Buggy v The Nominal Defendant - [2014] NSWDC 224

District Court

New South Wales

Medium Neutral Citation: Buggy v The Nominal Defendant [2014] NSWDC 224
Hearing dates: 3, 4 and 5 November 2014
Decision date: 28 November 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the defendant.
(2) Plaintiff pay defendant's costs.
(3) Liberty to apply in relation to costs.

Catchwords: TORT - personal injury - plaintiff brings proceedings against Nominal Defendant for injuries incurred while avoiding a collision with an unknown vehicle - plaintiff illegally riding trail bike on the roadway at the time of the alleged accident - plaintiff describes an accident involving her trail bike and her boyfriend's trail bike, in different circumstances to those described to medico-legal experts, to hospitals and medical practitioners following the accident - plaintiff's evidence as to when she informed police of the accident challenged - reconciling different versions by a plaintiff of an accident - reliability of statements made to health professionals when the plaintiff was seriously injured - role of corroborative evidence - role of credit findings - discharging the burden of proof in proceedings against the Nominal Defendant - whether the defendant could raise due inquiry and search at the trial despite failing to object formally within the time frame set out in 34 and 34A Motor Accidents Compensation Act 1999 (NSW) - contributory negligence - damages
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 34 and 34A
Cases Cited: Askarou v Nominal Defendant (NSW) (1989) 8 MVR 491
Azar v Kathirgamalingan [2012] NSWCA 429
Blandford v Fox 45 SR (NSW) 241
Cavanagh v Nominal Defendant (1958) 100 CLR 375
Container Terminals Australia v Huseyin [2008] NSWCA 320
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
Dimovski v GIO (NSW) (1995) 21 MVR 288
Freeman v Griffiths (1976) 13 SASR 494
Guest v The Nominal Defendant [2006] NSWCA 77
Harrison v Nominal Defendant (1975) 7 ALR 680
Hecron v Cousens [1990] NSWCA 93
Hill v Richards [2011] NSWCA 291
Hofer v Miller (1957) SASR 41
Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366
Lec v Matthews (1926) 25 Ll L Rep 525
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117
Mason v Demasi [2009] NSWCA 227
Mastronardi v State of New South Wales [2009] NSWCA 270
McLennan v Nominal Defendant [2010] NSWDC 28
McLennan v Nominal Defendant [2014] NSWCA 332
Nesterczuk v Mortimer (1965) 115 CLR 140
Nominal Defendant v McLennan [2012] NSWCA 148
Parker v Nominal Defendant [2013] NSWDC 15
Rehn v Nominal Defendant (Supreme Court of New South Wales, 9 April 1990)
Sangha v Baxter [2009] NSWCA 78
Shekhani v Ardino [2009] NSWCA 361
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Texts Cited: Lord Bingham, "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pp 3ff; Current Legal Problems, Vol 38 Stevens & Sons Ltd 1985 page 1-27)
The Honourable Justice Ipp "Problems with Fact-finding" (Supreme Court of New South Wales, 2 September 2006)
The Honourable Justice McClellan, "Who is telling the truth? Psychology, common sense and the law" (2006) 80 Australian Law Journal 655
Category: Principal judgment
Parties: Plaintiff: Lauren Buggy
Defendant: The Nominal Defendant
Representation: Plaintiff: Mr R E Quickenden
Defendant: Ms C Allan
Plaintiff: Peninsula Law
Defendant: TL Lawyers

File Number(s): 2013/74225
Publication restriction: None

Judgment

Introduction

The plaintiff by suffered injury in the course of avoiding a collision with a motor vehicle on Newport Road, Dora Creek in the state of New South Wales on 27 June 2010. As the motor vehicle could not be identified, she brings those proceedings against the Nominal Defendant.

The pleadings

The circumstances in which the accident occurred, according to the statement of claim, were as follows. The plaintiff was riding an unregistered "trail bike" motorcycle (a Yamaha YZ250) along the roadway, travelling home after going for a ride in an "off-road" quarry used by trail bikes. At approximately 3:00pm on 27 June 2010, as she travelled along Newport Road, an unidentified motor vehicle pulled out of another street, causing her to lose control of her motorcycle and collide with the "roadway/embankment".

As the unknown vehicle sped away without stopping, the plaintiff commenced proceedings against the Nominal Defendant. The Nominal Defendant denied liability (s 81 notice issued on 11 February 2011) and has filed a defence denying that the accident occurred as alleged, denying negligence and pleading contributory negligence, and asserting that due inquiry and search has not been made in relation to the identity of the unidentified motor vehicle.

The plaintiff's pleadings particularise negligence by the unknown driver as follows:

(1) Failing to keep any or any proper lookout;

(2) Failing to steer or control the said motor vehicle so as to avoid colliding with the plaintiff;

(3) Driving the said motor vehicle in a dangerous and reckless manner;

(4) Failing to stop;

(5) Failure to appreciate plaintiff was in a position of danger;

(6) Res ipsa loquitur.

The plaintiff's injuries are as follows:

(a) Head/facial injuries;

(b) Significant friction burns to left buttocks;

(d) Soft tissue injury to neck;

(e) Soft tissue injury to lower back;

(f) Soft tissue injury to right knee;

(g) Soft tissue injury to left hip;

(h) Soft tissue injury to right hip;

(i) Injury to left ankle;

(j) Injury to right ankle;

(k) General bruises and contusions;

(l) Shock;

(m) Anxiety;

(n) Depression.

The plaintiff's continuing disabilities are particularised as follows:

(a) Substantial scarring to buttocks and right thigh;

(b) Constant pain in right knee;

(d) Constant pain in left ankle;

(e) Constant pain in right ankle;

(f) Inability to stand for prolonged periods of time;

(g) Pain and stiffness in lower back;

(h) Pain and stiffness in neck;

(i) Constant headaches;

(j) Pain in left hips;

(k) Pain in right hips;

(l) Inability to kneel;

(m) Restriction of movement in right leg;

(n) Inability to engaging in pre accident leisure activities;

(o) Self conscious with respect to scarring;

(p) Insomnia;

(q) Depression;

(r) Anxiety.

The evidence

The plaintiff gave evidence of the circumstances of the collision, to which there were no other witnesses. Her mother gave evidence of the events following the plaintiff's return to her home, which the plaintiff managed to complete on her trail bike. The plaintiff's former boyfriend, Mr Isaac Delalande, also gave evidence.

The defendant called Mr Darryl Grant, a neighbour of the plaintiff, in relation to home care issues. The only other witness called for the defendant was the solicitor who prepared a draft statement for Mr Delalande which he subsequently refused to sign. The terms of that statement, as well as hospital notes referring to how the accident occurred, are substantially different to the account of the accident given by the plaintiff.

The plaintiff and her mother both gave evidence in reply to the evidence of Mr Delalande and Mr Grant.

This hearing occupied three days in a busy circuit list. The parties did not order a transcript. I made notes of the evidence during the hearing. However, because of the significant differences between the plaintiff's evidence and the hospital notes, and a newly suggested explanation for this in the closing address of counsel for the plaintiff, I ordered a transcript and have compared my notes to it, in order to ensure the evidence is recorded as accurately as possible in my judgment. Where I am in any doubt as to the accuracy of my notes, I have given the plaintiff the benefit of that doubt.

I shall first set out the evidence of the plaintiff in relation to the circumstances of the accident.

The plaintiff's account of the accident

The plaintiff had owned what she called a "dirt bike" (or, on other occasions, a "trail bike") since either 2009 or 2010, when she bought a Yamaha trail bike (model YZ 250) from her brother. She told the court that, on the day in question, she had decided to go for a ride in a disused quarry about three kilometres from her home, where a track for trail bikes was available for use. This bike was not registered for road use, so that plaintiff and her boyfriend would be driven to the quarry by her mother, or by her boyfriend (Jason Delalande) in his car, with the bikes loaded in the back.

On the day in question, the plaintiff decided to go for a ride without her boyfriend, and asked her mother to drive her to the quarry, on the basis that she would be picked up at 3.30 p.m. The plaintiff was driven to the quarry by her mother at approximately 2:00pm for her to ride her bike along the bike trail, with her mother returning home.

There were no other riders at the track on that day. The plaintiff rode her bike for about an hour but then, despite having an agreement with her mother that her mother would return to collect her at 3:30pm, decided to return home at about 3 p.m. (In cross-examination it was put to her that the time she was travelling home was 4 p.m. rather than 3 p.m., and she agreed with this: T 84). She attempted to telephone her mother on her mother's mobile (but not on the landline) without success, and then decided to leave and to ride home, although she knew it was illegal to ride her trail bike on a public road.

As the plaintiff travelled along Newport Road and approached Eva Street on the left hand side, "a car pulled out in front of me". She had no prior warning, having first seen this vehicle from a distance of 5 to 10 metres. She slammed on the brakes and, as she did not want to hit the car, swerved her bike, ending up "in the ditch" beside the road. The bike lost its balance and fell over on top of her. The car "took off" towards Newport Road. All the plaintiff could recall of the car was that it was a white Toyota Corolla. She was certain that it was a Toyota Corolla because her brother had a blue Toyota Corolla.

Although the plaintiff was in shock and pain, she was able to get the bike up. She was not able to get access to her mobile phone, which was in a clip bag on her back. As her home was about 500 or 600 metres away, she decided to continue to ride home, arriving there approximately 2 to 3 minutes after the crash.

When she arrived home her mother was there. She left her bike against the fence and "ran in and started crying". She told her mother only that she had fallen off her bike.

The plaintiff said that her mother immediately drove her to Wyong Hospital where she waited for approximately 25 to 30 minutes "crying and in pain". She was subsequently given treatment and then sent home. Her boyfriend came to the house and stayed the night. That evening the plaintiff talked to her mother and boyfriend "a little bit" about what had happened, but she did not tell the court in examination in chief what was said.

The plaintiff had a painful and sleepless night. In the morning was woken by her mother to say that her bike, as well as her boyfriend's trail bike, both of which her boyfriend had stored in the garage on the afternoon of the accident, had both been stolen. Police were called to the premises by the plaintiff's mother, but the plaintiff did not speak to them.

The plaintiff returned to Wyong Hospital the following day. Her leg injuries were serious, and she was referred to the Burns Unit at the Royal North Shore Hospital. Her mother drove her to Sydney. She was in Royal North Shore Hospital for "two weeks", in "a lot of pain". During this time her boyfriend visited her on one occasion (T 31).

The plaintiff was unable to remember anyone in the hospital asking about how she suffered her injury. The police did not come to either hospital to make inquiries; nor did they come to her home (T 32). She was on heavy medication and recalled little of her treatment.

The plaintiff recalled "an interview being arranged with a police officer at Toukley" and thought that this occurred before she returned to work. She filled in a claim form about the circumstances of the accident. She could not recall when she returned to work, but found that she was unable to perform "most" of the duties she had performed prior to the accident. She "gradually" got back to her pre-injury hours after the accident over the next four years, but had to transfer to the night shift because the day shift was too strenuous (T 36). She continued to receive treatment from her general practitioners, Dr Olgers and Dr Badenhorst. She transferred to Dr Badenhorst as he was closer, and he prescribed Endep, Panadeine Forte, Valium and Tramadol for her. She is currently taking Lyrica, Tramadol, Valium and Panadol osteo.

The plaintiff gave detailed evidence about her injuries and disabilities, as well as her difficulties at work and in mowing the garden. This is set out in more detail in the section of this judgment in relation to quantum.

Cross-examination of the plaintiff

The mechanics of the plaintiff's description of the accident are straightforward. The bulk of the plaintiff's cross-examination consisted of challenges to her accounts of the accident based on her apparently conflicting descriptions of the accident both to Wyong Hospital and the Burns Unit at the Royal North Shore Hospital between 27 June and 12 July 2010. The full text of the Wyong Hospital notes in relation to the plaintiff's description of the accident is set out below. The plaintiff's answer was that she "didn't say that", meaning that she did not provide any of the information about the accident contained in these hospital notes (T 93 - 4). In particular, she denied saying that she had come off her bike at 80km/hr and had been stuck under another bike, and that she had been riding with her boyfriend. She told the court there were three other people in hospital who were involved in motorbike accidents, the inference being that that there would have been errors by the hospital staff in recording these details, and that she was so heavily dosed with medication she was "pretty much out". She agreed, however, that she did not tell anyone at the hospital that she had swerved to avoid a car (T 94 - 6).

The plaintiff told her mother on the way home from Wyong Hospital that she had swerved to avoid a car coming out of Edith Street, and that this car had been in the wrong (T 96 - 7). This was prior to the police being called to the home about the bikes being stolen, which occurred overnight (T 97). The plaintiff was "pretty sure" her mother had told the police that she had had an accident, but agreed that her mother had not reported this as an incident to the police (T 98) and that the first time this happened was in November 2010 (T 98).

The plaintiff's answer as to whether the police were told anything about the circumstances of the accident, and if so, what, were inconsistent. It was put to her that her mother did not report the accident as an incident to the police and the plaintiff appeared to agree with this, saying, "because I knew I would probably lose my licence" for "riding unregistered, uninsured, so that's why I didn't do it". She denied that she did not tell the police about the accident because it did not happen in the way that she had described.

It was then put to the plaintiff that in the claim form (Exhibit F) she had ticked "Yes" for notifying police and that the details given, including the event number, were in fact the event number for the reporting of the stolen bikes for the day following the accident, 28 June 2010. (I note that, in the Chronology provided to the court, the date for notification of the police is also given as 28 June 2010). The plaintiff said this was "because I thought mum had reported it to the police that day". However, this is inconsistent with her earlier evidence about not telling police because she could lose her licence (T 98)

The plaintiff was asked why she had gone to the police 5 months later, and why she had not included, on her claim form, the event number for the visit to the police 5 months later. Her answer, that it could have been the event number given on the day after the accident, was non-responsive (T 100).

The account of the accident taken by Dr Rajaratnam at Royal North Shore Hospital was also put to the plaintiff. It was put to her that she had told the same story about the circumstances of the accident to him. The plaintiff denied saying any of the words attributed to her in the notes and said she could not explain the history appearing in the notes (T 102).

It was put to the plaintiff that she had given three separate accounts of the accident over two days to Royal North Shore Hospital staff to this effect. This included a statement to Registrar Kaufman on 5 July 2010 about landing on her boyfriend's bike after a "mate in a car" pulled out in front of her (T 103). She denied she had made these statements. She repeated that, for the periods of time she was in hospital, she was so drugged that she had not been able to understand or communicate.

It was put to the plaintiff that the accident did not happen at all, but she denied. It was put to her that on the day in question she was riding with Mr Delalande in a trailer park in Cessnock. The plaintiff said she had never been in Cessnock. It was put to her that Mr Delalande and the plaintiff were driven back to the home, where Mr Delalande put the trail bikes into the garage while the plaintiff was driven to Wyong Hospital by her mother. She denied this, but the circumstances in which Mr Delalande put both trail bikes into the garage (the evidence being that Mr Delalande's bike was always stored there), from which they were subsequently stolen, remained unexplained.

In re-examination, the plaintiff clarified her reference to the word "mate" in the hospital note by saying that she used the phrase "old mate" all the time, and that what she had said to the hospital staff was that an "old mate" (meaning an unidentified male) had been driving the white Toyota Corolla.

I note that, in correspondence with the Nominal Defendant, which is set out in more detail below, the same explanation was volunteered, in the context of there being three other bike riders in accidents in her ward on that day.

The entirety of the relevant extract from Wyong Hospital and Royal North Shore Hospital are set out below. The notes of the Royal North Shore Hospital of 5 July 2010 containing a reference to "mate in a car" occurs in the context of a long interview the notes for which suggest that the interviewer was taking notes as the plaintiff and her mother spoke. The entries before and after the relevant paragraphs are correct and the likelihood of an error in the recording of the circumstance of the accident, given the accuracy of the rest of the information, seems unlikely.

The account of the accident in the Royal North Shore Hospital records is, however, consistent with the accounts provided to Wyong Hospital. Both accounts referred to another bike rider as having been at the scene. There are two accounts to this effect in the Wyong Hospital notes and this is repeated in the account taken by Dr Rajaratnam on 28 June 2010.

Other issues in cross-examination

Some of the issues raised in cross-examination were matters where the plaintiff's evidence was reasonable, correct or both. For example, there were inconsistencies about the timing of the accident and why the plaintiff had decided to ride home when she had an arrangement to be collected by her mother at 3.30 pm. The plaintiff said she tried her mother's mobile number six times, but her mother did not answer the phone, and she did not think to try the landline. No explanation was given as to why the plaintiff wanted to finish riding her bike at 3:00pm when the arrangement had been that her mother would collect her at 3:30pm. However, this kind of factual inconsistency is not uncommon in personal injury proceedings, and little or no weight should be given to the somewhat confused and inconsistent explanation the plaintiff had for deciding to ride home illegally on the road. The plaintiff's evidence was that she "just wanted to get home" and "knew" her mother was at home, and decided to go home by riding along the road.

The evidence concerning why the plaintiff did not see the car earlier also contained some inconsistencies. She did not see the other motor vehicle until it was approximately 5 metres away, and did not know why she had not seen the vehicle before T 87). She agreed that the light was starting to reduce at the time of the accident, although the street lights had not yet come on, and that her bike had no headlights (T 84 - 5). However, I note her earlier explanation that there was restricted vision by reason of the topography of the street corners. She had slowed her bike down because she knew how bad the intersection was.

The plaintiff was cross-examined about her use of the mower to mow the lawn, and when Mr Grant mowed the lawn. I am satisfied that the evidence of the plaintiff on this issue, including her evidence in reply, is correct. While submissions were made that the plaintiff and her mother discussed their evidence and that this was what led to the evidence in reply, I regard it as acceptable for a witness who has already given evidence to seek to correct apparent errors or inconsistencies in this fashion.

The principal difficulty for the plaintiff was that her evidence of how the accident occurred was not only contradicted by the contemporaneous medical records but by accounts of the accident given by her former boyfriend, Isaac Delalande, so a solicitor acting for the defendant. This brings me to the evidence of Mr Delalande, a witness under subpoena by the defendant but called by the plaintiff.

The evidence of Isaac Delalande

Mr Delalande, a truck driver aged 24 years, told the court that he commenced having a relationship with the plaintiff approximately a year prior to the accident and this relationship ended shortly after the accident.

Mr Delalande had spent the night before the accident at the plaintiff's home, but left early in the morning to help out at a friend's house. He received a telephone call from the plaintiff's mother to say that she had been injured. He immediately left his friend's home, intending to travel to Wyong Hospital to see her, but first stopped at her home to make sure "everything was closed up", in accordance with a request from the plaintiff's mother. He had no conversation about how the accident happened.

Mr Delalande remained at Wyong Hospital for one and a half to two hours, and returned with the plaintiff and her mother to the home at Dora Creek, travelling behind them in his own car. He told the court he had no conversation with the plaintiff during the night because she was "heavily medicated". The next morning, the plaintiff's brother, who had been about to go to work, came and told Mr Delalande that his bike and the plaintiff's bike, which Mr Delalande had put into the garage the night before, had both been stolen. Precisely whether Mr Delalande had put one or both bikes into the garage that night was never clear; nor was it evident why, if only the plaintiff had ridden her bike, it was necessary for him to put both bikes into the garage.

Mr Delalande was certain that he never asked the plaintiff about the accident. This was because he used to race motorbikes himself and, he said, "you never ask about motorbike accidents".

Mr Delalande went on to say that he visited Royal North Shore Hospital half a dozen times and had stayed in a hotel there. He repeated that, during that time, he never spoke to the plaintiff about how the accident happened. He denied being with her on the day of the accident when she was riding.

After his relationship with the plaintiff ended, he had no further contact with the plaintiff or her mother until they "just started talking again" about a year after the accident. His bike was returned about eight months after it had been reported stolen to the police.

Mr Delalande said that he had a telephone conversation with the plaintiff's mother approximately a week before the hearing. He received a subpoena and wanted to know what the subpoena was for, as the plaintiff's name was on it. He told the court that the plaintiff's mother said, "I can't talk about it". He denied having any telephone conversation with anyone from the Nominal Defendant about these matters at any time, but amended this to say that he had been asked to sign a statement (Exhibit 13) and sent a document to sign. He had been prepared to do so until his current girlfriend told him that it would be "wrong to sign a statement which was incorrect". He also said that "they [the Nominal Defendant's solicitors] didn't want me to sign it after I told them the real story".

In cross-examination, it was put to Mr Delalande that he had provided the information set out in the statement in Exhibit 13 (the text of which is set out below) in the course of a conversation with Ms Frances Allan, the solicitor with conduct of the matter for the Nominal Defendant. He agreed that he had told her this information, but said that it was not the truth.

When asked why he would tell lies, he said, "That's the story we came up with". He went on to say that this story was invented at the Wyong Hospital on the night of the accident. Contrary to his evidence in chief, the plaintiff had in fact told him that she had had an accident, and how it happened, in that she had an accident while riding on the road. He told her that she could not tell anyone what had happened as she could be prosecuted because she was unlicensed and it was illegal to road an unregistered bike on the road.

He was asked how it could be, if this was the agreed story, that there was a reference to another bike in the account of the accident given to the Wyong Hospital. He said, "If you have a witness, the police don't care".

Mr Delalande considered it likely that the hospital staff would have told the police and the plaintiff could have been prosecuted. This was why he thought they had to say the plaintiff was riding her bike with someone else. When asked how it was that the plaintiff's mother and the plaintiff had told the court that she had been riding alone, he said that he "didn't know that story".

Mr Delalande denied having any further conversations with the plaintiff or her mother about these matters. He thought that he was supposed to continue to tell the lie and did not know that the plaintiff had been to the police, volunteered the information that she had been riding illegally on the road and pleaded guilty to that offence. He thought the purpose of this whole story was to "tell everyone" to ensure that she would not be prosecuted. He said he had repeated this story to "anyone who asks" such as friends.

Mr Delalande also agreed he was present when the police attended the premises in relation to the bikes being stolen, which occurred the day after the accident. His evidence as to what was said was not really explored, but it is consistent with his claim that the plaintiff and her mother were anxious to avoid the involvement of the police, that the police would not have been told that the plaintiff suffered injuries on the bike which was stolen in circumstances where she had been riding illegally on the road.

Mr Delalande's evidence was unsatisfactory in many respects, in that it contains inconsistencies and implausibilities. I am satisfied that there was more contact between Mr Delalande and the plaintiff's mother than he has acknowledged. In particular, I am satisfied that there was a Facebook exchange between them which led to the telephone call, and that this telephone call played an important part in his revising his evidence.

The statement prepared for Mr Delalande

What did Mr Delalande tell Ms Allan? Exhibit 13 is an unsigned statement of Isaac Delalande, which contains the following:

"STATEMENT OF ISAAC DELALANDE

This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief.

My full name is Isaac Delalande. I was born on [date] 1990 and I reside at [address].

On 27 June 2010 I was trail bike riding with Lauren Buggy on a friend's property in the Cessnock area. We were riding on a track at the back of my friend's property.

I was travelling ahead of Lauren. I applied my brake to slow my bike down. Shortly afterwards Lauren's bike collided with the rear of my bike.

As a result of the collision Lauren's leg impacted with the rear tyre of my motorbike and she suffered a friction injury.

Following the collision I loaded the bikes onto my vehicle. I drove Lauren and our two motorcycles to her mother's property at [address].

On arrival at Lauren's mother's house I proceeded to put the motorbikes and associated gear into the shed. During this time Lauren's mother transported her to Wyong Base Hospital. I subsequently met Lauren at the hospital.

On the night of 27 June 2010 our bikes and associated gear were stolen from Lauren's mother's residence. That resulted in a Police investigation and I subsequently recovered my motorbike."

While Mr Delalande was an unsatisfactory witness, Ms Allan, who interviewed him for the purpose of taking this statement, was not. I shall briefly set out the information she provided to the court.

The evidence of Ms Frances Allan

Ms Allan is a partner at TL Lawyers, the solicitors for the defendant; she has the same surname as counsel for the defendant.

Ms Allan told the court that, on the Monday of the week prior to the hearing, she contacted Mr Delalande to confirm he had received a subpoena to give evidence and asked if he had any questions. She also asked him what occurred on the day in question. That conversation went into specific detail which she recorded as he spoke. She asked him to sign the statement and he agreed, but said that he was only available at a time when Ms Allan could not attend his home. Before completing the telephone call, Ms Allan read out what she had written and said she would prepare a statement based on that information.

Another solicitor attended Mr Delalande's home with the statement and reported back to Ms Allan that he would not sign it.

In cross-examination, Ms Allan was asked why it took so long for her to locate Mr Delalande. She explained that the police records which were contained in packet 22 had redacted the names of the persons present when the bike was reported stolen. It was only after a second subpoena was issued, which occurred after the August 2014 sittings of Gosford Court, that she obtained Mr Delalande's name and was then able to locate him.

It was put to Ms Allan that she could have sought the name of the plaintiff's boyfriend in particulars. Ms Allan said, and I accept, that seeking the name of the "boyfriend" referred to in the Royal North Shore Hospital notes of 5 July 2010 in particulars would have been unproductive, as the plaintiff's case was that he was not there.

It was also put to Ms Allan that she could have sent out an investigator to take a statement from Mr Delalande. Ms Allan said this decision was not made. I consider that it was entirely appropriate for the solicitor with carriage of the matter to have interviewed this witness, rather than delegating such a potentially complex task to an investigator.

It was put to Ms Allan that she had no idea what Mr Delalande was going to say when he was served with the subpoena. Ms Allan said that when she telephoned Mr Delalande he told her that the plaintiff "went up the back of me" and that it was for this reason that she prepared the statement and issued the subpoena. This is a proper basis for the issuing of a subpoena.

It was put to Ms Allan that the statement contained implausibilities. For example, the likelihood of travelling from Cessnock to Wyong when there was a hospital at Cessnock. Ms Allan said that she had written down what Mr Delalande told her and I accept her evidence on this point.

The principal change to Ms Allan's evidence was that she had had plenty of time to make these inquiries, the inference being that by raising these matters late, the defendant was seeking to muddy the waters rather than to produce evidence capable of changing the plaintiff's account.

At the time of making these inquiries, all Ms Allan had was the plaintiff's explanation in relation to the reference to "boyfriend" and "mate" in earlier notes had been that there were errors in the taking of information from her whilst she was in Royal North Shore Hospital due to confusion with other patients in the ward. It was not unreasonable for the solicitors for the defendant to have accepted such an explanation; this was an explanation they had sought on the basis that they were considering whether due inquiry and search had been made. I am satisfied that the circumstances in which Mr Delalande was not located earlier are understandable.

Both the plaintiff and her mother were called in reply.

The plaintiff in reply

Both the plaintiff and her mother gave further evidence about the mower used to mow the lawns. It was put to both of them that they had discussed their evidence. I regard this evidence as being of little significance. As is noted above, both had completed their evidence, and I do not see it as inappropriate for a party to advise that evidence of an incorrect matter had been given, especially concerning a relatively trivial matter such as the correct brand of the mower used to mow their lawn. However, the evidence each gave in response to Mr Delalande's evidence raised matters which undermined their credit as witnesses.

The evidence of Mrs French

The plaintiff's mother, Mrs French, told the court that, on the day of the accident, she took her daughter to the quarry to have a ride between 2 pm and 2.30 pm, telling her: "I'll pick you up at 3.30" (T 127). She had intended to go back at 3.30 but forgot the time. She did not hear her mobile ring as she had music on and was vacuuming.

The first Mrs French knew of the accident was when she heard screaming, "Mum, mum", through the front door and saw her daughter there. Her daughter said "I had an accident". Mrs French took her daughter to Wyong Hospital immediately. She had no conversation with her on the way, but told the front desk staff that she could not get her daughter out of the car, and that she had had an accident. The nurse said "What happened" and Mrs French said, "I said she had a motor vehicle or motorbike accident and they handed me a CTP claim form and they called it something" (namely an MVA form) and told her to fill this in (T 130). However, Mrs French was too worried about her daughter ever to fill this in.

At her daughter's request Mrs French contacted Isaac Delalande and asked him, on the way to the hospital, to check on the house as she had left in such a hurry. There was no conversation about how the accident had happened (T 131). He returned with the plaintiff and Mrs French to their home and stayed the night. Mrs French said she asked the plaintiff "what happened" and the plaintiff replied she "just didn't want to talk about it" (T 132). She put the plaintiff straight to bed but was awoken by her son who told her that the garage door was open and both the motorcycles had been stolen. Once she learned the bikes were stolen she went in and woke Lauren to tell her (T 133). She also said "Now tell me what happened" because "I needed to call the police" and the plaintiff told her she was "on her way home from the bike track and that a car had pulled out and she had swerved to miss it" (T 133) in Edith Street.

Mrs French said she "got on the phone" to the "Wyong-Toronto police and "called the police assistance line as well". The Toronto police said they would send someone down because the bikes had been stolen and "I thought while she [the woman police officer] was down there I'll tell her about the accident as well" (T 133).

Isaac Delalande was still there when the police officer arrived at between 6.45 and 7 a.m. She told the police officer that the bikes had been stolen and that "also my daughter had an accident the day before". When asked what details she had given, she said "I told her what Lauren had told me" (T 135). The police officer "didn't seem too concerned, or cared" because "all she was interested in was getting someone from forensics down to do the prints because there's been so many bikes stolen in the area". A forensics officer had come later that day, but there had been no discussion about the accident.

Mrs French took her daughter back to Wyong Hospital and was advised to take her straight down to Royal North Shore Hospital. They had no conversation about how the accident occurred (T 137). She was told by the hospital to return the next day. She remained with the plaintiff throughout. She had a conversation with one of the social workers and told her "exactly what I've just told you, that she had a motorcycle accident" (T 138). She repeated the description given by Lauren, namely that "she was on her way home from the bike track and that a car had pulled out" (T 138). She also "had a lot to say" about the plaintiff's past history because the plaintiff was so distraught. She told the social worker about her divorce in 2008, that Isaac was bipolar and had "multiple personality disorders" (T 139).

In cross-examination, Mrs French said she was not with her daughter when she saw the triage nurse or doctor in the emergency department of Wyong Hospital (T 153) and that her daughter did not tell her how the accident happened the following day. She never heard the plaintiff tell the doctor that she had been involved in an accident when she ran into another motorbike and landed on the tyre (T 155).

Mrs French was certain that she had told the police officer who attended her home the day after the accident about the circumstances of the accident in which her daughter was involved. She was familiar with the making of a claim for damages for injury from a motor vehicle accident. She considered the event number given covered both the reporting of the stolen bikes and the circumstances of the plaintiff's accident.

Mrs French was not present every time that a doctor took a history from her daughter because she was "asked to step outside the room". She was not present when the plaintiff was interviewed by Dr Kaufman or Dr Rajaratnam. She was certain she had not been told that Isaac Delalande was present when her daughter was injured, and said that he only came to the hospital once. She was certain that she had had no recent contact with Mr Delalande (T 158).

After Mr Delalande's evidence, Mrs French was called in reply to correct her evidence about having no contact with Mr Delalande (T 209). He had contacted her on Facebook with a message to "please call me". She had rung him and he said "What the hell's going on", to which she replied "just tell the truth" (T 209, 215). When asked in cross-examination what else was discussed she said "nothing, basically" (T 215).

Also in her evidence in reply, Mrs French said that she and Mr Delalande had never concocted a story about her daughter's accident occurring on private property in Cessnock for the purpose of avoiding police prosecution. Her daughter had never been to Cessnock to ride her bike.

If Mr Delalande had concocted a story with the plaintiff and her mother to avoid the plaintiff being prosecuted, it would have been a straightforward matter to disclose this to the court. This would certainly have been understandable in relation to the failure to tell the police, on the day after the accident, that the plaintiff had been illegally riding her bike on the road the day before the bike was stolen. However, the plaintiff and her mother did not do so. Instead, the accuracy and competency of the record-keeping by the police and the staff of both the Wyong and Royal North Shore Hospital were challenged.

Hospital and police records extracts

In view of the differences between the evidence of the witnesses for the plaintiff and the contemporaneous hospital and police records, I have set these out below in full.

Wyong Hospital records dated 27 June 2010

The Wyong Hospital Emergency Department Admission notes record the following on 27 June 2010:

"Patient condition on arrival: Alert, oriented, painful friction burn to inside of ® thigh from spinning tyre (motorbike) came off bike at ~80kms + got stuck under other bike.

Hard collar in situ, nil neuro deficit."

The wavy line may mean "approximately" or "greater than" 80 kmh. This is the only reference to speed in any of the notes. The plaintiff denied riding at this speed and said that she had slowed down because she knew the intersection where she had the accident was dangerous.

One of the reasons given by the plaintiff for these errors is that she was heavily medicated. The plaintiff's condition on arrival at 4.20pm describes her as "alert, orientated" and suffering from a "painful friction burn to inside of R[ight] thigh from spinning tyre (motorbike)" after she: came off bike at [wavy line] 80 kms & got stuck under other bike." At 4.47 p.m. the plaintiff is again described as "alert": the notes describe her as "alert/pink/responsive" and "in minimal distress".

A medical officer surnamed Wirth described the accident as follows:

"18 y.o. [female] involved in MBA [illegible] 2 x motorcycles. Entangled. Other bike rear wheel abrasion to med[ial] aspect lower R[ight] thigh = 15 x 10 cm partial thickness abrasion, contaminated with tyre, rubber. Also extensive, superficial abrasions over buttocks x 2."

On 27 June 2010 (at 7.10 p.m.) the nursing notes state that the plaintiff had "fasted since breakfast", was allergic to Stemetil, and underwent cleaning of the wound. She was sent home with Panadeine Forte and told to return at 2 p.m. the next day for review.

On 28 June 2010 the plaintiff was seen by Dr Rajaratnam, who stated:

"18 y.o. [female] who was involved in MBA [motorbike accident] yesterday.

-ran into another motorbike

- thrown off motorbike - landed on tyre

- sustained friction burn to R[ight] inner thigh and buttock

- p[atien]t given pain relief and wound cleaned of debris

- tetanus updated age 16

- pt otherwise well

- able to cope with pain at home

- [illegible]

- Pt alert, well."

Further down the page is a note by the surgery registrar that the plaintiff "fell off motorbike".

Dr Rajaratnam, the surgery registrar and a Dr Harris appear to have had discussions about the plaintiff's treatment, according to the notes. The plaintiff was sent home again with a dressing, as she was not able to cope with an open wound, especially at night.

The notes for 30 June 2010 from Dr John Ella, also in Exhibit 9,describe the plaintiff as "generally well" and note the plaintiff's allergies and immunisation history. He then states:

"Sustained burns to inner R[ight] thigh & buttocks 4/7 [4 days] ago. Burn caused by friction from motor cycle tyre."

As there were signs of infection in the buttock wounds and a partial to full thickness burn to the medial right thigh, the plaintiff was referred to the Burns Clinic at Royal North Shore Hospital (see the last page of Exhibit 9).

The plaintiff was first seen on 1 July, and then admitted to, the Burns Unit at Royal North Shore Hospital on 2 July 2010. The admitting medical officer was Dr Roland Jiang (see the last four pages of Exhibit 8). Consent forms were signed by her mother on 1 July 2010.

Nursing notes for 2 July 2010 describe the plaintiff as "stable, afebrile" and tolerating the diet well. They also note, at 5 p.m. pm 2 July 2010 that the plaintiff:

"...spoke about her accident. She thought she would die + has been feeling anxious ++ since. Her boyfriend appears to have some mental health issues + according to pt's mother there has been much stress + difficulty. I have asked the boyfriend to leave in order to minimise tension/conflict in pt's room. Pt happy with this.

Pt reports flashbacks + intrusive thoughts re: accident. She says she feels overwhelmed + is not able to rest/sleep. Her mother will stay this evening for support."

The notes for 3 July describe the plaintiff as complaining of pain and of 4 July as "stable" and "afebrile". The plaintiff's mother was noted as having been there, which comforted her.

On 5 July 2010 the plaintiff was interviewed at length by a hospital staff member with an illegible signature. The plaintiff's explanation for the inconsistencies between this account and her evidence in court is that she was in a drugged state, that the hospital staff confused her with other patients and/or that a person other than the plaintiff (Mr Quickenden suggested another "hospital worker") supplied this information. This requires the setting out of this entry in full.

Royal North Shore Hospital records dated 5 July 2010

The version of the accident appearing in the Burns Unit records include a long interview with the plaintiff on 5 July 2010, slightly more than a week after the accident. It commences with a description of the accident as follows:

"18 y.o. [female]

Admitted [with] burns to R[ight] lower inner thigh + bilateral buttocks.

Motorbike accident: - was riding a motorbike, mate in a car pulled out in front of her, jumped off her bike, landed on boyfriend's motorbike tyre.

Pain OK, due for skin graft Wed[nesday].

Reports some flashbacks, feeling anxious. Sleeping OK when had Phenergan. Feeling nauseated ++ from pain med[ication]s.

Feels she is going to die when has flashbacks.

Mood teary + despondent. Irritable ++.

Appetite [down] but eating.

Worried about imminent D/c home.

2o [sic] restrictions on mobility

QHx: * recent break up with best friend [down] ,ppd irritability, teary, insomnia, [anxiety], claims suicidal feelings [wavy line] 1/12 [one month] before accident.

* Boyfriend has B.A.D.

* ?anxiety [arrow] sleep [with] mum at times.

QHx family: mother anxiety used to take Xanax

Social: - lives with mother + brother (25 y.) + brother's girlfriend

- finished nursing (aged care)

- has boyfriend since May '10

Developmental: Grew up on the Central Coast. Parents separated Lauren aged 9. Stepdad 6 - 7/12 past separation not a good relationship (had bipolar + alcoholism) [illegible] to mum for 7y school to Y 10.

Horticultural course 6/12

Nursing - aged care

Traumatic events: - verbal aggression by stepdad

- helped to nurse stepdad after a major MVA

- major MVA with mum (Lauren + brother in the back"

The report concludes by noting the plaintiff was not feeling well, covering her eyes with her hand and wanting to go back to sleep teary and depressed and "unable to assess thought form and content". There is then a note that "Mum states no suicidal ideation" but that sleep, appetite and concentration were down (insofar as this can be interpreted from the downward arrow). The conclusion was "acute stress reaction on the background of possibly recently developed depression/anxiety in the context of interpersonal difficulties" and the plan was for review and medication (Exhibit 8).

The dietician notes the plaintiff as having had a "motorcycle accident" (5 July 2010). The physiotherapist, on the same day (at 2.30 p.m.), notes the plaintiff as telling her she was "due to start working in Nursing Home today". Notes over the next few days deal only with her treatment. There are references to the plaintiff's mother as being present and as remaining in Sydney (see for example 9 July 2010). She was discharged on 12 July 2010.

These notes were provided by the hospital to the parties on 10 November 2011, according to the covering sheet on Exhibit 8. I note:

(a) No Wyong Hospital notes (let alone the entries describing the accident) appear in Exhibit 8, so any potential for contamination of the information by Burns Unit staff viewing the Wyong Hospital notes is unlikely.

(b) Secondly, the plaintiff and her mother give details of the accident as having occurred in the same manner described by her to Wyong Hospital.

(c) Thirdly, the sources of the information about the plaintiff are clearly the plaintiff herself, with some corroboration by her mother.

(d) Fourthly, the plaintiff's boyfriend appears to have visited only once, and to have been asked not to remain, to the relief of the plaintiff, and the likelihood that he was telling them what to say, given the request for him to go, seems remote.

(e) Finally, the plaintiff also informed the hospital that she was due to commence work on a particular date, and that date is inconsistent both with her evidence in these proceedings and to experts providing medico-legal reports.

I am satisfied that the plaintiff and her mother gave consistent reports to two hospitals over the period 27 June to (at least) 5 July 2010 of the accident as having occurred while the plaintiff was trail bike riding with her boyfriend, in circumstances where no white Toyota Corolla appearing suddenly in the street caused her to swerve.

Two additional pieces of information are obtained from this long account of the plaintiff's accident and injuries taken on 5 July 2010. First, there is a reference to a car which swerves. However, this is not a white car driven by a stranger, but a "mate's" car, driven in circumstances where the plaintiff and her boyfriend were riding together and she landed on his tyre after the car belonging to the "mate" caused her to jump. The second piece of information is that the "boyfriend" is identified as the other rider at the scene. The plaintiff's explanation of this reference, namely that she calls all men "mate", is implausible in the light of this careful note-taking, as is her denial of her boyfriend being at the scene.

The plaintiff's injuries were serious, and she and her mother were clearly anxious to have them properly treated. Whatever the effect of the medication, the plaintiff was clearly able to provide both hospitals with considerable detail about allergies and her medical history. The likelihood that the plaintiff gave the wrong history because she was heavily drugged is remote. The fact that she was on heavy medication would have made it harder to lie, rather than easier. Additionally, the incentive to tell the truth and to describe the accident as accurately as possible, in circumstances where correct treatment was vital, would have been high.

The likelihood that two sets of hospital staff made similar mistakes about the circumstances of the plaintiff's accident, particularly in relation to the 5 July 2010 notes, is low. This information was supplied in the course of obtaining a wide range of personal information, the rest of which is correct. There is no evidence to support the claim that three other persons in the ward were bike riding accident victims and that the facts of those cases could have been transposed.

Additionally, the information the plaintiff and her mother give about what was said to the police is inconsistent with the police records relating to the visit the day after the accident.

Information provided to the police on 28 June 2010

An extract from Senior Constable Adams Stacey's notebook (Exhibit 10) records the following information:

"28/6/10 LM39a

6am-6pm

8.40am

[Dora Creek address]

VIC: FRENCH

Karen

[D.O.B.]

[Mobile number]

VIC: BUGGY

Lauren

[D.O.B.]

VIC: DELANDRE [sic]

Issac [sic] [D.O.B.]

19 or 20

[Warners Bay Toronto address]

Property:

1) Jerry can petrol

2) Riding Boots Black O'Neils MX Size 9 (New)

3) 2 x Helmets

4) Pair of riding boots

5) YZ 250"

The electronic COPS entry created on 1 July 2010 recorded the following:

"Date/Time Created: 01/07/2010 17:52

Created By: POLICELINK COMMAND - COOK, DAVID JOHN

Between 2am and 7am on on [sic] Monday 28/06/2010 the offenders have stolen a 2010 Yamaha yz250z Blue and white dirt bike owned by victim Issac and 2002 Yamaha yz250 blue and white dirt bike owned by victim Lauren.

Both vehicles are unregistered and had no plates.

The offenders have also stolen 2 helmets and 2 sets of riding boots owned by Lauren, and a motorcross jerrycan [sic] with $30 worth of fuel.

The victims are in a relationship.

Tow required on both vehicles if recovered.

When asked Person Reporting has consented to vehicle/vessel being examined if recovered.

The victims still have the keys for the bikes.

The person reporting is the mother of victim Lauren.

At 1630 on 30/06/2010 the two helmets where [sic] returned to the location by the victim Laurens [sic] brother steven [sic], who was notified that he had found them in bushland nearby."

The electronic COPS entry dated 4 May 2011 records the following:

"Date/Time Created: 04/05/2011 16:55

Created By: NEWCASTLE CITY SPECI - WALKER, CHRISTOPHER

Below motor cycles [sic] recovered as a result of a search warrant conducted at [North Arm Cove address] on 22/10/2010. See linked case for further details.

[Details of Isaac Delalande's and Lauren Buggy's motorcycle]"

The plaintiff and her mother were certain that the police had been told about the circumstances of the plaintiff's accident during this visit by police to their home.

The plaintiff, however, did not set out in her personal injury claim form (signed on 2 December 2010, and tendered as Exhibit E) the police officers' details as requested in answer to Question 6. Instead, she gave the "Police Assistance Line" as the person to whom the accident had been reported on 28 June 2010. An incident number (E#42436152) was provided, but it is common ground that this was the incident number for the report of the theft of the motorbikes Mr Delalande put in his shed. There is no evidence that a call was made to the Police Assistance Line.

The plaintiff did not refer, on this claim form, to her visit to the police station in November 2010, or provide that incident number. There was no evidence to explain why, if the plaintiff believed she had already notified police of the accident, she needed to consult them again.

Question 7 of the personal injury claim form asked: "Is police action going to be taken?". The plaintiff ticked the box for "Don't know" and did not fill out the other questions, such as "name of person charged (if known)". This was misleading in several respects. First, the police had taken action in relation to the bikes; they had been recovered on 22 October 2012, according to the COPS report, and there was also the question (which apparently was not yet determined) of whether the plaintiff would herself be the subject of a charge.

Second, there was no evidence in relation to why, if the plaintiff had reported the accident on 28 June 2010, she attended the police station on 19 November 2011 to report it a second time. Mr Quickenden, in the course of submissions, said that the reason for the 19 November 2014 visit was that the plaintiff was being "proactive", the inference being that she was concerned that nothing had been done, despite police having located and returned the motor bikes to the plaintiff and to Mr Delalande.

Additionally, if the plaintiff was being proactive and following up her earlier report of 28 June 2014, a reference to the earlier report of the accident would be expected to be included in the COPS report. There is no reference to it at all.

What did the plaintiff tell the police on 19 November 2010? This brings me to a consideration of the COPS report (Exhibit 6).

Police records dated 19 November 2010

A police report was created on 19 November 2010, but the report tendered was dated 23 December 2010, to include the ultimate decision (after some uncertainty) to charge the plaintiff. The description of the accident was as follows:

"At 3pm on the 27th June 2010, Lauren BUGGY had just finished riding on a dirt track at Dora Creek on her Yamaha YZ250 trail bike.

From here BUGGY rode east along Newport Road, Dora Creek at approximately 50km/h in an easterly direction.

As BUGGY reached the Newport Road and Edith Street intersection at Dora Creek, a white Toyota Corolla has pulled out from Edith street onto Newport Road.

In an attempt to avoid a collision, BUUGY [sic] has taken evasive action. In doing so BUGGY has lost control of her dirt bike, and has gone over the handle bars and then landed on the road with the bike on top of her.

Whilst in this position the rear wheel has spun on her leg ripping through her protective riding gear.

BUGGY was taken to Wyong Hospital by her Mother, where she was treated for a full thickness friction burn to her right thigh.

Advise [sic] sought from S/Sgt LODGE and prosecutors, that no action to be taken against rider BUGGY. Occurrence only as per NSW Police Handbook; Only record details where the injuries suffered are of a personal or bodily nature and it is If there is no record on COPS, create an occurenconly [sic] Event and mark it for the station summary.

On the 19th of November the accused attended Toukley Police Station to report the following collision.

At 3pm on the 27th of June 2010, the accused person Lauren BUGGY, was the rider of a Yamaha YZ 250 trail bike.

At the time the accused had just finished riding in a track in Dora Creek. At the conclusion of this session the accused rode her unregistered trail bike out of the track and onto Newport road, Dora Creek.

Here the accused proceed to ride at an approximate speed of 60km/h in an easterly direction.

As the accused entered the Newport Road and Edith Street intersection of Dora Creek, a white Toyota Corolla made a right hand turn from Edith Street into the oncoming path of the accused on Newport Road.

It is at this point that the accused person took evasive action to in an attempt to avoid a collision with this vehicle.

In attempting to avoid the other vehicle the accused lost control, which caused her to lose balance. Within a second the accused was on the roadway wedged between the bike and the bitumen road.

The trail bikes rear wheel was still spinning at speed onto the accused persons [sic] right thigh.

The accused has got up from the roadway and after approximately ten (10) minutes restarted the bike and gone to her home address.

The accused person's Mother transported the accused to Wyong Local Hospital where she was treated for full thickness friction burns to her right thigh.

As a result of this injury the accused has received ongoing skin grafts and numerous other medical procedures.

The accused is the holder of NSW Drivers Licence [number], which is an active P1 Provisional Class C licence.

Newport Road, Dora Creek is a road within NSW.

At the time of this incident the weather was fine, traffic light and it was daylight.

The accused trail bike is an unregistered vehicle.

The accused is now charged with the matter before the Court."

I was told from the bar table that the plaintiff pleaded guilty and that no conviction was recorded. No documents were tendered in relation to these events.

The plaintiff's description of the accident to medical practitioners

The plaintiff's description of the accident to medical practitioners, and in particular to experts preparing medico-legal reports, closely resembles her description of the accident in her evidence before me. Dr Vincent, in his report of 28 February 2012 to the plaintiff's solicitors, records the following:

"History of Injury and Treatment

On 27 June 2010 she was involved in a motorbike accident. She swerved to avoid an oncoming car and came off her bike. Her right leg was caught in the back wheel which was still revolving and caused a friction burn to the lower thigh posteriorly. She had abrasions to both buttocks. She was admitted to Wyong Hospital and transferred the next day to Royal North Shore Hospital Burns Unit for management. She required two operations, initially five days postoperatively she had a debridement of the wound of the right leg and dressings to the abrasions of the buttock. Another five days later at day 10 she had a split skin graft applied to the healing wound of the right leg. She had dressings at Royal North Shore Hospital until healed and wore a pressure garment for about six months. She had physiotherapy mainly to her hip, leg and back which is ongoing. She required a cortisone injection to her back for a disc problem in September 2011. She has ongoing pain for which she takes Endep, Panadol Osteo and Endone as required for pain."

However, there are no contemporaneous notes from the plaintiff's general practitioners or treating doctors. It is unclear to me who was her general practitioner at the relevant time, as the plaintiff has given conflicting accounts.

The plaintiff's treating doctors

Who were the plaintiff's treating doctors and what information can they provide as to the plaintiff's injuries and treatment? This was information which one would expect to find either in documents under subpoena or in the medico-legal reports.

The medico-legal reports are of little assistance. The plaintiff told Dr Walker that she was treated by Dr Rajaratnam at the Burns Unit. Dr Rajaratnam is the author of some of the Burns Unit entries set out above. However, his role in the plaintiff's care ceased after 12 July 2010. The plaintiff told Dr Conrad (report, 8 June 2012) that after she left hospital, she continued to have treatment from her general practitioner, Dr Badenhorst. There is no report from Dr Badenhorst.

The medical records from the Waratah Medical Centre set out in Exhibit A show a gap in the plaintiff seeking treatment from 3 November 2009 to 7 December 2010, when the plaintiff consulted Dr Badenhorst with a sore throat and fever. The two entries are on the same page, so it is unlikely that the explanation is that insufficient records have been provided. Additionally, this gap in the plaintiff's records was also noted by the Review Panel, as is set out in more detail below.

The plaintiff said in her evidence that her general practitioner was Dr Badenhorst. The first medical record that has been tendered for treatment by Dr Badenhorst referring to the accident was dated March 21, 2011, nearly a year later, when the plaintiff complained of a sore hip from a "previous motor-cycle injury 2010", although he must have seen her earlier, as he referred her for a hip X-ray which Dr Roy performed on 22 March 2011. He saw her again on April 4 and 11, May 2 and June 3, about myofascial pain and slight discogenic disease and referred her for X-rays. The plaintiff did suffer soft tissue injury and disc herniation at L4/5 and L5/S1 and clearly consulted him about these problems. The remaining visits the plaintiff made to this doctor appear to deal largely with unrelated personal matters. He has not provided a report.

In his report of 21 January 2014 Dr Gertler does not name the "general practitioner" prescribing anti-depressants for the plaintiff, but he lists the medical reports provided to him; the only relevant documents would be the notes from Waratah Medical Services (Exhibit A, page 1 of Dr Gertler's report), which contain the gap commented upon by the Review Panel. He was told she took Cymbalta 60 mg daily. I could not find a reference to Cymbalta in the medical notes or the list of prescriptions given between 17 September 2009 and 9 January 2012 in the documents tendered by the plaintiff (see Exhibit A). However, the explanation seems to be that it was only "in recent months" that such a prescription was provided (report, page 4). If Dr Gertler confirmed that information by checking the Waratah Medical Services records, he may have had records which have not been provided to the court, or he may simply not have checked.

Dr Philip Olgers signed the plaintiff's personal injury claim form. He also referred the plaintiff for a knee X-ray for "MVA [sic] one month ago" (report of Grace Tai, 4 August 2010, Exhibit A). There is no report from Dr Olgers and, as the Review Panel noted when they saw them, what records he provided were illegible.

Dr Robin Higgs, in his report of 2 September 2013, states that the plaintiff is under the care of her general practitioner, Dr Suri (page 4, Exhibit A). There is no report from Dr Suri.

The plaintiff told Dr Robin Higgs that she continued to attend Wyong Hospital for review of her friction burns (page 8, Exhibit A). No documents or reports were tendered in relation to these visits. That does not mean that these visits did not occur, but means there is nothing to challenge (or confirm) the earlier Wyong Hospital accounts of the accident.

The confusion concerning which doctor was treating the plaintiff, and for what, is not made easier by the fact that the Review Panel revoked the 1 July 2013 certificate and made substitute findings in relation to the right knee, cervical spine and lumbar spine injuries. The Panel noted Dr Olgers provided a certificate dated 25 November 2010 in relation to the plaintiff's burns, and also noted, in relation to the general practitioner records provided, that "the immediate period around the subject accident is not covered"; there was a "prolonged gap" between the 3 November 2009 entry and the next entry of 7 December 2010 (Exhibit A, page 7) and in addition:

"The panel noted prescriptions for Panamax and Neurofen, an anti-inflammatory medication, but no mention of the subject motor vehicle accident." (Exhibit A, page 7 of the report)

The Panel decided to request further information from Dr Olgers on the basis that he was "noted by the panel to have arranged plain x-rays on 4/8/2010 so had been seeing the claimant during the early days post accident." These were provided, and were described by the Panel as follows:

"The panel received the clinical noted of Dr Philip Olgers under cover of a letter from MAS dated 9/12/13.

The handwritten records were very difficult to read...

There were handwritten records pertaining to the subject accident from July 2010 and August 2010. However, these were brief and illegible." [Page 10 of the Report]

Those records have not been tendered.

The plaintiff, when interviewed by the Panel, said she had consulted Dr Badenhorst, not Dr Olger (page 11 of the Report). She told the Panel she was being prescribed Cymbalta 60 mg, Lyrica, Endone 5 mg as necessary, Tranadol, Panadol osteo (6 tablets a day) and Valium (once daily) (page 12). There are patient management records for her dated April 2011 and onwards (Exhibit Q). These include a very different account of the plaintiff's home life and her academic difficulties, such as having to leave school half way through Year 10 (see notes 29 November 2012). She has been having ongoing treatment by a Dr Alex Smoleniec; no report from him has been provided.

There is thus almost a total absence of contemporaneous general practitioner reports concerning the plaintiff's treatment at the time of, and in the months (and indeed years) following the accident. The plaintiff's tender of the Waratah Medical Services notes is, for the reasons explained by the Review Panel, completely irrelevant to the issues in this case. The tender of investigative reports such as a CT Brain scan and injection reports provide little insight into the plaintiff's ongoing treatment. Although the plaintiff referred in her evidence to Dr Badenhorst, it is at best uncertain who the plaintiff's general practitioner was. Whatever the reasons for this, the plaintiff is deprived of the opportunity of pointing to contemporaneous medical records setting out her account of the accident and ongoing treatment prior to the medico-legal reports which are prepared from 2012 onwards.

The plaintiff's explanation for any inconsistencies between her account and the hospital and police records is her drugged state immediately following the injury, incompetence by the hospital staff in recording other patients' details, and incompetence by the police in failing to record, on 28 June 2010, the circumstances of her accident. The likelihood that so many professionals were performing their duties incompetently, in terms of failing to write down important information accurately, is hard to accept. The absence of contemporaneous notes from the plaintiff's treating doctor (or even certainty as to who that doctor was) is a small but unfortunate gap in the evidence. I do not draw any inference from their absence, but I note the comments of the Review Panel set out above.

The internal inconsistencies in the plaintiff's evidence, and the inconsistencies of the evidence of Mrs French and the plaintiff when compared to the evidence of Mr Delalande, are also of relevance. This brings me to a consideration of the issue of the credit of the plaintiff and her witnesses.

The credit of the plaintiff and her witnesses

The court's approach to the determination of witness credit issues has been the subject of extensive jurisprudence, some of which is summarised in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74]. The New South Wales Court of Appeal, in a series of judgments, notably Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 per Handley JA at 118D-E, Shekhani v Ardino [2009] NSWCA 361 at [11] - [99], Sangha v Baxter [2009] NSWCA 78 at [13] and, more recently, Azar v Kathirgamalingan [2012] NSWCA 429 at [87] - [90], has carefully explained the role credibility plays in relation to personal injury proceedings.

The correct approach to the creditworthiness of witnesses has also been the subject of extra-curial writing. I particularly note the contributions of The Honourable Justice McClellan, "Who is telling the truth? Psychology, common sense and the law" (2006) 80 Australian Law Journal 655; The Honourable Justice Ipp "Problems with Fact-finding" (Supreme Court of New South Wales, 2 September 2006) and Lord Bingham, "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pp 3ff; Current Legal Problems, Vol 38 Stevens & Sons Ltd 1985 page 1-27)).

It is well-recognised that the demeanour of a witness in the artificial atmosphere of the witness box is of little assistance. In Hecron v Cousens [1990] NSWCA 93 Kirby P explained:

"Scientific evidence and psychological experimentation has cast serious doubt on the reliability of assessing credibility from the impression made by witnesses in the artificial environment of the courtroom. See, e.g., Australian Law Reform Commission, Evidence (ALRC 26), AGPS, Canberra, 1985, 452ff; L Re, "Oral versus Written Evidence: The Myth of the 'Impressive Witness'" (1983) 57 ALJ 679. Good judges have always been circumspect about their capacity to discern truth-telling from lying by the impression which a witness makes on them in court. Thus, in Société d'Avances Commerciales v Merchants Marine Insurance Co (1924) 20 Ll L Rep 140, 152 (CA) Atkin LJ said: "I think than an ounce of intrinsic merit or demerit in the evidence, that is to say the value of the comparison of evidence with known facts, is worth pounds of demeanour."

In Lec v Matthews (1926) 25 Ll L Rep 525 at 543, the same distinguished judge declared: "The lynx-eyed Judge who can discern the truth-teller from the liar by looking at him is more often found in fiction or in appellate judgments than on the Bench."

Findings on credit generally relate to the examination of internal inconsistencies or implausibilities in the evidence of a witness, conflicting testimony between witnesses and/or inconsistent documentation (in particular, contemporary business records or other documents prepared by persons unrelated to the litigation. Care should be taken, however, when considering the contents of busy professionals such as ambulance officers and hospital staff, whose concern is to treat what could be life-threatening injuries rather than to record how the accident occurred: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23].

Where the court finds that a witness has told a lie, either in the proceedings before the court, or in other court proceedings, the correct approach for the tribunal of fact to take is as set out in Malco Engineering Pty Ltd v Ferreira(1994) 10 NSWCCR 117. The court should be slow to make such a finding, and should be comfortably satisfied that such a finding is warranted. The nature of the lie is also important - a witness's lie may be of tangential relevance (for example, lying about one's weight, or medication, or future job aspirations) or it may be central to the issues in the case (such as whether the accident occurred at all, or in the circumstances described).

The degree of relevance that issues of credit may have to proceedings against the Nominal Defendant, and how to apply any such findings, will depend upon the facts of the case. For example, where a plaintiff has no recollection of events due to the circumstances of the accident and/or injuries received, issues of credit need to be determined with care. This was apparent in both appeals brought in Nominal Defendant v McLennan [2012] NSWCA 148 and McLennan v Nominal Defendant [2014] NSWCA 332.

The facts in those proceedings were as follows. The plaintiff, who was getting out of his car in a car park at 4.30 am, saw car lights behind him and heard a car motor revving, but thereafter could not recall what happened. The trial judge noted, in relation to inconsistencies in evidence and medical opinions, that he intended to "proceed cautiously on an issue by issue analysis of the matters in dispute, rather than to apply a blanket credit finding against the plaintiff." The Court of Appeal, in setting aside the trial judge's adverse credit findings against the plaintiff, applied the principles set out in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117. At [221] McColl JA explained that this was because of the "uncertainty" of what happened, arising from the plaintiff's inability to remember, as opposed to evidence of lying:

"The 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"

McColl JA particularly noted (at [225]) the danger, in such a case, of placing too much weight on earlier, and apparently internally consistent accounts of the accident, which were then in conflict with the plaintiff's later evidence:

"The 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."

Thirdly, McColl JA warned against too ready an assumption that lies told by a witness meant that the account of the accident was itself a lie:

"Further, 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."

These proceedings were remitted to this court for rehearing and the plaintiff was again unsuccessful: McLennan v Nominal Defendant [2014] NSWCA 332. While the appeal was dismissed because of failure to carry out due search and inquiry (per Basten JA at [20], noting the plaintiff's account of the accident as "on one view...implausible") and the judge did not determine the issue on credit findings (at [60]), the court was not critical of the second trial judge's acceptance of the same inconsistencies in the plaintiff's account of the accident to medical practitioners (at [63] - [64]).

The issue in these proceedings is, however, not the general issue of credit, but the question of how to deal with two different accounts both of the reporting of the accident to the police and of the circumstances of the accident itself. Counsel for the defendant has drawn my attention to McColl JA's reference in McLennan v Nominal Defendant to Malco Engineering v Ferreira, and submits that the plaintiff has lied in her testimony on issues central to the factual matrix of these proceedings.

Counsel for the defendant draws to my attention the fact that all police and hospital records contemporaneous with the accident fail to refer to the near-collision with the white Toyota, and asks me to conclude that the plaintiff has lied in her account of the circumstances of the accident, which in fact occurred in the circumstances described by Mr Delalande, namely in circumstances where the defendant is not liable, not only due to lack of negligence but because the plaintiff was not riding on a public road.

Counsel for the plaintiff submitted that I had "the direct sworn evidence of a 22 year old member of the community" (T 254) whose sworn testimony should not be underestimated. The hospital and police records tendered did not amount to evidence from other witnesses, but to information (or lack of information) provided by the plaintiff, and as such had less weight than the testimony of other witnesses. The court would be unaware of what questions were asked to elicit that information, or even if the information in question was obtained by the plaintiff (T 255 - 6). This information "could have come from a worker at the hospital that had been given to her by someone" (T 257).

Mr Quickenden pointed out that the Court of Appeal has repeatedly urged judges to regard hospital and police reports with the utmost caution, for the reasons explained by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2]:

"[2] First, the trial judge was invited to discount the appellant's oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:

(a) the health professional who took the history has not been cross-examined about:

(i) the circumstances of the consultation;

(ii) the manner in which the history was obtained;

(iii) the period of time devoted to that exercise, and

(iv) the accuracy of the recording;

(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;

(c) the record did not identify any questions which may have elucidated replies;

(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and

(e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history.

[3] The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.

[4] Thirdly, and more significantly, it was quite possible that the elements of florid expression and exaggeration in the applicant's oral testimony (and in some of the recorded histories) may have been a function of her psychological state. This was not something that the trial judge could readily assess without expert assistance, but it was a possibility that should not have been ignored. On one view, the pre-attack records (particularly the notes of Dr Hamad) were devoid of the flamboyant language found in post-attack accounts."

The following may be noted:

(a) The notes of both hospitals, which have been created independently of each other, are consistent over almost a two-week period;

(b) The absence of notation of complaint to the police the day following the accident, a document created independently to the hospital records, is consistent with there having been no reported unidentified vehicle;

(c) The plaintiff's ability to give a coherent account of events appears to be supported by references to her mental and physical state; and

(d) The accuracy of the other information in these documents is not challenged.

Additionally, there is the evidence of Mr Delalande. Mr Quickenden put it to me that even if the plaintiff was part of what Mr Quickenden called "that ruse", that does not mean that she was not telling the truth about how the accident occurred. There was no evidence to contradict the plaintiff as to where and in what circumstances the accident occurred, and her mother's evidence (and, to a limited degree, that of Mr Delalande) supported that evidence, which was sufficient corroboration (T 259 - 60).

Ms Allan's submissions were that I would not accept the plaintiff, her mother or Mr Delalande as witnesses of credit, because of the acknowledged inconsistencies in circumstances where the alternate explanation of a "ruse" to avoid prosecution was not adopted by the plaintiff in any event. Additionally, Ms Allan pointed to a series of Court of Appeal decisions explaining the manner in which the court should approach evidence in claims against the Nominal Defendant, where evidence was by definition lacking, in that the vehicle which caused the accident, and its driver, were almost always unknown.

Negligence and the Nominal Defendant

How should the trial judge approach the evaluation of evidence in proceedings against the Nominal Defendant, where evidence from the driver of the unknown vehicle (and often of witnesses to the accident) is not available? Are the issues the same, or are there additional matters which should be taken into account? As is set out below, the same issues arise, although the factual issues may be different. For example, rather than competing versions of the accident by both the driver and the injured person, the court may have to determine whether to accept one or the other (or none) of one or more accounts of the accident in circumstances where the evidence of witnesses is either nonexistent or limited. There may be more than one alternative put forward to explain the plaintiff's injuries, and the question is how these alternatives should be assessed, and whether the judge should, in the absence of the burden of proof being discharged, decline to accept either theory: Guest v The Nominal Defendant [2006] NSWCA 77).

A cautious approach should be taken to the determination of negligence 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 vGriffiths (1976) 13 SASR 494.

This is particularly the case where 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". There was no absence of evidence in that case, in that the plaintiff was a pillion passenger and there was also evidence from a witness; however, the trial judge did not accept their evidence and found for the defendant.

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:

"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 identity of the nominal defendant. As I pointed out, he represents, in a sense, the driver of the 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. Judge Torrington analysed in detail and with some care the problems which were created by the totality of the evidence given in the case and concluded in the ultimate that he was unable to accept the versions of witnesses. This course was, in my opinion, perfectly open to him."

An greater problem arises where the plaintiff's own evidence suggests alternate explanations for the injuries. This was the case in the two hearings and appeals in McLennan v Nominal Defendant [2010] NSWDC 28; Nominal Defendant v McLennan [2012] NSWCA 148; McLennan v Nominal Defendant [2014] NSWCA 332, where the competing versions for the injuries were either the plaintiff had been hit by a car while in the car park, or he had been assaulted by a known enemy. The first trial judge, Levy SC DCJ, did not accept the plaintiff's evidence on credit grounds, principally based on the plaintiff's contemporaneous description of the accident to hospital staff. This finding was set aside and the proceedings referred to the District Court for rehearing.

In the second hearing, the trial judge, Garling ADCJ stated:

"I have two conflicting inferences, both strong, both competing. If I have to pick one I would feel that he was probably struck by a motor vehicle. But there are still two very much competing inferences and even if I find he was struck by a motor vehicle, ... I am not satisfied there was any negligence. I simply do not know what happened. I do not know other than, if he was struck by a motor vehicle, he was struck from behind and I know where he was laying [sic: scilicet lying]. Anything could have happened in [the period from when Mr McLennan put on his jacket after getting out of the car until he awoke on his left side between two cars]."

([2014] NSWCA 332 at [79]; emphasis added by Emmett JA)

Is it necessary for the trial judge to accept one version of events and reject the other, or even to arrive at a third version? At [86] the Court stated:

"A court is not authorised to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied (Guest v The Nominal Defendant [2006] NSWCA 77 at [108], citing Jones v Dunkel[1959] HCA 8; 101 CLR 298 at 304-5)."

In Guest v The Nominal Defendant the plaintiff, who was inebriated, was found unconscious on the roadside with "extremely unusual" (at [17]) injuries, including castration. The question was whether he had been struck by a motor vehicle or the victim of an assault. The plaintiff had no recollection of what had happened (Handley JA noted at [99] that there were no credit findings); instead, the parties called experts as to the how the injuries could have been suffered.

The court (by majority) concluded that the trial judge, Sidis DCJ, rightly held that the plaintiff did not discharge the onus upon him. It was not necessary for the trial judge to prefer one theory over another, or to seek to reconcile the evidence to determine a third possibility (see also McLennan v Nominal Defendant [2014] NSWCA 332 at [86] - [91]).

Firstly, there is the question of whether the plaintiff's version should be accepted in circumstances where there is a real likelihood that she has lied to the court about the circumstances of the accident: where it occurred, whether her boyfriend was present, what speed she was travelling at, and whether another car was involved.. Secondly, even if I accept the plaintiff's version, has negligence been established?

In answer to the first of these questions, when determining the competing versions, I should take into account my findings that neither the plaintiff or her witnesses are persons whose evidence should be accepted without corroboration from a witness of credit. The facts of this case are stronger than Guest v The Nominal Defendant or McLennan v The Nominal Defendant, in that, in those cases, the possibilities of alternative explanations for the plaintiff's accident were supposition based on the nature of the injuries and/or conflicting accounts to medical practitioners and of a hypothetical nature, where the plaintiff could not recall what had happened. In the present case, consistent accounts by the plaintiff to the two hospitals providing treatment, over a period of time, are in conflict with her evidence in this court.

Secondly, even if I were to accept the plaintiff's version of the accident, has she established that her injuries were occasioned by the negligence of the unknown driver?

In Guest v The Nominal Defendant the Court of Appeal accepted the trial judge's finding that, if the plaintiff's injuries were caused by a motor vehicle, the onus of proof had not been discharged. Has the plaintiff discharged that burden here?

Mr Quickenden put to me that the facts spoke for themselves, in that "something happened" on the roadway, with the result that the plaintiff was forced off the road by the negligence of the unknown white Toyota. Ms Allan submitted that the plaintiff had not discharged the onus of proof and that her lack of credibility on other issues meant that her uncorroborated version of events should not be accepted.

On the plaintiff's version, two vehicles in the roadway came within collision range and the plaintiff swerved to avoid this. The same vision obstacle would have been apparent to each. The position of the vehicles when this occurred is unknown. Even if the plaintiff had been travelling at 60 kilometres an hour, her small trail bike would have been hard for the motorist to see (especially without lights).

In Nesterczuk v Mortimer (1965) 115 CLR 140, where one vehicle struck another a glancing blow, Owen J (at 155) described the apportionment of liability as "a mere guess". Windeyer J said at 154:

"Doubtless the facts spoke for themselves, and eloquently, of negligence: but of whose negligence they had nothing convincing to say."

Independently of my adverse credit findings, and my findings that the plaintiff suffered an injury while riding with her boyfriend in circumstances not involving a white Toyota Corolla, the plaintiff cannot discharge the burden of proof. As an 18-year-old unlicensed driver, unfamiliar with the road rules and riding on the road illegally, the plaintiff responded to seeing another vehicle on the roadway, which she thought might strike her trail bike, by veering off the road. The plaintiff has not discharged the burden, even if the accident occurred more or less in the manner that she claimed, that this vehicle was at fault. If any of the additional factual material in the hospital notes was correct (such as that she was travelling at 80 kilometres per hour), the burden of proof becomes even more difficult to discharge.

As was the case in Guest v Nominal Defendant (where credit was not an issue), the plaintiff has failed to prove that the other vehicle, for which the defendant is liable, was negligent.

Alternatively, it is necessary for me to make a finding that the plaintiff (and Mrs French and Mr Delalande) have all been less than frank in their evidence and, in the case of the plaintiff, given the court an untruthful account of how the accident occurred. The true version, I am satisfied, was the version the plaintiff gave to the hospitals treating her in the two weeks following the accident.

Although I have found in favour of the defendant, I shall make short observations as to contributory negligence, due inquiry and search, and quantum.

Contributory negligence

In view of my findings on liability, I shall deal with this issue briefly.

The plaintiff was illegally riding a trail bike on the road, without headlights. She told the hospital she was travelling at about 80 kilometres an hour, although she told the court that she was travelling 60 kilometres an hour. The motorist's vision, like her own, was obstructed by the mound or ridge which blocked her view of the oncoming car until the last minute.

Ms Allan put the percentage of contributory negligence at 30%. Mr Quickenden did not put a figure, and submitted that any allowance for contributory negligence, if made, would be minimal.

If I have erred in my findings as to negligence, I would accept Ms Allan's assessment of 30%.

Due inquiry and search

Sections 34 and 34A Motor Accidents Compensation Act 1999 (NSW) provide:

"34 Claim against Nominal Defendant where vehicle not identified

(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot be established, be brought against the Nominal Defendant.

(1AA) A claim cannot be made against the Nominal Defendant under this section unless due inquiry and search has been made to establish the identity of the motor vehicle concerned.

(1A) If the motor accident resulting in the death of or injury to a person occurred on land that is a road related area within the meaning of section 4 (1) of the Road Transport Act2013 because it is an area that is open to or used by the public for driving, riding or parking vehicles, there is no right of action against the Nominal Defendant under this section if at the time of the motor accident the person was a trespasser on the land.

(2) The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search.

(3) In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle.

34A Rejection of claim for failure to make due inquiry and search to establish identity of vehicle

(1) If due inquiry and search has not been made to establish the identity of the motor vehicle concerned, a claim against the Nominal Defendant under section 34 cannot be referred for assessment under Part 4.4 unless:

(a) the Nominal Defendant has lost the right to reject the claim for failure to make that due inquiry and search, or

(b) a claims assessor has, on the assessment of a dispute as to whether the claim may be rejected for failure to make that due inquiry and search, assessed that due inquiry and search has been made, or

(c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.

(2) The Nominal Defendant loses the right to reject a claim for failure to make due inquiry and search to establish the identity of a vehicle if the Nominal Defendant:

(a) does not, within 2 months after the claim is made, reject the claim for failure to make that due inquiry and search or ask the claimant to make that due inquiry and search, or

(b) does not, within 2 months after being notified of efforts to establish the identity of the vehicle, refuse to accept that there has been due inquiry and search to establish the identity of the vehicle.

(3) If court proceedings are commenced on a claim against the Nominal Defendant under section 34, the Nominal Defendant may apply to the court to have the proceedings dismissed on the ground that due inquiry and search to establish the identity of the vehicle has not been made.

(4) An application to have proceedings dismissed on that ground cannot be made more than 2 months after the statement of claim is served on the Nominal Defendant and also cannot be made if the Nominal Defendant has lost the right to reject the claim on that ground.

(5) On an application to have proceedings dismissed on that ground, the court must dismiss the proceedings unless satisfied that due inquiry and search to establish the identity of the vehicle has been made."

It is not in dispute that the relevant rejection was not provided. The question is whether, in those circumstances, the defence can be raised at trial, and whether the provision of false or misleading information can in some way vitiate the failure to challenge whether due inquiry and search occurred.

The correspondence

The plaintiff engaged private investigators in an attempt to locate persons who might have information regarding the accident in the circumstances alleged by the plaintiff (Exhibit G).

On 22 December 2010, the Nominal Defendant wrote to the plaintiff's solicitors as follows (Exhibit H):

"We refer to your client's Personal Injury Claim Form received by our office on 08/12/2010. We note your client alleges the vehicle at fault in the above motor accident is unidentified.

Pursuant to Section 34 of the Motor Accident Compensation Act, please provide details of due search and inquiry including:

1. What steps were taken to identify the vehicle

2. By whom

3. Dates these steps were undertaken

4. The results of these inquiries

Please note liability will not be determined until your client's due inquiry and search has been established."

In a letter dated 12 January 2011 (Exhibit J), the plaintiff's solicitors sent the following reply to the claims consultant acting for the Nominal Defendant:

"We refer to your correspondence dated 22 December 2010.

As requested we provide the following details with respect to due search and enquiry:- [sic]

1. What Steps Were Taken to Identify the Vehicle

a. The accident was reported to Police;

b. An advertisement was placed in the local newspaper, The Newcastle and Hunter Editions of the Newcastle Post about the accident asking for any witnesses to the accident to contact ourselves;

c. An investigator was commissioned to canvass residents in the vicinity of the accident site to see if they had witnessed the accident and were able to provide any particulars in relation to the vehicle alleged at fault.

2. By Whom

a. Our client and her mother;

b. Ourselves;

c. Mistique Enterprises Pty. Limited.

3. Dates These Steps Were Taken

a. Initially by the Claimant's mother on the 1300 police assistance number the following day of the accident and then by the Claimant in person on 19 November, 2010 at the Tuggerah Lakes Police Station;

b. 1 December, 2010 in the Newcastle and Hunter Editions of the Newcastle Post;

c. 9 November, 2010.

4. The Results of These Enquiries

a. As far as we are aware the subsequent police investigation has not lead to the subject car being identified;

b. We have received no response to the newspaper advertisement we placed requesting that any persons witnessing the accident contact us;

c. None of the residents in the vicinity of the accident site canvassed by the investigator we retained in the matter, were able to provide any information about the accident or the identity of the alleged vehicle at fault."

This letter contains the claim that the accident was reported to police the day after it occurred. As is set out above, I am satisfied that this did not occur. This means that the determination by the defendant of whether due inquiry was made proceeded on an erroneous basis. No information is recorded in the police notebook about the accident and, not surprisingly, no inquiries were made by police subsequent to visiting the plaintiff's home on the day following the accident, which I am satisfied occurred solely because the bikes belonging to the plaintiff and to Mr Delalande were reported to them as stolen. Additionally, the defendant was not informed that the bike the plaintiff was riding at the time of the accident was reported stolen the following day.

The Nominal Defendant did, however, obtain the Wyong Hospital notes, and realised that the version of the accident given to the hospital was entirely different to the account of the accident given to its office. On 11 March 2011, the Nominal Defendant wrote to the plaintiff's solicitors as follows (Exhibit 17):

"We refer to the above matter and Wyong hospital Notes that you have served on us in relation to the claimant.

A perusal of those notes reveals that the claimant gave narratives in relation to her descriptions of the circumstances of how the accident occurred. It is clear that the accident did not occur so as to entitle her to make a claim.

We invite you to reassess the liability issue in this matter and we request that after such reassessment, your client withdraw this claim.

We bring to your attention the provisions of Section 118 of MACA 1999. We expect a response within 14 days of the receipt of this letter."

The plaintiff's solicitors replied, on 4 April 2011, (Exhibit 17) as follows:

"We refer to your correspondence dated 11 March, 2011.

We are aware of these narratives that you are referring to and have raised them previously with our client. Her instructions are, which she has reaffirmed, that the reference to a mate's car is a misinterpretation of her referring to the driver of the subject vehicle colloquially as "old mate" and that her boyfriend, (and indeed the first time she saw him that day was when he attended upon the hospital after being contacted by the claimant's mother and advised what happened) or any other bike rider was not in the vicinity of the accident.

Our client has advised that there were three other bike riders in accidents in her ward on that day. It may also be that an error in the narratives recorded has occurred as a result of this."

The defendant tendered the hospital records for the other patients in the ward. None of them were injured in the circumstances described by the plaintiff. Whether or not the plaintiff generally referred to male persons of a certain age as "old mate" cannot, however, explain the much longer interview she and her mother gave to the Royal North Shore Hospital, which included not only intimate details of the plaintiff's personal life but the same description of the circumstances of the accident.

Counsel for the parties confined their submissions as to whether, by failing to make the objection within the two-month period, but did not take me to any authority on this issue. It may be that there is none. In Parker v Nominal Defendant [2013] NSWDC 15 Levy SC DCJ held (at [24]) that failure to do so within the 2 month period meant that the Nominal Defendant lost the right to bring an application for dismissal.

Is it inconsistent to hold that the summary dismissal right is lost but the right to raise the issue at the trial remains? Is the legislation aimed only at summary applications? There is nothing in the statutory language to this effect.

In Parker v Nominal Defendant Levy SC DCJ went on, notwithstanding the dismissal of the summary judgment application for lack of due and proper inquiry, to make formal findings of fact. I propose to follow the same course.

I am satisfied that, contrary to the information given to the defendant, the plaintiff did not notify the police until November 2010, as opposed to the day after the accident. While Mr Quickenden put to me that this was only a few months after the accident, the Nominal Defendant was misled by this information, and by the explanation given by the plaintiff for the contents of the Wyong Hospital notes. It would have been on the basis of these answers provided by the plaintiff's solicitors that the rejection of the claim referred to in the correspondence was not proceeded with.

The purpose of the due search and inquiry provision is to assist the Nominal Defendant to investigate all aspects of the claim promptly: see the discussion of Blandford v Fox 45 SR (NSW) 241 at 254 and Harrison v Nominal Defendant (1975) 7 ALR 680 by Greenwood J in Rehn v Nominal Defendant (Supreme Court of New South Wales, 9 April 1990), holding that a report to police two months after the accident, and subsequent newspaper advertisements, were insufficient. Whether the "due" element is satisfied is what a reasonable person would have done in the circumstances: Cavanagh v Nominal Defendant (1958) 100 CLR 375 at 380 - 1 per Dixon CJ.

The misleading and inaccurate information provided by the plaintiff meant that the defendant could not carry out a proper search. In particular, the plaintiff's answers concerning the Wyong Hospital notes were not honest. If it were open to me to make such a finding I would find that the due inquiry and search requirement has not been made, but I remain of the view that Levy SC DCJ's interpretation is correct.

The statute is silent as to what should occur if inconsistent evidence is uncovered at trial where no issue had previously been taken to due inquiry and search, in that the plaintiff's statements as to when and in what circumstances the accident occurred was accepted, but later found to be wrong or untrue. That may be an appropriate matter for statutory amendment.

Damages

The plaintiff and defendant have provided their respective schedule of damages, which I have consolidated into a table as follows:

Plaintiff

Defendant

Non-economic loss

$250,000

$130,000

Past out-of-pocket

$3,068.45

$3,068.45

Future out-of-pocket

$25,667.50

$25,667.50

Past economic loss

$12,000

$12,000

Past superannuation

$1,320

$1,320

Future economic loss

$300,000

$20,000 (buffer)

Future superannuation

$35,000 (13% of nett)

Nil

Past care (lawn mowing)

$3,000

Nil

Future Care (lawn mowing)

$50,000

Nil

Total

$680,055.95

$192,055.95

While the plaintiff was not employed in the strict sense prior to the accident, she had accepted an offer of employment which she was able to take up, approximately two months after the accident. I do not accept her claim that she was unable to perform day shift duties; the evidence on her employment record shows that she has been working only after the accident, and at all relevant times on night duty.

The plaintiff has a substantial and serious deformity of her leg in the form of scarring which I am satisfied would make a significant impact on her life as well as causing pain. The award of non-economic loss should take this into account. The amount proposed by the defendant ($130,000) adequately reflects such a loss.

Past and future out of pocket expenses

Past and future out of pocket expenses are agreed.

Past and future economic loss and superannuation

Past economic loss and superannuation are agreed.

As to future economic loss, the plaintiff gave widely differing accounts of the impact of her injury to medical practitioners. Some of these are:

(a) She told the staff at the Royal North Shore Hospital, during her stay in that hospital between 2 - 12 July, that she was supposed to be starting her first day at work while she was there;

(b) She told Dr Walker (see page 1 of his report dated 28 February 2012) that she had been "working for 18 months in the job 72 - 80 hours every two weeks" and that she had 5 months off work due to her injuries, following which she was put on light duties at night, as she could not manage the day shift. She gave a different version again of her work history to Dr Conrad.

As is set out above, the plaintiff in examination-in-chief painted a picture of being unable to perform her pre-injury work duties and as having gradually got back to full time work, albeit on night shift where the work load was lighter, over the past four years. In the course of cross-examination the plaintiff agreed:

(a) She had not commenced work until after the accident (T 54);

(b) The histories she gave to the Review Panel, Craig Martin, Dr Walker and Dr Conrad were incorrect (T 56 - 7);

(c) She returned to her duties two months after the accident (T 58) and had not had extensive time off work as she had told the doctors (T 61);

(d) She had not been on day shift before the accident (T 58);

(e) She had not been on restricted duties (T 59);

(f) The description of her work duties involved frequent forward bending and looking down, making beds and other activities which she had stated were difficult and/or caused her pain (T 59 - 61);

(g) She had lodged a claim for injuries involved in lifting patients, and her job description referred to lifting weights of 10 kilograms (T 61).

Although two warning letters were tendered, I am satisfied that the plaintiff has the capacity for full time employment and that only a small cushion for future economic loss should be allowed. I accordingly would accept the figure proposed by the defendant.

In doing so, I should note that I have not accepted that the plaintiff has established a case for loss of a chance of a career. In the course of her evidence the plaintiff said her hope had been to enter the defence forces or the police force. The plaintiff told the court she had obtained her school certificate, but she told Dr Smoleniec on 29 November 2012 that she "struggled academically" in high school and left in Year 10 (Exhibit Q); this was not, however, the subject of cross-examination, so I must treat this inconsistency with caution.

However, the plaintiff agreed that she had failed the entrance examination for the defence forces, although she said she hoped to try again when she was more mature. Dr Robin Higgs, in his supplementary report of 12 May 2014 (Exhibit A) comments:

"It is interesting to observe that Ms Buggy did not advise me of her intention to apply for admission to a [sic] Police Force and/or the Australian Defence Force. Interestingly the lady is not terribly sportive. She does not now play any sport although she has previously played Soccer.

I have reviewed all of the literature that you have made available to me and I have formed the conclusion that Ms Buggy is probably unfit for service in a [sic] Police force or in a Military Unit. My review of the literature has caused me to have considerable doubts as to whether Ms Buggy would be able to pass all of those fitness tests that are involved."

The Vocational Guidance Report, however, assessed her as having an 85% possibility of working as a police officer and a 90% chance of working in the Defence Force, despite failing the examination. The reasoning behind these percentages is not exposed and this must diminish the value of these reports to vanishing point. The plaintiff's own evidence was that she failed the Defence Force examination and was not accepted back to take a second test.

Paid past and future care

The plaintiff clearly required care and assistance for the two months prior to commencing employment. She received voluntary assistance from her mother. This falls below the threshold.

The plaintiff's work duties on night shift show that she is capable of a wide range of activities. Not only was she capable of full time work about two months after the accident, but her mother left her for nearly two months at the end of 2010 to perform work duties in Christmas Island. It would appear, from the contents of Mrs French's general practitioner's notes, that Mrs French is required to work overseas at regular intervals. While Mrs French denied that these trips had occurred (apart from the 2010 trip), I prefer to accept the accuracy of her general practitioner's reports. This is indicative of the plaintiff being able to care for herself.

There is no doubt that Mr Grant has been cutting the lawn at Mrs French's home for some years. However, I am satisfied, from his observations of the plaintiff on occasion using the whipper-snipper, that the plaintiff is capable of cutting the lawns and attending to garden chores if called upon to do so.

I would accordingly not make any allowance for past or future care.

Orders

(1) Judgment for the defendant.

(2) Plaintiff pay defendant's costs.

(3) Liberty to apply in relation to costs.

**********

Decision last updated: 11 December 2014

Medium Neutral Citation:	Buggy v The Nominal Defendant [2014] NSWDC 224
Hearing dates:	3, 4 and 5 November 2014
Decision date:	28 November 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Plaintiff pay defendant's costs. (3) Liberty to apply in relation to costs.
Catchwords:	TORT - personal injury - plaintiff brings proceedings against Nominal Defendant for injuries incurred while avoiding a collision with an unknown vehicle - plaintiff illegally riding trail bike on the roadway at the time of the alleged accident - plaintiff describes an accident involving her trail bike and her boyfriend's trail bike, in different circumstances to those described to medico-legal experts, to hospitals and medical practitioners following the accident - plaintiff's evidence as to when she informed police of the accident challenged - reconciling different versions by a plaintiff of an accident - reliability of statements made to health professionals when the plaintiff was seriously injured - role of corroborative evidence - role of credit findings - discharging the burden of proof in proceedings against the Nominal Defendant - whether the defendant could raise due inquiry and search at the trial despite failing to object formally within the time frame set out in 34 and 34A Motor Accidents Compensation Act 1999 (NSW) - contributory negligence - damages
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 34 and 34A
Cases Cited:	Askarou v Nominal Defendant (NSW) (1989) 8 MVR 491 Azar v Kathirgamalingan [2012] NSWCA 429 Blandford v Fox 45 SR (NSW) 241 Cavanagh v Nominal Defendant (1958) 100 CLR 375 Container Terminals Australia v Huseyin [2008] NSWCA 320 Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 Dimovski v GIO (NSW) (1995) 21 MVR 288 Freeman v Griffiths (1976) 13 SASR 494 Guest v The Nominal Defendant [2006] NSWCA 77 Harrison v Nominal Defendant (1975) 7 ALR 680 Hecron v Cousens [1990] NSWCA 93 Hill v Richards [2011] NSWCA 291 Hofer v Miller (1957) SASR 41 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Lec v Matthews (1926) 25 Ll L Rep 525 Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 Mason v Demasi [2009] NSWCA 227 Mastronardi v State of New South Wales [2009] NSWCA 270 McLennan v Nominal Defendant [2010] NSWDC 28 McLennan v Nominal Defendant [2014] NSWCA 332 Nesterczuk v Mortimer (1965) 115 CLR 140 Nominal Defendant v McLennan [2012] NSWCA 148 Parker v Nominal Defendant [2013] NSWDC 15 Rehn v Nominal Defendant (Supreme Court of New South Wales, 9 April 1990) Sangha v Baxter [2009] NSWCA 78 Shekhani v Ardino [2009] NSWCA 361 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Texts Cited:	Lord Bingham, "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pp 3ff; Current Legal Problems, Vol 38 Stevens & Sons Ltd 1985 page 1-27) The Honourable Justice Ipp "Problems with Fact-finding" (Supreme Court of New South Wales, 2 September 2006) The Honourable Justice McClellan, "Who is telling the truth? Psychology, common sense and the law" (2006) 80 Australian Law Journal 655
Category:	Principal judgment
Parties:	Plaintiff: Lauren Buggy Defendant: The Nominal Defendant
Representation:	Plaintiff: Mr R E Quickenden Defendant: Ms C Allan Plaintiff: Peninsula Law Defendant: TL Lawyers
File Number(s):	2013/74225
Publication restriction:	None

Plaintiff	Defendant
Non-economic loss	$250,000	$130,000
Past out-of-pocket	$3,068.45	$3,068.45
Future out-of-pocket	$25,667.50	$25,667.50
Past economic loss	$12,000	$12,000
Past superannuation	$1,320	$1,320
Future economic loss	$300,000	$20,000 (buffer)
Future superannuation	$35,000 (13% of nett)	Nil
Past care (lawn mowing)	$3,000	Nil
Future Care (lawn mowing)	$50,000	Nil
Total	$680,055.95	$192,055.95