The Nominal Defendant v Cordin

LEEMING JA: I agree with the orders proposed by Simpson AJA and with the entirety of her Honour’s reasons. Without detracting from that agreement, I would note that the appellant accepted that it was “stuck with” the trial judge’s acceptance of the expert evidence of Dr Carnavas, who articulated a mechanism for the accident consistent with the physical evidence (notably, the damage to the bicycle) which was consistent with Mr Cordin’s case. The primary judge also found that Mr Cordin was an honest witness, contrary to what had been put at trial. In order to succeed on appeal, it was in substance necessary for the Nominal Defendant to challenge that finding. Much of the Nominal Defendant’s case on appeal focussed on the contemporaneous documents (such as the record of the triple-0 call, and the notes made by those treating Mr Cordin in the ambulance and at hospital). Those documents did not refer to any impact from a motor vehicle. However, the source of the information in those documents was Mr Cordin, and it was clear that he was in considerable pain after the accident, and relatively powerful painkilling drugs were administered shortly thereafter. The Nominal Defendant also placed weight on the testimonial evidence of the treating paramedic, but he accepted in cross-examination that he had no independent recollection apart from his notes of the events which occurred. I agree with Simpson AJA that no error has been made out in the primary judge accepting the evidence of Mr Cordin, notwithstanding the evidence which tended to suggest the absence of a motor vehicle.

SACKVILLE AJA: There are some unfortunate features of this case. The first trial occupied six hearing days. This Court allowed an appeal and ordered a retrial. The second trial also occupied six hearing days and has led to a second appeal.

Even after two trials some matters are unclear. In particular, the respondent appears to have changed his evidence between the first and second trials. At the second trial he claimed to have an actual recollection of being hit from behind by another vehicle, rather than simply a belief that a collision had occurred. I am not sure that the primary Judge’s explanation that the differences in the respondent’s evidence could be attributed to the passage of time and the nature of the questions asked is entirely convincing. [1]

The primary Judge analysed in detail the hospital and clinical notes. Her Honour referred to the notes made by Mr Hartley (the paramedic) in which he recorded that the respondent’s bicycle had hit a pothole. Her Honour attributed this reference to assumptions made by Mr Hartley as to what must have happened rather than to any observations by him at the scene.

The primary Judge said that there was only one other reference to a pothole in any “contemporaneous treating document”. [2] Her Honour identified the entry as that made by a plastic surgeon. In fact there were two notations in the hospital records referring to a pothole.

One was made by a plastic surgeon at Princess Alexandra Hospital on 3 September 2012. [3] The other was made by the orthopaedic consultant at Lismore Base Hospital on 2 September 2012. [4] The primary Judge made no express finding as to the circumstances that led the orthopaedic consultant or the plastic surgeon to record that the bicycle had struck a pothole.

Presumably her Honour considered the explanation for the notations to be that Mr Hartley conveyed his assumption about the circumstances of the accident to the Lismore Base Hospital staff, who subsequently communicated the information to the orthopaedic consultant and then to the Princess Alexandra Hospital staff. I am also not sure that this explanation is entirely convincing.

However, it would be a travesty if this case were remitted for a third trial. I am persuaded, not without hesitation, by Simpson AJA’s judgment that the appellant has not established a sufficient basis for interfering with the crucial findings made by the primary Judge. I therefore agree with the orders proposed by her Honour.

SIMPSON AJA: In the morning of 2 September 2012 a passing motorist came upon Michael Cordin (“the respondent”) lying face down on Minyon Falls Road, in the north of New South Wales. The respondent’s face was in a pothole filled with water. The water in the pothole was stained red with what may reasonably be inferred to have been his blood. A mountain bicycle, which, it was common ground, the respondent had been riding, was nearby. The respondent had suffered significant injuries.

The respondent commenced proceedings in the District Court, claiming damages for the personal injuries he had suffered. He claimed that his injuries were caused when his bicycle was struck from behind by a motor vehicle travelling in the same direction, as a result of which he pitched forward over the handlebars and onto the road. He alleged that the identity of the motor vehicle could not, after due inquiry and search, be ascertained. He accordingly named the Nominal Defendant (“the appellant”) as defendant to the proceedings: see Motor Accidents Compensation Act 1999 (NSW), s 34. The appellant conceded that due inquiry and search had been made but had failed to identify the vehicle.

The appellant did not take issue with the proposition that, if a vehicle had collided with the respondent’s bicycle, the driver of the vehicle had been negligent. That, however, was as far as the concessions went. The appellant disputed that the respondent’s bicycle had been hit by a motor vehicle. Rather, it contended, the respondent’s bicycle had hit a pothole in the road, and it was that that caused him to fall from his bicycle and suffer injury.

The parties agreed that the quantum of damages to be awarded to the respondent if he succeeded in establishing that his injury had been caused as he alleged was $350,000.

A trial took place in the District Court in 2015/2016 before Levy SC DCJ. The sole issue for determination was the cause of the respondent’s injury, specifically whether his bicycle had been struck by a motor vehicle. The respondent was successful and the trial resulted in judgment for him in the agreed sum of $350,000: Cordin v Nominal Defendant [2016] NSWDC 12.

The appellant appealed, successfully, to this Court: The Nominal Defendant v Cordin [2017] NSWCA 6. Macfarlan JA would have dismissed the appeal. By majority (Emmett AJA and Davies J) the Court allowed the appeal. Emmett AJA and Davies J gave separate, and to an extent, different, reasons, although there was some overlap. Davies J considered that the trial judge had erroneously examined individual pieces of circumstantial evidence in isolation in order to demonstrate particular weaknesses, rather than view all of the evidence as a whole (at [166]). There were indications that the trial judge had reversed the onus of proof. Both Emmett AJA and Davies J identified areas of weakness in the trial judge’s judgment; these included the failure to refer to the evidence of certain medical witnesses, and the failure to take into account the absence from the witness box of a witness (the respondent’s daughter) perceived to have been able to give relevant evidence. The judgment of the District Court was set aside and a new trial ordered.

The second trial began in February 2018 before Norton SC DCJ (“the primary judge”) and concluded with the same result as the first: Michael Timothy Cordin v NRMA Insurance Limited acting on behalf of the Nominal Defendant (unreported, NSW District Court, 9 May 2018). Various witnesses who had given evidence in the first trial gave evidence again in the second trial and the transcript of the evidence of the respondent and his wife and one other witness in the first trial was in evidence. The respondent’s daughter gave evidence.

The primary judge found that the respondent had succeeded in discharging the onus of proving that the cause of his injury was collision with an unidentified motor vehicle and that the driver of the vehicle was in breach of his or her undoubted duty of care. She entered judgment in favour of the respondent in the agreed sum of $350,000, ordered the appellant to pay the respondent’s costs of both trials, and reserved questions of any “special order” as to costs. On subsequent application by the respondent the primary judge ordered the appellant to pay the respondent’s costs assessed on the ordinary basis until 10 July 2015, and the costs of both trials on an indemnity basis from 11 July 2015: Michael Timothy Cordin v NRMA Insurance Limited acting on behalf of the Nominal Defendant (unreported, NSW District Court, 27 July 2018).

By Notice of Appeal filed on 6 August 2018 the appellant appeals against those orders. Ten grounds of appeal against the finding of liability are pleaded. Generally these grounds attack the factual findings made and conclusions reached by the primary judge, and her reasoning process to those findings and conclusions. The final ground of appeal challenges the order that part of the respondent’s costs be assessed on an indemnity basis.

By s 75A of the Supreme Court Act 1970 (NSW) the appeal is by way of rehearing (subs (5)). This Court has the powers and duties of the District Court, including (relevantly) powers and duties concerning the drawing of inferences and the making of findings of fact (subs (6)). Those powers, however, are not unrestricted, as discussed below.

Since the appeal is entirely based on a challenge to the primary judge’s fact finding it is necessary to set out the relevant facts at some length. Some are uncontroversial.

The respondent was, at the time of the accident, 54 years of age. He lived near the site of the accident and had done so for some years. He was an experienced and careful mountain bicycle rider. He was familiar with Minyon Falls Road, having ridden on it several times per week for several years.

Minyon Falls Road is partly sealed but, as it approaches the Nightcap National Park, is unsealed. As might be expected, the surface of the unsealed portion varies with weather conditions and traffic volume. At times, including on 2 September 2012, it can be marked by potholes and “ruts and runnells”, to use the respondent’s description.

The respondent rode a “middle of the range” mountain bicycle. He was in the habit of keeping his bicycles “in top condition”, and the bicycle he was riding on the day in question had recently been serviced. As at 2 September 2012, according to the respondent’s unchallenged evidence, it was in perfect condition, with new brakes.

2 September 2012 was Father’s Day. It was a clear day, with some breeze. Rain overnight had settled the dust but had filled potholes and ruts with water. The respondent set out in the morning intending a short ride and was returning home, which involved downhill travel in an easterly direction. He was wearing a helmet. He was on the unsealed section of the road.

The respondent had little recollection of the circumstances of his accident. He suffered facial lacerations and abrasions and lacerations to his hands and knees. He had some spinal injury. His helmet was damaged. He was taken by ambulance to the Lismore Base Hospital, and then by air ambulance to the Princess Alexandra Hospital (“PAH”) in Brisbane.

The appellant’s defence to the respondent’s claim was clearly articulated at the commencement of the trial. Senior counsel for the parties opened their respective cases. Senior counsel for the appellant identified various categories of evidence to which he proposed to draw attention. Referring to the medical records, he said:

Senior counsel then said:

The clear inference (subsequently confirmed by the cross-examination of the respondent) was that the appellant, from the start, intended to defend the claim on the basis that the respondent (with the assistance of, at least, his wife) had fabricated his evidence, after receiving legal advice. As can be seen from the final written submissions (extracted below), and the cross-examination of the respondent, that position never changed.

The following is an account of the evidence in the trial.

The respondent described what he recalled of the accident. He recalled coasting downhill into a left hand sweep, having negotiated some corrugations in the road surface, and “freewheeling” into the sweep. In order to control the bicycle he applied both brakes and stood on the pedals, at a point about 20 metres from a “nest of pot holes”. The reason for standing up on the pedals was to use his legs as shock absorbers over the potholes and runnels. He intended to “plot a course” through the potholes, avoiding the larger of them. He was ready to do so at walking speed. The potholes varied from 300 to 400 millimetres in circumference and 200 (in extreme cases) to 300 millimetres deep.

The respondent said that, before he reached the potholes:

The respondent’s next recollection was of being helped by a person into the back of a vehicle. He was in severe pain and very disorientated. He did not know exactly where he was, but felt as though he had been “severely smacked”.

The motorist who found the respondent was Mr Sethya Bessbava. Mr Bessbava was driving a Daihatsu Feroza, a short wheel base four wheel drive. At that time the respondent was still wearing his helmet, but it had been pushed to the back of his head. It was damaged to the front and the visor. Mr Bessbava helped the respondent to the back of his vehicle and remained with him until others and, eventually, ambulance personnel, arrived. He described the respondent’s condition as:

Shortly after, another vehicle, driven by Mr Kester Marshall (a naturopath), arrived on the scene. Mr Marshall had a brief conversation with the respondent, who said:

Later, the respondent’s wife, his daughter and two friends also arrived at the scene. The respondent’s wife, Brenda Cordin, said that the respondent was in a lot of pain, but was trying to sit up. He told her not to touch his hands.

Ms Christine O’Grady was a friend of the respondent and his wife. She attended in response to a telephone request by Brenda Cordin. By the time she arrived “quite a few cars” were parked along the side of the road. She saw the respondent in the back of a 4-wheel drive vehicle. He was groaning and obviously in a lot of pain and discomfort, not saying much. She asked him what had happened. He replied:

Mr Marshall had called an ambulance. When the ambulance arrived (50 minutes after the call), the respondent was examined by a paramedic, Mr Terry Hartley, who found him to be conscious and able to communicate. The respondent expressed concern for his jaw, on which he had had recent replacement surgery. Mr Hartley administered a Glasgow Coma Score test on which the respondent scored 15 out of a maximum of 15. He was transferred by ambulance to the Lismore Base Hospital, where he was examined by doctors, and again expressed concern for his jaw. He was subsequently flown by air ambulance to the PAH, where he was again examined by a number of doctors. Detailed notes made by the various medical professionals were in evidence. It will be necessary to examine them in the context of the arguments made both at trial and on appeal.

The respondent’s wife and daughter drove to Brisbane the following day. Both gave evidence that when they saw him, he told them that he had been hit by a car.

The appellant relied on documentary evidence of the ambulance service, the Lismore Base Hospital and the PAH. That evidence is as follows.

An electronic record maintained by the Ambulance Service of NSW, included:

The electronic record that was in evidence was a computer-generated compilation of information that included a handwritten note made by the ambulance officer who attended, Mr Hartley. The handwritten note was not in evidence. Mr Hartley said that the note “fall of bike post hitting a pot hole” was directly derived from the note he had made, which, in turn, was directly derived from information given to him at the scene by the respondent. Mr Hartley was extensively cross-examined; he agreed that, in answer to a questionnaire (which, it seems, was sent to him by the respondent’s solicitors after the first trial - he had responded “I can’t remember this case”. He maintained that position in the second trial. He also agreed that, in the first trial, he had said in cross-examination:

When questioned about the circumstances at the scene, Mr Hartley said that the respondent was lying in the tray of a “ute”.

He was insistent, however, that the respondent had mentioned the pothole. In the course of cross-examination it became clear that Mr Hartley maintained that position because of the notation in the records. That is, he had no independent recollection of the respondent using that language.

The accounts of the respondent’s condition at the scene given by the lay witnesses were in contrast to Mr Hartley’s clinical observations. Mr Hartley said that the Glasgow Coma Score assesses the ability of a patient to answer questions in order to measure the level of consciousness. The respondent’s score of 15 out of a maximum of 15 was:

The appellant placed heavy reliance on records made by other health professionals in various places – Lismore Base Hospital, air ambulance, and the PAH.

The respondent was examined at the Lismore Base Hospital at about 5.30 pm on 2 September. The examination notes record:

The respondent was then examined by an orthopaedic consultant, who noted:

Later, the notes (made by a different doctor, possibly Dr Simone) continued:

Air ambulance records state:

The respondent arrived at the PAH at about 10 pm. He was examined by a senior registrar in emergency, Dr Welgama. The admission notes record:

Under “Details of Incident” the following appears:

The respondent was then examined by an orthopaedic registrar, Dr Lando. Dr Lando recorded:

Later, the clinical notes record:

Dr Welgama gave evidence by video link. He assumed that he had documented whatever the respondent had told him. He had not documented any report by the respondent that he had been struck by a motor vehicle; had the respondent told him that, he would have included it in his notes.

Dr Lando also gave oral evidence by video link. He said that he had taken a history from the respondent, which he regarded as an important function. He said that the respondent had not told him that he had been involved in a car accident, or that he had been hit by a car. That would have been something quite important that he would have recorded in his notes.

The appellant also relied on a “Patient Election Form”, completed at the PAH on 3 September 2012 by the respondent’s daughter, Ms Angie Cordin, and signed by Brenda Cordin.

The significant question and answer in the Form is the following:

Angie Cordin gave evidence of the circumstances in which she completed the Patient Election Form. She said that she and her mother drove to Brisbane together on the morning of 3 September. On arrival at the ward Brenda Cordin was asked to fill in a document so the respondent could “have a procedure”. Brenda Cordin could not find her glasses and she asked Angie Cordin to complete the form. Significantly, it was completed before either Brenda or Angie Cordin had spoken to the respondent. Angie Cordin answered the questions on the form (such as the respondent’s Medicare number) from information she obtained from Brenda Cordin’s purse.

In oral evidence she was asked why she had answered the question in that way. She said:

It was pointed out to her that she had misspelled the respondent’s first name, and she said she did so because she was “really stressed”, “very upset”.

Angie Cordin gave an account of seeing the respondent in the ward. She said that his eyes were closed, he was moaning. She said Brenda Cordin asked the respondent what had happened. He replied:

The appellant also placed weight on an approach made by Brenda Cordin to the Lismore City Council on 6 September 2012. The approach is recorded in a “Customer Request Management Enquiry”. The record is as follows:

The record shows that as a result of the approach, some maintenance was carried out on the road. The officer responsible for the maintenance completed the form by noting:

On 6 September, after returning from Brisbane, Brenda Cordin contacted Mr Bessbava to enquire of him whether he had seen a motor vehicle on the day of the accident. On the same day, she telephoned the Lismore Police Station to report that the respondent had been hit by a vehicle. She also called the Lismore City Council, for the same reason. She telephoned National Parks on 10 September.

The respondent was discharged from the PAH on 7 September. On 11 September he contacted the firm of solicitors who now represent him. He spoke to Ms Felicity Middleton, a law clerk. Ms Middleton made a note of the brief conversation as follows:

Finally, on 23 October 2012, both the respondent and Brenda Cordin made statements to police. The respondent’s statement included the following:

Brenda Cordin’s statement was lengthier. At paragraph 21 she stated her belief that the respondent had been hit by a motor vehicle. Although she mentioned that she had travelled to Brisbane on 3 September, she did not mention that the respondent told her that he had been struck by a motor vehicle.

Each party retained an expert to report on the circumstances of the accident and express opinions concerning its cause. On behalf of the respondent, Dr Paul Carnavas examined the bicycle and inspected the scene. Dr Carnavas holds a doctorate in mechanical engineering and has extensive experience in mechanical engineering associated fields. There was no dispute as to his qualifications. He was provided with photographs taken by the respondent’s wife at the scene.

Dr Carnavas examined the respondent’s helmet and bicycle, and the location of the accident, on 26 November 2013. His first report, following those inspections, was dated 2 April 2014. In response to a request for an opinion as to the cause of the accident, he identified two possible “scenarios”:

As to these, he commented:

Dr Carnavas stated his conclusions as follows:

The appellant retained Mr Michael Griffiths to undertake a similar exercise. Mr Griffiths also holds qualifications in mechanical and biomedical engineering. His expertise, also, was not in dispute. He first reported on 29 January 2015 and provided a supplementary report, in response to that of Dr Carnavas, on 2 March 2015. In his first report he concluded:

Mr Griffiths restated his conclusions as follows:

There followed an exchange of reports, in all five by Mr Griffiths, three by Dr Carnavas, in which various issues were debated. Ultimately, a joint report was prepared which set out, essentially, the differences between the two experts.

Both experts inspected the respondent’s bicycle, which had been left in his shed since the day of the accident. Dr Carnavas observed a significant buckle in the rear wheel, and displacement of the right-hand end of the axle. He removed the rear wheel in order to take some measurements and then reinstalled it. Following that inspection he reached the conclusions set out above.

Mr Griffiths also inspected the bicycle, but at a later date. He appears to have observed less damage than Dr Carnavas. Whether this is because Dr Carnavas had replaced the wheel is not clear. Mr Griffiths did, however, note some “lateral eccentricity, but no “radial” (as distinct from “lateral”) buckling. He was unable to say whether this was the result of wear and tear or the result of impact. He considered that the most probable explanation for the lateral eccentricities was impact with a pothole.

Mr Griffiths considered the likely consequence of impact of a car with a bicycle at “a minor speed variation”, “a moderate speed”, and “a high speed differential”. The first of these, he considered, would have tended to push the bike forward from under the rider, but without unseating the rider; the second would have pushed the bicycle forward, causing the rider to fall backwards onto the vehicle bonnet; the third would have caused the rear of the rider to impact heavily with the car front resulting in significant injury to the cyclist. This last would also have been likely to cause damage to the bicycle rim.

Dr Carnavas challenged these conclusions. He produced, by way of illustration, a video recording of what was, apparently, a real life collision between a car and a cycle (on a sealed road). By reference to this, he concluded:

For the purpose of preparing the joint report, the experts were asked a series of six questions. The first of these asked what were the “physical dynamics” by which the respondent “came off” his bicycle. In accordance with their previously expressed opinions, Dr Carnavas said that the respondent was destabilised as a result of a vehicle contacting its rear wheel; the contact applied an abnormal and an unexpected force to the bicycle, disturbing the rider’s balance and position, resulting in loss of control and causing the rider to fall; Mr Griffiths’ response was that, because of factors comprising the downhill gradient, potholes, and a “wet loose muddy surface” for the front wheel of the bicycle either “tripped” forwards or was redirected sidewards “so as to slow/stop or redirect” the bike suddenly. This resulted in the rider having a greater velocity than the bicycle, so that he was projected forward toward the road surface. Alternatively, the front wheel lost traction because of the loose road conditions and the bike commenced to fall over, taking the rider with it. Mr Griffiths maintained his opinion that a collision would have caused the bicycle to continue forward, but the cyclist to be thrown backwards.

Dr Carnavas’ position was, perhaps, most clearly and succinctly put in an answer in his examination in chief. As recorded in the transcript, the question and answer were:

Both experts gave oral evidence. Cross-examination of Dr Carnavas concluded as follows:

But, in re-examination, he gave this evidence:

In accordance with the opening, the appellant conducted the case on the basis that the respondent’s account of having been hit by a car was a fabrication for the purpose of obtaining compensation. The cross-examination of the respondent concluded in the following way:

Cross-examination of the respondent’s wife and daughter was to similar effect.

In written submissions provided on behalf of the appellant to the primary judge, the following appears:

There is nothing in the transcript to support the suggestion that the respondent accused any medical personnel of fabrication..

In support of the proposition that the respondent’s evidence was fabricated and should not be accepted, the appellant made a number of submissions, which may be briefly summarised:

It may thus be seen that there were two strands to the debate. The first depended upon evidence of witnesses who had been present at the scene of the accident, and medical and other evidence of what happened thereafter. The second depended upon the expert evidence.

In a lengthy and detailed judgment, the primary judge recorded the documentary and oral evidence, the submissions that had been made, and then recorded her findings and conclusions.

The primary judge rejected the contention that the respondent had invented a story of having been hit by a motor vehicle with a view to obtaining compensation. Both parties and the primary judge proceeded on the basis that the case was a “circumstantial” one. That may be because that was how this Court treated the case as presented in the first trial. But, as will be seen below, it was not an entirely accurate description.

The primary judge did not accept Mr Hartley’s evidence that the respondent had told him that his bicycle had hit a pothole. She considered Mr Hartley, while “an experienced and dedicated paramedic”, to have been “defensive and evasive”, and concerned about having to give evidence a second time, resulting in his attempting to find reasons to explain any differences in his evidence on the two occasions. She explained her conclusion by reference to evidence given by other witnesses of the respondent’s condition at the scene, all of whom described the appellant as confused and in obvious pain. She concluded that the statement in the ambulance notes was derived from an assumption made by Mr Hartley, or assumptions made by other witnesses at the accident site and passed on to Mr Hartley.

She found that the evidence of Ms O’Grady, Mr Bessbava and Mr Marshall was more reliable than that of Mr Hartley, and she accepted, therefore, that when the ambulance arrived and while it was present, the respondent was confused and moaning with pain and unable to say exactly what had happened.

The primary judge accepted that, had the respondent mentioned a motor vehicle to any of the medical professionals who took a history from him, that fact would have been recorded. It follows that she accepted that the respondent had not told any of the medical professionals that he had been struck by a motor vehicle. She accepted that, at the time of giving the histories, the respondent was “still confused, disoriented, and had a clouded and broken memory’. He was also given medication that could have caused further cognitive confusion. The nature of the respondent’s injuries explained his failure to communicate how the accident had happened.

The primary judge accepted Brenda Cordin as a truthful witness. She accepted her evidence that the respondent had told her, at the PAH, that he had been hit by a motor vehicle. She accepted Angie Cordin’s evidence as to the circumstances in which she had completed the Patient Election Form as “logical” and in accordance with what one would expect from a relative asked to fill out such a form at such a time. She made no express finding about the truthfulness of Angie Cordin’s evidence of the respondent’s statement that he had been hit by a car, but it is plain that she took a favourable view of Ms Cordin’s evidence generally. She accepted that the Patient Election Form had been completed by Angie Cordin before she and her mother had seen the respondent, and therefore before he had told them that the cause of his accident was collision with a motor vehicle.

Accordingly, she accepted that the respondent’s belief that he was struck by a motor vehicle was a rational one and was, on the probabilities, the most likely explanation for what had happened. In reaching this conclusion, she accepted that the respondent was an honest and truthful witness. She found that the respondent had “felt a shunt or push to the rear of his bike prior to him being propelled forward over the handlebars.

She accepted that, well before the respondent had seen a solicitor, Brenda Cordin had contacted Mr Bessbava and that, before he had seen a solicitor the respondent had told Ms Middleton that he had been struck by a car.

She rejected the appellant’s submission that there were significant inconsistencies in the evidence given by the respondent in the first and second trials, saying that such differences as there were could be explained by the passage of time and the nature of the questions asked.

With respect to the expert opinions the primary judge preferred the evidence of Dr Carnavas to that of Mr Griffiths. She found that his analysis more readily explained the damage to the bicycle. She considered that there were aspects of the evidence that “significantly reduce[d]” the weight of Mr Griffiths’ reports. She considered that he had become “somewhat of an advocate” for the appellant, in contrast to Dr Carnavas who was prepared to make appropriate concessions. She accepted that Dr Carnavas has superior qualifications with respect to potholes. She rejected criticism made of Dr Carnavas’ reliance on the video recording. She disagreed with the interpretation placed on the video on behalf of the appellant.

The dispositive findings of fact of the primary judge were limited in number. They were:

The primary judge arrived at those conclusions by a series of intermediate findings of fact. These included:

The appellant’s submissions, both written and oral, acknowledged that the conclusion of the primary judge was essentially based on findings of fact, and accepted the consequent limitations on appellate intervention in those circumstances: Fox v Percy (2003) 214 CLR 118, [2003] HCA 22; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]. With respect to the preference of the primary judge for the opinions of Dr Carnavas over those of Mr Griffiths, Senior Counsel said:

A general submission was made concerning the approach to be taken in proceedings to which the Nominal Defendant is a party. The written submissions were as follows:

The relevant NSW authority is Askarou. That was a case in which a plaintiff, injured in a motor vehicle accident, asserted that the accident had been caused by an unidentified vehicle striking the vehicle in which she was travelling, which then left the scene before being identified. She sued the Nominal Defendant. The trial judge rejected the plaintiff’s account of the collision, although there was no alternative account offered. Relying on Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 371; [1975] HCA 27, Ms Askarou argued, on appeal, that in the absence of challenge to or contradiction of her account, the trial judge was bound to accept that account. This Court did not accept that the evidence of the plaintiff was unchallenged. The foundation for the argument was, therefore, undermined.

Clarke JA, with whom Kirby P substantially agreed and Hope JA agreed, then said:

Dimovski, on which the appellant relied, was not a case involving the Nominal Defendant. A number of individuals were injured in a three vehicle accident. Two passengers in one vehicle claimed damages against the driver of another. The trial judge rejected their claims on a basis that had not been pleaded or argued. On appeal, Clarke JA said:

These decisions do not establish that the Nominal Defendant is in any special position. They merely establish that, where one party is in a position of disadvantage, evidence against it needs to be evaluated with care.

Two decisions of the Supreme Court of South Australia were also cited. In Hofer v Miller [1957] SASR 41 the trial judge said:

On appeal, Napier CJ (delivering the judgment of the Court) said:

The common theme in these cases is that, where a party to proceedings is in a position of being forced to defend a claim while unable to call evidence to refute the claims against it, a careful approach to the evidence against it is to be taken before accepting the evidence of the plaintiff.

The difficulty for the appellant in this case is that, contrary to its submission, that is precisely the approach the primary judge took. Having done exactly what these authorities required of her, she found in favour of the respondent. In doing so, she carefully considered each item of evidence upon which the appellant placed reliance.

In those circumstances the approach dictated by Fox v Percy and McDermott is to be followed. In McDermott the High Court said:

This was language drawn directly from Fox v Percy. In McDermott the High Court concluded that the judge’s findings of fact did not meet any of those descriptions; the judge’s findings of fact:

A second general point made on behalf of the appellant was that the primary judge’s acceptance of the respondent as an honest witness was not conclusive in respect of the accuracy of his evidence. It was submitted that the respondent’s belief that he had been struck by a motor vehicle was “a reconstruction” based on his last recollection of approaching the potholes, of standing upright on the pedals (“pegs”) of his bicycle, and being “shunted” from behind.

That is not entirely accurate. In his evidence in chief the respondent said:

The respondent’s cross-examination is recorded in the following passage of transcript:

The appellant maintained that the case was “a circumstantial one”. That also was not entirely accurate, in the light of the respondent’s evidence extracted above. The notion that the respondent’s evidence was a reconstruction and that the case was circumstantial, appears to be derived from the first trial in which the respondent had said that it was his belief that he had been hit from behind by a motor vehicle. His evidence in the second trial was more definite.

The critical finding of fact attacked on appeal was the finding that the respondent felt a shunt from behind. This, it was contended, was contrary to “compelling inferences” from the evidence. In the Notice of Appeal a number of the intermediate facts by which the primary judge arrived at that critical finding were also challenged. It is not necessary to state all of the findings of fact that were the subject of challenge. They include the finding that the respondent did not tell Mr Hartley that his bicycle had struck a pothole, and the findings concerning the respondent’s level of consciousness at the time of the arrival of the ambulance, and the manner in which the primary judge treated medical records of Lismore Base Hospital and PAH.

The explicit finding that the respondent had not told Mr Hartley that he had hit a pothole was said to be “glaringly improbable”. The argument that followed essentially reiterated the argument at trial, although the contention that the respondent’s account of the accident was a fabrication was, at best, muted.

Particular reliance was placed on Mr Hartley’s record of the respondent having a Glasgow Coma Score of 15, which was consistently maintained throughout subsequent examinations.

The appellant placed emphasis on the absence, in the medical records, of any record of a statement attributed to the respondent that he had been hit by a motor vehicle. The primary judge accepted that had the respondent made such a claim it would have been recorded, and therefore that he had not. She declined to draw the next inference for which the appellant contended – that is, that no vehicle was present.

The appellant placed substantial reliance on the Patient Election Form completed by the respondent’s daughter, Angie Cordin, stating that the respondent’s hospitalisation did not arise out of a motor vehicle accident, and on the contents of the respondent’s and Brenda Cordin’s statements to police, which, it was contended, (in the case of the respondent’s statement) omitted mention of having been “shunted”, and, (in the case of Brenda Cordin’s statement) omitted any reference to having been told by the respondent at PAH that he had been hit by a motor vehicle.

Finally, the appellant pointed to the expert evidence. Somewhat surprisingly, perhaps, rather than focusing on differences of opinion stated in the reports, it contended that there was “a considerable area of common ground”. The common ground included the nature and location of the respondent’s injuries, that those injuries were caused by the respondent “pitching forward” over the handlebars on the road, and the laws of physics, which state that “for every action there is an equal and opposite reaction”. There was also some common ground as to the general nature (although not the extent) of the damage to the rear wheel of the bicycle.

The appellant argued that “the apparent logic of events” supported the conclusion that the respondent’s bicycle had hit a pothole. The relevant circumstances relied upon were the condition of the road, (potholed after rain), that Mr Bessbava had not seen any other vehicle on the road, and (on which the appellant placed considerable emphasis) that, by the application of the laws of physics, if the bicycle was struck from behind, it would have moved forward, and the rider would have been thrown backwards (which was inconsistent with the respondent being found face down).

The appellant relied heavily on what was said to be a concession made by Dr Carnavas at the conclusion of his cross-examination, extracted above. No reference was made to the evidence given by Dr Carnavas in re-examination with respect to that answer, also extracted above.

The appellant contended that this Court is in as good a position as the trial judge:

The centrepiece of the respondent’s case at trial was his recollection that he had been “shunted” from behind, causing him to fall forward. From this he deduced that he had been struck by a motor vehicle that he had not seen. The centrepiece of the appellant’s case was what was asserted to have been the respondent’s statement to Mr Hartley, in the immediate aftermath of his fall, that his bicycle had hit a pothole.

Both parties then called in aid to support their cases various aspects of the evidence.

Consideration of the challenges to the primary judge’s findings must be made in the context of the issues litigated at trial. Identification of the issues is the role of counsel; it is the role of the trial judge to determine the issues presented for determination: see Australia and New Zealand Banking Group Ltd [2016] NSWCCA 93 at 106. The issues identified included, prominently, the appellant’s allegation of fabrication by the respondent, to which it contended his wife and daughter were party. The appellant submitted that:

As can be seen from the extracts above, that was not the issue presented to the primary judge for determination. The issue presented was the truthfulness of the respondent and his witnesses.

The finding that the respondent did not fabricate his account was therefore fundamental. That finding was based on more than the primary judge’s assessment of the respondent and his wife and daughter as ‘honest and truthful”; it was based on a careful analysis of the evidence. There is nothing in the reasons to indicate, and no basis for supposing, that that finding was demeanour-based, at least not solely demeanour-based. Rather, it followed a careful examination of the evidence and the submissions made by both parties.

Rejection of the appellant’s case that the respondent’s case was a fabrication did not have the necessary consequence that the respondent’s case should be accepted. The appellant’s approach, however, left unexplored other potential responses to the respondent’s claim.

The conclusion that the respondent had not told Mr Hartley that his bicycle had hit a pothole was not “glaringly improbable” as the appellant contended; it was the result of careful analysis of the evidence of Mr Hartley (who was found to have been defensive and evasive in this respect), and of the evidence of witnesses at the scene. It is clear that (not surprisingly) Mr Hartley had little independent recollection of the events, and that his insistence that the note in the records was based upon something the respondent said to him was the inference he drew from its inclusion in the consolidated electronic record. That his recollection was unclear is confirmed by his positive evidence that when he arrived at the scene, the respondent was lying in the tray of a “ute”. There was no dispute that the respondent was, in fact, in the back of small 4-wheel drive vehicle. It was not unreasonable for the primary judge to prefer, in this limited respect, the evidence of the lay witnesses, some of whom were well acquainted with the respondent, and all of whom were giving evidence from direct recollection.

While it may be true that other minds might have drawn a different inference, that drawn by the primary judge could not be said to have been outside the range of those permissible (see McDermott at [43]). It was, among other things, consistent with the evidence given by Mr Hartley at the first trial. As stated above, it is clear that Mr Hartley’s insistence that the respondent told him that his bicycle had hit a pothole was entirely based on his reliance on the electronic record, the primary source of which was not available.

The critical finding that the respondent was “shunted” from behind, was also based upon a consideration of the evidence. It also followed the primary judge’s rejection of the proposition that the respondent had invented that evidence. It is in this respect that the manner in which the appellant chose to defend the case at trial has significance. Only two alternatives were put to the primary judge: on behalf of the respondent, that he had, as he said, felt being “shunted”; on behalf of the appellant, that he had invented that account for monetary gain. No middle course (for example, that the respondent was mistaken, or that his evidence was insufficient to permit a conclusion on a balance of probabilities that what he said was correct) was put to the primary judge. The primary judge decided the issues that were presented to her for determination. It was the appellant who drew the battlelines; the primary judge determined the case on the issues it identified. She rejected the appellant’s case. Her findings that led to that result lay within the range of permissible inferences.

On appeal, the appellant did not seek to contest the rejection of the only defence it had advanced, that is, that the respondent’s account was fabricated. Rather, it sought to relitigate the case as it had been litigated but with the omission of that part of the defence that accused the respondent of fabrication.

The primary judge’s findings of fact have not been demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, and nor have those findings been shown to have been “glaringly improbable” or “contrary to compelling inferences”. There is therefore no reason for this Court to interfere with the primary judge’s findings of fact. I would reject grounds 1-10 of the appeal.

It was entirely open to the primary judge to prefer the evidence of Dr Carnavas to that of Mr Griffiths, for the brief reasons she gave. In addition to those given, there were other good reasons for the primary judge to prefer Dr Carnavas’ evidence.

Both experts inspected the respondent’s bicycle. Their physical observations were not dissimilar. Dr Carnavas observed:

Both experts were asked to express opinions on the cause of the damage. Dr Carnavas’ opinion, as set out above, was that the most probable cause was “low (relative) speed rear impact of the Bicycle by a motor vehicle”. Mr Griffiths’ opinion was that the most likely cause was hitting a pothole.

Following the initial reports, each was asked to comment on the opinions of the other. The result was a series of less than informative reports, largely based on unproven and unprovable hypotheses. They can be put to one side.

There were, however, aspects of Mr Griffiths’ reports that suggested that his approach was not entirely scientific. He commenced his first report with the following comment:

He then included in his report lengthy extracts from the medical and hospital records. The relevance of which, to the task committed to him, is dubious. Under “Conclusions” he said:

He also took into account statements of witnesses. He said:

Although Mr Griffiths then purported to base his conclusions on the laws of physics, it is apparent that he went well beyond his area of expertise, even encroaching on the role of the primary judge; and that his approach was influenced by his faith, as a result of his personal experience, in the accuracy of recordings by ambulance officers, as well as his personal view that the earliest statement of participants and witnesses are more reliable than their later accounts. This is confirmed by his conclusion in a later report, dated 18 October 2017, which he was asked to prepare by reference to evidence given in the first trial. He concluded, having read the transcript of the evidence, that:

If this Court were to accept the appellant’s implicit invitation to draw inferences or make findings of fact contrary to those of the primary judge, these would be powerful considerations for preferring, like the primary judge, the evidence of Dr Carnavas.

The final ground of appeal challenged the order that the respondent’s costs be, in part, assessed on an indemnity basis.

The primary material supporting the order was not contained in the appeal books. The facts now stated are therefore drawn from the judgment of the primary judge. There was no suggestion that any of the facts stated was inaccurate.

Uniform Civil Procedure Rule 20.26 provides a scheme by which parties to litigation may make offers of compromise. UCPR 42.14 provides as follows:

On 10 July 2015 (prior to the first trial), pursuant to UCPR 20.26, the respondent offered to compromise his claim on terms that the appellant pay him the sum of $200,000. The offer was expressed to be open for a period of 28 days from receipt of the offer.

Subsequently, on 21 August 2015 (after the expiration of the offer) the parties agreed that the quantum of damages to be awarded, were the respondent to be successful in establishing liability, was $350,000.

The offer was not accepted, and the respondent’s claim went to trial in 2015. Following that trial the orders made by Levy DCJ included an order that the appellant pay the respondent’s costs on the ordinary basis until 10 July 2015, and on an indemnity basis thereafter.

On 24 August 2016, after the appellant had filed a Notice of Appeal, but prior to the hearing of the appeal, the respondent made a further offer of compromise, this time in the amount of $300,000. Judgment in the appeal was given on 3 February 2017, with the result set out above, which included setting aside the costs order.

There followed some correspondence between the solicitors for the parties concerning the applicability of the offer of compromise, given the circumstance that the appeal had been finalised favourably to the appellant. The respondent’s solicitors emphasised that the offer made on 10 July 2015 “remains standing” and would be used as a basis for an application that costs be assessed on an indemnity basis from 8 August 2015. (As the primary judge pointed out, the date was incorrect: if the respondent is entitled to the order he seeks, the starting date is 11 July 2015).

As is plain from the above, following the retrial, the respondent was awarded damages of $350,000. On those facts, the requirements of r 42.14 were satisfied and the respondent was entitled to an order for indemnity costs unless the court ordered otherwise.

Before the primary judge the appellant advanced a number of arguments, presumably in support of the proposition that the court should order otherwise than as provided in r 42.14(2). Those arguments are recorded in the judgment of the primary judge. One argument was that, as the only issue at trial was liability, an offer to accept a lesser sum was irrelevant. As the primary judge noted, no authority was cited for the proposition and she rejected it. Another argument was that “there are statutory reasons which mandated that the issue of liability should be defended”. Again, her Honour said, no statutory provision in support of that argument was identified, and she rejected it. She noted that s 38 of the Motor Accidents Compensation Act permits an insurer (including an insurer acting on behalf of the Nominal Defendant) to settle or compromise claims as it deems fit.

These arguments were not repeated on appeal.

The primary judge said that “the thrust” of the submissions made on behalf of the appellant was that its conduct in defending the claim was reasonable and that constituted circumstances which disentitled the respondent to an order for indemnity costs. The primary judge rejected that argument also. This argument was repeated on appeal.

The appellant’s submissions on appeal included:

The appellant went on to contend that its conduct was reasonable because, by agreeing to the quantum of damages, it shortened the hearing time; that as a statutory body it had a duty to defend properly the cases it regarded as “questionable or not bona-fide” (of which this case was one); that the “facts and circumstances of the claim” justified its decision to defend liability, and that was validated by the first Court of Appeal decision; that it was “entirely reasonable” for it to “test the factual substratum on which the claim was based”; and that it did not behave in any vexatious or improper manner in the conduct of the litigation and did not unduly prolong the hearing.

The appellant also argued that the respondent’s offer of compromise “required the appellant to capitulate” and did not involve any real element of compromise. Finally, it argued that the effect of the order was to punish the appellant for defending the claim.

The last two arguments may be despatched quickly. An offer of compromise of $200,000 in respect of a claim which the recipient agrees has a value of $350,000 can hardly be said to be requiring capitulation. It was a very significant compromise, recognising the difficulties that lay in the way of the respondent’s success. That is precisely what the offer of compromise system is designed to achieve. Nor is there any merit in the argument that the effect of the order was to punish the appellant for defending the respondent’s claim. As observed in Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 at 725, the purpose of the offer of compromise provision, is “to put a premium on realistic assessment of cases”. In Fisher, the court said:

Fisher was decided under the predecessor of the Uniform Civil Procedure Rules, the Supreme Court Rules, but there is no dispute that the same principles apply.

The notion of compromise cuts both ways. Just as the respondent’s preparedness to accept $200,000 represented a significant compromise on the part of the respondent, acceptance of the offer would have represented compromise on the part of the appellant, in recognition of the respondent’s prospects of success at least at the time that the agreement as to the value of the claim was reached.

The appellant’s contention, in 4.3 of the written submissions (extracted above) that the ultimate test for determination is the reasonableness of the conduct of the offeree party is not only unsupported by authority, it is contrary to authority. In NSW Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 at [102] (also decided under the Supreme Court Rules), Gleeson CJ, with whom Clarke and Cripps JJA agreed, said:

The appellant has advanced no arguable basis for setting aside the order of the primary judge. I would reject ground 11 of the appeal.

The orders I propose are: