appellant contended that as Mr Griffiths' opinions were not challenged in cross-examination, he in fact not being required for cross-examination at all, the Court was bound to accept his evidence pursuant to the principles in Browne v Dunn. 7. I do not accept that contention as the principles in Browne v Dunn do not call for a challenge to be made by way of cross-examination where the fact that evidence called by the other party is in issue is otherwise made known. Hunt J made this clear in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at [26] where he referred to the necessity for a witness' evidence to be challenged in cross-examination "unless notice has already clearly been given of the cross-examiner's intention to rely upon" the relevant matters at [26] (see also Duic v Duic [2013] NSWCA 42 at [28] and Toben v Nationwide News Pty Ltd [2016] NSWCA 296 at [58]). Here notice of Dr Carnavas' opinions, including the two to which I have particularly referred above, was given through service of his reports. In these circumstances it was not incumbent upon Mr Cordin's counsel to raise the opinions with Mr Griffiths in cross-examination. CONCLUSION 1. For the reasons I have given, the appellant has not succeeded in its attempt to establish that the contemporaneous documents upon which it relies contradict the primary judge's credit-based finding in such a way as to require the judgment below to be set aside. 2. The conclusion that the judgment should not be set aside is reinforced by my finding that the primary judge did not err in finding that the expert evidence did not contradict Mr Cordin's case, and in fact supported it (see [82] above). 3. In these circumstances, the appeal must be dismissed with costs. 4. EMMETT AJA: On 2 September 2012, the respondent, Mr Michael Cordin, sustained a head injury, a laceration to the side of his forehead and compression fractures to his thoracic spine, as well as injuries to his hands, wrists and knees, when he fell while riding his sports mountain bicycle on Minyon Falls Road, Dorroughby, New South Wales. Mr Cordin claimed that a motor vehicle struck the bicycle from behind, throwing him forward onto the roadway. However, he was unable to identify any motor vehicle and commenced proceedings in the District Court against the appellant, the Nominal Defendant, under the provisions of the Motor Accidents Compensation Act 1999 (NSW). 5. The parties agreed that the quantum of damages to which Mr Cordin would be entitled, if successful, was $350,000. However, there was a fundamental dispute in the proceedings in the District Court as to whether a motor vehicle had been involved in the events that led to Mr Cordin's undisputed injuries. After a trial lasting some five days, a judge of the District Court (the primary judge) directed a verdict for Mr Cordin, without any discount for alleged contributory negligence, and entered judgment for Mr Cordin against the Nominal Defendant in the sum of $350,000. The primary judge ordered the Nominal Defendant to pay Mr Cordin's costs of the proceedings on the ordinary basis, until 10 July 2015, and on the indemnity basis, from 11 July 2015. 6. By notice of appeal filed on 22 April 2016, the Nominal Defendant appealed to this Court from the orders of the primary judge. Mr Cordin had no actual recollection of his bicycle having been struck from behind. In essence, the Nominal Defendant contended that his Honour erred in accepting conjecture by Mr Cordin that he had been struck from behind, in reliance upon expert opinion evidence based on the damage to the bicycle observed at some time after the accident occurred. The Accident and its Immediate Aftermath 1. Mr Cordin was found lying unconscious on the road by strangers. The ambulance service was called and he was transported by ambulance to Lismore Base Hospital. After being admitted to Lismore Base Hospital, he was transported by air ambulance to Princess Alexandra Hospital in Brisbane, where he was treated for his injuries. 2. Mr Cordin's evidence was that he was proceeding downhill towards an area where he observed potholes in the road. He said that he applied both brakes and stood "in the pegs" of his bicycle to negotiate the "nest of potholes". Standing "on the pegs" involved using his legs as shock absorbers over rough ground. He said that he experienced a feeling of "going forward rapidly" off the bicycle. It is not disputed that Mr Corbin suffered a fall from his bicycle and was rendered unconscious by the fall. His next recollection was of waking up in the back of a motor car, with a stranger. 3. While experiencing the feeling of "going forward rapidly", Mr Cordin did not see anything or hear anything. In particular, he did not see a motor vehicle prior to his fall. When asked in oral evidence why he came off his bicycle on the day in question, Mr Cordin said it was his belief that he was hit from behind by a motor vehicle. When asked why that was his belief, he said that it was because he considered himself a very experienced mountain bike rider and had ridden up and down "the same track many times", and had come off his bike while going much faster than he was going on the day in question. He said that he was slowing down "to virtual walking speed to negotiate the potholes". He said "the damage I sustained was from being shunted from behind in my opinion". 4. Although he was in considerable pain, Mr Cordin was conscious and perfectly capable of communicating with paramedics and to doctors while being transported by ambulance to Lismore Base Hospital, while in Lismore Base Hospital, while in the air ambulance and while at Princess Alexandra Hospital. At no time, however, did Mr Cordin say that a motor vehicle had been involved in his accident. 5. Notes made by Dr Welgama while Mr Cordin was at Princess Alexandra Hospital relevantly said: "Went over handle bars + landed onto his head + face with significant axial load." It is significant that Mr Cordin made no mention of having been struck by a motor vehicle. Dr Welgama gave evidence, based on his usual practice, of the questions he would have asked Mr Cordin to elicit the information that he wrote in the notes. While in Princess Alexandra Hospital, Mr Cordin was visited by his wife and daughter. While they were at the hospital, Mr Cordin's wife signed a "Patient Election Form" completed by his daughter. Relevantly, the form required an answer to the question: "Is this hospital visit in relation to an injury arising out of a motor vehicle accident?" That question was answered "No". Although Mr Cordin's daughter completed the form, she was not called to give evidence to explain why she answered the question in that way. Notwithstanding that fact, Mr Cordin's wife gave evidence that she asked him what happened, and he said, "I was hit from behind by a car." In the absence of a credible explanation as to how the Patient Election Form came to be completed in the way indicated, it is difficult to place any weight on the assertion that Mr Cordin was hit from behind by a car. 1. According to a record kept by Lismore City Council (the Council), Mrs Cordin telephoned the Council on 6 September 2012, to report that "Minyon Falls Road is in need of gravel maintenance and pothole filling". The record stated that Mrs Cordin advised that her husband was involved in a serious accident on that road, that he was "riding a push bike" and was found face down in a pothole and was subsequently flown to Brisbane with head and spinal injuries. No mention was made of the involvement of a motor vehicle. 2. On 12 September 2012, Mrs Cordin reported the incident to the police. The police report records, inter alia, the following: "Without warning, the rider was struck from behind by an unknown vehicle. The rider was thrown from his push bike, sustaining multiple injuries." That is the first occasion where any contemporaneous document records any suggestion that Mr Cordin was struck from behind by a motor vehicle, some 10 days after the incident occurred. 1. On 23 October 2012, Mrs Cordin made a statement to the police, which included the following: "I believe my husband's injuries have been caused by a motor vehicle, just by the injuries sustained to his head and his back. Damage caused to his helmet, bike and glasses indicates to me that this is not from a simple fall." It is significant that Mrs Cordin did not mention the statement made by her husband that he had been hit from behind by a car. Rather, her reasoning seems to be that, because of the damage to the helmet and the nature of his injuries, she drew the inference that a motor vehicle was involved. 1. On the same day, 23 October 2012, Mr Cordin made a statement to the police. In that statement he said the following: "I believe my accident was caused by a motor vehicle hitting my back wheel on my bicycle, which has caused me to propel some distance forward and causing my severe injuries. I am an experienced bike rider and have had several falls over the years … This bike was fully serviced about a week prior and the brakes were fully functional and brand new." It is significant that Mr Cordin did not mention in his statement that, in his opinion, the damage he sustained was "from being shunted from behind". Again, the statement concerns Mr Cordin's belief as to what happened. The Opinion Evidence 1. The only other evidence that could support a finding that a motor vehicle was involved in the accident is the evidence of Dr Paul Carnavas, a forensic consulting engineer. Dr Carnavas examined Mr Cordin's bicycle some weeks after the accident, after it had been transported to Mr Corbin's home. Dr Carnavas had photographs taken during his inspection of the bicycle. 2. Dr Carnavas relevantly reported as follows: "Overall the bicycle appeared to be in rideable condition and without significant damage except for the rear wheel. The real wheel could not be rotated because it was jammed against the right hand side break pad. A closer inspection revealed that the rear wheel had a significant buckle and the right hand end of the axle had been displaced downwards in the dropout opening. [One of the photographs of the bicycle shows] the rear wheel is displaced to the right due to the buckle and the axle misalignment. [Another photograph shows] the wheel is displaced further right than normal due to the combined wheel buckle and the displacement of the axle mentioned earlier. … With the wheel removed, the brakes returned to the correct and symmetrical positions. The rear brake was undamaged and functional. I reinstalled the rear wheel and correctly seated the axle. I found that the wheel could be rotated when the axle was directly seated however the buckle meant that the rim and tyre side wall would rub heavily on the brake pad." 1. Dr Carnavas postulated two possible scenarios being: * loss of control of the bicycle independently by Mr Cordin, because of excessive speed or a roadway irregularity, such as a pothole; or * impact or interference from another vehicle. Dr Carnavas said that he would normally expect loss of control to occur on a bend, rather than on a straight section, and that he would expect that the damage to the bicycle would have been more extensive and different from that observed. 1. Dr Carnavas then said that a rear impact from a vehicle would most probably involve contact between the vehicle's bumper and the bicycle's rear wheel. He said that a severe impact could result in frame damage but a moderate impact would cause at least a buckled rear wheel. The height of the point of contact would vary depending on the type of vehicle involved. Dr Carnavas said that the abnormal position of the rear axle that he observed during his inspection is consistent with the wheel being contacted with a vehicle bumper. He said that the bumper's higher position would exert a downward force on the wheel and if the force was sufficient, the axle could be displaced downwards in the dropout opening. He expressed the opinion that the most probable cause of the damage to the bicycle and the most probable cause of the accident was a low speed rear impact of the bicycle by a motor vehicle. 2. Mr Michael Griffiths, who is a biomedical mechanical engineer, expressed the opinion that the downward displacement of the rear axle on one side of the rear frame observed by Dr Carnavas could easily occur during handling, if the lever is released. He considered that it was speculative to attribute the displacement to the crash in question, and said that it could have occurred on other occasions, such as transporting the bicycle from the crash scene or if it was moved, for earlier photographs. Mr Griffiths observed that Dr Carnavas reported that he released the axle to remove and replace the wheel correctly when he reassembled the bike. 3. In response, Dr Carnavas described the quick release mechanism used to clamp the wheel to the frame. He expressed the opinion that the fact that the axle was still tightly fixed to the frame after the quick release lever was fully opened and a number of turns of the axle adjusting nut were required in order to remove the wheel from the frame was significant. He expressed the opinion that it was not possible, using normal methods, such as pressing with one's hand, to close a quick release lever and install a wheel if the axle adjusting nut has been over-tightened because the force required to close the lever is too high. 4. Dr Carnavas therefore concluded that the abnormal position of the wheel could only have occurred at a time when the wheel was already located in the frame and that that disposition could not easily occur during handling if the lever was released. He also said that it was exceptionally improbable that the axle position could have occurred, as suggested by Mr Griffiths, during normal transportation or handling, as significant forces would be required to achieve that axle position. He concluded that the downward displacement of the rear axle was consistent with a motor vehicle impacting the bicycle from the rear. 5. While Dr Carnavas was cross-examined, Mr Griffiths was not. The primary judge accepted the opinion of Dr Carnavas, as he was entitled to do. However, that evidence was no more than an opinion. 6. The primary judge accepted, notwithstanding the contemporaneous documentary material described above and the conjectural nature of the evidence given by Mr and Mrs Cordin, that it was more probable than not that a motor vehicle was involved in the incident. His Honour went to some pains to explain away the inconsistent contemporaneous documentary material. Conclusion 1. I have had the advantage of reading in draft form the proposed reasons of Macfarlan JA and the proposed reasons of Davies J. I agree with Davies J that the failure of the primary judge to have proper regard to the evidence of Dr Welgama as to his approach to history-taking from a patient and the significance he placed on ascertaining how the accident happened resulted in his Honour minimising or dismissing the importance of the contemporaneous records from the Princess Alexandra Hospital. I also agree that the failure of the primary judge to have proper regard to the significance of the absence of Mr Cordin's daughter from the witness box with regard to the Patient Election Form meant that any assessment by his Honour of Mrs Cordin's evidence about what she was told by her husband at the hospital, and when, was necessarily inadequate. 2. I also agree with Davies J that the primary judge's approach to the contemporaneous documents generally, to see whether they were inconsistent with or excluded the involvement of another motor vehicle, was an inappropriate way of treating the evidence. The only evidence that his Honour had in order to decide whether Mr Cordin had discharged the onus of demonstrating the involvement of a motor vehicle in the accident was the evidence of Mr and Mrs Cordin of a belief that that was how the accident happened, first articulated at Princess Alexandra Hospital some 12 hours after the accident, and the opinion evidence of Dr Carnavas as to how the accident must have happened. Against that, there was no mention of another vehicle in any of the contemporaneous material before 12 September 2012. 3. I do not consider that the opinion of Dr Carnavas was sufficient to corroborate the speculative evidence of Mr and Mrs Cordin. It seems inherently unlikely that, if Mr Cordin felt a bump or felt that he was "shunted" from behind, he would not have mentioned that on one of the number of occasions in which a history was taken from him by paramedics, staff at Lismore Base Hospital, paramedics transporting him in the air ambulance and doctors at Princess Alexandra Hospital. Rather, those histories record simply that he said he fell off his bike. No mention was made of feeling a bump or "shunting" or of the possibility that he was struck from behind by a motor vehicle. 4. There was no evidence from any witness who observed a motor vehicle in the vicinity where the accident occurred. Mr Cordin frankly acknowledged that he saw nothing. Thus, there was no evidence to support the finding that Mr Cordin was in fact struck from behind other than his "belief". The possibility that he was struck from behind or "shunted" from behind appears to be no more than speculation on his part, in the absence of unequivocal evidence that he felt a bump or "shunting" from behind. 5. I agree with Davies J that the appeal should be allowed, that the orders of the District Court should be set aside, and that the matter should be returned to the District Court for a new trial. Mr Cordin should pay the Nominal Defendant's costs of the appeal. The costs of the first trial should abide the outcome of the new trial. If Mr Cordin is otherwise entitled, there should be a certificate under the Suitors Fund Act 1951 (NSW). 6. DAVIES J: I have had the advantage of reading the judgment of Macfarlan JA. I gratefully adopt his Honour's summary of the factual matters and the contemporaneous documents. I regret that I cannot share his Honour's conclusion as to the result of the appeal. 7. The approach taken by the trial judge was to examine each aspect of the evidence separately and to consider if that evidence contradicted or cast doubt on what the trial judge described as Mr Cordin's account of the accident and Mr Cordin's evidence on factual matters: Cordin v The Nominal Defendant [2016] NSWDC 12 at [20]-[21], [247], [437]-[457] and [465]-[477]. 8. It is important to bear in mind, however, that Mr Cordin did not give evidence of what happened in the accident but of his belief about what happened. Mr Cordin did not see nor did he hear the motor vehicle which he said he believed hit him from behind. His memory of what happened was "very hazy". 9. His evidence in chief concerning the accident itself was this: Q. As you were proceeding down the hill towards the area where you ended up, what did you see? A. I came around from the picnic grass area and there were - the potholes were in front of me -- Q. Yes, and what did you do? A. I broke (sic) down, using both brakes on my bike and standing in (sic) the pegs of my bike to negotiate the potholes. Q. Why were you standing on the pegs, as you call it? A. Well you use your legs like shock absorbers over rough ground. So I was braking to negotiate those particular bunch of potholes. Q. What happened next? A. I was braking down before the potholes, standing in (sic) my pegs ready to negotiate the nest of potholes and I had a feeling of going forward rapidly off my bike and I woke up with a fellow in the back of a car. Q. I think you described as a feeling of going forward rapidly, prior to that did you see anything? A. No. Q. Did you hear anything? A. No. Q. What's your next recollection? A. My next recollection was of a fellow holding a towel to my head in the back of his small vehicle. … Q. Do you know why you came off your bike on that day? A. It is my belief that I was hit from behind by a motor vehicle that day. Q. Why is that your belief? A. I'm a very experienced rider - I would consider myself to be a very experienced mountain bike rider having ridden up and down that track many times. I've come off my bike going much faster than I was going on that day as I was slowing down virtual walking speed to negotiate the potholes and then to be - end up knocked out in a pothole with a broken vertebrae and the damage I sustained was from being shunted from behind in my opinion. 1. Although there were certainly challenges to Mr Cordin's honesty in terms of matters that took place principally after the accident, the central question for determination was the reliability, and therefore the reasonableness, of his belief that he had been struck from behind by a motor vehicle. The matter could not be resolved by simply accepting Mr Cordin as an honest witness because he did not say that he had been struck by a motor vehicle but that he had formed the belief that that was what happened. It is apparent from the final answer recorded above that his belief was based on a reconstruction of what must have happened. 2. In Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 I collected a number of authorities that have provided assistance in dealing with credibility issues and the fallibility of human memory. I recorded these authorities as follows: [100] In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 Lord Pearce discussed credibility. The first two matters he raised dealt with truthfulness, and he then went on to say (at 431): Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part. [101] In Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said: [15] An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. [16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). [18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. [19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. [20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. [21] It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth. [22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth. [102] In Campbell v Campbell [2015] NSWSC 784 Sackar J said: [73] In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks: …human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. [74] I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142]: [140] Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions. [141] In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted): [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The "Palitana"): "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility… [142] In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, and the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie's Uniform Civil Procedure NSW at SCA s 75A.20). [75] In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that "the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56]. [76] Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said: [71] In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation. [72] I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)." [73] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7]. [74] A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. [75] … [76] The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time." [77] Finally, I should mention an article by the former Chief Judge at Common Law, P McClellan entitled "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the "Guidelines Relating to Recovered Memories" (2000) of the Australian Psychological Society: "Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval." 1. In the present case there was a great deal of contemporaneous evidence that assisted in the task of ascertaining what happened in the accident. The trial judge considered this evidence in some detail but the approach he took was to consider each piece of evidence individually to see if it contradicted or was inconsistent with what was said to be Mr Cordin's account. This case was a circumstantial case where it was necessary for the Court to consider all of the evidence and to draw conclusions from it viewed as a whole: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23], citing Kirby J in Jones v The Queen (1997) 191 CLR 439 at 466-467; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 at [64]. As in a criminal trial the proper approach was for the tribunal of fact (a jury in a criminal trial and the Court of Criminal Appeal on an unreasonable ground appeal, or a judge sitting alone, as here) not to examine each piece of circumstantial evidence in isolation to demonstrate particular weaknesses but rather to view all of the evidence as a whole: Plomp v The Queen (1963) 110 CLR 234 at 242; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46]-[48]; The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [128]. 2. One reason that contemporaneous statements and documents are likely to be more accurate than a recollection of events is that a statement made at the time of an event, particularly when relatively spontaneous, is likely to be more accurate than a later statement made at a time when false memories can intrude. In a minority of cases the false memories are deliberately so because of the contrivance of the maker of the statement. In the majority of cases the false memories are honestly believed either for the reasons such as those outlined by Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) or because the person recalling the events has tried to assemble recollections logically so that what happened can have some rational explanation in the person's mind. As Leggatt J noted at [17] memories are fluid and malleable, being constantly rewritten whenever they are retrieved. 3. The trial judge's approach to Mr Cordin's evidence appeared to proceed on the assumption that events later asserted in fact occurred (being hit from behind by the bicycle) and his Honour then provided reasons why at particular times that explanation was not proffered by Mr Cordin (e.g., he was in too much pain, or he was not asked a particular direct question). 4. Mr Cordin, of course, had the onus of demonstrating that the accident happened by reason of some other person's negligence. In the particular circumstances of this case that involved him proving that the accident more likely happened because he was struck from behind by a motor vehicle. As noted earlier, he could not say that he saw or heard a motor vehicle. The highest that his evidence went was that he had the feeling of going forward rapidly off his bike. He had a belief that he was hit from behind. It was not clear if his evidence was that he remembered being shunted from behind or if he believed that that was what had happened but the latter is more likely. That evidence had to be considered in the light of the contemporaneous documents. However, there was no onus on the appellant to demonstrate that each or all of those documents proved that Mr Cordin was not struck from behind by a motor vehicle. 5. That point needs to be made because the trial judge's approach seems to have been to analyse each of the documents to see if the document proved that Mr Cordin was not struck by a motor vehicle. That may be thought to be a reversal of the onus of proof although his Honour noted more than once that Mr Cordin had to prove that he was struck by a motor vehicle. 6. It is necessary to examine the contemporaneous documents and then to see how the primary judge dealt with those documents. It will be recalled that the accident happened at about 11.00 am on 2 September 2012. (1) The ambulance records 1. These notes were made between 10:50am and 12:40pm on 2 September. The description of the case was "bicycle collision – fall of (sic) bike post hitting a pothole." The case description went on to say: Herewith male pt, who has fallen off his push bike this a.m. 1. One of the ambulance officers, Mr Terry Hartley, gave evidence. His evidence was that Mr Cordin did not say to him that he had fallen off his bike because the bike had hit a pothole. His evidence was that Mr Cordin said he fell off his bike. 2. In the circumstances, the words "post hitting a pothole" should be ignored because their origin is unknown. That is favourable to Mr Cordin. It is, nevertheless, significant that what is recorded in the document is "fall of (sic) bike" and "male pt, who has fallen off his push bike". The primary judge said that he accepted Mr Hartley's evidence on that matter. 3. The trial judge said of these records at [437]: In my view, the ambulance records do not exclude the possibility of the plaintiff having been struck from behind by a motor vehicle… Whilst that was true, what they suggested was the accident happened without the involvement of any other vehicle. Ordinarily, a person who had been knocked off their bike by another vehicle would not say they had "fallen off" but either that they had been knocked off or hit. (2) Lismore Base Hospital records 1. The note recorded by Dr Sumir Ahmed at 1727 hours on 2 September 2012 at Lismore Base Hospital was as follows: Fall from Push bike at about 12 noon this afternoon States was wearing helmet and hemet (sic) has cracked open Had Loc ? Unknown duration and was seen by passing car C/o of pain in Left Fore head, Both wrist and back Laceration on the Left Forehead with mud and deep laceration C/o of pain in both wrist and back Says initially felt tingling in both legs and now its gone Parasthesia of the both legs present 1. The trial judge said the following about these notes: [446] In my assessment, by the time the plaintiff's care was handed over to the staff of Lismore Hospital by Mr Hartley and his colleague, there was sufficient record of the means by which the plaintiff was injured. I infer that the account of the accident in the Lismore Hospital records either came from Mr Hartley or his colleague. I consider this led the hospital staff to adopt the assumptions so conveyed. I consider that the effect of the plaintiff's injuries, including his pain, meant that communications with the plaintiff were at that time in the same limited vein as was the case with Mr Hartley, as I have recorded at paragraph [92] above. 1. His Honour then, having made reference to Elayoubi v Zipser [2008] NSWCA 335; [2008] Aust Torts Rep 81-895 at [86], said: [466] In my view, the same conclusion applies to the significance of the hospital notes concerning the inferences the defendant seeks to have drawn regarding the content of the liability-related conversations the plaintiff might have had with hospital staff. I therefore consider the evidence comprising the ambulance and the hospital records provides an unsafe and an unreliable basis for drawing inferences or making findings to the effect that a motor vehicle was not involved in the plaintiff's accident: Mason v Demasi [2009] NSWCA 227, at [2]. … 1. His Honour's conclusion at [446] does not stand up to scrutiny because the note made by Dr Ahmed contains information that was not given to the ambulance officers including that his helmet "cracked open" and that he said he initially felt tingling in both legs and now it was gone. A later reference to Mr Cordin having had a tumour in his left mandible some 12 months ago contrasted with the statement to the ambulance officer that he had a left sided jaw replacement ten months ago. 2. It may be accepted that Dr Ahmed did not give evidence of the conversation he had with Mr Cordin or anyone else to have written what he did. However, it seems clear that at least some of the information in the Hospital note was obtained directly from Mr Cordin. Further, it cannot be ignored that this contemporaneous note makes no reference at all to a motor vehicle or to Mr Cordin having been knocked off his bike. (3) The air ambulance records 1. Part of the note reads: 54y [symbol for male] came off push bike 1. This note is probably not of much significance because there is no evidence of where the information contained in it was derived. (4) Princess Alexandra Hospital records 1. Mr Cordin arrived at the Princess Alexandra Hospital at about 2200 hours on 2 September. 2. The notes taken by Dr Welgama at the hospital relevantly say: Went over handle bars + landed onto his head + face with significant axial load. 1. Dr Welgama gave evidence, based on his usual practice, of the questions he would have asked Mr Cordin to elicit the information that he wrote in the notes. That evidence significantly dilutes the concerns alluded to in decisions such as Fitzgibbon v The Waterways Authority [2003] NSWCA 294 at [72] and [73]; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Gulic v O'Neill [2011] NSWCA 361 at [24] regarding the caution needed in placing reliance on histories recorded by medical practitioners. 2. The evidence Dr Welgama gave was this: Q. What question would you have asked him? A. So the usually routinely we ask very open questions, what happened to you? (sic) Q. What answer did you get to that question? A. So he answered me "I fell off my mountain bike," that's why I have written mountain bike accident. Q. Did at any stage did he mention that he'd been struck by a motor vehicle? A. He hasn't provided that information to me, if he had provided that information I would have definitely documented that because that is really very important information. 1. Dr Welgama said that he would ordinarily spend at least an hour with a patient in Mr Cordin's position to complete his history and examination. 2. The primary judge said of Dr Welgama's notes and evidence: [154] In the circumstances of the leading questions asked of Dr Welgama, and his responses, which were founded upon considerations of usual practice rather than on actual recollection, I am not satisfied that the interchanges between Dr Welgama and the plaintiff on 2 September 2012, as summarised by Dr Welgama in his evidence, which was based on his notes, provide a sound or a reliable basis upon which to exclude the involvement of a motor vehicle in the plaintiff's accident. The evidence does not persuade me that the topic was either broached or explored by Dr Welgama or the plaintiff to enable the conclusion sought by the defendant that the evidence of Dr Welgama undermines the case the plaintiff seeks to make … 1. It may be noted that Dr Welgama's evidence was that he asked "very open questions, what happened to you?". It is difficult in those circumstances to understand the primary judge's allusion to the topic of the involvement of a motor vehicle not being "broached or explored". His Honour did not make any reference to that part of Dr Welgama's evidence where he said that if Mr Cordin mentioned he had been struck by a motor vehicle he would have definitely documented it because it was really important information. 2. A little later in his judgment the primary judge said this: [452] In my view, the defendant's reliance on [the hospital] records is problematic, as it is not known whether the questions asked on the topic of how the accident occurred were singular and focussed, or whether the questions included multiple or compound elements that were aimed at seeking medically oriented information, or whether the plaintiff's answers were responsive to the questions asked, or whether the answers comprised gratuitous or unresponsive content that was in any event noted, or whether some accident-related details had been assumed from the records, along the lines suggested in the evidence of Dr Welgama at T188.50 – T189.6. The documentary evidence does not permit a reasoned non-speculative resolution of such questions. 1. It may be noted again that his Honour made no reference to Dr Welgama's evidence where he said that routinely very open questions were asked. The primary judge seemed to be creating a doubt where no evidence existed of the doubt that, perhaps, multiple or compound elements had been asked in the questions. Those matters simply did not accord with Dr Welgama's evidence. 2. The primary judge said at [476]: In my view, the medical and allied persons who enquired of the plaintiff as to how he came to be injured, and who recorded the conclusion that he had fallen from a bicycle, had no relevant or apparent interest in specifically questioning the plaintiff for the purpose of definitively ascertaining whether or not a motor vehicle had been involved in the incident. That statement appears to ignore the evidence of Dr Welgama who gave this evidence (T 189): Q. Did at any stage did he mention that he'd been struck by a motor vehicle? A. He hasn't provided that information to me, if he had provided that information I would have definitely documented that because that is really very important information. That was despite his Honour having set out that evidence very much earlier in his judgment. 1. It also seems to ignore the evidence of Dr Lando as follows (T 200): Q. Doctor, had the patient told you words to the effect that he was knocked from his mountain bike by a motor vehicle from behind, would you have written that down? A. Yes, indeed I would have taken careful history and I would have documented that, so generally in that case I would have written cyclist verses (sic) car. … Q. Why would you have written that history had it been given to you? A. Because it's important for the mechanism of injury, it's important for the medial (sic) records to have an accurate description of what I was told. 1. Some indication of the primary judge's approach to the significance of the contemporary records is discernible from what his Honour said in relation to Dr Welgama's notes at [119]: Dr Welgama's notes stated that on his primary survey, the plaintiff was speaking full sentences. However, the notes do not state whether he was coherent in speaking those sentences, or whether the content of those sentences was appropriate to the circumstances. Not only was it not suggested to Dr Welgama that Mr Cordin may not have been coherent, nor that the content of any sentences he spoke was inappropriate, but Dr Welgama gave evidence that Mr Cordin understood what was asked of him and gave appropriate answers. There was no basis at all for the primary judge's statement, and it lends support to the appellant's submission that his Honour was seeking to nullify all of the pieces of contemporaneous evidence. (5) The patient election form 1. This form was completed by Mr Cordin's daughter and signed by Mr Cordin's wife. In answer to the question whether the visit to the hospital was in relation to an injury arising out of a motor vehicle accident Mr Cordin's daughter marked the "No" box. She was not called to give evidence at the trial. 2. The trial judge said this about the completion of the form: [191] Mrs Cordin explained that the form had not been filled out by her, and as far as she knew that at the time, the form needed to be signed as the hospital needed a signature on the form in order that the plaintiff's head wound could be washed out in the course of a proposed surgical procedure, in circumstances where the plaintiff was unable to sign the form himself: T94.15 – T94.33. In fact it was her daughter who had filled out the form: T95.9. She said she did not look at the "crosses" which addressed questions on the form: T95.5; T95.36. In the stressful circumstances that prevailed at the time, where the form was presented to Mrs Cordin to sign, I do not consider her explanation was improbable or unlikely, where the priority in the circumstances was the consideration of arranging for the treatment being suggested for the plaintiff, which required her consent. [192] The defendant criticised the fact that the daughter of the plaintiff and Mrs Cordin was not called to give evidence to confirm the above account. In my view, that criticism was ill-founded. Notwithstanding the defendant's submission to the contrary, I did not consider Mrs Cordin's evidence was of a kind that required corroboration on that point. Her evidence was capable of acceptance without corroboration. I accept that evidence as was stated by Mrs Cordin. 1. The issue was not so much one of corroboration as the need for an explanation from her of why the form was completed in the way it was. It was strong evidence against Mr Cordin's case that a motor vehicle was involved. His Honour's failure to consider that matter meant that he did not consider whether a Jones v Dunkel inference should have been drawn from the daughter's absence with no explanation. 2. Mrs Cordin gave evidence about the signing of the form and about being told by her husband at the hospital of the involvement of a motor vehicle. Her evidence in chief was as follows: DOHERTY Q. Is that your signature at the bottom of that document? A. Yes. HIS HONOUR Q. How did you come to sign this document? A. At PA Hospital when I arrived there with my daughter DOHERTY Q. In what way was that document signed by you, and for what purpose? A. It was signed by me but it wasn't filled out by me. HIS HONOUR Q. How come you were called upon to sign it? A. My daughter was with me. As far as I knew, it was just a signature because my husband couldn't sign and they had to wash out his head. 1. Her evidence in cross-examination was as follows: Q. The answer you've given to his Honour then is based on you not looking at the document, rather just the signature, is that right? A. I didn't fill the form out, my daughter filled the form out. Q. Was your daughter with you at all times on that day? A. Yes. Q. Did she go with you to see your husband? A. Yes, we travelled together in the car and stayed overnight together. Q. He was there in his blue gown and a bandage on his head? A. Yes. Q. That was when he told you that he'd been struck from behind by a car? A. Yes. Q. You know the part that your attention was drawn to in that document was the question, "Was a motor vehicle involved", did you know that? A. No. Q. But you signed the document. A. I signed the document. Q. The question was, "Was a motor vehicle involved?", and on your evidence you knew, according to you, that your husband said he was struck from behind by a motor vehicle? A. Yes. Q. The form doesn't mention that at all, does it? A. I didn't read the form. I signed the form, filled in the particulars. Q. At the last, we know that your daughter must have asked your husband something about the details? A. No, we were there together. … Q. Just look right at the top of the document first. I want to get some information. The question was, "Do you hold a Medicare card?', and the answer is, "Yes", is that right? A. Yes. Q. That was not a Medicare card for your daughter, was it? That's your Medicare card, isn't it? A. Yes. Q. The expiry date and all of those things there. Question, "Do you have private hospital insurance?", the answer was, "No", crossed out. HIS HONOUR Q. The Medicare card has an expiry date, then a reference number 1, so who's number 1 on the family Medicare card? A. Michael. HIS HONOUR: You must pay attention to the questions, because Mr Poulos asked you whether it was your Medicare card, and this has revealed that it's not so, so be careful when you're listening to his questions. POULOS: That was an inaccurate question on my part. Q. There is a point there for pension card. Whose pension card number is that? A. That is mine. Q. You carry that with you? A. Yes. Q. If somebody else filled it in, how did they get that number? A. I would have gave (sic) my purse to my daughter. Q. It was apparent that your daughter was asking for information from you in order to fill out this form then? A. She would just take it out of my purse and fill it out. … Q. "Is this hospital visit in relation to an injury arising out of a motor vehicle accident?", so you haven't read that before? A. No. Q. It's ticked with a cross. It means there was motor vehicle involved? HIS HONOUR: It means, the way it was filled in, it was intended to assert there was no motor vehicle involved. POULOS: That's right, yes. Q. Your daughter wasn't at the accident scene, was she? A. Yes. Q. She arrived there, did she? A. I rang her, yes. She came straight out. Q. If she answered this question, she didn't know anything about any motor vehicle accident? A. She could have interpreted motor vehicle accident as he was in a motor vehicle. Q That's a bit from left field, isn't it, that answer? A. Well, I don't know because I'd have to ask my daughter that. 1. The evidence by Mrs Cordin suggests that she and the daughter were both told when they arrived at the hospital by Mr Cordin that he had been struck from behind by a car. Significantly, when the question "Was a motor vehicle involved?" was drawn to her attention and it was put to her that she knew from what her husband had said that he had been struck by a motor vehicle she did not say that she was only given that information after the form was filled out. Further, her answer to the question "If she answered this question, she didn't know anything about any motor vehicle accident?" was not that the daughter did not know at that stage about a motor vehicle accident. It was, rather, some speculation about how the daughter may have interpreted what a motor vehicle accident meant. 2. There is a strong inference available that the course of events was that Mrs Cordin and her daughter went to see Mr Cordin as soon as they arrived at the hospital, he told them he had been struck by a motor vehicle according to Mrs Cordin, and then the form was filled out. That was because the form needed to be signed before the procedure on his head could be carried out. The failure to call the daughter to deal with that inference leads to the further inference (Jones v Dunkel) that the daughter's evidence would not have assisted Mr Cordin in that regard. That may be because Mrs Cordin's evidence that her husband told her at that stage he had been struck by a car was unreliable evidence. 3. Unassisted by the daughter's evidence, what appears in the patient election form, particularly when considered with the other contemporaneous documents, leads to an inference that any belief of Mr Cordin that he had been struck by a motor vehicle did not exist at that time and that Mrs Cordin's evidence was mistaken in that regard. (6) The Lismore City Council customer request form 1. This document records a telephone call from Mrs Cordin to the Council on 6 September 2012 saying that the road where her husband had a serious accident was in need of gravel maintenance and pothole filling. What is relevantly recorded is that Mr Cordin: Was riding a pushbike and was found face down in a pothole. Nothing is said about a motor vehicle. 1. The primary judge considered that this document was of neutral probative value on the question of whether or not a motor vehicle had been involved in the accident. 2. In my opinion the document is of some significance, particularly when considered with the other evidence. First, it is silent about another vehicle being involved when, on Mrs Cordin's evidence, she had been told by her husband that he had been hit from behind. Secondly, a complaint to the Council about the potholes and the state of the road is some evidence that her state of mind at that time was that the condition of the road was responsible for the accident. (7) COPS entry 1. Mrs Cordin gave evidence that she rang Lismore Police Station on Wednesday 5 September to report the accident. She said her husband had been hit by a car. There is no record of this call. 2. There is an entry in the COPS system dated 12 September which the police officer who made it, Constable Anquetil, said meant the matter was first reported on 12 September. The report says (inter alia): The rider applied his brakes in order to slow down, and avoid the pot holes. Without warning, the rider was struck from behind by an unknown vehicle. 1. That appears to be the first notation in a document of a mention of another motor vehicle being involved. (8) Statement of Mrs Cordin to the police dated 23 October 2012 (9) Statement of plaintiff to the police dated 23 October 2012 1. In her statement at paragraph 21 Mrs Cordin says: I believe my husband's injuries have been caused by a motor vehicle, just by the injuries sustained to his head and his back. Damage caused to his helmet, bike and glasses indicates to me this is not from a simple fall. 1. Mr Cordin relevantly says in his statement: 7. About 10:40am I left the Rummery Park turnoff to return home and got about 50 metres past the Minyon Grass turnoff, I was slowing down to negotiate some potholes, I was standing up on my pedals and applying the brakes. 8. The next thing I remember is being in the back of a car, with a towel being held to my head. … … 14. I believe my accident was caused by a motor vehicle hitting my back wheel on my bicycle, which has caused me to propel some distance forward and causing my severe injuries. 1. That statement emphasises that Mr Cordin has no recollection of the accident but has come to believe how the accident happened by reason of his injuries. 2. The trial judge's conclusion in relation to these statements was this: [482] In my view, those statements were of limited evidentiary value insofar as it was sought to implicate the involvement of an unknown motor vehicle because they are self-serving to the plaintiff's case. In my view, their true evidentiary significance is that they do not contain any accounts of the accident that should be regarded as being inconsistent with Mr Cordin's evidence. 1. Both the statement of Mr Cordin and the statement of Mrs Cordin tend to throw doubt on her evidence that her husband told her at the hospital that he had been hit by a motor vehicle. Mr Cordin does not assert that fact in his statement and Mrs Cordin does not call it in aid of her belief the fact that her husband had told her he was hit by a motor vehicle. Rather, she supports her belief by the nature of the injuries Mr Cordin suffered. Had she not given that reason for her belief it would have been entirely explicable that she made no mention of her husband's statement to her. But having done so, the absence of the conversation with her husband makes her statement of some importance. 2. Similarly, Mr Cordin's belief in his statement contrasts with his and his wife's evidence that he told her in the hospital he had been hit by a car. The expert evidence 1. I do not disagree with Macfarlan JA's conclusion in relation to the appellant's assertion that the rule in Browne v Dunn meant that the primary judge was bound to accept the evidence of Mr Griffiths. 2. The two significant pieces of evidence from the experts was, first, the evidence of Mr Griffiths that Mr Cordin's injuries were inconsistent with his fall resulting from a vehicle pushing his bike from behind and, secondly, the evidence of Dr Carnavas that the downward displacement of the right-hand end of the bike's rear wheel axle was not consistent with Mr Cordin's fall from his bike resulting from it hitting a pothole. There was evidence in each case from the opposing expert answering each assertion. The detail is set out in Macfarlan JA's judgment at [125] to [127]. 3. Of course, each expert was trying, on the basis of objective matters, to re-construct what was likely to have occurred. Neither opinion could be determinative. It was ultimately a matter for the primary judge to consider those opinions along with the contemporaneous material and the evidence given by the witnesses. In circumstances where the primary judge did not approach the contemporaneous evidence in a proper manner, as earlier discussed, any conclusion now that one expert is to be preferred is simply one matter that needs to be considered along with a proper assessment of the other evidence. It is, therefore, not necessary to discuss the expert evidence further. Determination 1. Two matters, in particular, stand out in the primary judge's approach to the contemporaneous material. The first is the treatment of the documents from the Princess Alexandra Hospital and the evidence of Dr Welgama and Dr Lando. The failure to have regard to their evidence of the approach to their history-taking and the significance they placed on ascertaining how the accident happened resulted in his Honour minimising or dismissing the importance of those records. Secondly, his Honour's failure to note the significance of the absence of Mr Cordin's daughter from the witness box with regard to the Patient Election Form meant that any assessment of Mrs Cordin's evidence about what she was told by her husband at the hospital, and when, was necessarily inadequate. 2. Additionally, the primary judge's approach to the contemporaneous documents generally, to see whether they were inconsistent with or excluded the involvement of another motor vehicle, if it did not involve a reversal of the onus, was an inappropriate way of treating the evidence. The primary judge was obliged to assess the material, along with the other evidence, to decide if Mr Cordin had discharged the onus on him of demonstrating the involvement of a motor vehicle in the accident. All the primary judge had in that regard was the evidence of Mr and Mrs Cordin of a belief that that was how the accident happened, first articulated some 12 hours after the accident at Princess Alexandra Hospital, and the report of Dr Karnavas providing an opinion of how he concluded the accident must have happened. Against that, there was no mention in any of the contemporaneous material of another vehicle until the COPS report of 12 September. The earlier material contained statements that pointed the other way. 3. In addition, the evidence of the witness who was driving in the opposite direction to Mr Cordin just after the accident was that he did not recall any cars travelling in the opposite direction to him, that is, in the direction Mr Cordin had been travelling. 4. In the words of Gaudron, Gummow and Hayne JJ in SRA v Earthline at [64], the contemporaneous documents were matters to which weight was not given by the primary judge and The substance of the matter is that there has not yet been a determination of the [Plaintiff's] case upon a consideration of the real strength of the body of evidence…presented. 1. The appellant seeks only a re-trial and not a verdict in its favour. That seems to me to be the appropriate order where there is a need to assess the credibility of some of the witnesses when appropriate regard is given to the contemporaneous material. 2. I propose the following orders: 1. Appeal upheld. 2. Set aside the judgment of the District Court (Judge Levy SC) of 26 February 2016. 3. Order a new trial of the action. 4. The respondent should pay the appellant's costs of the appeal. 5. The respondent should have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled. 6. The costs of the first trial should abide the costs of the re-trial. ********** Amendments 03 February 2017 - corrected paragraph numbering 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: 03 February 2017