The Nominal Defendant v Cordin  NSWCA 6
The respondent was riding his bicycle on a dirt road in Lismore, New South Wales on 2 September 2012 when he fell and suffered severe injuries. He was familiar with the road. It had lots of potholes. He alleged that he was “shunted from behind” by a motor vehicle. He was unable to identify the vehicle. There were no witnesses to the accident. The respondent commenced proceedings against the Nominal Defendant pursuant to Section 34 of the Motor Accidents Compensation Act 1999 (NSW).
The proceedings were heard before Levy DCJ. His Honour found the presence of the unidentified vehicle, that it caused the injuries to the respondent, that the vehicle was not capable of identification and entered a verdict for $350,000 (being the amount of damages agreed by the parties). His Honour found no contributory negligence.
The Nominal Defendant appealed. A verdict was sought in its favour based upon his Honour’s impermissible factual findings in the face of contemporaneous records, inconsistent with Fox v Percy (2003) 214 CLR 118;  HCA 22.
Was his Honour entitled to make factual determinations that were not supported and/or contradicted by contemporaneous materials.
Davies J (with whom Emmett AJA agreed, Macfarlan JA dissenting) upheld the Appeal, set aside the judgment and ordered a new trial. His Honour, at paragraphs  –  stated:
“The approach taken by the trial judge was to examine each aspect of the evidence separately and to consider if that evidence contradicted or cast doubt on what the trial judge described as Mr Cordin’s account of the accident and Mr Cordin’s evidence on factual matters: Cordin v the Nominal Defendant  NSWDC 12 at -, , [437-457] and -.
It is important to bear in mind, however, that Mr Cordin did not give evidence of what happened in the accident but of his belief about what happened. Mr Cordin did not see nor did he hear the motor vehicle which he said he believed hit him from behind. His memory of what happened was “very hazy”.”
His Honour also stated, at paragraph 
“One reason that contemporaneous statements and documents are likely to be more accurate than a recollection of events is that a statement made at the time of an event, particularly when relatively spontaneous, is likely to be more accurate than a later statement made at a time when false memories can intrude. In a minority of cases the false memories are deliberately so because of the contrivance of the maker of the statement. In the majority of cases the false memories are honestly believed either for the reasons such as those outlined by Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Limited  EWHC 3560 (Comm) or because the person recalling the events has tried to assemble recollections logically so that what happened can have some rational explanation in the person’s mind. As Leggatt J noted at  memories are fluid and malleable, being constantly rewritten whenever they are retrieved.”
Davies J noted that there was no reference to a motor vehicle in the ambulance records, hospital notes or a complaint to the council concerning the potholes. In addition, a hospital “Patient Election Form”, purportedly completed by the respondent’s daughter (who did not give evidence) and signed by the respondent’s wife, indicated that there was no motor vehicle involved in the incident. Evidence given by a treating doctor confirmed that the respondent did not mention a motor vehicle whilst being examined in hospital.
It was not until 12 September 2012, 10 days after the accident, that the respondent’s wife reported the incident to the Police and stated that there had been the involvement of an unidentified vehicle. The respondent provided a statement to Police on 23 September 2012 corroborating the involvement of a motor vehicle, although made no reference to being “shunted from behind”.
Davies J reflected that the onus was on the respondent to demonstrate that the accident was caused due to the negligence of another person. He had not seen nor did he hear a vehicle, but there were undoubtedly cars in the vicinity at that time of day. He criticised Levy DCJ in that he reversed the onus by analysing each document to determine whether it proved that the respondent was not struck by a motor vehicle , whilst on the other hand repeating that the onus was on the respondent to prove that there was a motor vehicle. The Court of Appeal considered that the trial judge sought to nullify all of the pieces of contemporaneous evidence  rather than balance the evidence.
Macfarlan JA considered that the trial judge’s decision, which was based on the evidence before him, was not so unreasonable as to be disturbed.
This case reaffirms Fox v Percy and the importance of contemporaneous records.
Contemporaneous versions should be preferred over later versions, or even expert opinion, for numerous reasons as outlined by Davies J.