The Nominal Defendant v Cordin

The trial

1. 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: "The truth is, the defendant says, that he [the respondent] was at all times telling all the doctors that were examining him, that he had hit a pothole, he had fallen off his bike, he had gone head first over the handlebars and sustained the readily identifiable injuries that they were then treating him for."
2. Senior counsel then said: "The next relevant date is that on 12 September, both Mr and Mrs Cordin saw a Lismore solicitor … At 2.15 that day, that afternoon, after having seen [the solicitor], they then went to the Lismore police station and speak to Constable Aaron Anquetil, and for the first time allege that he had been struck by a motor vehicle from behind, and the defendant says that it's not a mere coincidence that the story changed after seeing the solicitor on 12 September."
3. 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.
4. The following is an account of the evidence in the trial.
5. 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.
6. The respondent said that, before he reached the potholes: "I was shunted from behind, fell forward." He felt himself "propelled" forward. He had heard and seen nothing untoward and was not aware of any vehicles in the immediate vicinity.
7. 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".
8. 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: "…pretty concussed … he couldn't really talk too well … he was pretty out of it." He was moaning and groaning and "in a lot of pain".
9. 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: "I must have come off my bike." He thought the respondent was "very confused" and "appeared to be concussed" (although he hastened to add that he was not a doctor). He helped the respondent lie down in the back of Mr Bessbava's car.
10. 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.
11. 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: "Oh, mate, I just feel like I've been hit by a truck." He continued to "groan and moan", but did not say anything intelligible.
12. 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.
13. 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.
14. The appellant relied on documentary evidence of the ambulance service, the Lismore Base Hospital and the PAH. That evidence is as follows.

(i) Ambulance records

1. An electronic record maintained by the Ambulance Service of NSW, included: "Case nature bicycle collision, >> fall of [sic] bike post hitting a pot hole."
2. 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: "[The respondent] fell off his pushbike."
3. When questioned about the circumstances at the scene, Mr Hartley said that the respondent was lying in the tray of a "ute".
4. 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.
5. 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 top of the range where he's fully conscious and was telling me what was going on."

(ii) Hospital and medical records

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

(a) Lismore Base Hospital

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

• "Fall off from Push Bike";
• "Fall from Push bike at about 12 noon this afternoon";
• "States was wearing helmet and hemet [sic] has cracked open";
• "Says initially felt tingling in both legs and now it's gone";
• "12 months ago has Tumour in left mandible which was fixed in Gold Coast hospital";
• "States had bone Graft from the ? ilft ilac [sic] crest." …

1. The respondent was then examined by an orthopaedic consultant, who noted: "Fall from push bike dirty road struck pothole. Found unconscious … O/E [on examination] alert Orientated Obs [observations] stable GCS [Glasgow Coma Score] 15/15."
2. Later, the notes (made by a different doctor, possibly Dr Simone) continued: "Fall off push bike - LOC [loss of consciousness] unknown length of time … Found by a passerby On road falling off push-bike over handlebar wearing helmet."

(b) Air ambulance records

1. Air ambulance records state: "Case - PT CAME OFF MOUNTAIN BIKE. CT PT WITH COMPRESSION FRACTURES T6, 7, 8, FOR ONGOING SPINAL CARE. …" There is no indication of the source of this information.

(c) Princess Alexandra Hospital

1. 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: "Mechanism of injury: fall over handlebars of mountain bike. LOC unknown period of time."
2. Under "Details of Incident" the following appears: "54Y [symbol for male] mountain bike accident 12 today LOC. Helmet badly damage [sic]. Went over handlebars and landed onto his head and face with significant axial load. Suspected central cord syndrome. Tr [transfer] spinal [illegible] for MRI plus on going care."
3. The respondent was then examined by an orthopaedic registrar, Dr Lando. Dr Lando recorded: "Mountain bike accident at 12:00 today Fell over handlebars and Axial loading on helmet ?LOC Initially had some Tingling Bilaterally Hand C6-C8 NOW C/O pain both thumbs (?) - no more tingling resolved."
4. Later, the clinical notes record: "HPC: pt was riding mountain bike Fell over handlebars and onto head Axial loading on helmet ? LOC."
5. 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.
6. 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.
7. 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.
8. The significant question and answer in the Form is the following: "Is this hospital visit in relation to an injury arising out of a motor vehicle accident?" Angie Cordin inserted a cross in the box for "no".
9. 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.
10. In oral evidence she was asked why she had answered the question in that way. She said: "Because I knew my dad was on a push bike; he wasn't driving a motor vehicle."
11. 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".
12. 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: "I got hit. I got hit from behind by a car." Brenda Cordin gave evidence to the same effect.
13. 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: "Brenda Cordin - [address] called to report that Minyon falls road [sic] is in need of gravel maintenance and pothole filling. She advises that her husband was involved in a serious accident on the week-end on that road. He was riding a push bike and was found face down in a pot hole. Subsequently flown to Brisbane with head an [sic] spinal injury." As the appellant pointed out, there is no mention in that record of a motor vehicle.
14. 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: "Holes filled 10/9/12 Investigating further seems maybe wasn't holes at all that caused accident … Possibly an accident with another vehicle."
15. 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.
16. 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: (1) New MVA (2) Hit whilst riding his bike along Minyon Falls Rd (3) Reported to Police (4) Fractured vertebrae - unable to do anything for the next 6 months. (5) … Ms Middleton made an appointment for the respondent to see a solicitor the following day.
17. Finally, on 23 October 2012, both the respondent and Brenda Cordin made statements to police. The respondent's statement included the following: "7. About 10.40 am I left the Rummery Park turn off to return home and got about 50 metres passed the Minyon grass turn off, I was slowing down to negotiate some pot holes, I was standing up on my pedals and applying the brakes. 8. The next thing I remember is being in the back of a car, with a towel being held to my head … … 14. I believe my accident was caused by a motor vehicle hitting my back wheel on my bicycle, which has caused me to propel some distance forward and causing my severe injury."
18. 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.

Expert Evidence

1. 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.
2. 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": "A. Loss of control of the bicycle independently by Mr Cordin because of: (i) Excessive speed and/or; (ii) A roadway irregularity such as a pothole; B. Impact or interference from another Vehicle."
3. As to these, he commented: "3. Scenario A(i) initially appears plausible because the considerable downhill section of roadway leading up to the Accident location would enable the Bicycle to be accelerated to quite a high speed. However, if this was the case, I would normally expect loss of control to occur on a bend, rather than on a straight section. More significantly however, I would expect that the damage to the Bicycle would have been more extensive and different to that observed. Usually a loss of control at speed would lead to damage of components on the handlebars (twisted brake levers, significant scuffs and abrasions, torn grips) and the handlebars themselves, as well as to the saddle and other bicycle extremities - but this was not evident; 4. Similarly, Scenario A(ii) would generally result in a different damage pattern to that observed. I would expect that the front end of the Bicycle would have been damaged if the front wheel had hit a pot hole. If the Bicycle was jumped or 'bunny hopped' over a pot hole so that the front wheel cleared it but the back wheel made impact, then this could account for the buckle in the rear wheel. However, it would not account for the downward displacement of the rear axle on the right hand side because such an impact would force the wheel upwards. 5. A rear impact from a vehicle would most probably involve contact of the vehicle's bumper with the Bicycle's rear wheel. 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. For a sedan the height would be about 400 mm, for an SUV about 550 mm. If a bull bar was fitted, the contact point would probably be higher. I measured the height of the Bicycle's rear axle to be about 340 mm. The abnormal position of the rear axle I observed during my inspection was consistent with the wheel being contacted by a vehicle bumper. The bumper's higher position would exert a downwards force on the wheel and if the force was sufficient, the axle could be displaced downwards in the dropout opening (which was orientated about 14 degrees forward of vertical [Dr Carnavas then referred to a photograph]); 6. In my opinion, the most probable cause of the damage to the Bicycle and also the most probable cause of the Accident was a low (relative) speed rear impact of the Bicycle by a motor vehicle."
4. Dr Carnavas stated his conclusions as follows: "5. CONCLUSIONS 1. The significant damage to the Bicycle I observed during my inspection was limited to a substantial rear wheel buckle and the downwards displacement of the right hand side of the rear wheel axle; 2. As a result of this damage, the rear wheel was jammed on the right hand side brake pad and could not be rotated. Bicycle was unrideable; 3. The damage was consistent with the Bicycle having been hit from behind by a motor vehicle, and, in my opinion this was the most probable cause of the Accident."
5. 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: "…it is deduced that the incident could not have occurred in the manner subsequently described by MICHAEL CORDIN, because if his bike had been struck from the rear, it would have tended to have been accelerated forward relative to his riding position and the fundamental laws of physics meant that he would have fallen backwards onto the front or bonnet of the striking vehicle and then possibly slid off the vehicle as it braked, with initial contact with the roadway most likely being led by his lower limbs and buttocks. To fall forward off the bike onto the roadway, which his injury pattern clearly shows he did, then the bike needed to have stopped or suddenly slowed relative to the rider, so that the rider has then gone forward off the bike. This is what would occur if the wheels of the bike had struck potholes, and slowed and/or lost traction, so that the rider has then been propelled forward relatively to the bike until he has come into contact with the road surface. The rider's pattern of injuries, particularly of the upper facial impact with the road surface, and sprained wrists and grazed knees, is most consistent with being thrown forward onto the roadway. The forward motion he described, and his pattern of frontal injuries are not consistent with being struck from the rear by a motor vehicle."
6. Mr Griffiths restated his conclusions as follows: "By the reasoning processes set out in this report, such an incident would be contrary to the laws of physics, that is, the incident cannot have occurred in the manner described. By the reasoning processes set out in this report, it is deduced that of the two accounts of the event, rear impact from a vehicle in the manner described was not possible, and hence the most probable version was MICHAEL CORDIN'S earliest account of falling off the bike on a potholed section of a muddy and wet gravel road."
7. 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.
8. 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.
9. 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.
10. 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.
11. 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: "7. The video and [still] Images show that, in contradiction to Mr Griffiths' claims, a low speed motor vehicle impact to the rear of a bicycle MAY NOT: (a) Cause the cyclist to fall backwards; (b) Cause the cyclist to contact the motor vehicle behind; (c) Have caused the type of injury Mr Griffiths describes."
12. 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.
13. 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: "Q: When an object is struck from behind, applying Newtonian physics, what happens to that body? A: So, being specific, if a bicycle is hit from behind by a vehicle, then the initial movement of a person riding the bike would be to go rearwards. But the amount that he is displaced rearwards depends on the magnitude of the force by which he is struck from behind. If he is hit with great speed, then certainly he will be backwards onto the bonnet of the vehicle. If there is only a moderate force, [or] if we move further down the scale to a minor force, if you like, from contact with the vehicle, the cyclist could move backwards initially. But in the specific case we have here, we also have damage to the rear wheel and movement of the rear wheel such that it would, very soon after being contacted by the vehicle, the wheel itself would come into contact with the breaks [sic - brakes] on the bicycle. There was a significant sidewards or lateral displacement or deviation of the wheel on the bicycle. Now that would essentially lock the brakes up on the rear wheel, so to despite the initial movement of the rider backwards as a result of the contact by the vehicle, with the bicycle locking its brakes on the rear wheel, the cyclist would then move forward as a result of his bike effectively stopping beneath him. And there is an added effect here as well. If a vehicle is approaching a bicycle from behind, the action of the wheel of the bicycle contacting the bumper is such that that bumper can still act as a brake on the wheel. So again we have a number of forces occurring here in very quick succession and the dominant forces potentially are the braking of the rear wheel, which would result in the rider falling forward after, probably, an initial movement of the rider backwards with contact from the vehicle from behind."
14. Both experts gave oral evidence. Cross-examination of Dr Carnavas concluded as follows: "Q: The mechanism or the dynamic mechanism of this bike accident is equally consistent with the bike's striking a pothole and the forward momentum of the bike being suddenly reduced and the forward momentum of the rider continuing on and over the handlebars and landing on the road, it's equally consistent with that is it not? A: In terms of the dynamics of the fall, yes, you could see it either way."
15. But, in re-examination, he gave this evidence: "Q: Is it consistent with the damage you observed on inspection of the bike? A: No."
16. 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: "Q: I have asked you before, and perhaps in fairness I should ask you again, can you offer any explanation to her Honour as to why that does not appear in your statement? A: No. Q: No explanation at all? A: No. Q: The reason that it doesn't appear in your statement is because it didn't happen and that's the truth isn't it? A; No. Q: It didn't happen and that's why you didn't put in in your police statement. Why do you take so long to answer? A: I have answered the question. HER HONOUR: It's a different question. You've got to answer this question. A: Repeat the question, please. [SENIOR COUNSEL FOR THE APPELLANT]: Q: It's not in the police statement because it didn't happen. That's the truth? A: No, it happened. Q: You can't explain why it's not in the police statement? A: No. Q: I'm suggesting, so you are under no misapprehension, the reason that it's not there is because it didn't happen. A: No, it happened. Q: Don't you think it's about time that you started to tell the truth about this? [Senior counsel for the respondent objected on the grounds that the question was "badgering and unfair". Senior counsel for the appellant replied: "It's my understanding of my obligation under Browne v Dunn that I have to put clearly and unequivocally the statement of my case and this case is all about whether or not Mr Cordin is telling the truth."] … [SENIOR COUNSEL FOR THE APPELLANT]: Q: Conversation which you allege you had with your wife at the Princess Alexandra Hospital, I suggest to you, did not happen in the way in which you've described it? A: (no verbal reply). Q; You did not tell either you [sic] wife or your daughter that you had been struck by a motor vehicle? A: (no verbal reply) … A: To my recollection, yes, I spoke to my wife and daughter - I had the conversations. [SENIOR COUNSEL FOR THE APPELLANT]: Q: You know that the form that your wife signed contains a statement directly to the contrary of your proposition, don't you? A: Yes. [This was a reference to the Patient Election Form] Q: It's been put to you before, so you know that the written document directly contradicts your evidence. You understand that, don't you? A: Yes. Q: I want you to be clear about this: I'm putting to you that the reason that this written document does not contain reference to a motor vehicle accident is because it did not happen. Do you agree with that? A: No. Q: It did not happen and if it had been in the terms that you state your wife would have put it in the form. Isn't that so? A: My wife didn't fill out the form. … Q: I'm suggesting to you that the reason that nothing about the motor vehicle appears in that form is because it did not happen? A: No, it happened. Q: The reason that it was not described in that form was because you did not tell your wife that you have been hit from behind by a motor vehicle? A: No, I told my wife that I was - Q: And shortly after that conversation she went ahead and made the contact with Mr Davis at the Lismore City Council. That's the correct sequence, isn't it? A: Yes."
17. Cross-examination of the respondent's wife and daughter was to similar effect.
18. In written submissions provided on behalf of the appellant to the primary judge, the following appears: 3.18 It is not possible to think of a single reason why all the health professionals who tended to the Plaintiff and treated him, including the ambulance officer, the junior and senior registrars of the two hospitals, the orthopaedic consultant and the senior surgeons would dissemble, fabricate a history of him falling off his bicycle after hitting a pothole and incorporate that false history into their clinical notes, not include a reference to him being hit by a car and falsify their sworn evidence. But it is possible to think of thousands of reasons why the Plaintiff, his wife and daughter would do so. 3.19 Whether or not it is for financial gain or simply because the Plaintiff, his wife and daughter in recalling the events have tried to provide a rational explanation for what happened and in so doing assembled recollections collectively, nevertheless the result is that their belief is fluid, faulty and false.
19. There is nothing in the transcript to support the suggestion that the respondent accused any medical personnel of fabrication..

The appellant's written submissions at trial

1. 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: (i) Mr Hartley's evidence that the respondent had told him that his bicycle had struck a pothole should be accepted. The clinical findings, including, importantly, the Glasgow Coma Score, indicated that the respondent was conscious and capable of communicating, with no cognitive deficit; (ii) a negative inference should be drawn from the medical and ambulance records, all of which were, or could be supposed to have been, based on information provided by the respondent, but none of which recorded any mention of a motor vehicle. The same could be said of Brenda Cordin's later communication with the Lismore City Council, and her statement to police; (iii) there was inconsistency in the evidence given by the respondent in the first trial and that given by him in the second trial. In particular, in the first trial, the respondent said that he "believed" that he had been struck by a motor vehicle; (iv) Mr Bessbava, in his evidence, made no mention of any motor vehicle, and said that he had not seen one; (v) Dr Carnavas had conceded that the dynamics of the accident were equally consistent with the respondent having struck a pothole and having been struck from behind by a motor vehicle. (This submission overlooked or ignored the evidence given by Dr Carnavas in re-examination).
2. 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.

The primary judgment

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. The dispositive findings of fact of the primary judge were limited in number. They were:

• that the respondent felt a shunt or push to the rear of his bicycle prior to being propelled over the handlebars;
• that the respondent's belief that he was struck by a motor vehicle was rational because it was the most likely explanation for the shunt that he felt;
• (by clear implication) that the respondent's accident was caused by a motor vehicle striking the rear wheel of his bicycle;
• that the driver of the motor vehicle was in breach of his duty of care.

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

• (importantly, given the manner in which the defence was conducted) that the respondent did not invent his account of the unidentified motor vehicle with a view to obtaining compensation;
• that, at the scene of the accident, the respondent was confused and in pain, and did not tell Mr Hartley that he had struck a pothole;
• that Brenda Cordin telephoned Lismore police on 6 September and told them, (inter alia), that the respondent had been hit by a motor vehicle;
• that, at the PAH, the respondent told Brenda and Angie Cordin that he had been hit by a motor vehicle;
• that, on 6 September, Brenda Cordin contacted Mr Bessbava to ask whether he had seen a motor vehicle;
• that, on 11 September 2012, the respondent contacted a solicitor and told him that he had been hit by a motor vehicle;
• that Dr Carnavas' opinion was to be preferred to that of Mr Griffiths. She held that Ms Middleton's note, made on 11 September when the respondent contacted the solicitor: "…excludes the possibility that Mrs Cordin or [the respondent] changed their story after having spoken to [the solicitor]."

The appeal

1. 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: "…that's a finding which we're stuck with."
2. 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: 2.9 Further, it is well established that a cautious approach should be taken to the determination of negligence and factual issues where the Nominal Defendant is a party: Dimovski v GIO (NSW) (1995) 21 MVR 288. In Dimovski (at 291), the Court of Appeal noted that there may be 'circumstances where a judge may not be satisfied that an accident happened in the manner asserted by the plaintiff even though there is no contradictory evidence in the case'. Similar caution has been expressed in decisions in other jurisdictions of Australia: Hofer v Miller (1957) SASR 41; Freeman v Griffiths (1976) 13 SASR 494. 2.10 This is particularly so, where, as in this case there is conflicting evidence as to how the plaintiff's injuries occurred. In Dimovski v GIO (NSW) the Court of Appeal went on (at 291) to refer to Askarou v Nominal Defendant (NSW) (1989) 8 MVR 491, as an example of 'evidentiary material' which contradicts, in material respects, a plaintiff's version of an accident or the circumstances surrounding an accident'. … In dismissing the appeal, Clarke JA explained how this result was an example of the reasoning process necessary where the defendant is the Nominal Defendant whose inability to call evidence from witnesses to the accident requires the trial judge to evaluate the evidence with care."
3. 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.
4. Clarke JA, with whom Kirby P substantially agreed and Hope JA agreed, then said: "I should add that in this case there is a perfectly good explanation why the evidence of the plaintiff and her witnesses was not contradicted by other evidence. That explanation lies in the entity of the Nominal Defendant. As I pointed out, he represents, in a sense, the driver of an unidentified motor vehicle and the obvious consequence is there is usually no competing version available. The inability of the Nominal Defendant to call evidence from witnesses to the accident necessarily requires a trial judge to evaluate, with some care, the evidence which has been given in order to determine whether he can accept it. What occurred in this case was an example of that process."
5. 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: "I accept there may be circumstances where a judge may not be satisfied that an accident happened in the manner asserted by the plaintiff even though there is no contradictory evidence in the case. This has occurred in, for example, cases involving the Nominal Defendant (see Askarou v Nominal Defendant (NSW) (1989) 8 MVR 491) where there is evidentiary material which contradicts, in material respects, a plaintiff's version of an accident for the circumstances surrounding an accident. …"
6. 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.
7. Two decisions of the Supreme Court of South Australia were also cited. In Hofer v Miller [1957] SASR 41 the trial judge said: "Bearing these circumstances in mind, especially when, as here, the plaintiff calls no relevant witnesses other than her own husband, and when the Nominal Defendant is unable to call any evidence, I think that the duty of the Court is to approach the evidence with a critical mind, and to analyse it carefully, and if not satisfied that the injuries suffered were caused by the negligence of the unidentified driver to give judgment for the defendant." (at 43)
8. On appeal, Napier CJ (delivering the judgment of the Court) said: "Speaking generally, a claim under this subsection has to be prosecuted and heard upon an ex parte statement of the facts. This calls for a more cautious approach than in other cases, and the need for this caution is a fortiori where, as here, failure of the 'single unknown driver' to stop or report the accident can be attributed to his nescience." (at 51) That passage was cited with approval in Freeman v Griffiths (1976) 13 SASR 494 at 496.
9. 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.
10. 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.
11. In those circumstances the approach dictated by Fox v Percy and McDermott is to be followed. In McDermott the High Court said: "43 …But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony' or they are 'glaringly improbable' or 'contrary to compelling inferences'."
12. 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: "…accorded to the weight of lay and expert evidence and to the range of permissible inferences."
13. 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.
14. That is not entirely accurate. In his evidence in chief the respondent said: "I was shunted from behind, fell forward … propelled." That is not the language of reconstruction
15. The respondent's cross-examination is recorded in the following passage of transcript: "Q: You have a belief that you were struck by a motor vehicle; is that correct? A: I have a belief that I was shunted from behind and propelled through the air. Q: What is your belief - A: By a motor vehicle. Q: When did you form that belief? A: Possibly Prince Henry hospital. [The respondent corrected that to refer to the PAH] Q: What was the basis of your belief? A: Remembering what happened. Q: What was the basis of your belief? A: Remembering what had happened. Q: What was the basis of your belief? A: … Q: What facts formed the basis of your belief? A: Remembering what had happened. Q: What facts formed the basis of your belief? [Counsel for the respondent objected on the basis of repetition] HER HONOUR: Q: What is it about what happened that makes you recollect it was a motor vehicle? A: My recollection is that I was shunted from behind and propelled through the air getting ready to negotiate a nest of potholes, and when I woke up in the hospital, it was coming back to me of what happened, being the hospital in Brisbane. Q: There's nothing else other than the feeling of being shunted from behind and coming off your bicycle that makes you believe it was a car that was behind you and shunted you; is that it? A: Yes, and also of the precautions that I took leading up to the potholes, knowing that they were there, and standing on my pegs and braking down in the speed that was going and being shunted from behind to wind up in the condition that I was in, in the hospital. Thank you, your Honour. [SENIOR COUNSEL FOR THE APPELLANT]: Q: Is it possible that the shunt which caused you to fly through the air occurred because your bicycle wheel had hit a pot hole? A: The shunt occurred when I was preparing myself to negotiate the potholes. Q: I'm asking you is it possible that the shunt occurred when the wheel of the bicycle hit a pothole? A: No. Q: That's what you told the ambulance, wasn't it? A: I have no recollection of the conversation with the ambulance driver apart from my jaw." That also is not the language of reconstruction
16. 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 Notice of Appeal

1. 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 appellant's argument on the specific grounds of appeal

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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).
7. 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.

Consideration

1. The appellant contended that this Court is in as good a position as the trial judge: "…in seeing and construing the body of evidence which constitutes the contemporary materials and the apparent logic of events." This may be taken to be an invitation to exercise the powers of the District Court, as permitted by s 75A(6) of the Supreme Court Act. As is clear from the decisions of the High Court in Fox v Percy and McDermott, those powers are not unrestricted.
2. 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.
3. Both parties then called in aid to support their cases various aspects of the evidence.
4. 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: "The central question for determination by the trial judge was the reliability and therefore the reasonableness of [the respondent's] belief that he had been struck and pushed by a motor vehicle."
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.

The expert evidence

1. 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.
2. Both experts inspected the respondent's bicycle. Their physical observations were not dissimilar. Dr Carnavas observed: "...The rear wheel had a significant buckle and the right hand end of the axle had been displaced downwards in the drop out opening." Mr Griffiths observed: "the only relevant damage that this author observed to the bike was some lateral (not radial) eccentricity of less than 10 mm off the rear wheel. That is, when the rear wheel was spun, it had some left/right lateral (not radial) movement relative to the brake callipers." He saw no visible damage to the rim.
3. 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.
4. 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.
5. 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: "The first account of the event I was supplied with is from the Ambulance report. The Ambulance officers recorded that MICHAEL CORDIN encountered potholes and fell off his bike. Based on my years of on-scene attendance at crashes with Ambulance staff, my deduction is that this description will be based on what MICHAEL CORDIN told the ambulance officers. Because our research team worked with the Ambulance Service to compile a profile of likely injuries from different kinds of crashes, I have a first-hand awareness that the primary purpose of Ambulance officers taking a 'history' is to assist the diagnosis and identification of likely injuries."
6. 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: "This is an incident where there was only one witness that being the injured road user, in this case, the pedal cycle rider, MICHAEL CORDIN. … At some later date he reported that his vehicle had been struck from the rear, causing him to be thrown forward onto the road surface."
7. He also took into account statements of witnesses. He said: "Based on my opportunity to compare people's recollections against robust physical evidence, I have found that generally a person's earliest, that is, most contemporaneous, account of an event is likely to be the most accurate. Based on my on-scene crash investigation experience, the earliest statements of participants in or witnesses to an event should be given much greater weight than later statements."
8. 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: "… whilst there is nothing in the transcript of the evidence … to cause me to change my views as expressed in my previous reports, it did provide more robust substantiation of my experience that histories taken by Ambulance officers are remarkably consistent with deductions reached from review of physical evidence gathered in-depth studies conducted for the purposes of research."
9. 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.

Ground 11: The Indemnity Costs Order

1. The final ground of appeal challenged the order that the respondent's costs be, in part, assessed on an indemnity basis.
2. 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.
3. 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: 42.14 Where offer not accepted and judgment no less favourable to plaintiff (1) This rule applies if the offer is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer. (2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim: (a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and (b) assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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).
9. 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.
10. 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.
11. These arguments were not repeated on appeal.
12. 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.
13. The appellant's submissions on appeal included: "4.2 The purpose of the indemnity costs rule is to require litigants realistically to consider and to weigh bona fide the prospects of success of the litigation. That assessment requires them to have regard to the relevant issues which are to be tried and whether there is probative and plausible evidence in support of the case which that party wishes to prosecute. 4.3 The ultimate test for determination of an indemnity costs order is: was the conduct of the party reasonable? It is for this reason that the court has a wide discretion in the order for costs which can be made."
14. 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.
15. 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.

Consideration

1. 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: "But the ordinary provision is expected to apply in the ordinary case. It has added a new duty to the functions of legal practitioners advising litigants. It is a duty which is both protective of the interests of litigants and of the public interest in the prompt and economical disposal of litigation. It is the duty of courts, allowing for exceptions in particular cases, to give effect to the purpose of the rule. …"
2. 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.
3. 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.
4. 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: "It is impossible exhaustively to state the circumstances in which a discretion to contrary effect might be exercised, and it would imprudent to attempt any such exhaustive statement. However, I do not read Maitland Hospital v Fisher [No 2] as authority for the proposition that a discretion should be exercised against making an order for indemnity costs in any case in which it was reasonable for the defendant to take the view that it had a good chance of successfully defending the action. The prima facie consequence, which will apply in the ordinary case, is that in the circumstances postulated by the rule an order for indemnity costs will be made."
5. The appellant has advanced no arguable basis for setting aside the order of the primary judge. I would reject ground 11 of the appeal.
6. The orders I propose are:
7. Appeal dismissed;
8. The appellant to pay the respondent's costs of the appeal.

Endnotes

1. See at [96] below.
2. Primary Judgment at [349].
3. Referred to in the Primary Judgment at [107].
4. Referred to in the Primary Judgment at [95]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2019