CONCLUSION
202The circumstances surrounding the incident of which the respondent complained were highly unusual. On his case he was knocked unconscious at about 5.00am in a station car park. He lay in the car park, he says between two parked cars, but in a position where he was visible to passers-by, for approximately four hours - first becoming aware of where he was at about 9.00am. The incident occurred on a Tuesday - a working day. As far as the respondent was aware, no one came to his assistance during the four-hour period he lay in the car park.
203When he regained awareness of his surroundings, he had trouble standing up and had a massive headache. On the evidence he gave at trial, he could remember that, prior to losing awareness, he had heard a car "rev" and seen headlights. After regaining awareness, he first sat in his car for about an hour then drove home. He did not report the incident to station authorities or, indeed, make any inquiries of any person at the station to see whether his presence had been reported. When he got home he told his wife he thought he had "been in an accident". He did not report the incident to the police the same day. He did not go to a doctor the same day. His wife did, apparently, call Hungry Jacks that day to explain why he would not be at work. Her message was recorded as advice that he had been "hit by a vehicle while crossing [a] road".
204On any common sense view of the ordinary affairs of the community, this concatenation of events was highly unusual. One would expect that members of the public would attend to a person so struck down in a public place. At the very least one would expect that the "victim", injured, apparently, in an accident would report his or her injury immediately to the relevant authorities.
205Further, the injuries the respondent said he suffered in the accident were unusual, at the very least, if said to result from him being hit from behind by a car. The most unusual aspect of his injury was the lump on the top of his head as well as the bruising on the back of his neck. The respondent and his wife both said he had an injury at the top or back of his head.
206In my view Dr Tablante did not explain how that head injury could be consistent with the mechanism of the injury in a motor vehicle accident he sought to advance. Rather, when confronted with the proposition that the respondent said he had a lump or swelling at the back of his head, Dr Tablante changed the subject to focus on the bruising at the back of the respondent's legs: (see [199] above). As the reports of the respondent's injuries I have recounted (at [194]) make plain, the contemporaneous records were that the injury to his head was on the top. Dr Tablante's evidence was that he had "swelling on the top of his head": (see [33] above).
207The primary judge (at [78]) recorded Dr Tablante as having "noted that the plaintiff had a lump on the side of the head at the back". That evidence was given in the course of Dr Tablante trying to explain how the respondent's head injury could be consistent with him falling forward after being struck from behind as the bruising to his legs, on Dr Tablante's evidence, indicated he had. As the transcript of that exchange demonstrates (see [199]) Dr Tablante was "imagin[ing]" a scenario. That imagined scenario was inconsistent with the respondent's and his wife's account of his injury. The contemporaneous histories obtained by medical practitioners were consistent with their evidence. The primary judge did not explain how, on that evidence, the respondent's injuries were consistent with being struck from behind by a car.
208Dr Tablante did accept that the injury to the respondent's head could result from being hit by a blunt object. Professor Spira said that the wound at the back of the respondent's head was difficult to explain and, as the respondent described it to him, would require "a direct blow". He rejected the primary judge's "imagining" of "a fall and a roll" as a possible explanation for its cause: (see [102] above). Dr Tablante and Professor Spira's evidence as to the mechanism of the respondent's injury could not stand together. It required resolution. The primary judge did not address it at all.
209Next, it will be recalled that, despite the evidence he gave at trial concerning the sound of the motor and the headlights, when the respondent first consulted Dr Tablante, he informed him that while he was "hit at Holsworthy station from behind" he had "no recollection of the incident". In the light of that record the respondent's account of having heard a car (which appears first to have emerged in any written report on 5 June 2001 when he made a motor accident claim), as well as his account that he could recall seeing (head)lights, an account which first appeared in his "Employee's Report of Injury on the Journal Claim" dated 17 September 2000, demanded close scrutiny. This was particularly so in the light of Professor Spira's evidence and the adverse credit findings against him, to which I will come shortly.
210The appellant sought to contest the respondent's evidence that he could recall hearing a car "rev" and seeing (head)lights immediately before next becoming aware of his surroundings at about 9.00am by relying on Professor Spira's evidence that the respondent would have suffered from retrograde amnesia arising from having lost consciousness as a result of the incident. The respondent's written submissions at trial accepted that he was "unconscious for a period of time". They did not deal with the retrograde amnesia issue. In oral submissions, the respondent's counsel suggested Professor Spira's evidence was "not very helpful", but appeared not to have come to grips with its essence - seeking to ridicule it by suggesting that Professor Spira was postulating that the respondent would have suffered amnesia for "a couple of hours ... before he was hit" - rather than grappling with the proposition that the evidence went to whether or not the respondent could have recalled hearing a car and seeing headlights before being struck. Significantly, however, the respondent's counsel did not take issue with the proposition that the respondent was unconscious after being struck - merely suggesting "different estimates of time" had been given and that it was not a case "where any precision can be visited".
211In dealing with Professor Spira's evidence, the primary judge, erroneously in my view, stated that there was an issue whether the respondent lost consciousness after being struck. As the appellant submits, there was no such issue, only a debate as to the period the respondent was unconscious.
212In addition, his Honour erroneously stated (at [332]) that Professor Spira's views were based on "an assumption that there was a prolonged period of unconsciousness ... which would have been accompanied by a significant period of retrograde amnesia". That was initially Professor Spira's position based on what the respondent told Professor Spira on 16 May 2007 about the period he was unaware of his surroundings - approximately 5.00am until approximately 9.00am. That statement was consistent with the evidence the respondent gave at trial: (see [185] above). The possibility of a shorter period of unconsciousness emerged at the trial, apparently in response to Dr Tablante's evidence. Insofar as a shorter period of unconsciousness was concerned, Professor Spira said "unconsciousness of minutes can see minutes of retrograde amnesia": (see [189] above).
213On Professor Spira's evidence, even if the respondent had suffered the few minutes of loss of consciousness, as Dr Tablante had accepted as a possibility in cross-examination, the respondent would have suffered "a few minutes of retrograde amnesia". Professor Spira also gave an illustration in cross-examination (see [190]) of a footballer knocked unconscious for five minutes by a tackle not being able to recall the tackle which led to the injury - an illustration advanced, as I understand his evidence, to demonstrate the nature of retrograde amnesia.
214On the history the respondent gave Professor Spira, the last observations he made were within two or three seconds of being hit which would, on my understanding of the Professor's evidence, be a memory the respondent could not have had consistently with the retrograde amnesia theory. Accordingly, it was improbable on the appellant's case that it could rationally be inferred that the sounds the respondent contended he heard and the (head)lights he said he saw were connected with his accident, as opposed, for example, to being typical observations in a car park, presumably made prior to the onset of retrograde amnesia.
215The primary judge rejected Professor Spira's view in part because he preferred Dr Tablante's view that "there was probably only a very brief period of unconsciousness": see primary judgment (at [332]). As will be apparent from the foregoing on Professor Spira's evidence, even the few minutes of unconsciousness of which Dr Tablante spoke would have led to a few minutes of retrograde amnesia - a matter to which the primary judge referred (at [385]).
216Next, the primary judge on this occasion (at [380]) doubted the respondent's evidence that he was unconscious for the period from when he was hit to when he became aware of his surroundings at about 9.00am, because of "uncertainty over the reliability of the plaintiff's evidence as to his recollection at trial, of earlier events that have long passed". It is appropriate to observe, at this stage, that this was not a doubt his Honour applied to the respondent's professed recollection of observations of sounds and lights prior to being struck.
217Further, while the primary judge repeatedly reminded himself (see [85], [218], [379]) of authorities which injunct judges not to substitute their opinion of medical issues for the evidence: Strinic v Singh and Sretenovic v Reed, notwithstanding those reminders, his Honour, in my view deployed Professor Spira's evidence, given in response to his Honour's questions, about the adrenaline effect in a manner Professor Spira had expressly eschewed: (see [190] above).
218The primary judge concluded (at [387] - [388]) that the respondent suffered "a very brief loss of consciousness, which in combination with the adrenalin [sic] effect, explains why the plaintiff has a gap in his memory". It is difficult to understand how his Honour could reach that conclusion on the evidence. It flew in the face of the respondent's evidence that he was unconscious for about four hours. Even allowing for some approximation in the respondent's assessment of time, it seems to have been accepted on both sides that he was going to catch the 5.00am train, and did not return home until about 10.00am. On his evidence that "lost" 5 hours was explained by the lengthy period of unconsciousness, then sitting in his car then driving home. It is difficult to see how the respondent could have misinterpreted the four-hour period. He, at least, thought he was unconscious, for the "very brief loss of consciousness" the primary judge found (at [387] - [388]) he had suffered. If, as his Honour found, he suffered only a "very brief loss of consciousness", another explanation was required for what was happening in the remainder of that period. The evidence did not suggest any answer to that conundrum.
219Further, the primary judge's conclusion on this issue did not engage with Professor Spira's evidence. His Honour did not deal with Professor Spira's evidence which he had set out (at [385]) that retrograde amnesia would follow minutes of unconsciousness. Rather, he appears to have reached his conclusion by rejecting the respondent's, Dr Tablante's and Professor Spira's evidence about the period of unconsciousness as well as by relying on the adrenaline effect which Professor Spira had said was not relevantly operative. In my view it was not open to his Honour to develop this theory in the face of Professor Spira's evidence and in the absence of any expert evidence to support it.
220I turn to the respondent's evidence. As is apparent from the reports of the incident I have set out, over the period of three or so years after the incident reports of what happened varied. The first report to Hungry Jacks on the day of the accident was that the respondent had been hit "while crossing [a] road". Thereafter reports varied from the respondent having no recollection of the incident as recounted to Dr Tablante on 6 September and "think[ing]" (in a manner connoting uncertainty) he was hit by a car (5 June 2001 claim form; see also Dr O'Neill, 20 January 2003) to him saying he could recall hearing a car (17 September 2000) and seeing lights (February 2002). Dr Tablante queried early in the piece whether the respondent had been assaulted - which at least reflected Mrs McLennan's evidence about the couple's early doubts about what had happened. The respondent, too, at some stage wondered whether he had been assaulted, as communicated to Dr Ellis as late as October 2005 - a belief the primary judge (at [117]) rejected as speculation.
221The uncertainty as to what had happened to the respondent, particularly when seen in the context of the primary judge's adverse credit findings made it essential to assess the rest of his evidence in the manner Handley JA indicated in Malco Engineering v Ferreira. This was not a case, like Malco Engineering v Ferreira, where the primary judge had concluded the respondent had committed perjury in the course of the proceedings. Nevertheless he had made significant findings that the respondent had engaged in "patently untrue" conduct (at [225]); had been prepared to conceal relevant information in order to try and secure an advantage (at [240]); had been actively involved in concealing $30,000 received as workers compensation payments from the Department of Housing (at [265] - [266]); had similarly failed to disclose workers compensation payments to the Commissioner of Taxation in a manner constituting a "lack of probity" (at [267] - [269]); and had concealed the fact he was working from Dr Tablante when asking the latter to prepare unfitness to work certificates for the purpose of claiming workers compensation payments (at [381]), conduct the primary judge rather mildly characterised as "discreditable" (at [397]).
222In finding in the respondent's favour that he was injured in the manner he claimed in the proceedings, his Honour first relied on Dr Tablante's evidence which in his view supported the motor vehicle collision theory. I have already dealt with this aspect of the evidence when discussing the mechanism of injury theory. In my view Dr Tablante's evidence did not explain the head injury the respondent suffered which was a critical failing. Both Dr Tablante and Professor Spira said the head injury was consistent with being struck by a blunt object. The primary judge did not explain how the respondent could have suffered an injury to either the top or back of his head in the forward fall he found (at [320]) had occurred. His statement that the respondent had both struck his chest (where Dr Tablante had observed bruising on 6 September 2000) and struck his head was not, in my view, supported by the evidence. It entailed an inconsistency which had to be resolved.
223Next, the primary judge's conclusion that Dr Tablante had rejected the assault theory based on his experience treating assault victims in hospital that he would expect an assault to have been to the upper part of the body, did not take into account the fact that the respondent did have an upper body injury to his head or Dr Tablante's evidence that, in substance, it was his experience that assailants sometimes kicked a man when he was down.
224It is difficult, in my view, to see how Mrs McLennan's observations of the respondent's appearance when he returned home advanced matters. She observed substantially the same injuries Dr Tablante observed, though each appeared to have a different recollection as to the position of the bruising on the lower limbs.
225The other evidence the primary judge considered (at [324] ff) supported the respondent's version that there were three "early" consistent accounts that he believed he was struck by a motor vehicle. Each of those documents was prepared by the respondent as part of his claim either for workers compensation benefits or for damages arising from the 5 September 2000 incident. Each was prepared contemporaneously with the respondent's preparation of other documents the primary judge had found contained deliberate lies for the purpose of securing financial advantage. His Honour's reasons did not expose why the accounts in those documents were not tainted by the adverse credit findings. Indeed, his Honour appears to have quarantined those findings from affecting these documents in the manner Handley JA criticised in Malco Engineering v Ferreira. It is not possible to discern from his Honour's reasons the careful assessment called for in the circumstances of a case which depended substantially for its success on acceptance of the respondent's version of events.
226Further, in my view, as in Brown v Harding, the primary judge's conclusion that the respondent had, in substance, lied on many occasions over a period which spanned 12 or so years, including the period of the incident, to secure financial advantage, was in conflict with his conclusion (at [324]) that the respondent's "early" consistent accounts of the incident were "credible and supportive of the inference that he was struck by a vehicle". The respondent's propensity to lie about such matters had to be taken into account in determining why the three documents the primary judge relied upon should be accepted. Merely to say the documents were "early" and "consistent" begged the question as to whether they were any more credible than the documents in respect of which the respondent had been found to have engaged in deceptive conduct. In my view the appellant has established that the primary judge failed to use or palpably misused his advantage as a trial judge in finding in the respondent's favour.
227It is not possible for this Court to resolve the issue of liability which must turn on the extent to which the appellant's evidence can be accepted. There were also credit issues relating to both Mrs McLennan and Dr Tablante which the appellant advanced at trial - none of which can be resolved by this Court. It is not appropriate to determine the other issues which will also turn on the findings at the new trial as to how the respondent was injured.
228I would comment, however, that it is not apparent why, should it be found at a new trial, that the respondent was of the view around the time he was injured that he may have been assaulted - even by use of a vehicle, that he was not required to inform the police of that view in order to discharge his due search and inquiry burden under s 34 of the MAC Act. Contrary to the primary judge's conclusion (at [366] - [367]) it is not apparent that such a notification would have been futile. The respondent was able to identify those who had threatened him. An inquiry may not as the respondent submitted, have elicited a confession, but it may have led to the identification of a vehicle exhibiting signs of having struck the respondent. However, much will depend upon how the evidence on this issue emerges at trial. It is not possible to resolve it at this stage.