Nominal Defendant v McLennan

The appeal concerned a decision of the District Court of New South Wales, where the Nominal Defendant was ordered to pay damages to the plaintiff, McLennan, arising from a motor vehicle accident. The plaintiff's claim was predicated on being struck by an unidentified vehicle.

The primary legal issues before the Court of Appeal were whether the trial judge erred in making adverse credit findings against the plaintiff, and consequently, whether the entirety of the plaintiff's evidence should have been rejected. Relatedly, the court considered whether the trial judge had adequately addressed inconsistencies in the plaintiff's evidence and the medical opinions, and whether the judge had improperly substituted their own opinion for expert medical evidence, particularly concerning retrograde amnesia. The court also examined whether the trial judge had properly considered the mechanism of injury and the possibility of alternate, equally probable versions of events.

The Court of Appeal found that the trial judge had palpably misused their advantage as the trial judge by failing to adequately deal with the inconsistencies in the plaintiff's evidence and the medical opinions. The court determined that the trial judge had not properly analysed the medical evidence, particularly in relation to the plaintiff's alleged retrograde amnesia, and had erroneously substituted their own opinion for that of the medical experts. Consequently, the appeal was allowed, the judgment of the District Court was set aside, and the matter was remitted for a new trial.