Bumpy roads ahead – contemporaneous evidence must be given appropriate weight along with other evidence – The Nominal Defendant v Cordin [2017] NSWCA 6

The plaintiff was involved in an accident when he fell from his bicycle whilst riding along a dirt road, suffering severe injuries.

The plaintiff knew the road well and was riding cautiously due to potholes in the road. The plaintiff alleged that as he slowed to navigate the potholes, he was struck from behind by a motor vehicle, which caused him to fall over the handlebars of his bicycle.

The plaintiff was not able to identify the motor vehicle allegedly involved in the accident and thus pursued a claim against the Nominal Defendant (the defendant).

The plaintiff gave evidence that he recalled falling rapidly off the front of his bicycle and waking in the back of the car of a passer-by.² It was the plaintiff's opinion that the accident must have been caused by a motor vehicle, although he did not see the vehicle he alleged was at fault.

Contemporaneous records were considered, including ambulance records noting that the plaintiff was involved in a "bicycle collision", and had hit a pothole and "fallen off his pushbike".³ The primary judge formed the view that "the ambulance records do not exclude the possibility of the plaintiff having been struck from behind by a motor vehicle whilst he was riding his bicycle, and then falling off the bicycle, as he claims."⁴

This reasoning was adopted to rationalise the absence of mention of a motor vehicle in other contemporaneous evidence including hospital records, a patient election form and council records.

This was consistent with the opinion of the plaintiff's engineering expert who opined that damage to the rear wheel and right hand end of the axle of the bicycle indicated that "the force of an impact must have been applied from behind."⁵

The primary judge accepted the plaintiff's evidence and concluded that on balance of probabilities the plaintiff's bicycle was struck from behind by an unidentified motor vehicle.⁶ The driver of the unidentified vehicle was found to be negligent.

The defendant appealed to the New South Wales Court of Appeal (Court of Appeal).

In the Court of Appeal, the defendant asserted that the primary judge had erroneously accepted conjecture from the plaintiff that he had been struck from behind.

The majority agreed that the primary judge's approach to the contemporaneous documents, which was to see whether they were inconsistent with or excluded the involvement of another motor vehicle, was an inappropriate way of treating the evidence.⁷

The only evidence the primary judge had in order to conclude whether the plaintiff had discharged the onus of demonstrating an unidentified vehicle was involved in the accident was a belief as to how the accident occurred, first recorded 12 hours later at hospital, and the opinion evidence of the plaintiff's qualified engineering expert. In opposition of this evidence was no mention, in any contemporaneous material, of a motor vehicle until 10 days after the accident, after the plaintiff had instructed a solicitor.

Davies J agreed and noted the importance of bearing in mind the plaintiff did not give evidence of what happened in the accident, but rather gave evidence of his belief about what happened.⁸

A number of authorities were cited discussing credibility including Camden v McKenzie,⁹ in which Keane JA made the observation that "the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation."

Davies J found that it was necessary for the primary judge to consider all of the evidence and to draw conclusions from it when viewed as a whole.¹⁰ His Honour went on to say that the primary judge had failed to do this, and instead accepted the plaintiff's evidence and explanation as to why he failed to mention the involvement of a motor vehicle in the contemporaneous evidence. His Honour noted that as in a criminal trial, the proper approach was for the primary judge 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.¹¹

Davies J and Emmett AJA (with Macfarlan JA dissenting) found in favour of the defendant. A new trial was ordered.

The primary judge minimised or dismissed the importance of the contemporaneous medical records, failing to have regard to history-taking and the significance placed on ascertaining how the accident occurred by multiple doctors.¹² He did not adequately consider whether the history obtained from the doctors at Princess Alexandra Hospital, which did not mention a motor vehicle, provided a reliable basis upon which to exclude the involvement of a motor vehicle.

In the words of Gaudron, Gummow and Hayne JJ in SRA v Earthline,¹³ the contemporaneous documents were matters to which weight was not given by the primary judge and "the substance of the matter is that there has not yet been a determination of the [plaintiff's] case upon a consideration of the real strength of the body of evidence …….presented." It is not enough that the contemporaneous evidence is independently considered. It must be assessed along with the other evidence.

Based upon this case, case managers should be aware of the weight given to contemporaneous evidence when a claimant later provides a version of events that is at variance with the contemporaneous evidence. All contemporaneous and later evidence should be considered as part of a whole body of material, and elements of evidence should not be extracted from the broader context furnished by the whole body of material.