In this successful appeal by the Nominal Defendant, contemporaneous evidence regarding the circumstances of the accident were not considered as a whole.


The plaintiff was riding his mountain bike on a part of dirt road where he knew a large patch of potholes were ahead of him when he fell and suffered severe injuries. He gave evidence that he was “shunted from behind” by a motor vehicle (the details of the vehicle and driver could not be obtained), causing him to fall forward from his bike. The plaintiff commenced proceedings against the Nominal Defendant (ND) pursuant to section 34 of the Motor Accidents Compensation Act 1999 (NSW).

The ND argued that the plaintiff was contributory negligent and his evidence regarding the motor vehicle should be rejected. The trial judge rejected this and accepted the plaintiff’s evidence giving judgment in his favour. The ND contented in the appeal that the trial judge’s findings should be set aside because the requirement for appellate intervention as stated in Fox v Percy (2003) 214 CLR 118 was satisfied.


Judgment for the ND - appeal allowed, judgment of trial judge set aside and new trial ordered.


The majority’s decision in allowing the appeal hinged on the following:

  1. The trial judge improperly minimised or dismissed the importance of contemporaneous documents. Specifically, the evidence of two doctors from the Princess Alexandra Hospital and the significance they placed on ascertaining how the accident occurred. When gathering this information, the plaintiff made no mention of a motor vehicle. Whilst the plaintiff was in hospital, his daughter completed a Patient Election Form which asked whether the hospital visit was in relation to an injury arising out of a motor vehicle accident. The questioned was answered “no” and the daughter was not called to give evidence. The trial judge failed to attach significance to the daughter’s absence from the witness box. The above resulted in improperly minimising or dismissing the importance of contemporaneous documents.
  2. The trial judge’s approach to the contemporaneous documents resulted in either a reversal of the onus on the plaintiff to demonstrate the involvement of a motor vehicle, or was an inappropriate treatment of the material.
  3. Given the above, there had not been a consideration of the real strength of the evidence.

The majority found the trial judge considered the evidence in some detail but did so by considering each piece of evidence individually and in isolation. Given the case was circumstantial, as per Fox v Percy, the trial judge ought to have considered the evidence as a whole and draw conclusions accordingly.