Nominal Defendant v McLennan - [2012] NSWCA 148

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nominal Defendant v McLennan [2012] NSWCA 148
Hearing dates: 12 and 18 August 2011
Decision date: 18 May 2012
Before: Beazley JA (at [1]), McColl JA (at [18]), Macfarlan JA (at [230])
Decision:
1. Appeal allowed.
2. Set aside the judgment of Levy DCJ of 8 June 2010.
3. Remit the matter to the District Court of New South Wales for a new trial.
4. Costs of the first trial to be in the discretion of the judge who hears the second trial.
5. Respondent to pay the costs of the appeal and have a certificate under the Suitor's Fund Act 1951 if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
APPEAL AND NEW TRIAL - credibility of witness - adverse credit findings against plaintiff at trial - where liability reliant on plaintiff's evidence - whether whole of plaintiff's evidence should be rejected - whether judge palpably misused advantage as trial judge - whether trial judge dealt adequately with inconsistencies in evidence and medical opinions

EVIDENCE - medical evidence - whether plaintiff had retrograde amnesia - whether failure by trial judge to properly analyse medical evidence - whether trial judge erroneously substituted own opinion of medical issues for evidence

TORTS - negligence - mechanism of injury - alternate version of events equally probable
TORTS - negligence - motor vehicle accident - Nominal Defendant - Motor Accidents Compensation Act 1999 s 34 - whether plaintiff struck by unidentified vehicle - whether plaintiff undertook due search and inquiry
Legislation Cited: Motor Accident Compensation Act 1999
Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007
Suitor's Fund Act 1951
Supreme Court Act 1970
Cases Cited: Agbaba v Witter (1977) 14 ALR 187
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Brown v Harding [2008] NSWCA 51
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Divall v Mifsud [2005] NSWCA 447
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Guest v The Nominal Defendant [2006] NSWCA 77
Lithgow City Council v Jackson [2011] HCA 36; (2011) 85 ALJR 1130
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117
Nominal Defendant v Meakes [2012] NSWCA 66
Nominal Defendant v Rooskov [2012] NSWCA 43
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Sretenovic v Reed [2009] NSWCA 280
Strinic v Singh [2009] NSWCA 15; (2009) 74 NSWLR 419
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Yuill v Yuill [1945] 1 All ER 183; [1945] P 15
Category: Principal judgment
Parties: Nominal Defendant (Appellant)
Terry McLennan (Respondent)
Representation: Counsel:
J Poulos QC with J J Ryan (Appellant)
S Norton SC with M Daley (Respondent)
Solicitors:
Moray & Agnew (Appellant)
Brydens Compensation Lawyers (Respondent)

File Number(s): 2010/151065
Publication restriction: No
Decision under appeal

Citation:

[2010] NSWDC 28

Date of Decision:

2010-06-08 00:00:00

Before:

Levy SC DCJ

File Number(s):

DC 5365/04

Judgment

BEAZLEY JA: I have had the advantage of reading in draft the reasons of McColl JA, which enable me to state my own reasons briefly.

As her Honour's reasons make apparent, the respondent's claim was problematic not the least because there was a substantial attack on his credit. However, the essential question was whether there was evidence that enabled a finding that the respondent had sustained injury as a result of an accident involving an unidentified motor vehicle. The appellant contended that the respondent was more likely to have been the victim of an assault. There was also an issue as to due search and inquiry.

The respondent's claim was that he was struck from behind by an unidentified motor vehicle at about 4:30 am on 5 September 2000 in a railway station car park. The respondent was proposing to catch the 5 am train to the city where he worked in a Hungry Jack's outlet. There were no witnesses to the accident and the respondent had no recollection of being struck.

His memory was that, moments before the accident, he heard the revving of a car engine and was aware of the shine of lights behind him. His next memory was of lying on the ground between two parked cars some 3 to 4 metres from where he last remembered being. He recalled waking up, going to his car and sitting in his car for about an hour. There was a great deal of emphasis at the trial as to the respondent's state of consciousness between the time he was struck and approximately 9 am, when he got up and went to his car. He arrived back home at about 10 am.

On one occasion in his evidence, he said he was "unconscious during a period of several hours". That was also the history he gave to Dr Spira, the appellant's expert neurologist. In cross-examination, he agreed to the proposition that he "woke up" and said that was after "several hours". There were other descriptions used in the histories recorded in the various medical reports, including that he "regained awareness". The time period also varied in the medical reports from 40 minutes to several hours. The respondent accepted in cross-examination that the time period of 40 minutes "might be out".

The respondent attended his general practitioner, Dr Tablante, on 6 September 2000, the morning after the incident. According to Dr Tablante's notes of that consultation, the respondent reported that he was:

"Hit at Holsworthy Station from behind/no recollection of incident

awoke with multiple bruising to chest/LL/neck/head

- o/e alert ..."

It was accepted that the reference to "LL" was to "lower legs".

Dr Tablante gave evidence that he considered that the respondent's injuries were consistent with a motor vehicle accident and not with an assault. His opinion was based first upon the bilateral bruising to the respondent's lower legs and, secondly, upon his experience in the emergency departments of hospitals in which he observed injuries sustained in assaults. The injuries recorded by Dr Tablante substantially accorded with the respondent's wife's evidence, save that she said that the respondent had bilateral bruising to his upper legs. There was also an issue as to the location of the injury to the respondent's head, to which I refer below.

Some time after the accident, the respondent wondered whether there was a connection to an incident about two weeks earlier, when he had been subpoenaed as a witness in criminal proceedings that commenced on 21 August 2000. As events turned out, the respondent was not required to give evidence. However, whilst waiting at the court, he was threatened with reprisals if he did testify.

The appellant's case was that the respondent's account of the accident was, at the best, mere surmise. This challenge was based in large measure on the evidence of Professor Spira, that if the respondent had been unconscious for any period of time, he would have had "at least minutes of retrograde amnesia". If that was correct, the respondent could not have heard the revving of the engine of a motor vehicle or been aware of its headlights because, on the respondent's evidence, that could have only occurred seconds before the vehicle supposedly knocked him over. The effect of Professor Spira's evidence was that retrograde amnesia does not occur for an indefinite period of a few seconds. A lapse of memory for such a short period could, in a particular case, be attributed to shock. However, as I have said, Professor Spira's evidence was based upon the respondent having been unconscious.

The underlying premise of Professor Spira's opinion, namely, that the respondent had been unconscious for a period of time, was not without foundation. As I have said, the respondent gave a history to Professor Spira that he had been unconscious. Dr Tablante's supporting report to the respondent's workers compensation claim also included a statement that the respondent had been unconscious. Part of the appellant's cross-examination of the respondent proceeded upon the basis that he was unconscious for a period, probably for up to four hours. The respondent did not resist the suggestion that he had been unconscious. As I have also indicated, other descriptions of his state of consciousness were used in the evidence. However, Professor Spira explained that a state of unconsciousness was like being in a "coma state". There was no evidence that the respondent was in that state.

One theory advanced by the appellant was that the respondent may have been assaulted, rather than being hit by a motor vehicle. It was contended that the respondent's injuries were consistent with, if not more consistent with, having been attacked and hit by somebody, rather than having been struck by a motor vehicle. In support of this argument particular focus was placed upon the position of the injury to the respondent's head.

Although not recorded in his notes, Dr Tablante gave evidence at trial that the respondent had swelling on the top of his head. This was to be contrasted with the respondent's evidence, and that of his wife, that he had a lump on the back of his head. If the lump was on the top of his head, it was, on the appellant's argument, consistent with having been subjected to a personal assault, not to being hit from behind by a motor vehicle. The appellant also relied upon the fact that there was no complaint or evidence of any injury to the palms of the respondent's hands which, on the appellant's argument, would have been likely had he been bumped from behind by a motor vehicle and thrown forward.

The trial judge accepted that the respondent's credit had been severely dented by the cross-examination, particularly in relation to his employment history. Nonetheless, his Honour accepted the respondent's version of what occurred in the seconds before the accident. His Honour was fortified in this conclusion by three factors: first, Dr Tablante's contemporaneous record of both the history given and injuries sustained and his view that the injuries were consistent with a motor vehicle accident and not with an assault; secondly, the respondent's wife's observations of the respondent's state on arrival at home partly corroborated aspects of his version of events; and thirdly, the respondent's account in the documents he submitted for the purposes of his workers compensation claim.

In my opinion, his Honour was entitled, on the evidence, to come to that conclusion, notwithstanding the criticisms that can be made of aspects of his reasoning and notwithstanding, in particular, the criticisms of the respondent's evidence. However, there was the confounding factual question relating to the position of the lump on the respondent's head. Whether the lump was at the back of his head, or on the top, it could be argued that that injury would not have been sustained if the respondent was propelled forward after having been hit from behind.

However, such an argument overlooks the consistency of the other injuries with the respondent's version and assumes that the bump to the head was part of a fall due to having been hit from behind. That does not necessarily follow. The respondent ended up a short distance from where he was hit. Precisely on what he hit his head is uncertain. Although some energy was expended at trial on the question of how the respondent could have had a bump to the top or the back of his head if he was knocked over by a car from behind, that was not the only time when the injury to the head could have been sustained. Dr Tablante attempted to deal with this question. Even if his evidence on that question was not entirely satisfactory, it at least recognised that the precise dynamics of the cause of that injury were unknown.

At the end of the day there was no incontrovertible evidence that contradicted the respondent's evidence relating to the car coming up behind him. Professor Spira, when challenged as to whether the respondent's memory might be a "non-genuine memory" said, "I don't know". It was for the trial judge to determine whether he accepted the evidence or not. His Honour chose to accept the respondent on this issue and I see no error in his having done so. The respondent's evidence, in combination with the injuries he sustained, provided sufficient circumstantial evidence for the claim to be accepted. I do not consider that the trial judge misused the advantage he had in hearing the whole of the evidence in reaching the conclusion that he did.

As my conclusion does not accord with that of the majority, I will only comment, in respect of the question of due search and inquiry, that I see no error in his Honour's conclusion.

McCOLL JA:

TABLE OF CONTENTS

Background

21

Legislative scheme

26

Statement of the case

28

THE PRIMARY JUDGMENT

37

Credibility

42

Whether respondent struck by an unidentified vehicle?

70

Retrograde amnesia

85

Was the driver negligent?

92

Contributory negligence

94

Due search and inquiry

95

The respondent's injuries

99

Disabilities

107

GROUNDS OF APPEAL

116

APPELLANT'S SUBMISSIONS

118

RESPONDENT'S SUBMISSIONS

125

THE CROSS-APPEAL

134

CONSIDERATION

136

The credit issue

144

Liability

152

Reports of the incident

160

The assault theory

177

The retrograde amnesia issue

182

The mechanism of injury

192

CONCLUSION

202

ORDERS

229

The Nominal Defendant, the appellant, appeals from a decision of Levy SC DCJ who awarded Terry McLennan, the respondent, $643,607 in damages in proceedings for personal injury suffered in a motor vehicle accident: McLennan v The Nominal Defendant [2010] NSWDC 28.

For the reasons that follow, I am of the view the appeal should be upheld and a new trial ordered.

Background

The respondent claimed he was injured on 5 September 2000 when he was knocked over in Holsworthy train station car park by a car. He said that he lost consciousness after he was struck. He could not identify the vehicle which struck him. He claimed damages from the Nominal Defendant pursuant to s 34 of the Motor Accident Compensation Act 1999 (the "MAC Act"), asserting that, after due search and inquiry, the identity of the vehicle could not be established.

The appellant challenges the primary judge's orders essentially on the basis that, on the evidence as properly considered, the primary judge should have entered a verdict in its favour. It contends the evidence was not sufficient to support a finding either that the respondent was struck by an unidentified vehicle or that, if he was so struck, that the driver of that vehicle was negligent: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. In the alternative, it contends that the respondent's case should have failed at trial because, even if those two matters were established, the respondent failed to establish that he had undertaken due search and inquiry in an attempt to identify the vehicle which struck him.

There are a number of points in the appeal, but the one which assumed particular prominence, and is intrinsically interwoven with the liability issue, relates to credit. The appellant claimed that there was no evidence that an unidentified vehicle injured the respondent or that any such vehicle was driven in a negligent fashion. It mounted a sustained attack on the respondent's credit.

The primary judge found that the appellant had identified important matters that adversely impacted upon the reliability of the respondent's evidence, his preparedness to provide misleading information and the truthfulness of his evidence on certain issues. However, he concluded that although the respondent's credit had been successfully impugned to a significant degree by the appellant's attack, that attack had not succeeded to the point of requiring the respondent's claim to be rejected in its entirety.

The appellant complains that in a case which depended almost entirely upon whether the respondent was believed both as to how he was injured and as to his principal disability (migraines), his Honour impermissibly quarantined his adverse credit findings when dealing with the central issues of liability and damages. It contends that, in so doing, the primary judge palpably misused his advantage as a trial judge such that his finding in the respondent's favour should be set aside.

Legislative scheme

The only legislative provision requiring specific consideration is s 34 of the MAC Act which, as at 5 September 2000, relevantly provided:

"34 Claim against Nominal Defendant where vehicle not identified

(cf s 28 MAA)

(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.

...

(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."

Amendments made to s 34 by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007, Sch 1, [2] and [3], do not apply in respect of a motor accident that occurred before the commencement of the amending legislation on 1 October 2008: MAC Act, Sch 5, Part 6, cl 25; Nominal Defendant v Meakes [2012] NSWCA 66 (at [27] - [28]).

Statement of the case

The respondent said he was injured on Tuesday 5 September 2000 at about 4.30am. He said he had left home early in order to catch the 5.00am train from Holsworthy Station. He was starting work at 6.00am at Hungry Jacks in the city. He parked his car in darkness in the station car park in the second row about 100 feet from the station entrance. He said there were already 30 or 40 cars parked when he arrived at the station: primary judgment (at [57]).

He said he walked a distance of about two or three cars away from his car when he heard the sound of a car start up and "rev". He was aware that lights had come on. The primary judge interpreted this to be a reference to "headlights". There was a line of parked cars to his left. He was walking about six inches from the back of those vehicles. He thought there was ample room for a vehicle to drive past him on his right. He did not turn around. He became aware of increasing brightness of headlights illuminating around where he was walking. He heard the sound of acceleration as if the accelerator of a vehicle had been pushed all the way to the floor: primary judgment (at [52] - [53]).

The respondent said his next recollection was of being aware he was lying on his side between two parked cars in the car park. It was daylight: primary judgment (at [54]).

When he woke up he said initially that he did not recall seeing anyone around him in the car park. He later clarified this statement by saying there were people walking through the car park, but no one came to his assistance. He had trouble standing. He had a "massive headache". It took him some time to realise where his car was parked, then he went to it. He was unsure whether or not he passed out, but thought it was at least half an hour before he left the car park. He drove home at about 10.00am: primary judgment (at [55] - [56]).

The respondent saw his general practitioner, Dr Tablante, the following day. Dr Tablante's notes of that examination state:

"Hit at Holsworthy Station from behind/no recollection of incident - awoke with multiple bruising to chest/LL/neck/head - o/e alert ..."

The remainder was indecipherable but appears, in any event, to relate to Dr Tablante's advice to the respondent. The primary judge (at [66]) said that "Dr Tablante noted that the plaintiff had sustained injuries "to his head + front due to the impact on the ground." I have not found that entry in Dr Tablante's notes.

Dr Tablante said at trial that the respondent told him that "he was walking at Holsworthy car park ... saw headlights behind him and he heard a car and that was it". He also said the respondent had swelling on the top of his head.

Dr Tablante referred the respondent to several medical practitioners. His referral letters contained various "accounts" of how the respondent was injured which the primary judge recorded as follows:

"201. ... Exhibit '17', was Dr Tablante's referral letter to Dr Rail, which was dated 28 September 2000, in which Dr Tablante wrote '... post MVA - hit by ? car - no recollection of being hit'.

202. ... Exhibit '31', which was Dr Tablante's referral letter to Professor Lance, which was dated 11 March 2001, in which Dr Tablante wrote ' ... pt on way home from work was ? assaulted at train station. pt has no recollection of incident ... '.

203. Also relevant, but not referred to in the argument, was Exhibit 'W', which was Dr Tablante's workers compensation medical certificate, which was dated 12 September 2000, in which Dr Tablante wrote '? hit by vehicle at railway carpark (Holsworthy).'"

The respondent said he telephoned Liverpool Police Station on 6 September 2000 to report the incident. He spoke to a woman. He told her he "thought [he'd] been involved in a motor vehicle accident and what did [he] have to do from there". She asked if he saw the vehicle or got its number. He told her he had not. She then said: "What do you expect us to do about it?" and he said "investigate" . He said she asked for, and he gave her, his name and the location of the accident. He did not hear from the police at all. He also said that a week or so after the incident he put up a paper flyer at the railway station car park requesting information from anyone who might have seen the incident. He received no useful reply. He then consulted solicitors: primary judgment (at [58]).

Following the incident the respondent did not return to work at, and ultimately resigned his employment from, Hungry Jacks. He claimed workers compensation for injuries resulting from the incident which took place as he was travelling to work. From November 2000 to March 2001 he had a short period of employment with Woolworths. He did not disclose this employment to his workers compensation insurer, Sun Alliance. He said he had been unable to pursue work since March 2001: primary judgment (at [60] - [61]).

THE PRIMARY JUDGMENT

The primary judge (at [9]) identified the material liability issues calling for determination in the proceedings as follows:

"Issue 1: The credibility of testimony;

Issue 2: Whether the plaintiff was in fact struck by an unidentified motor vehicle;

Issue 3: Was the driver of the alleged unidentified motor vehicle negligent;

Issue 4: Was there contributory negligence on the plaintiff's part and if so, to what degree;

Issue 5: Whether the plaintiff has established that the owner and driver of the unidentified motor vehicle cannot be identified after due inquiry and search."

As to the first issue, the primary judge recorded in the summary of his reasons (at [11]) that the appellant's challenge to the credibility of the respondent's testimony amounted to an assertion that the case "should simply be rejected on the basis of credit" and that the respondent should not be believed "on significant and determinative matters as to his description of the events of the incident he claimed to have occurred, the aftermath of those events and on many aspects of his claim for damages."

His Honour acknowledged (at [12]) that the appellant's submissions challenging the credibility of the respondent's evidence and the credibility of aspects of his case had considerable force. His Honour accepted (at [12]) that in some circumstances, his acceptance of the appellant's credit submissions would mean the respondent's case "should necessarily be rejected". However, he concluded (at [13]) that "such a result would be unjust and would ignore important aspects of the evidence that serve to support some of the claims made by the plaintiff". He observed (at [14]) that the appellant's submissions failed to acknowledge the fact that it was open to him "to either accept or reject parts of the plaintiff's evidence as dictated by the results of analysis of the evidence", referring to Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 (at 118) per Handley JA.

His Honour next observed (at [15]) that because the credit issues spanned both the liability and damages issues to a degree, he had segregated the reasons for his credit conclusions "into the appropriate categories in which those issues arose for evaluation and analysis", but remarked that that process should not be taken to mean he had "made separate determinations of individual credit issues without having considered the overall inter-relationship of the credit challenges made by the [appellant] when determining the issues calling for decision".

The primary judge summarised his finding as follows:

"17. I have found that shortly before 5.00am on Tuesday 5 September 2000, the plaintiff was walking within the Holsworthy railway station car park when he was struck from behind by an unidentified motor vehicle. I have found that the driver of that vehicle was negligent and I have found that such negligence caused the plaintiff to suffer injuries. I have found that the defendant has failed to establish its asserted defence of contributory negligence. I find that due search and inquiry has failed to establish the identity of the owner or driver of the unidentified motor vehicle.

18. I have found that in the collision, the plaintiff suffered a blow to the back of the legs with bruising. This caused him to fall and sustain a blow to the head, grazes and bruising to other parts of his body and limbs. I have found that this incident has left the plaintiff with lasting disabilities that require an assessment of damages. Principal amongst those disabilities are severe, recurrent and debilitating migraine headaches. I have assessed the plaintiff's damages in the sum of $643,607."

Credibility

The primary judge accepted (at [197]) the appellant's submission that resolution of the issue of the respondent's credit was central to the issues of liability and damages. He identified the forensic battleground between the parties on the issue of credibility as follows:

"3. The defendant treated the plaintiff's claim with great suspicion and the question of the credibility of the plaintiff's testimony loomed as a large issue in the case. The claim was extensively defended in a vigorous and far-reaching contest over 13 hearing days.

4. In disputing the plaintiff's claim, the defendant mounted a multi-faceted attack upon the plaintiff's credit. This attack fell short, but not far short, of alleging actual fraud on the plaintiff's part. There were no concessions made by the defendant during the course of the proceedings, and almost every aspect of the plaintiff's claim was contested, including details of his pre-injury health and background situation, the factual and liability circumstances of his claimed injury, the extent of the claimed disabilities, as well as numerous quantum issues to be decided in the proceedings.

5. On behalf of the defendant, Mr Poulos QC ultimately submitted that the pivotal issue in the case was the credibility of the testimony of the plaintiff. The defendant submitted that the plaintiff's evidence, and the histories given to medical examiners was [sic], at times, contradictory. The defendant also submitted that aspects of the plaintiff's claim were fanciful, and at times, obviously false, thus requiring the veracity of the plaintiff's claim to be assessed in the light of all the evidence.

6. Mr Poulos QC submitted that in the absence of corroboration, the plaintiff's account of matters in issue should not be accepted unless competing versions are assessed were being glaringly improbable. [sic, as in original]

7. On behalf of the plaintiff, Mr Lidden SC submitted that the overwhelmingly most probable inference to be drawn from the facts relied upon, was that the plaintiff was struck from behind by an unidentified motor vehicle that subsequently left the scene. It was submitted that the circumstances of the incident compelled a findings of negligence against the driver of the unidentified vehicle without any contributory negligence on the part of the plaintiff. Mr Lidden SC pointed to aspects of the evidence that supported the claims made by the plaintiff for damages. Those matters were in strong contention between the parties."

The appellant attacked the respondent's credit by reference to at least 19 topics of his evidence which the primary judge recorded (at [220]) and which it is unnecessary to repeat.

His Honour found (at [221]) that:

"... some of the defendant's credit challenges have been sustained and others have been overstated. In the result, the defendant has succeeded in also identifying important matters that adversely impact upon both the reliability of the plaintiff's evidence, the preparedness of the plaintiff to provide misleading information, and the truthfulness of the plaintiff's evidence on certain issues."

The first two topics were the respondent's pre-injury employment history and pre-injury health and compensation history. In order to understand aspects of this challenge, it is necessary to know of aspects of that history.

The respondent joined the army in 1970 and served for fifteen years during which period he injured his lower back in about 1975 when lifting heavy acetylene cylinders.

In February 1983 the respondent lodged a claim with the Repatriation Commission for a disability pension "for back injury due to lifting and physical training and for psoriasis due to wearing a hat". In 1985 he was granted a disability pension on the basis that he suffered from "incapacity resulting from ligamentous strain due to aggravation of lumbar scoliosis * spina bifida occulta * psoriasis". His army medical records showed that he suffered from psoriasis, allergic rhinitis and had occasional episodes of lower back trouble following the initial back injury. He was discharged from the army "on account of [his] back problems." At that time medical examination revealed "no major problems of late": primary judgment (at [43]).

The respondent gave evidence in chief that since the back injury in the army, he had had "numerous injuries or numerous times when [his back] caused massive amount of problem, popping discs". He explained that he "constantly kept hurting the same area in [his] back ... [and he] just seemed to pop discs all the time".

In 1985 the respondent joined a heavy machinery company, Waugh & Josephson, where he set up and ran the machine, welding and spraying departments for the repair of heavy earthmoving and mining equipment. The employment involved lots of heavy lifting. His injury caused him to "pop a disc or slip a disc" which resulted in "severe swelling in the back." Following this event, he was taken to Singleton Hospital, saw a doctor there and was then referred for physiotherapy. He received workers compensation payments for some months in respect of that injury: primary judgment (at [229]). In his evidence in chief, the respondent, in substance, said that his back could not cope with the sort of activities his employment with Waugh & Josephson entailed, he had a lot of trouble with his back and "had to move on to something lighter".

In 1988/1989 the respondent undertook training with KFC. He worked for that business as an assistant manager and then as a store manager and left in 2000. In his application for employment form dated 3 July 1990 he did not disclose his employment with Waugh & Josephson. He disclosed his skin trouble and a back disorder. Against the column asking for "date of last occurrence", he entered "1975" for the skin condition and "1977" for the back disorder.

The appellant contended that the respondent had misrepresented his employment history when seeking employment with KFC in 1990 by failing to disclose that he had been employed by Waugh & Josephson after leaving the army. The judge observed (at [225]) that "[t]he compelling inference from this is that he did so to conceal the severity of his back injury in 1977" and that "[i]n that form he represented that the last occurrence of his back disorder was in 1977 when that was patently untrue".

On 19 June 2000 the plaintiff commenced employment with Hungry Jacks as a trainee manager at its store in George Street, Sydney. He had passed the training requirements prior to the incident. He did not disclose his "skin trouble" or "back disorder" in his application for employment form dated 19 June 2000. He also did not disclose the workers compensation he had received while at Waugh & Josephson in answer to the question whether he had ever made any workers compensation claims.

On 12 October 2000 the respondent applied for employment with Woolworths. He did not disclose his Waugh & Josephson employment, an omission he explained by saying he had given Woolworths "a cut down history of my employment": primary judgment (at [224]). He also misstated the period of his employment with KFC. He did not disclose the workers compensation he had received while at Waugh & Josephson. He did disclose that he was then employed by Hungry Jacks. He also disclosed a workers compensation claim in respect of "hit by a car on the way to work (I was a pedestrian)" - presumably referring to the incident the subject of these proceedings.

The primary judge found that the respondent failed to disclose his Waugh & Josephson employment in his application for employment with Woolworths and also that he misrepresented the duration of his employment with KFC (at [235] ff). His Honour also found that the respondent did not disclose his employment with Hungry Jacks to Woolworths. As appears (at [53]) above, this was incorrect - that employment was disclosed.

The appellant submitted that the non-disclosures of the Waugh & Josephson employment had the effect of concealing the respondent's prior compensation history from both KFC and Woolworths: primary judgment (at [226]). The primary judge also recorded (at [226]) that the appellant complained the respondent had not disclosed his Hungry Jacks employment to Woolworths. I have not been able to identify that submission in the appellant's written or oral submissions at trial.

The primary judge concluded (at [234]) that the respondent's omissions went "beyond mere forgetfulness that may be put down to memory impairment". He took that view "because of the circumstances in which the omissions arose, the inter-relationship of the omissions which do not connote coincidence in my view, and because the plaintiff stood to gain from the omissions in question". He inferred (at [235]) that the respondent "was withholding relevant information about his work history, prior health and compensation history from a prospective employer because he wanted to obtain work".

The primary judge also concluded (at [238]) that the respondent's omissions when he applied for the position with Woolworths, should be viewed as adverse to his credit "because, by omitting reference to his employment with Hungry Jacks, he effectively prevented the prospective employer from making any enquiries of the previous employer about the incident in question", the "incident" apparently being a reference to the incident the subject of the present proceedings. He observed:

"239. The significance of the point was that at the time of the job application to Woolworths, the plaintiff was claiming, and receiving, albeit with delays, payments of workers compensation. I consider that he must have known that the disclosure of that fact would have created potential obstacles to his employment prospects with Woolworths. I therefore find that the plaintiff consciously withheld relevant information from Woolworths when he applied to that company for employment.

240. I consider that these non-disclosures adversely reflect on the plaintiff's credit in that they demonstrate that the plaintiff has in the past been prepared to conceal relevant information in order to try and secure an advantage for himself. The relevant advantage was employment in the face of his non-disclosed impairments due to injury. I find that this is a relevant and significant matter to be taken into account when assessing the credibility of the plaintiff's testimony as a whole in this case."

His Honour subsequently (at [259]) described the respondent's non-disclosure to Dr Tablante and other examiners of "the fact and extent of his mitigatory employment with Woolworths whilst he was still receiving workers compensation benefits" as "discreditable".

The next challenge concerned the respondent's recollection of a pre-injury shooting incident he witnessed. Between 1997 and 1999, whilst the respondent was the manager of KFC's Punchbowl store, a number of shootings and gang related activities occurred in the vicinity of the store. On 10 May 1999 he witnessed a person attempting to shoot another man in the KFC car park. As a result he was subpoenaed to give evidence at the trial of Mustafa Dib, which took place at Liverpool on 21 August 2000. Apparently Mr Dib was acquitted and the respondent did not give evidence.

The appellant relied on what the primary judge (at [243]) described as "a number of salient and apparently irreconcilable matters that appeared in the evidence" concerning the respondent's account of the shooting. It is unnecessary to repeat the detail of the matters set out (at [244] - [249]). The primary judge concluded (at [251]) that the matters of conflicting versions identified by the appellant were irreconcilable, and that this "tends to undermine the reliability of the plaintiff's testimony" although he came "to the view that these conflicts are as a result of confusion rather than deliberate deception".

The respondent swore a statutory declaration on 11 February 2005 in respect of the workers compensation benefits he was receiving for his Hungry Jacks claim. The purpose of the statutory declaration was "to make sure [he kept] getting workers compensation benefits". He swore that since he had been receiving workers compensation benefits he had not done any work for wages or salary. The primary judge found this was untrue at the time it was sworn. He had earned $7,497.79 between November 2000 and April 2001 in the employ of Woolworths - earnings his Honour described as "mitigatory earnings" (primary judgment (at [260]), a characterisation the appellant criticises as failing to give due weight to the duplicity inherent in their concealment.

The appellant relied on both the false statutory declaration and the non-disclosures to Woolworths and KFC which it contended demonstrated the respondent's preparedness to practise a deception for the purpose of financial gain, as relevant to weighing the credibility of the respondent's testimony generally. Of this submission, his Honour said:

"261. Although the identified past conduct was discreditable, I have decided 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. I have taken this approach because fairness requires consideration of whether the matters related in evidence by the plaintiff on particular issues, either wholly or in part, are themselves credible, notwithstanding the damaged credibility of the plaintiff generally." (Emphasis added)

Next the appellant submitted that in 2002 the respondent had failed to disclose workers compensation payments of at least $30,000 he had received to the Department of Housing (at [262] ff). The primary judge (at [265]) rejected as glib the respondent's evidence that his wife handled all the accounts and such dealings. In his view, those documents showed "active involvement by the plaintiff in matters of communication and dealings with the Department of Housing on the issue of his income". He concluded "the non-disclosures ... reflect poorly on the credit of the plaintiff": primary judgment (at [265] -[266]).

The next credit issue related to the "probity of plaintiff's income tax returns". The appellant "submitted that the failure of the plaintiff to disclose workers compensation payments totalling $16,911.69 in his 2001 income tax return, together with his failure to disclose such payments in the amount of $29,240.56 in his 2002 tax return, reflected poorly on his credit": primary judgment (at [267]). The primary judge rejected the respondent's attempt "to blame his tax agent", concluding it did "not satisfactorily or persuasively deal with the criticism made by the [appellant]". He accepted "that there was a lack of probity in the disclosures made by the plaintiff in the identified income tax returns and this is a matter which reflects poorly on the plaintiff's credit": primary judgment (at [267] -[269]).

The primary judge also accepted (at [277]) that an initial sweeping statement by the respondent to the effect that he had not played golf since his injury was incorrect - a finding which had "some adverse bearing on the credit of the plaintiff and ... [was] a matter that needs to be weighed when considering the evidence of the plaintiff's claimed inability to work".

The appellant also submitted that the respondent's evidence concerning his claimed residual disability should be discounted because he had been substantively and substantially discredited on many aspects of his evidence: primary judgment (at [286]). The primary judge said:

"287. Whilst there is some considerable force in the submission, for reasons that I have already stated, I consider it is inappropriate to apply a blanket finding of discredit against the plaintiff in order to reject the claims of the plaintiff without weighing his evidence and considering other evidence supportive of his claims. Accordingly, I propose to give consideration to the plaintiff's disabilities on an issue by issue basis. In this regard I have set out my evaluation of the plaintiff's claimed disabilities between paragraphs [396] to [425] of my reasons."

In a later passage in his reasons, the primary judge adverted to another issue which clearly went to the respondent's credit but with which he did not deal analytically in this section of his reasons, although it is clearly referred to in the summary (at [311]) set out in [68] below. He found (at [381]) that:

"... the plaintiff withheld from Dr Tablante the fact that he had been working at Woolworths at the time, which resulted in the issue by Dr Tablante of certificates of unfitness for the purposes of obtaining WorkCover certificates and workers compensation benefits".

His Honour (at [397]) also characterised this non-disclosure as "discreditable".

The primary judge's final statement about the respondent's credit in his liability reasoning was:

"311. I have concluded that although to a significant degree, the credit of the plaintiff has been successfully impugned by the defendant's attack upon it. That damage relates to the plaintiff's non-disclosure of his work and his compensation history when he applied for a job with Woolworths, the concealment from his treating doctors and the workers compensation insurer of the fact that he was working when claiming unfitness to work, his dealings with the Department of Housing and the probity of his income tax returns. In addition, there were other matters casting doubt on the reliability of the plaintiff's testimony, which I have noted to require caution in weighing the testimony of the plaintiff. However, the extent of the damage to the plaintiff's credit does not necessarily mean that I should arrive at a blanket rejection of the evidence of the plaintiff such that his evidence on liability should be rejected and his claim dismissed. Instead, I have evaluated the matters calling for decision on an issue-by-issue basis, taking any relevant credit issues into account when weighing the evidence as a whole."

One credibility issue on which the appellant was unsuccessful concerned its challenge to the respondent's evidence that he had a recollection of the illumination of the approaching headlights of the vehicle from behind and heard the sound of the engine revving. Its case that this was incredible was based on Professor Spira's evidence which, it asserted "... cast doubt upon the plaintiff's claimed recollection of events due to the claimed period of unconsciousness [and] [h]is evidence was that retrograde amnesia would have precluded such a recollection": primary judgement (at [253]). The primary judge declined to make an adverse credit finding against the respondent on this basis because he "consider[ed] that the assumptions upon which the argument has been put are incorrect": primary judgment (at [254]). His Honour's substantive findings on this issue are set out below: (see [85] ff).

Whether respondent struck by an unidentified vehicle?

The primary judge then turned to the question whether an unidentified vehicle struck the respondent, a matter the appellant strongly contested. It submitted that a more likely explanation for the respondent's claimed injuries was an assault inflicted upon him from behind and, that on an evaluation of his credit, he should not be believed as to the version of events in which he suggested that his injuries were caused by an unidentified motor vehicle: primary judgment (at [313]).

The primary judge said (at [314]) that in view of his credit findings concerning the reliability of the respondent's evidence, he had given careful consideration to the question of whether or not his evidence as to being struck by an unidentified motor vehicle should be accepted. He remarked (at [315]) that "the [respondent's] evidence as to the circumstances in which he claimed to have been injured was plausible, and could on its own be open to be accepted". However, in the circumstances, he considered it necessary to look to the other evidence to see whether there were aspects of the respondent's claim that were supported by other relevant evidence". His Honour concluded (at [316]) that he should accept the respondent's version of events for three reasons.

First, he considered (at [317]) that Dr Tablante's evidence and his contemporaneous records corroborated the respondent's version of events. In his view (at [318]), Dr Tablante's professional observations of his clinical examination of the respondent the day after the incident "support the contention that a collision had occurred between the plaintiff and a motor vehicle". He described those clinical observations as being "that the plaintiff had sustained bruising to both of his lower legs behind the knees, a graze to his left knee, bruising and grazes to his right shoulder, bruising to the neck and to the front of his chest and bruising and swelling to the back of the head" (emphasis added). I have been unable to find any evidence from Dr Tablante that he observed "swelling to the back of the [respondent's] head".

His Honour also (at [319]) considered that Dr Tablante "convincingly and persuasively rejected the proposition that the plaintiff's injuries, as observed by him, were also consistent with him having been struck during the course of an assault". He accepted "his explanation, based on his experience in hospitals treating assault victims, that he would have expected an assault to have been to the upper part of the body and not at the level of the lower legs" and that "the fact that there was bruising observed to the back of both legs at the calf level below the knees supports the view that the bruising was caused by the bumper of a vehicle rather than in an assault".

He said:

"320. In my view the injuries to the plaintiff that were observed and described by Dr Tablante are consistent with the theory advanced on behalf of the plaintiff, namely that the plaintiff was struck on the legs from behind, at about the level of the calves and knees by the bumper bar of a vehicle, following which he fell forward to graze his left knee and right shoulder whilst taking the fall, and then striking his chest and head as he fell, also somehow injuring his neck in the process. I consider this to be a highly plausible scenario that was not on its face glaringly or inherently improbable."

Secondly, his Honour (at [321]) considered that Mrs McLennan's observations of the respondent's state on arrival at home also partly (or "broadly") corroborated aspects of his version of events. These observations were primarily the fact that she observed the respondent to have a "torn left trouser leg and ... a graze with bruising to the left knee as well as bruising to the upper parts of the back of his legs ... [and] a lump on the back of [his] head. He did not consider what he described (at [323]) as "a minor discrepancy in the described observations of Dr Tablante and Mrs McLennan as to the location of the bruising to be of significance".

Thirdly, his Honour considered (at [324]) that three relevant documents which "provide[d] an early consistency of the account given by the [respondent] of his belief that he was struck by a motor vehicle" were "credible and supportive of the inference that he was struck by a vehicle".

The first document (see [325]) was an "Employee's Report of Injury on the Journal Claim" dated 17 September 2000 which stated as the description of what happened: "I was walking through the car park on the way to the Railway Station. I heard a car coming up behind me and that's the last thing that I remember. (Hit by a car)."

The second document (see [326]) was the respondent's "Employee's Compensation Claim" form dated 27 September 2000 in which he said:

"I drove from my house to this railway station car part [sic, park] at Holsworthy train station to catch the train to work. I parked my car and was walking through the car park on the way to the train platform when I heard a car coming up behind me. I paid it no attention as I was walking close to the backs of the other parked cars and that's all I remember. I woke up on the ground in the car park."

The third document (see [328]) was the "Motor Accident Personal Injury Claim Form" dated 5 June 2001 in which the respondent "provided a diagrammatic representation of the car park layout, showing his actual and intended path of walking to the train station and the course of the car that he assumed had hit him" and a brief description of the incident which stated:

"I arrived at the station parked my car, locked it and started walking towards the station. I heard a car behind me and moved closer to the backs of the cars as I walked along.

I remember hearing the car was close and that's the last thing I remember.

I woke up between two parked cars and I was grogy [sic] and it took me some time to realize where I was.

No body paid any attention to me and I realised where my car was I went to it and sat in it for a long time and got back home around 10am."

The primary judge said (at [329]), that it "was these factors, taken both individually and in combination, which have persuaded me that the plaintiff's version of the events leading up to the incident, such version not being, absurd, glaringly improbable or otherwise incredible, should be accepted."

His Honour rejected (at [330]) the appellant's submissions that the respondent had created evidence by reconstructing the events, (at [331]) that his "evidence should be discounted because of the varying histories he has given of the events when he was medically examined on numerous occasions, including the bizarre version recorded by Dr Ellis in which it is recorded that he claimed to have been deliberately assaulted" and (at [332]) that "the uncontradicted evidence of Associate Professor Spira indicates that it was unlikely that the plaintiff could have recalled the events he described".

The primary judge (at [334]) said that despite his reservations about the reliability and credibility of the respondent's evidence, he accepted his version of events. He therefore concluded:

"335. I therefore find that about some shortly after 5.00am on Tuesday 5 September 2000, whilst the plaintiff was walking in conditions of poor lighting within the car park towards Holsworthy railway station, and whilst he was still in the railway station car park, he was struck on the legs from behind and knocked to the ground by an unidentified motor vehicle.

336. I find that this incident occurred shortly after the plaintiff had parked his car in the car park at the station and whilst he was walking closely behind a row of parked cars. I find that at that time, he heard the revving sounds of a vehicle engine approaching from behind. I find that at that time he also saw an increasing degree of illumination around and ahead of him emanating from behind due to the approach of that motor vehicle as he continued to walk to the station.

337. I find that at this time he was walking about 6 inches from the rear of a nearby row of parked cars. At this time he did not turn around to look behind him in response to these sounds and signs, but instead, continued to walk toward the railway station in the reasonable expectation that the driver of the vehicle approaching from behind would keep and maintain a proper lookout and would be able to see his walking figure whilst illuminated by the vehicle's headlights.

338. In my view, at that time, the plaintiff was sufficiently close to the rear of the parked cars to entitle him to expect the driver of the vehicle approaching from behind would be keeping a proper lookout and would steer an appropriate course that would avoid a collision between that vehicle and the plaintiff."

The primary judge's findings as to the injuries he found the respondent suffered in the incident set this conclusion in context:

"375. I find that after the vehicle had struck the plaintiff from behind, the plaintiff most probably fell forward onto his left knee, causing a graze to that knee, following which he most probably fell onto his right shoulder, which also sustained a graze. In the course of these events, the plaintiff most probably received multiple soft tissue bruising from the fall, as would be expected in the case of a man weighing around 100kgs or more, falling onto a hard pavement surface. In the course of these events, I accept that the plaintiff probably suffered bruising to his neck, his hips and his left ankle, which resulted in the ankle becoming swollen.

376. I find that in the course of these events, the plaintiff also sustained a blow to the back of his head which caused a lump with the development of consequent swelling to the back of the head in the occipital region. I accept the contemporaneous diagnosis of Dr Tablante as to that injury, when he saw the plaintiff on the following day.

377. There was a controversy arising from the evidence as to whether the plaintiff in fact suffered a loss of consciousness after he had been struck by the vehicle."

The appellant criticised the primary judge's statement in [377] extracted above. It contended there was no such controversy - rather the only issue at trial was the length of time the respondent was unconscious. It is convenient to consider that aspect of his Honour's reasons when considering how he analysed the significance of the loss of consciousness issue.

Retrograde amnesia

The appellant's case at trial was that the loss of consciousness the respondent suffered after the impact with whatever struck him would lead to retrograde amnesia. That amnesia would mean that he would not be able to recall the events for a period prior to being rendered unconscious. It relied upon the uncontradicted opinion of Associate Professor Spira in this respect. On that basis, as well as because of its attack on his credit, the appellant contended the respondent's evidence that he saw lights and heard an engine revving shortly before losing consciousness was glaringly improbable.

The primary judge (at [332]) commented that he considered that Associate Professor Spira's evidence "has been invoked on an erroneous basis by the defendant in making that argument". This was because Associate Professor Spira's views were:

"... based on an assumption that there was a prolonged period of unconsciousness which mediated his view that the plaintiff's account was not credible as this would have been accompanied by a significant period of retrograde amnesia, which he discounted. I have preferred Dr Tablante's more contemporaneous view that there was probably only a very brief period of unconsciousness."

The primary judge made the following findings in relation to the retrograde amnesia issue:

"252. The defendant submitted that the plaintiff's claim of having had a significant period of unconsciousness as a result of the incident was not credible when regard was had to the medical evidence on this issue. Alternatively, the defendant submitted that the plaintiff's evidence asserting a recollection of the illumination of the approaching headlights of the vehicle from behind and the sound of the engine revving, should not be accepted.

253. The submission was based upon the expert neurological evidence of Associate Professor Spira who cast doubt upon the plaintiff's claimed recollection of events due to the claimed period of unconsciousness. His evidence was that retrograde amnesia would have precluded such a recollection.

254. On considering the arguments on this issue I decline to make an adverse credit finding against the plaintiff on this point along the lines sought by the defendant. I have taken this view because I consider that the assumptions upon which the argument has been put are incorrect. I have set out my reasons for that view at paragraph [332], of my reasons for the consideration of Issue 2 and paragraphs [376] to [389] in connection with my findings as to the injuries sustained by the plaintiff."

As to the loss of consciousness issue, his Honour opined (at [378]) that "commonsense understanding permits a conclusion that it is possible that a blow to the head can result in a loss of consciousness", that "from a lay perspective the evidence of the plaintiff's incomplete recollection of the events after hearing the approach of the vehicle from behind and then next recalling laying on the ground is certainly suggestive of a loss of consciousness" and that "[t]his is especially so in circumstances where there is a diagnosis of a concussion". Accordingly (at [379]) his Honour said in substance, that the respondent's evidence permitted "an inference to be drawn that he lost consciousness", however he reminded himself that "such inferences should not be drawn in substitution for medical opinion on the issue on questions of medical diagnosis where there is controversy on the issue", referring to Strinic v Singh [2009] NSWCA 15; (2009) 74 NSWLR 419 and Sretenovic v Reed [2009] NSWCA 280.

Because there was (see [380]) "uncertainty over the reliability of the plaintiff's evidence as to his recollection at trial, of earlier events that have long passed", the primary judge considered it was not appropriate to conclude from this evidence alone that he in fact suffered a loss of consciousness in the incident. He regarded Dr Tablante's "clinical early diagnosis that the plaintiff suffered a concussion following an injury to his head" as "informative on the issue". He rejected the appellant's submission that this diagnosis, having been based on a history provided by the respondent, should be discounted due to the potential for Dr Tablante to have been deceived by an incorrect history obtained from the respondent. This was despite the fact that the respondent had "withheld" from Dr Tablante the fact he was working for Woolworths at the same time he was asking the doctor for certificates of unfitness for the purposes of obtaining WorkCover certificates and workers compensation benefits: primary judgment (at [381]).

The primary judge accepted Dr Tablante's diagnosis because he had conducted a physical examination of the respondent and his Honour inferred that he based his diagnosis of concussion not only upon what the respondent told him, but also upon his findings on examination.

His Honour then said:

"384. Having accepted that the plaintiff has suffered a concussive head injury, the question arises as to whether he truly suffered a loss of consciousness that has caused a degree of amnesia, or whether he merely suffered some kind of physical shock or adrenaline effect, as was explained by Associate Professor Spira, which could explain the plaintiff's post injury impaired state of alertness or altered consciousness and his recollection of events.

385. Associate Professor Spira conceded that the sequence of events in which the plaintiff became aware of his surroundings whilst laying on the ground, being slightly confused as to where he was, is consistent with him having been unconscious for a period of time. He explained that unconsciousness for about half an hour would give rise to some expectation of the presence of retrograde amnesia, the period of such amnesia being dependent upon the severity of the head trauma. He stated that minutes of unconsciousness could see minutes of retrograde amnesia.

386. In this regard, I observe that it is not possible on the evidence to measure the precise duration of the gap in the plaintiff's memory or any period of retrograde amnesia. It would appear from the fact that there was a gap in the plaintiff's memory that there could be a degree of retrograde amnesia. The alternative explanation was the operation of the adrenaline effect described by Associate Professor Spira in his evidence, or a combination of both of these factors.

387. On the basis of the evidence of Associate Professor Spira, I find that in the events of the incident, the combination of the shock from the plaintiff's physical injuries and the associated concussion from the blow to the head, the plaintiff suffered an altered state of consciousness or alertness. Until the advent of the explanation by Associate Professor Spira, the mechanism for this was considered only from the perspective of unconsciousness, but it appears there is a dual explanation for the memory gap. This memory gap has been misinterpreted by the plaintiff, and perhaps others, to mean that he had suffered a loss of consciousness. It is not possible to conclusively determine the duration of the period of the memory gap or altered consciousness. However, I consider that Dr Tablante, being the first doctor to see the plaintiff after his injury, was in a particularly advantageous position to go over the history when it was fresh in order to make the clinical judgment that if the plaintiff had suffered a period of unconsciousness, then it was likely to have been very brief, namely a matter of minutes.

388. Based on the evidence of Dr Tablante, I find that the plaintiff probably suffered a very brief loss of consciousness, which in combination with the adrenaline effect, explains why the plaintiff has a gap in his memory. I find that these events were likely to have led the plaintiff to have described a loss of consciousness, which description became magnified as to its duration when reviewed over time by the various medical examiners who questioned the plaintiff about this." (Emphasis added)

Was the driver negligent?

The primary judge accepted (at [340] - [342]) that the respondent was walking lawfully within the railway station car park, that the driver of a vehicle would have been expected to be keeping a proper lookout and that, as he had accepted that the headlights were on, if the driver kept a proper lookout he would have seen the respondent and that "reasonable and appropriate measures should have been taken by the driver to avoid a collision between the pedestrian and the vehicle". His Honour observed (at [343]) that there was "no evidence that the driver of the vehicle did any of those things that I consider that a prudent driver would have done in the circumstances that then prevailed". He inferred (at [344]) from the respondent's perception of the approaching vehicle's "degree of acceleration ", that the vehicle was being driven at "an excessive speed of acceleration for the environs of a car park". He relied (at [345]) on "a presumption of continuance" to infer that "the vehicle described by the plaintiff continued on its course to the point where it collided with the plaintiff". He also found (at [346]) that the driver would have recognised that they struck the respondent and thus had an obligation to stop and assist the respondent and inferred (at [347]) "from the fact that the driver in question did not remain at the scene" that he could comfortably draw an inference of negligence from the circumstances as he had found them to have occurred.

Accordingly he concluded (at [349]) that the driver of the unidentified vehicle was negligent and it was that negligence which caused the plaintiff's injuries.

Contributory negligence

The primary judge accepted (at [351]) that prior to the accident, the respondent was walking very close or about six inches to the right of the line of parked cars, that there was "no evidence that would suggest that [he] knew that if he continued on his chosen path without diverting, that he would be likely to be struck by a vehicle passing him from behind" and therefore "there was nothing in these events which in my view required the plaintiff to turn or take evasive action." Accordingly he rejected (at [353]) the appellant's argument that the respondent was guilty of contributory negligence.

Due search and inquiry

The primary judge found that in the circumstances the respondent did the "only reasonable thing open to him after taking stock of his injuries" which was to ring the Liverpool police station (at [357]). Those circumstances were:

"355. In my view the evidence discloses that at the scene of the collision, the plaintiff was left with no information or clues which might have had a tendency to identify the vehicle, its owner or its driver. The plaintiff had no idea of the details of the vehicle, its make, model, colour, its registration details either in whole or in part. All he was aware of was the revving sound of the vehicle engine and the fact that it had projected illumination from one or more of its headlights. No one came forward to assist the plaintiff at the scene before he left the scene to travel to his home.

356. In these circumstances it is difficult to imagine a trail more cold for inquiry than the one that emerged from these circumstances on the day of the collision, and on the days and weeks thereafter."

The primary judge also noted (at [358] - [359]) that the respondent had promptly reported the matter to his employer and became entitled to workers compensation benefits and that the workers compensation insurer had not been able to find out any more information in seeking to identify the vehicle, its owner or driver so that "it is difficult to envisage what else the [respondent] could reasonable [sic] have done in the days following the incident". He rejected (at [360]) the appellant's criticism of the time the respondent said he put up flyers at the train station.

The primary judge concluded (at [362]) that the appellant's submission that, given his suspicion that he may have been assaulted, the respondent should have followed this up with the police as an aspect of due search and inquiry, was "entirely speculative". He opined (at [362]) that had the police interviewed Dr Tablante to obtain some evidence of the nature of the plaintiff's injury, it was "very likely that they would have been made privy to Dr Tablante's opinion that the plaintiff had been struck from behind by a motor vehicle" and "[t]his would not have advanced the inquiry towards identifying the vehicle that had been used to strike the plaintiff". Further (at [363]), he rejected as "entirely speculative" the appellant's submission that the police would or could have interviewed "the discharged accused person and his family members or his connections and could have possibly identified a vehicle with damage consistent with the vehicle having struck the plaintiff". This appeared to be both because the accused had been acquitted by direction and because of the unlikelihood of the police securing "an admission against interest from that person or an associate concerning a serious assault of the kind suggested".

In his Honour's view (at [365]) at any of the times when the respondent "realised he ought to have pursued inquiries to try and ascertain the identity of the vehicle, its owner or driver, the trail for pursuing such inquiries was well and truly cold so that any inquiry made was pre-destined to have a futile outcome". In such circumstances, his Honour considered (at [366] - [367]) that authority supported the proposition that the "requirement of due inquiry and search does not mean that there must be some inquiry undertaken where such a search would be futile". He concluded (at [371]) "that in the circumstances of this case, realistically, due inquiry and search would not have established the identity of the vehicle that was involved in the incident".

The respondent's injuries

The appellant's case at trial was that there was inconsistent evidence as between the respondent, his wife and Dr Tablante as to the injuries the respondent suffered in the incident. It submitted that the bruising the respondent said he suffered was "most consistent with a number of blows being administered either by a blunt object, by kicking or stamping by an assailant", a possibility with which Dr Tablante had agreed in cross-examination. It argued that the pattern of the respondent's injuries (an issue referred to as the "mechanism of injury" was not consistent with a motor vehicle collision.

The primary judge did not directly engage with the latter issue, however he dealt with aspects of the evidence concerning the respondent's injuries as follows.

First, he recorded (at [77]) that Dr Tablante's theory that the mechanism of the respondent's injury was a motor vehicle impact was based on the proposition that "the bruising on [his] posterior legs was consistent with having been hit from behind by a motor vehicle", which, in his opinion, "was a distinguishing feature from his experience of people having been assaulted. In assault cases, the striking was more on the upper body, at the front and on the sides rather than lower down at the lower leg level. In addition:

"78. Dr Tablante also regarded it to be significant that the bruising on the plaintiff's lower legs extended across both lower legs. When asked to explain bruising to the chest and face Dr Tablante stated that the plaintiff could have fallen forward and hit his head in the incident. He noted that the plaintiff had a lump on the side of the head at the back and stated that because this was in conjunction with bruising to the back of the legs, this was more consistent with having been struck by a vehicle than having been assaulted was [sic, with] a blunt object." (Emphasis added)

The primary judge also noted (at [183]) that Professor Spira was asked to comment upon Dr Tablante's evidence concerning the theory of the respondent having been struck from behind by a motor vehicle and set out his evidence in this respect as follows:

"POULOS

Q. And you've also had a description by Dr Tablante of the places where he saw bruising on the plaintiff's body. Now that you're aware of those things are you able to speak of mechanisms of the injury that this man sustained having regard to what he's told you?

A. Everything's purely hypothetical, I mean no-one knows how these injuries occurred, but if it's so that he had bruising just at or above his knees, then one assumes that there was some impact with the back of his knees. As to whether that was the initial impact or later we don't know. The expectation is that if what actually happened was that he was struck by a motor vehicle from behind, with the point of impact being the back of his knees and that both knees were injured, then the forces would've been directly from behind Mr McLennan, the expectation is that after that initial impact with the back of the knees, presumably the bonnet may well have struck higher and pushed Mr McLennan forward, in which case he would've expected to have landed face first. I would've expected to have seen facial injuries, facial abrasions, possibly abrasions over the hands if he would've protected himself or had the time to protect himself.

...

Q. Now, doctor, if the bruising was not at the knee level or thereabouts but was higher, around the buttock region of the plaintiff, what does that imply?

A. It would imply that the forces would have again been transmitted in such a way as he would have been pushed forward, perhaps even more so than with an injury around the knee.

Q. Why so?

A. By the fact that there's less give in the buttock region and that he would have been pushed forward and would have expected to have sustained, assuming that both buttocks are involved so that it's not a blow directed from the side but rather a blow directed from directly behind the, the patient. He would have been pushed forward and would have expected to land on his face and hands.

HIS HONOUR

Q. When you say excluding a blow from the side, if there had been an angled blow would you have expected nevertheless that there be injuries to the face or would another possibility arise?

A. Well, no, other possibilities arise. If it's symmetrical posterior above knee or bilateral posterior below buttock then clearly the force was directly from behind. If it's on one side then he could have landed on the side and we could have seen injuries over the parietal region or even over the occipital region, just depending on which way the forces were, were directed.

Q. You may recall the plaintiff describing how he came to lying between two parked cars. I suppose one of the possibilities is that if he was struck from an angle that that could explain how he was thrown into that position?

A. That, that is possible that there may have been more force on one side than the other, but if the evidence is that there is bruising on both sides equally.

Q. If that assumption was made, that would explain the absence of facial injuries?

A. If it was angled.

Q. Angled low.

A. If it was angled then I would expect injuries over the side of the head rather than over the back of the head. I mean the, the difficulty is explaining the occipital injury in this case because whether it's from the side or whether it's from the back, one would not expect an injury over the back of the head.

Q. Well I don't know if there is a science of reconstruction of this type of injury, but from my own part I'm imagining a fall and a roll, wouldn't that explain it?

A. Not, not for an occipital. I mean it sounds like there was bruising over the back of the head and in fact Mr McLennan said to me that he was bleeding from a wound at the back of the head, so I think that requires a direct blow rather than an abrasion or glancing blow. Hair would protect you against something like that. In order to get bleeding you would need to have a direct blow and splitting of the skin."

His Honour added (at [184]), that "Professor Spira discussed the mechanism of the plaintiff's bruising [and] ... argued that for the plaintiff to have had bruising on his neck he would have to have been struck on the neck by something".

The primary judge recorded Professor Spira's cross-examination in the following terms:

"187. In cross-examination Professor Spira agreed that the fact that both of the plaintiff's knees were bruised in the incident suggests that the primary force was from behind. He also agreed that because there was bruising to the plaintiff's right side and around the buttock region, that there was some indication of the force being applied from one side. He also agreed that on being struck by a vehicle, a person could, in some circumstances, go forward in some sort of a rolling manoeuvre. The significance of this evidence was that it served to demonstrate the difficulty of seeking to precisely analyse the mechanisms and mechanics of the occurrence of an injury in the absence of eyewitness accounts."

In the course of dealing with an attack the appellant made on Dr Tablante's credit, the primary judge commented (at [200]) that "these [clinical] notes, findings and Dr Tablante's aided recollection of his consultations with the plaintiff meant that Dr Tablante was reasonably placed to offer a relevant opinion on the mechanism by which the plaintiff had sustained his injuries".

The primary judge made the following findings:

"374. I find that the initial injury occurred to the plaintiff when the unidentified vehicle struck him from behind, probably at an angle as suggested by Dr Tablante, at which time he suffered bruising injuries to the back of both legs around the calf area behind the knees. I accept Dr Tablante's evidence in this regard.

375. I find that after the vehicle had struck the plaintiff from behind, the plaintiff most probably fell forward onto his left knee, causing a graze to that knee, following which he most probably fell onto his right shoulder, which also sustained a graze. In the course of these events, the plaintiff most probably received multiple soft tissue bruising from the fall, as would be expected in the case of a man weighing around 100kgs or more, falling onto a hard pavement surface. In the course of these events, I accept that the plaintiff probably suffered bruising to his neck, his hips and his left ankle, which resulted in the ankle becoming swollen.

376. I find that in the course of these events, the plaintiff also sustained a blow to the back of his head which caused a lump with the development of consequent swelling to the back of the head in the occipital region. I accept the contemporaneous diagnosis of Dr Tablante as to that injury, when he saw the plaintiff on the following day." (Emphasis added)

Disabilities

The respondent had been on workers compensation benefits since the collision. His primary complaint appears to have been that as a consequence of the blow to his head, he suffered debilitating headaches and migraine which prevented him from working. The appellant's case was that there was no "objective" evidence of the appellant's headaches. Rather the conclusion that he was suffering from headaches of the intensity of which he complained depended on accepting his account of his symptoms. It contended that the credit issues it raised concerning the respondent's evidence had to be taken into account when assessing the veracity of his claimed disabilities, a submission the primary judge accepted (at [396]).

The primary judge concluded (at [399]) that despite his adverse credit findings and despite his "findings as to the unreliability of aspects of the evidence", he would accept the respondent's evidence as to his ongoing disabilities. He made allowances for the errors the respondent made in giving evidence on the following bases:

the issue of the reliability of the respondent's memory of the detail and juxtaposition of past events had "to be fairly considered in the light of the fact that he has had a concussive head injury and ha[d] subsequently complained of memory problems and difficulty with organising himself" and that such problems "could be due to [him] being distracted by chronic headache": (at [400]);
that due allowance has to be made for the fact that the events the respondent was asked to recall happened more than 8 years ago: (at [401]);
that the respondent's discreditable conduct with Woolworths "continued for a relatively short period (when [he] was desperate for funds, and the duplicity ceased when [he] found he was unable to cope with the work) and [he] eventually acknowledged the conduct when confronted with it": (at [402]).

A. Could be, yes.

Q It is really you are just speculating as to what happened, aren't you?

A. I have no idea what happened.

Q. But you're just trying to put 1 and 2 together and come up with an answer?

A. I've thought about it, yes."

Professor Spira first saw the respondent on 16 May 2007 and prepared a report the same day. He recorded that the respondent told him the incident occurred at about 5.00am and that he "was knocked unconscious immediately and ... remained unaware of his surroundings until about 9.00am when he regained consciousness".

Professor Spira prepared a supplementary report dated 24 July 2007 in which he stated:

"Given a 4-hour period of loss of consciousness I would have expected at least minutes of retrograde amnesia and at the very least an hour of post-traumatic amnesia, neither of which appear to have operated in Mr McLennan's case.

All in all the history is nebulous but I can see no way of clarifying the matter given that we are dependent on the information provided by Mr McLennan in the absence of an eyewitness. It is of course possible that Mr McLennan lost consciousness by another mechanism than being struck by a car and that his history is a reconstruction on his part of the probable mechanism of his situation. For example he may have suffered an epileptic seizure and in the process had some head trauma to explain the long period of unconsciousness. It is important to have a clear indication of what external evidence of injury was present when he was assessed by his general practitioner and in particular what signs bruising and/or abrasions were present over his head. Unfortunately this was not clarified in the general practitioner's records. There may be a case for approaching the doctor to find out if he can recall what evidence of trauma was present at the time Mr McLennan was first seen on the day of the accident.

...

Overall the difficulty in the analysis of Mr McLennan's situation is that we do not have a clear history of the central event in this case and Mr McLennan's reconstruction of hearing a car behind him and assuming that he was struck by the vehicle ideally requires some corroboration to the effect that he had injuries appropriate to such trauma. ..."

In his evidence in chief, Professor Spira described loss of consciousness as "in terms of an objective observation by someone else it is usually to see someone who is in a coma state, lying on the ground incapable of moving and totally unaware of their surroundings and often unrousable". He was then asked:

"Q. So if Mr McLennan was to say that when he became aware of his surroundings he was lying on the ground and ... he was slightly confused as to where he was or confused as to where he was, the description of coming to or waking up, is that an adequate ... definition of unconsciousness that we can get to?

A. It is certainly consistent with his having been unconscious for a period of time, yes.

Q. And if say he was unconscious for a period of half an hour does that relate in some way to whether or not there would have been retrograde amnesia?

A. I would expect retrograde amnesia with unconsciousness of half an hour, certainly ... [E]ven short periods of unconsciousness can be associated with retrograde amnesia ... So certainly ... unconsciousness of minutes can see minutes of retrograde amnesia ... If he was unconscious anywhere between half an hour and four hours I would expect him to have a retrograde of the order of minutes."

In cross-examination, Professor Spira gave the following evidence:

"Q. Now it is extremely difficult, is it not, to try and work in these circumstances from a claimed period of unconsciousness back to how long you'd expect retrograde amnesia to be present?

A. No, I don't think so. I'm told that we can assume that the unconsciousness was as little as half an hour.

Q. Yes.

A. And as I indicated I would expect at least minutes of retrograde amnesia as - as I make clear in that report -

Q. Well -

A. - under those circumstances.

Q. You certainly have material consistent with some retrograde amnesia, don't you?

A. Not that I'm aware of, no.

Q. Well, what about the gap between the vehicle approaching from the rear, which includes the final stage of the vehicle's approach, assuming it was that vehicle that hit him -

A. Yes.

Q. - the impact and what occurred from the time of the impact to the time of the head injury. A short period, one would assume that to be involved.

A. We - we - we're talking of the order of a few seconds.

Q. It may be a matter of 10 or 15 seconds or something of that sort, let's say.

A. This is not the history that I obtained.

Q. Well it's exactly the history you obtained, isn't it? The history you obtained was he had no memory of what happened to him from the time he heard the vehicle approaching him; that's right, isn't it, up until the time after the impact?

A. I'm - the history I obtained is that he heard the vehicle behind him and that that's his last memory. Now, I would estimate, even at a generous estimate, that we're talking there about two or three seconds.

Q. Well perhaps we are, perhaps we're talking about longer, but there's undoubtedly a period of retrograde amnesia involved, is there not?

A. This is not retrograde amnesia

Q. Well what is it?

A. It is not retrograde amnesia. Retrograde amnesia is a situation where there is a finite period of time. We're not talking about - this is an indefinite period of time that you're referring to; it could be a second. Now, we never classify that as retrograde amnesia.

Q. Well what do you call it? It's a lapse of memory or an absence of memory for a period before consciousness returns, isn't it?

A. No, before consciousness if lost.

Q. All right, I'll assume -

A. You're referring to -

Q. - that definition, that's what it is?

A. But you do not talk in terms of retrograde amnesia of a second. It is just - the concept is wrong.

HIS HONOUR

Q. What is the correct appellation then to explain such a gap in memory?

A. Look, I wouldn't even call that a gap. I mean this is an indefinite period of time. A retrograde amnesia is a situation where there's a finite period of loss of awareness which can be defined by the fact that there is a memory that precedes it. Now, I don't see that there's a finite period here; we're talking about perhaps a second, two seconds. This is never defined as retrograde amnesia.

Q. What would you define it as?

A. I wouldn't even define it; it is just normal observation. I mean if I was hit by a car and I saw it coming, I might not recall the impact; I might not even recall the last second of that car. But I wouldn't call that retrograde amnesia; this is pretty much normal expectation.

Q. I've often heard in other cases and in literature of persons not recalling the pain of an injury notwithstanding the fact that there was an obvious injury that would be expected to cause pain; is that the sort you're now talking about?

A. That's an adrenalin effect, yes. That's the adrenalin effect but no, that's not what I'm referring to. I'm referring to the fact that once you're involved in an accident, I mean even if you have a motor vehicle accident in which there's no head injury, you may not have a recollection of the impact itself because of the shock of the incident. You may even retain consciousness but not recall every second of that period when you're being thrown around the inside of your vehicle. This is not retrograde amnesia. It's an incorrect concept. Retrograde amnesia has to be a finite period of time that you can define quite clearly. So, for example, if this fellow told me that he recalls having lunch that day but nothing after lunch and the accident occurs at 1 o'clock, that's retrograde amnesia.

LIDDEN

Q. I realise, doctor, and if you'll just check for me if you're unsure, in that letter of 19 July 2007 the defendant's solicitors asked you to give an opinion as to likely periods of retrograde amnesia and post-traumatic amnesia? -

A. Correct, yes.

Q. Well you've given your opinion?

A. I have.

Q. But it's got nothing to do with the case, does it?

A. Why not?

Q. Well what relevance did you understand that to have to the opinion - that question, to the opinion you'd been expressing earlier?

A. Well I can read you the paragraph that deals with it. I said 'Given the four hour period of loss of consciousness I would have expected at least minutes of retrograde amnesia and that at the very least an hour of post-traumatic amnesia, neither of which appear to have operated in Mr McLennan's case.'

Q. But you gave an example earlier, did you not, of footballers?

A. Yes.

Q. There can be cases of someone who has a head injury on a field which knocks them out and they remember things up to the time of the head injury; that can occur?

A. Yes, it's dependent on the severity of the injury and period of unconsciousness. I mean if what we're talking about is that someone gets hit and gets up immediately, yes, that's a situation in which they may recall right up until the point, but -

Q. That's perfectly - I'm sorry, I interrupted you, go on?

A. But where you've got let's say five minutes of unconsciousness on the field, it is most unlikely that the person will recall the tackle in which they had sustained that injury.

Q. But possible?

A. Not with five minutes of unconsciousness, I'd be very surprised.

Q. Why did you use the words then 'most unlikely' if you meant 'impossible'?

A. Well, look, nothing on Earth is impossible.

Q. But the purpose of the paragraph you've kindly read out to me ... you're not attempting to trespass into whether that memory of his is genuine or not are you?

A. Look, I guess in a sense I am.

[Mr Lidden then drew to Professor Spira's attention the fact that the respondent had complained as soon as he got home to his wife about what had happened and that his employer had a record dated 5 September of him having been hit by a car at the railway station as well as what the respondent told Dr Tablante on 6 September]

Q. Pretty persuasive material, isn't it, that's what he has said right from the start happened to him?

A. That's persuasive that's what he said, yes.

Q. You think it might be a non-genuine memory?

A. I don't know ... As I've indicated, we can't be sure." (Emphasis added)

In re-examination, Mr Poulos asked Professor Spira to comment on the evidence the respondent gave which is set out above (at [186]). He said:

"Well as I've indicated in my report, we're all guessing as to what actually happened here. But from the point of view of this question, this may explain the issue of the missing retrograde amnesia. It is theoretically possible, and we're talking about possibilities not probabilities, that this man may have sustained his injury in another way and that the retrograde amnesia takes him back to the point where a car is moving behind him; this is a possibility, and that maybe that injury occurred five minutes later than it actually did, I don't know."

The mechanism of injury

There was a substantial issue at trial as to the mechanism of the appellant's injuries. The appellant complained that the primary judge did not deal adequately, or at all, with the inconsistencies between the respondent's, his wife's and Dr Tablante's accounts of where he suffered injury. Further, it complained that his Honour did not deal with the competing expert opinions about the mechanism of the respondent's injuries.

It is unnecessary, in my view, to detail all of the appellant's complaints in this respect. The most significant, for reasons which will become apparent, concern the injuries the respondent suffered to his head and neck.

Dr Tablante's clinical notes of 6 September 2000 recorded that the respondent "awoke with multiple bruising to chest/LL/neck/head". At trial, as I have said (see [33]), Dr Tablante said the respondent had swelling on the top of his head. That is consistent with Professor Lance's report to Dr Tablante of 13 March 2001 (see [170]) that the respondent "had a lump on top of his head". Dr Vignaendra made the same record in February 2002 (see [173]) above.

In his evidence in chief, the respondent said that when he examined his body on 5 September 2000 he "found a lump on the back of [his] head" - an observation his wife confirmed.

Needless to say, the appellant sought to make much of the apparent incongruity of the respondent receiving a lump on the top, or even the back, of his head in an accident which, on his version, amounted to being struck from behind by a car. That issue was explored in Dr Tablante's and Professor Spira's evidence.

In his evidence in chief, Dr Tablante (who professed familiarity with patterns of injury caused by assaults from having worked in an emergency area in a hospital) said:

"Q. ... you were telling us about injuries you've seen in assault cases?

A. So with assault cases, normally they would be hit more on the upper body, more at the front and on the sides, rather than hit from lower down where they would have to stoop and hit from the lower legs to knock them down.

HIS HONOUR

Q. Was there anything about the characteristics of the bruising that impressed you to lead to your conclusion [that he was hit by a car]?

A. Just the bruising, sir, from the posterior part of his legs. I find that unusual in a person who was going to be hit in general. For that to happen, sir, you'd have to bend down and hit hard from the back." (Emphasis added)

In cross-examination, he said

"Q. So if somebody was laying in wait for your patient and struck them on the top of the head, knocking them unconscious, then they fell to the ground and then they were kicked, that would be something that might cause bruising to the lower limbs, wouldn't it?

A. Well, anything is possible, sir, but - yes.

...

Q. If he was struck by a motor car from behind, you would expect him to be propelled forwards wouldn't you?

A. Yes, sir.

Q. And the natural inclination of the human body is to put out the hands, isn't it?

A. Yes, sir.

Q. There's no mark on his hands to indicated that that's happened, that they've come into contact with the tarmac, correct?

A. Not that I've written down, sir. Yes. ..."

Dr Tablante was cross-examined about the mechanism of the respondent's injury as follows:

"Q. And on that day you said - that was the first time you ever expressed the opinion, wasn't it, that the bruising was consistent with being hit from behind by a vehicle and falling to the ground unconscious? That was what was in the certificate you wrote?

A. Yes, sir, that's on the certificate that I wrote.

Q. Can you explain please how it was that he would be hit by a car in the lower legs and then be rendered unconscious?

A. If he would've fallen forward and hit his head.

Q. Well the report from the medical practitioner says that he was hit by a vehicle and falling to the ground unconscious; you thought about those words, didn't you, before you wrote them?

A. Sir, I - what do you mean, sir?

Q. Well the report says he was hit from behind and he fell to the ground unconscious. It didn't say he fell to the ground, hit his head and became unconscious, did it?

A. No, sir.

...

Q. The blow to the legs by the car would not render him unconscious, would it?

A. No it wouldn't.

Q. And he had no mark on his forehead or face, did he, that indicated that he hit the ground and bounced off the ground and became unconscious then, did he?

A. Not that I've written down, sir.

Q. And there were no marks on his body consistent with the motor vehicle having run over him, were there?

A. No.

Q. So how do you explain this unconsciousness?

A. As he would've fallen to the ground, sir, he would've hit his head.

Q. But the mark was at - he said he had a lump somewhere; where was that?

A. That was mainly on the scalp.

Q. And would you please indicate where that was? Are you relying upon your recollection or your notes now?

A. Yeah, I've written down 'head', sir, I haven't actually written down specifics insofar as where.

Q. You can take it from the evidence in this case that he had a lump at the back of his head?

A. Mm.

Q. Can you explain that?

A. I would imagine, sir, that as he fell he may have actually fallen sideways rather than face down.

Q. You mean he got a lump on the back of his head from falling sideways; is that what you suggest?

A. Or with his head turned, and then that part of the head contacting the ground.

Q. Which part of the head?

A. The side back part, sir.

Q. The side back part? You don't mean the back of the head?

A. Not specifically all the way at the back.

Q. That's what the patient says, that he had a lump on the back of his head?

A. Mm.

Q. That's very difficult to explain isn't it?

A. Sir, well as I said, if he was actually facing side view, he may have actually hit himself at the side back portion of the head.

Q. You're pointing to the right side of your head when you say that?

HIS HONOUR: At the back.

POULOS

Q. The right side of the head at the back when you say that?

A. At the back, yes

Q. Well having a lump at the back of the head is more consistent with being struck from behind isn't it?

A. Actually not necessarily so.

Q. Well if somebody hits somebody over the back of the head with a blunt object, for example, that could cause a lump?

A. Yes.

Q. And it would follow as night goes to day that if somebody was struck with a blunt object there they would get some form of swelling?

A. Yes, sir.

Q. And that is what the patient said he had. That's more consistent with being struck from behind than being struck by this motor vehicle isn't it?

A. Not necessarily. That wouldn't explain the bruising at the back of his legs.

Q. Unless of course when he went down something else happened to him?

A. Mm.

...

Q. If a person hurt Mr McLennan and he went down on the ground, you would know from your experience in the emergency wards that there are people who are so violent as to knock people down, jump on them, kick them and the like. Is that right?

A. Yes I've seen that before.

Q. And these bruises this man had on his chest could be consistent with having been kicked in the chest. You couldn't tell one way or the other could you?

A. Not by looking at the bruising itself."

Dr Tablante was also asked in cross-examination about how the respondent could have suffered bruising to his neck. He hypothesised that that "could have happened ... as the impact of the car would have actually hit him from behind, he would have hyper extended ... and flexed his neck at the same time causing bruising that way."

Professor Spira's evidence as to the mechanism of the respondent's injury, an extract from which the primary judge set out (at [183]; see [102] above) continued as follows:

"POULOS

Q. So if there was no splitting of the skin at the time the doctor examined him the following day, no abrasion, no breaking of the skin, what does that say to you?

A. Well either Mr McLennan or the doctor are wrong.

Q. If the head injury was described as a lump at the back of the head, is that consistent with being struck with a blunt object?

A. It's consistent with it, yes.

Q. And you heard the doctor's evidence that the bruising was in the area of the neck as well. What estimation would you give for such a -

HIS HONOUR

Q. Firstly, are you able to give an explanation?

A. Well in order for there to be bruising there, he would have had to have been struck there by something.

POULOS

Q. The doctor seemed to indicate that in his opinion it might be something to do with a whiplash type of injury. What is your view -

A. One doesn't see bruising from whiplash injuries."

CONCLUSION

The circumstances surrounding the incident of which the respondent complained were highly unusual. On his case he was knocked unconscious at about 5.00am in a station car park. He lay in the car park, he says between two parked cars, but in a position where he was visible to passers-by, for approximately four hours - first becoming aware of where he was at about 9.00am. The incident occurred on a Tuesday - a working day. As far as the respondent was aware, no one came to his assistance during the four-hour period he lay in the car park.

When he regained awareness of his surroundings, he had trouble standing up and had a massive headache. On the evidence he gave at trial, he could remember that, prior to losing awareness, he had heard a car "rev" and seen headlights. After regaining awareness, he first sat in his car for about an hour then drove home. He did not report the incident to station authorities or, indeed, make any inquiries of any person at the station to see whether his presence had been reported. When he got home he told his wife he thought he had "been in an accident". He did not report the incident to the police the same day. He did not go to a doctor the same day. His wife did, apparently, call Hungry Jacks that day to explain why he would not be at work. Her message was recorded as advice that he had been "hit by a vehicle while crossing [a] road".

On any common sense view of the ordinary affairs of the community, this concatenation of events was highly unusual. One would expect that members of the public would attend to a person so struck down in a public place. At the very least one would expect that the "victim", injured, apparently, in an accident would report his or her injury immediately to the relevant authorities.

Further, the injuries the respondent said he suffered in the accident were unusual, at the very least, if said to result from him being hit from behind by a car. The most unusual aspect of his injury was the lump on the top of his head as well as the bruising on the back of his neck. The respondent and his wife both said he had an injury at the top or back of his head.

In my view Dr Tablante did not explain how that head injury could be consistent with the mechanism of the injury in a motor vehicle accident he sought to advance. Rather, when confronted with the proposition that the respondent said he had a lump or swelling at the back of his head, Dr Tablante changed the subject to focus on the bruising at the back of the respondent's legs: (see [199] above). As the reports of the respondent's injuries I have recounted (at [194]) make plain, the contemporaneous records were that the injury to his head was on the top. Dr Tablante's evidence was that he had "swelling on the top of his head": (see [33] above).

The primary judge (at [78]) recorded Dr Tablante as having "noted that the plaintiff had a lump on the side of the head at the back". That evidence was given in the course of Dr Tablante trying to explain how the respondent's head injury could be consistent with him falling forward after being struck from behind as the bruising to his legs, on Dr Tablante's evidence, indicated he had. As the transcript of that exchange demonstrates (see [199]) Dr Tablante was "imagin[ing]" a scenario. That imagined scenario was inconsistent with the respondent's and his wife's account of his injury. The contemporaneous histories obtained by medical practitioners were consistent with their evidence. The primary judge did not explain how, on that evidence, the respondent's injuries were consistent with being struck from behind by a car.

Dr Tablante did accept that the injury to the respondent's head could result from being hit by a blunt object. Professor Spira said that the wound at the back of the respondent's head was difficult to explain and, as the respondent described it to him, would require "a direct blow". He rejected the primary judge's "imagining" of "a fall and a roll" as a possible explanation for its cause: (see [102] above). Dr Tablante and Professor Spira's evidence as to the mechanism of the respondent's injury could not stand together. It required resolution. The primary judge did not address it at all.

Next, it will be recalled that, despite the evidence he gave at trial concerning the sound of the motor and the headlights, when the respondent first consulted Dr Tablante, he informed him that while he was "hit at Holsworthy station from behind" he had "no recollection of the incident". In the light of that record the respondent's account of having heard a car (which appears first to have emerged in any written report on 5 June 2001 when he made a motor accident claim), as well as his account that he could recall seeing (head)lights, an account which first appeared in his "Employee's Report of Injury on the Journal Claim" dated 17 September 2000, demanded close scrutiny. This was particularly so in the light of Professor Spira's evidence and the adverse credit findings against him, to which I will come shortly.

The appellant sought to contest the respondent's evidence that he could recall hearing a car "rev" and seeing (head)lights immediately before next becoming aware of his surroundings at about 9.00am by relying on Professor Spira's evidence that the respondent would have suffered from retrograde amnesia arising from having lost consciousness as a result of the incident. The respondent's written submissions at trial accepted that he was "unconscious for a period of time". They did not deal with the retrograde amnesia issue. In oral submissions, the respondent's counsel suggested Professor Spira's evidence was "not very helpful", but appeared not to have come to grips with its essence - seeking to ridicule it by suggesting that Professor Spira was postulating that the respondent would have suffered amnesia for "a couple of hours ... before he was hit" - rather than grappling with the proposition that the evidence went to whether or not the respondent could have recalled hearing a car and seeing headlights before being struck. Significantly, however, the respondent's counsel did not take issue with the proposition that the respondent was unconscious after being struck - merely suggesting "different estimates of time" had been given and that it was not a case "where any precision can be visited".

In dealing with Professor Spira's evidence, the primary judge, erroneously in my view, stated that there was an issue whether the respondent lost consciousness after being struck. As the appellant submits, there was no such issue, only a debate as to the period the respondent was unconscious.

In addition, his Honour erroneously stated (at [332]) that Professor Spira's views were based on "an assumption that there was a prolonged period of unconsciousness ... which would have been accompanied by a significant period of retrograde amnesia". That was initially Professor Spira's position based on what the respondent told Professor Spira on 16 May 2007 about the period he was unaware of his surroundings - approximately 5.00am until approximately 9.00am. That statement was consistent with the evidence the respondent gave at trial: (see [185] above). The possibility of a shorter period of unconsciousness emerged at the trial, apparently in response to Dr Tablante's evidence. Insofar as a shorter period of unconsciousness was concerned, Professor Spira said "unconsciousness of minutes can see minutes of retrograde amnesia": (see [189] above).

On Professor Spira's evidence, even if the respondent had suffered the few minutes of loss of consciousness, as Dr Tablante had accepted as a possibility in cross-examination, the respondent would have suffered "a few minutes of retrograde amnesia". Professor Spira also gave an illustration in cross-examination (see [190]) of a footballer knocked unconscious for five minutes by a tackle not being able to recall the tackle which led to the injury - an illustration advanced, as I understand his evidence, to demonstrate the nature of retrograde amnesia.

On the history the respondent gave Professor Spira, the last observations he made were within two or three seconds of being hit which would, on my understanding of the Professor's evidence, be a memory the respondent could not have had consistently with the retrograde amnesia theory. Accordingly, it was improbable on the appellant's case that it could rationally be inferred that the sounds the respondent contended he heard and the (head)lights he said he saw were connected with his accident, as opposed, for example, to being typical observations in a car park, presumably made prior to the onset of retrograde amnesia.

The primary judge rejected Professor Spira's view in part because he preferred Dr Tablante's view that "there was probably only a very brief period of unconsciousness": see primary judgment (at [332]). As will be apparent from the foregoing on Professor Spira's evidence, even the few minutes of unconsciousness of which Dr Tablante spoke would have led to a few minutes of retrograde amnesia - a matter to which the primary judge referred (at [385]).

Next, the primary judge on this occasion (at [380]) doubted the respondent's evidence that he was unconscious for the period from when he was hit to when he became aware of his surroundings at about 9.00am, because of "uncertainty over the reliability of the plaintiff's evidence as to his recollection at trial, of earlier events that have long passed". It is appropriate to observe, at this stage, that this was not a doubt his Honour applied to the respondent's professed recollection of observations of sounds and lights prior to being struck.

Further, while the primary judge repeatedly reminded himself (see [85], [218], [379]) of authorities which injunct judges not to substitute their opinion of medical issues for the evidence: Strinic v Singh and Sretenovic v Reed, notwithstanding those reminders, his Honour, in my view deployed Professor Spira's evidence, given in response to his Honour's questions, about the adrenaline effect in a manner Professor Spira had expressly eschewed: (see [190] above).

The primary judge concluded (at [387] - [388]) that the respondent suffered "a very brief loss of consciousness, which in combination with the adrenalin [sic] effect, explains why the plaintiff has a gap in his memory". It is difficult to understand how his Honour could reach that conclusion on the evidence. It flew in the face of the respondent's evidence that he was unconscious for about four hours. Even allowing for some approximation in the respondent's assessment of time, it seems to have been accepted on both sides that he was going to catch the 5.00am train, and did not return home until about 10.00am. On his evidence that "lost" 5 hours was explained by the lengthy period of unconsciousness, then sitting in his car then driving home. It is difficult to see how the respondent could have misinterpreted the four-hour period. He, at least, thought he was unconscious, for the "very brief loss of consciousness" the primary judge found (at [387] - [388]) he had suffered. If, as his Honour found, he suffered only a "very brief loss of consciousness", another explanation was required for what was happening in the remainder of that period. The evidence did not suggest any answer to that conundrum.

Further, the primary judge's conclusion on this issue did not engage with Professor Spira's evidence. His Honour did not deal with Professor Spira's evidence which he had set out (at [385]) that retrograde amnesia would follow minutes of unconsciousness. Rather, he appears to have reached his conclusion by rejecting the respondent's, Dr Tablante's and Professor Spira's evidence about the period of unconsciousness as well as by relying on the adrenaline effect which Professor Spira had said was not relevantly operative. In my view it was not open to his Honour to develop this theory in the face of Professor Spira's evidence and in the absence of any expert evidence to support it.

I turn to the respondent's evidence. As is apparent from the reports of the incident I have set out, over the period of three or so years after the incident reports of what happened varied. The first report to Hungry Jacks on the day of the accident was that the respondent had been hit "while crossing [a] road". Thereafter reports varied from the respondent having no recollection of the incident as recounted to Dr Tablante on 6 September and "think[ing]" (in a manner connoting uncertainty) he was hit by a car (5 June 2001 claim form; see also Dr O'Neill, 20 January 2003) to him saying he could recall hearing a car (17 September 2000) and seeing lights (February 2002). Dr Tablante queried early in the piece whether the respondent had been assaulted - which at least reflected Mrs McLennan's evidence about the couple's early doubts about what had happened. The respondent, too, at some stage wondered whether he had been assaulted, as communicated to Dr Ellis as late as October 2005 - a belief the primary judge (at [117]) rejected as speculation.

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. Nevertheless he had made significant findings that the respondent had engaged in "patently untrue" conduct (at [225]); had been prepared to conceal relevant information in order to try and secure an advantage (at [240]); had been actively involved in concealing $30,000 received as workers compensation payments from the Department of Housing (at [265] - [266]); had similarly failed to disclose workers compensation payments to the Commissioner of Taxation in a manner constituting a "lack of probity" (at [267] - [269]); and had concealed the fact he was working from Dr Tablante when asking the latter to prepare unfitness to work certificates for the purpose of claiming workers compensation payments (at [381]), conduct the primary judge rather mildly characterised as "discreditable" (at [397]).

In finding in the respondent's favour that he was injured in the manner he claimed in the proceedings, his Honour first relied on Dr Tablante's evidence which in his view supported the motor vehicle collision theory. I have already dealt with this aspect of the evidence when discussing the mechanism of injury theory. In my view Dr Tablante's evidence did not explain the head injury the respondent suffered which was a critical failing. Both Dr Tablante and Professor Spira said the head injury was consistent with being struck by a blunt object. The primary judge did not explain how the respondent could have suffered an injury to either the top or back of his head in the forward fall he found (at [320]) had occurred. His statement that the respondent had both struck his chest (where Dr Tablante had observed bruising on 6 September 2000) and struck his head was not, in my view, supported by the evidence. It entailed an inconsistency which had to be resolved.

Next, the primary judge's conclusion that Dr Tablante had rejected the assault theory based on his experience treating assault victims in hospital that he would expect an assault to have been to the upper part of the body, did not take into account the fact that the respondent did have an upper body injury to his head or Dr Tablante's evidence that, in substance, it was his experience that assailants sometimes kicked a man when he was down.

It is difficult, in my view, to see how Mrs McLennan's observations of the respondent's appearance when he returned home advanced matters. She observed substantially the same injuries Dr Tablante observed, though each appeared to have a different recollection as to the position of the bruising on the lower limbs.

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.

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.

It is not possible for this Court to resolve the issue of liability which must turn on the extent to which the appellant's evidence can be accepted. There were also credit issues relating to both Mrs McLennan and Dr Tablante which the appellant advanced at trial - none of which can be resolved by this Court. It is not appropriate to determine the other issues which will also turn on the findings at the new trial as to how the respondent was injured.

I would comment, however, that it is not apparent why, should it be found at a new trial, that the respondent was of the view around the time he was injured that he may have been assaulted - even by use of a vehicle, that he was not required to inform the police of that view in order to discharge his due search and inquiry burden under s 34 of the MAC Act. Contrary to the primary judge's conclusion (at [366] - [367]) it is not apparent that such a notification would have been futile. The respondent was able to identify those who had threatened him. An inquiry may not as the respondent submitted, have elicited a confession, but it may have led to the identification of a vehicle exhibiting signs of having struck the respondent. However, much will depend upon how the evidence on this issue emerges at trial. It is not possible to resolve it at this stage.

ORDERS

I propose the following orders:

1. Appeal allowed.

2. Set aside the judgment of Levy DCJ of 8 June 2010.

3. Remit the matter to the District Court of New South Wales for a new trial.

4. Costs of the first trial to be in the discretion of the judge who hears the second trial.

5. Respondent to pay the costs of the appeal and have a certificate under the Suitor's Fund Act 1951 if otherwise qualified.

MACFARLAN JA: I agree with McColl JA.

**********

Amendments

18 May 2012 - Internal reference corrected

Amended paragraphs: [191]

Decision last updated: 18 May 2012

Medium Neutral Citation:	Nominal Defendant v McLennan [2012] NSWCA 148
Hearing dates:	12 and 18 August 2011
Decision date:	18 May 2012
Before:	Beazley JA (at [1]), McColl JA (at [18]), Macfarlan JA (at [230])
Decision:	1. Appeal allowed. 2. Set aside the judgment of Levy DCJ of 8 June 2010. 3. Remit the matter to the District Court of New South Wales for a new trial. 4. Costs of the first trial to be in the discretion of the judge who hears the second trial. 5. Respondent to pay the costs of the appeal and have a certificate under the Suitor's Fund Act 1951 if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL AND NEW TRIAL - credibility of witness - adverse credit findings against plaintiff at trial - where liability reliant on plaintiff's evidence - whether whole of plaintiff's evidence should be rejected - whether judge palpably misused advantage as trial judge - whether trial judge dealt adequately with inconsistencies in evidence and medical opinions EVIDENCE - medical evidence - whether plaintiff had retrograde amnesia - whether failure by trial judge to properly analyse medical evidence - whether trial judge erroneously substituted own opinion of medical issues for evidence TORTS - negligence - mechanism of injury - alternate version of events equally probable TORTS - negligence - motor vehicle accident - Nominal Defendant - Motor Accidents Compensation Act 1999 s 34 - whether plaintiff struck by unidentified vehicle - whether plaintiff undertook due search and inquiry
Legislation Cited:	Motor Accident Compensation Act 1999 Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 Suitor's Fund Act 1951 Supreme Court Act 1970
Cases Cited:	Agbaba v Witter (1977) 14 ALR 187 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Brown v Harding [2008] NSWCA 51 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Divall v Mifsud [2005] NSWCA 447 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Guest v The Nominal Defendant [2006] NSWCA 77 Lithgow City Council v Jackson [2011] HCA 36; (2011) 85 ALJR 1130 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 Nominal Defendant v Meakes [2012] NSWCA 66 Nominal Defendant v Rooskov [2012] NSWCA 43 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Sretenovic v Reed [2009] NSWCA 280 Strinic v Singh [2009] NSWCA 15; (2009) 74 NSWLR 419 Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Yuill v Yuill [1945] 1 All ER 183; [1945] P 15
Category:	Principal judgment
Parties:	Nominal Defendant (Appellant) Terry McLennan (Respondent)
Representation:	Counsel: J Poulos QC with J J Ryan (Appellant) S Norton SC with M Daley (Respondent) Solicitors: Moray & Agnew (Appellant) Brydens Compensation Lawyers (Respondent)
File Number(s):	2010/151065
Publication restriction:	No
Decision under appeal	Citation: [2010] NSWDC 28 Date of Decision: 2010-06-08 00:00:00 Before: Levy SC DCJ File Number(s): DC 5365/04

Background	21
Legislative scheme	26
Statement of the case	28
THE PRIMARY JUDGMENT	37
Credibility	42
Whether respondent struck by an unidentified vehicle?	70
Retrograde amnesia	85
Was the driver negligent?	92
Contributory negligence	94
Due search and inquiry	95
The respondent's injuries	99
Disabilities	107
GROUNDS OF APPEAL	116
APPELLANT'S SUBMISSIONS	118
RESPONDENT'S SUBMISSIONS	125
THE CROSS-APPEAL	134
CONSIDERATION	136
The credit issue	144
Liability	152
Reports of the incident	160
The assault theory	177
The retrograde amnesia issue	182
The mechanism of injury	192
CONCLUSION	202
ORDERS	229