The importance of contemporaneous records - Nominal Defendant v Cordin [2017] NSWCA 6

Facts

At about 11:00am on 2 September 2012, Mr Michael Cordin (Cordin), 54, fell from his mountain bicycle when riding it in the Nightcap National Park, north of Lismore in New South Wales. He suffered severe injuries, including to his head.

Cordin knew the dirt road well. He had come down a steep part to where it levelled off and was aware that there was a large patch of potholes on the road ahead of him. He gave evidence that he believed that he was “shunted from behind” by a motor vehicle, causing him to fall forward from his bike. Cordin did not explicitly remember having been struck by a motor vehicle, as his memory of the event was “very hazy”. Rather, he formed the belief that that was what happened based on his experience mountain bike riding and the nature of the injuries he sustained.

No-one witnessed the accident but two motor vehicle drivers arrived at the scene soon after it occurred. Cordin’s wife arrived shortly after. Cordin was treated by paramedics at the scene and then transported to Lismore Base Hospital. That night he was taken by air ambulance to Princess Alexandra Hospital in Brisbane.

The motor vehicle that Cordin believed to have hit him was not able to be identified, so Cordin commenced proceedings in the District Court of NSW against the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW).

Mr Cordin’s proceedings were heard by Levy DCJ over five days. The Nominal Defendant contended that the Court should reject Cordin’s evidence that his accident resulted from a push from behind by a motor vehicle. On 26 February 2016, the trial judge delivered judgment accepting Cordin’s evidence and directing judgment in his favour.

On appeal, the Nominal Defendant contended that the contemporaneous records contradicted the trial judge’s conclusion that a motor vehicle was involved in the accident.

Contemporaneous records

The contemporaneous records described the incident as follows:

• Ambulance records: “Herewith male pt, who has fallen off his push bike this a.m”.
  
  
• Lismore Base Hospital records: “Fall from Push bike at about 12 noon this afternoon”.
  
  
• Air ambulance records: “54y [symbol for male] came off push bike”.
  
  
• Princess Alexandra Hospital records: “Went over handle bars + landed onto his head + face with significant axial load”.
  
  
• Patient election form: in response to the question whether the visit to the hospital arose out of a motor vehicle accident, Cordin’s daughter marked the ‘No’ box. The form was completed by Cordin’s daughter and signed by Cordin’s wife.

All of the above records were created on the day of the subject incident. The following further records were also tendered at the hearing:

• 6 September 2016: Cordin’s wife telephoned Lismore City Council and reported that the road where Cordin’s accident had occurred was in need of maintenance. The Council’s records state: “Was riding a pushbike and was found face down in a pothole”.
  
  
• 12 September 2016: An entry in the Computerised Operational Policing System (COPS) stated: “The rider applied his brakes in order to slow down, and avoid the pot holes. Without warning, the rider was struck from behind by an unknown vehicle”. This was the first written notation mentioning the involvement of a motor vehicle.

Oral evidence was called from the Senior Registrar of Princess Alexandra Hospital, Dr Welgama. Dr Welgama did not have any independent recollection of treating Cordin, but gave evidence as to his usual practice. He stated that he routinely asked very open questions, such as “What happened to you?” He gave evidence that if Cordin had reported having been struck by a motor vehicle, he would certainly have recorded that. The trial judge ignored this evidence, instead finding that reliance on the hospital records was “problematic” as the nature of the questions asked by the hospital was “not known”.

There was no evidence to establish where the information contained in the air ambulance records came from, therefore His Honour Davies J found those records to be “not of much significance”.

Cordin’s daughter was not called to give evidence in relation to the patient election form. His Honour Davies J opined that there was the need for an explanation as to why the form was completed in the way it was, and that the failure to call Cordin’s daughter could have led to a Jones v Dunkel.

Issues

The central question for determination on appeal was the reliability of the plaintiff’s belief that he had been struck from behind by a motor vehicle when compared with the contemporaneous records.

His Honour Davies J considered numerous authorities addressing the fallibility of human memory. Citing Hallen J in Evans and Braddock [2015] NSWSC 249 at [74], he noted that greater weight is usually accorded to contemporaneous or near-contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts.

His Honour noted that in the current matter, there was a great deal of contemporaneous evidence that assisted in the task of ascertaining what had happened. He noted that the trial judge had considered this evidence in detail, but had approached the evidence with the assumption that the events later asserted by Cordin (i.e. that he was hit from behind) had occurred. The trial judge considered each piece of contemporaneous evidence individually in order to determine whether it contradicted or was inconsistent with Cordin’s account, and then provided reasons why at particular times that explanation was not proffered by Cordin (for example, that he was in too much pain or that he was not asked a particular question).

His Honour stated that the correct approach was 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. He further noted that the trial judge’s approach essentially reversed the onus of proof, that is, the trial judge put the onus on the Nominal Defendant to demonstrate that the contemporaneous documents proved that Cordin was not struck by a motor vehicle.

Judgment

His Honour opined that the trial judge’s failure to give proper weight to the contemporaneous documents meant that there had not been a determination of Cordin’s case upon a consideration of the real strength of the body of evidence presented.

His Honour Davies J (Emmett AJA agreeing) upheld the appeal and ordered a retrial. Macfarlan JA dissented.

Implications

For potential defendants, this decision demonstrates the importance of keeping proper contemporaneous records. Further, it confirms the importance of not only having those records, but of the system around the creation of those records.

When considering contemporaneous records, the court will consider the reason those records were created, who they were created by, and what that person’s motivations were in creating the record. Contemporaneous incident reports should clearly state the relevant facts, but should not allow speculation to creep in. Staff members should be trained to ask open questions and allow injured parties to put forward their version of events, so that there can be no challenge that by failing to ask a specific question, a would-be claimant was denied the opportunity to include relevant information. Incident reports should clearly state who they were created by, and record what information was provided by whom. For example, as noted above, the air ambulance records were essentially rendered useless for the purpose of this litigation as it could not be established where the information contained therein came from.

Furthermore, this case emphasises the importance of contemporaneous records being created in a timely manner. Cordin’s failure to document the involvement of a motor vehicle until 10 days after the accident led to serious attacks on his credibility. Similarly, a notation created several days after an incident occurs recording, for example, the cleanliness or maintenance of a specific area at that time will inevitably be given much less weight than a record created moments after the incident occurred.

Finally, this case emphasises the need for the evidence to be considered as a whole. Any one of the contemporaneous records in this case, taken individually, could be explained away or reconciled with Cordin’s version of events. Only once the evidence was looked at as a whole was the Court able to draw conclusions as to the involvement or otherwise of a motor vehicle.