The Nominal Defendant v Cordin

1. [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. [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. [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. [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. [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. [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. [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. (1)

      Ambulance records.

   2. (2)

      Lismore Base Hospital records.

   3. (3)

      Air Ambulance records.

   4. (4)

      Princess Alexandra Hospital records.

   5. (5)

      A Patient Election Form signed by Mrs Cordin.

   6. (6)

      A Lismore City Council Customer Request Management Enquiry form.

   7. (7)

      Mrs Cordin’s statement dated 23 October 2012 to the Lismore Police.

   8. (8)

      Mr Cordin’s statement dated 23 October 2012 to the Lismore Police.

8. [8]

   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).

9. [9]

   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.

10. [10]

    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.

Mr Cordin’s evidence

1. [11]

   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. [12]

   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. [13]

   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. [14]

   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. [15]

   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. [16]

   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. [17]

   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. [18]

   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. [19]

   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. [20]

   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. [21]

   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. [22]

   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. [23]

   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. [24]

   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. [25]

   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. [26]

   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. [27]

   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. [28]

   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. [29]

   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. [30]

   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. [31]

   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:

3. [32]

   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”.

4. [33]

   His Honour continued:

5. [34]

   Later, the primary judge said:

The Lismore Base Hospital records

1. [35]

   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. [36]

   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. [37]

   The primary judge made the following general observations concerning the ambulance and hospital records:

The Air Ambulance records

1. [38]

   An Air Ambulance Retrieval Record dated 2 September 2012 states that Mr Cordin “came off pushbike”.

The primary judgment

1. [39]

   The primary judge noted that these records contained no reference to any medications being administered to Mr Cordin.

Princess Alexandra Hospital records

1. [40]

   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. [41]

   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. [42]

   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. [43]

   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. [44]

   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. [45]

   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. [46]

   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:

2. [47]

   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”.

3. [48]

   Later, his Honour said:

4. [49]

   The primary judge concluded as follows in relation to Dr Lando’s evidence:

The Patient Election Form

1. [50]

   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. [51]

   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. [52]

   Mr and Mrs Cordin’s daughter, an adult, was not called to give evidence.

The primary judgment

1. [53]

   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:

2. [54]

   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. [55]

   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:

2. [56]

   Another document entitled “Workflow”, which appears to have been completed on about 14 September 2012, contains the following:

3. [57]

   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).

4. [58]

   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. [59]

   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. [60]

   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. [61]

   Mrs Cordin’s statement included the following:

2. [62]

   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. [63]

   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:

2. [64]

   Later, his Honour said:

3. [65]

   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. [66]

   Mr Cordin’s statement dated 23 October 2012 includes the following:

The primary judgment

1. [67]

   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.

Dr Paul Carnavas

1. [68]

   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:

2. [69]

   He dealt as follows with the suggestion that Mr Cordin’s bike may have hit a pothole:

3. [70]

   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. [71]

   Mr Griffiths inspected the bike after Dr Carnavas’ inspection, but on a date that is not revealed by the evidence. He noted the following:

2. [72]

   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:

3. [73]

   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:

Dr Carnavas’ reply

1. [74]

   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:

2. [75]

   Dr Carnavas disagreed with Mr Griffiths that a bike rider whose bike was hit from behind by a vehicle would necessarily fall backward, stating:

3. [76]

   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 …”.

4. [77]

   Dr Carnavas’ response to Mr Griffiths’ comments about the means by which Mr Cordin contended that the accident occurred included the following:

5. [78]

   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. [79]

   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. [80]

   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. [81]

   His Honour concluded:

4. [82]

   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. [83]

   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:

2. [84]

   Later in his judgment, the primary judge said:

3. [85]

   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.

The contemporaneous records

1. [86]

   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:

The ambulance records

1. [87]

   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. [88]

   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. [89]

   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. [90]

   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. [91]

   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. [92]

   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. [93]

   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. [94]

   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. [95]

   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. [96]

   Senior Counsel for the appellant submitted in relation to them:

3. [97]

   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.

4. [98]

   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.

5. [99]

   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.

6. [100]

   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. [101]

   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. [102]

   There were however a number of reasons why the form did not constitute a significant contradiction of Mr Cordin’s evidence.

3. [103]

   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. [104]

   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. [105]

   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. [106]

   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. [107]

   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. [108]

   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. [109]

   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. [110]

   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. [111]

   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. [112]

   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. [113]

   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. [114]

   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. [115]

   There are a number of aspects of the evidence that raise doubts as to the merits of Mr Cordin’s case.

2. [116]

   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. [117]

   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. [118]

   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. [119]

   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. [120]

   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. [121]

   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. [122]

   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. [123]

   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. [124]

   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. [125]

   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. [126]

   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. [127]

   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. [128]

   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. [129]

   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. [130]

   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. [131]

   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. [132]

   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. [133]

   In these circumstances, the appeal must be dismissed with costs.

4. [134]

   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. [135]

   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. [136]

   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. [137]

   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. [138]

   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. [139]

   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. [140]

   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. [141]

   Notes made by Dr Welgama while Mr Cordin was at Princess Alexandra Hospital relevantly said:

6. [142]

   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.

7. [143]

   On 12 September 2012, Mrs Cordin reported the incident to the police. The police report records, inter alia, the following:

8. [144]

   On 23 October 2012, Mrs Cordin made a statement to the police, which included the following:

9. [145]

   On the same day, 23 October 2012, Mr Cordin made a statement to the police. In that statement he said the following:

The Opinion Evidence

1. [146]

   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. [147]

   Dr Carnavas relevantly reported as follows:

3. [148]

   Dr Carnavas postulated two possible scenarios being:

4. [149]

   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.

5. [150]

   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.

6. [151]

   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.

7. [152]

   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.

8. [153]

   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.

9. [154]

   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. [155]

   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. [156]

   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. [157]

   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. [158]

   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. [159]

   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. [160]

   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. [161]

   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. [162]

   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. [163]

   His evidence in chief concerning the accident itself was this:

10. [164]

    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.

11. [165]

    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:

12. [166]

    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].

13. [167]

    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.

14. [168]

    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).

15. [169]

    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.

16. [170]

    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.

17. [171]

    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. [172]

   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:

2. [173]

   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.

3. [174]

   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.

4. [175]

   The trial judge said of these records at [437]:

(2) Lismore Base Hospital records

1. [176]

   The note recorded by Dr Sumir Ahmed at 1727 hours on 2 September 2012 at Lismore Base Hospital was as follows:

2. [177]

   The trial judge said the following about these notes:

3. [178]

   His Honour then, having made reference to Elayoubi v Zipser [2008] NSWCA 335; [2008] Aust Torts Rep 81-895 at [86], said:

4. [179]

   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.

5. [180]

   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. [181]

   Part of the note reads:

2. [182]

   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. [183]

   Mr Cordin arrived at the Princess Alexandra Hospital at about 2200 hours on 2 September.

2. [184]

   The notes taken by Dr Welgama at the hospital relevantly say:

3. [185]

   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.

4. [186]

   The evidence Dr Welgama gave was this:

5. [187]

   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.

6. [188]

   The primary judge said of Dr Welgama’s notes and evidence:

7. [189]

   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.

8. [190]

   A little later in his judgment the primary judge said this:

9. [191]

   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.

10. [192]

    The primary judge said at [476]:

11. [193]

    It also seems to ignore the evidence of Dr Lando as follows (T 200):

12. [194]

    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]:

(5) The patient election form

1. [195]

   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. [196]

   The trial judge said this about the completion of the form:

3. [197]

   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.

4. [198]

   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:

5. [199]

   Her evidence in cross-examination was as follows:

6. [200]

   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.

7. [201]

   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.

8. [202]

   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. [203]

   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:

2. [204]

   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.

3. [205]

   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. [206]

   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. [207]

   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):

3. [208]

   That appears to be the first notation in a document of a mention of another motor vehicle being involved.

(9) Statement of plaintiff to the police dated 23 October 2012

1. [209]

   In her statement at paragraph 21 Mrs Cordin says:

2. [210]

   Mr Cordin relevantly says in his statement:

3. [211]

   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.

4. [212]

   The trial judge’s conclusion in relation to these statements was this:

5. [213]

   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.

6. [214]

   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. [215]

   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. [216]

   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. [217]

   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. [218]

   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. [219]

   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. [220]

   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. [221]

   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

5. [222]

   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.

6. [223]

   I propose the following orders:

   1. (1)

      Appeal upheld.

   2. (2)

      Set aside the judgment of the District Court (Judge Levy SC) of 26 February 2016.

   3. (3)

      Order a new trial of the action.

   4. (4)

      The respondent should pay the appellant’s costs of the appeal.

   5. (5)

      The respondent should have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled.

   6. (6)

      The costs of the first trial should abide the costs of the re-trial.