The Nominal Defendant v Cordin [2017] NSWCA 6

Published 05 Jul 2017

On 2 September 2012, Mr Michael Cordin was riding along Minyon Falls Road in the Nightcap National Park, NSW when he fell off his bicycle and suffered serious injuries, including a severe injury to his head.

It was established that Mr Cordin came down a steep part of the road where it was levelled off and was aware that there were potholes in the area. Mr Cordin in his evidence stated that he believed that he was “shunted from behind” by a motor vehicle that was passing in the area, causing him to fall.

Unfortunately for Mr Cordin, there were no witnesses to the accident and he was unable to identify the motor vehicle which he alleges caused the accident. The significant issue in this matter is that immediately after the accident, Mr Cordin failed to mention that he was hit by a motor vehicle. Instead the medical records, police statements and other documents and evidence recorded that Mr Cordin had instead fallen off his bicycle.

The matter was heard before Levy DCJ over a five-day hearing, with the Nominal Defendant raising issues about Mr Cordin’s credibility. Despite the fact that the Plaintiff did not tell anyone that the fall was caused by a motor vehicle until some 10 days after the accident, on 26 February 2016 the primary judge delivered a judgment accepting Mr Cordin’s evidence and directing a judgment in his favour in the amount of $350,000.00.

Issue

On Appeal the Nominal Defendant challenged that the contemporaneous records (ambulance records, police statements and hospital records) contradicted the primary judge’s conclusion that the accident was caused by a motor vehicle. The Defendant noted that His Honour in his judgement had relied on the Plaintiff’s belief that he was struck by a motor vehicle, and did not consider all of the contemporaneous records and evidence that contradicted and/or casted doubt on the Plaintiff’s account of the accident.

The Nominal Defendant noted that none of the records “recorded a history of Mr Cordin being struck behind by a motor vehicle”, but rather, “gave a consistent history that he fell from his bicycle while he was riding down” the roadway. The Nominal Defendant in particular referred to the statement provided by Mr Cordin to the police immediately after the accident to which he explained that he had no recollection or memory of the circumstances of his fall but only his belief of what happened.

Decision

His Honour noted that there certainly was challenges to Mr Cordin’s honesty in determining what occurred on the day of the accident, however when considering what actually occurred on the day of the accident, the contemporaneous documents are more than likely able to present a more accurate recollection of the events of the accident.

His Honour Stated at paragraph [167]

“One reason that contemporaneous statements and documents are likely to be more accurate than a recollection of events is that a statement made at the time of an event, particularly when relatively spontaneous, is likely to be more accurate than a later statement made at a time when false memories can intrude. In a minority of cases the false memories are deliberately so because of the contrivance of the maker of the statement”.

His Honour noted that in the circumstances there was significant contemporaneous evidence that assisted in determining what had happened on the day and that the primary judge had failed to give this evidence adequate consideration and weight. He explained at paragraph [219]:

“The primary judge’s approach to the contemporaneous documents generally, to see whether they were inconsistent with or excluded the involvement of another motor vehicle, if it did not involve a reversal of the onus, was an inappropriate way of treating the evidence. The primary judge was obliged to assess the material, along with the other evidence, to decide if Mr Cordin had discharged the onus on him of demonstrating the involvement of a motor vehicle in the accident. All the primary judge had in that regard was the evidence of Mr and Mrs Cordin of a belief that that was how the accident happened, first articulated some 12 hours after the accident at Princess Alexandra Hospital, and the report of Dr Karnavas providing an opinion of how he concluded the accident must have happened. Against that, there was no mention in any of the contemporaneous material of another vehicle until the COPS report of 12 September. The earlier material contained statements that pointed the other way.”

His Honour is decision stated that the trial judge failed to give proper consideration and weight to the contemporaneous documents and for this reason upheld the Appeal, setting aside the judgment of the District Court of 26 February 2016 and ordered a new trial.

This decision demonstrates that contemporaneous records are likely to be more accurate than a recollection of events and for this reason should be given appropriate consideration and weight.