Court of Appeal Supreme Court New South Wales

• 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

1 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.

2 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.

3 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.

4 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.

5 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".

6 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".

7 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.

8 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.

9 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.

10 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.

11 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.

12 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.

13 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.

14 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.

15 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.

16 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.

17 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.

18 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

19 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.

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

Background

21 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.

22 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.

23 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.

24 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.

25 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

26 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."

27 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

28 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]).

29 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]).

30 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]).

31 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]).

32 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.

33 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.

34 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).'"

35 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]).

36 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

37 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."

38 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."

39 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.

40 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".

41 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

42 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."

43 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.

44 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."

45 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.

46 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.

47 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]).

48 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".

49 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".

50 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.

51 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".

52 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.

53 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.

54 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.

55 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.

56 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".

57 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."

58 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".

59 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.

60 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".

61 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.

62 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)

63 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]).

64 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]).

65 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".

66 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."

67 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".

68 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."

69 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?

70 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]).

71 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.

72 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".

73 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".

74 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."

75 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".

76 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".

77 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)."

78 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."

79 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."

80 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."

81 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".

82 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."

83 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."

84 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

85 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.

86 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."

87 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."

88 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.

89 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]).

90 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.

91 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?

92 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.

93 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

94 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

95 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."

96 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.

97 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".

98 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

99 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.

100 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.

101 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)

102 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."

103 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".

104 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."

105 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".

106 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

107 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]).

108 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]).

109 At this stage the primary judge observed (at [403]) that the appellant's submission, that the respondent's discreditable conduct with Woolworths was indicative of the lengths of deception to which he was prepared to go in order to achieve a financial advantage so that the entirety of his evidence needed to be viewed with the utmost caution, was overly simplistic because:

"404. ... I have carefully assessed the plaintiff's background and present circumstances and have concluded that because of his impressive work history, including working with a chronic back condition, the plaintiff was unlikely to have been motivated to perpetrate and perpetuate such an elaborate and sustained deception over so many years, and in the process, successfully duping so many experienced clinicians into an acceptance of his complaints. In my view, this would have required a significant amount of planning, special knowledge and strategic thought in order to come up with a set of symptoms that he could adopt in order to be in a position to successfully dupe the experienced medical practitioners to whom he has been referred and who have treated him. My impression of the plaintiff was that he was unlikely to have gone to these lengths to pursue a false claim when to do so would be fraught with difficulty."

110 His Honour also concluded (at [405]) that in circumstances where the respondent took medication for his migraines which led to significant weight gain, "the taking of such medication, for headaches that either did not exist, or were not as severe as was claimed, with the resultant deleterious gain in weight, is not the conduct of an artful dupester".

111 Next, while he recognised (at [406]) "the difficulty of objectively determining the existence of a subjective complaint of a headache," he considered it to be of some significance that at an appointment with Dr Delaney on 29 June 2005 a "genuine constriction defect in the visual field possibly associated with the transient effect of a recovering headache" was noted.

112 Finally, his Honour doubted (at [407]) that the respondent "would have been able to 'pull the wool' over the eyes [of] experienced clinicians" that his headaches were of a migrainous character.

113 He found the following:

"411. I accept, as was noted by Associate Professor Spira, that there has been a material aggravation in the plaintiff's prior experience of migraine headaches from 1 - 2 per annum to 2 - 3 per week.

412. I accept that the plaintiff experiences ongoing, severe, long lasting and debilitating migraine type headaches. I find that these headaches are of a far greater character of intensity and frequency when compared to the relatively infrequent pattern of migraines that the plaintiff experienced in his pre-injury years. I find that in addition to the plaintiff requiring intermittent medical consultation for these problems, including on an unpredictable basis, he frequently finds the need to secrete himself in a quiet and darkened room to assist him to cope with these headaches when they are acute. In this regard I accept Associate Professor Spira's opinion that photophobia is a typical symptom of migraine headaches.

413. I find that the plaintiff's headaches are at times associated with nausea, vomiting, photophobia and photosensitivity or glare intolerance, and are aggravated or brought on by movement with the result that the plaintiff has assumed a far more sedentary existence than was previously the case. This reduced level of activity and capacity for exercise has led to the plaintiff experiencing a reduced ability to control his weight which has influenced the course of his hypertension and Type II diabetes. There is no evidence that the plaintiff had Type II diabetes before his injuries.

414. I accept that following the injuries sustained to the plaintiff's head and neck he experiences a burning sensation at the base of he [sic, the] neck and on the left side of the head.

415. I accept that the plaintiff still experiences problems with his right shoulder consisting of pain, discomfort and restriction of movement, due to the presence of a traumatic capsulitis, as was diagnosed by Dr Ellis in his report dated 5 February 2007.

416. A significant effect of the ongoing disabilities on the plaintiff has been that he has become less active, and as a result this has had an impact on his ability to exercise and move about. This in turn has impacted upon his pre-existing back condition so as to accentuate this problem. In this sense the effects of the injuries in question have materially contributed to the plaintiff's pre-existing back condition and influenced his reduced level of activity thus contributing to his further weight gain. I accept the evidence of Dr Tablante that the inactivity and weight gain has been a factor that contributed to the plaintiff's increased hypertension and contributed to the early onset of his diabetes. I consider that as the treating general practitioner, Dr Tablante is in a better position than Dr Cromer and Professor O'Rourke to form this conclusion as he has seen the plaintiff over time.

417. I accept that the effect of the plaintiff's headaches has been to reduce his ability to concentrate and participate in his pre-injury leisure pursuits to the same degree, now requiring only short periods of activity, including computer activity.

418. I accept the opinion of Dr Ellis, Dr Conrad and Dr Lorentz that the plaintiff is unlikely to be employable in the future. I prefer these opinions to the contrary opinions because I also accept the opinion of the treating neurologist, Professor Lance, that the prognosis for the plaintiff's headaches was poor. In my view the opinion of the treating doctors has a high value because of the particular clinical advantage held by the treating doctor. In this case, the opinions of Dr Ellis, Dr Conrad and Dr Lorentz have a consistency with the view of Professor Lance and I therefore prefer their opinions.

419. I also accept Dr Tablante's diagnosis of depression in the plaintiff. Whilst Dr Tablante's diagnosis is not supported by Dr Maguire, I prefer the opinion of Dr Tablante because he has had the advantage of seeing the plaintiff over the course of time rather than on just one medico-legal assessment and as such, is in a better position to assess his patient."

114 On the issue of past economic loss and the respondent's probable pre-trial, uninjured, earnings the primary judge said (at [457]) that he was "unable to accept in entirety the plaintiff's evidence on this issue because of ... earlier findings concerning the reliability of his testimony".

115 In relation to past gratuitous care, the primary judge regarded Mrs McLennan's account of the hours required to be spent tending the respondent's needs to be of a "fanciful nature" (at [498]). Nor was the respondent's evidence of assistance (at [500]) "because of the unreliability of [his] evidence on matters of detail". His Honour concluded (at [518]) that in the light of his credit findings concerning the reliability of the respondent's evidence he did not consider it was appropriate to draw inferences as to the hours of past domestic assistance the respondent required up to a period in October 2005. At that time Dr Ellis proffered an opinion that the provision of domestic assistance to the respondent to the extent of 6 hours per week for a period of 12 months from the date of injury would have been appropriate: primary judgment (at [502]). For the period from that date until trial, his Honour concluded (at [519]) that, instead of the respondent's claim for 15 hours per week for domestic assistance, he should award him 6 hours per week, a "downward adjustment" arrived at as "a result of a broad assessment of the opinion of Dr Ellis in conjunction with a cautious consideration of the tasks described by the plaintiff, his wife and Ms Laverack", the latter being a consultant occupational therapist.

GROUNDS OF APPEAL

116 The appellant relies on the following grounds of appeal:

"Liability

1. The primary judge erred in finding that the respondent had satisfied the requirements of due inquiry and search under s.34 of the Motor Accidents Compensation Act 1999.

2. There was no evidence from which the trial judge could properly draw the inference that the respondent was struck by an unidentified motor vehicle. There was no evidence on which the trial judge could properly find that the driver of the unidentified vehicle, if such was found to have struck the plaintiff, was negligent.

3. The primary judge erred in failing to find the respondent would have suffered a period of retrograde amnesia for events immediately prior to the alleged incident and that as a result he could have no recollection for relevant events that preceded him gaining consciousness after a head injury.

4. The primary judge erred in finding that the concept described as "the adrenalin effect" had any application to the matter, such finding having been made in circumstances where:

4.1 There was no medical evidence to support the finding - all doctors proceeded on the assumption that the respondent suffered a loss of consciousness following a blow to the head;

4.2 Associate Professor Spira, the only medical expert who was asked to address "the adrenalin issue", rejected its application;

4.3 His Honour misstated the evidence of the respondent's general practitioner, Dr Tablante, on the issue of loss of consciousness; and

4.4 His Honour substituted his own opinion on the issue, such opinion being contrary to the medical evidence on the issue and contrary to authority (Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] NSWCA 280).

5. The primary judge misdirected himself as to the onus of proof on the issue of liability

Contributory Negligence

6. The primary judge erred in failing to find contributory negligence on the part of the respondent.

Damages

7. The primary judge failed to use or misused the advantage he had of seeing and hearing the respondent and his wife give evidence and in finding that the respondent has, as a result of the incident:

7.1 suffered a significantly disabling headache and migraine;

7.2 suffered economic loss and a loss of earning capacity; and

7.3 required past and future domestic assistance.

7.4 incurred past out of pocket expenses for treatment.

7.5 would incur future out of pocket expenses for treatment.

8. The primary judge failed to have proper regard to the credit findings his Honour made adverse to the respondent and erred in making the findings referred to in paragraph 7.1 to 7.5 above.

9. The primary judge erred in assessing damages for past and future economic loss in the following respects:

9.1 characterising the respondent's earnings at Woolworths as "mitigatory" when such income was derived by the respondent at the same time as he continued to receive workers compensation benefits: and

9.2 failing to take make a reduction for the saving of work related expenses which would have been incurred had the respondent remained in employment - Sharman v. Evans (1977) 138 CLR 563."

117 The respondent relies on the following grounds by way of cross-appeal:

"1. The primary judge erred in finding that the cross appellant would have ceased work by the age of 60;

2. The primary judge erred in discounting the cross-appellant's future economic loss by 25% for contingencies;

3. The primary judge erred in discounting future care needs by 25% for vicissitudes."

APPELLANT'S SUBMISSIONS

118 The appellant's overarching submission is that the evidence did not establish that the respondent was struck by a car, let alone one which was being driven negligently. Rather, it contends that the respondent's case was entirely conjectural, so that there should have been a verdict in its favour. It contended that this conclusion followed, in particular, when proper regard was paid to the unusual circumstances surrounding the incident in which the respondent claimed to have been injured, inconsistent reports of the respondent's injuries, evidence concerning the pattern of his injuries (particularly those to the top of his head and rear of his neck), rendering it improbable that he suffered his injuries in a car accident, and to matters adverse to the respondent's credit, to which it submitted the primary judge had failed to give any, or appropriate, weight.

119 The appellant complained that the primary judge failed to give any weight to Professor Spira's unchallenged evidence that the respondent would have suffered retrograde amnesia after an incident which caused loss of consciousness. It submitted that this issue was a significant aspect of its case at trial as the only evidence suggesting that the respondent was hit by a car was his assertion that he saw the lights of a car and heard revving. It contended that Professor Spira's evidence made the respondent's purported "recollection" of events immediately before being injured "glaringly improbable". It submitted that even on Dr Tablante's note that the respondent was unconscious for about 30 minutes, according to Professor Spira's evidence the respondent would have suffered from at least a few minutes of retrograde amnesia such as to cast doubt on his evidence about pre-injury observations. The appellant also complained that when dealing with this issue, the primary judge erroneously described the question whether the respondent lost consciousness in the incident as controversial, whereas the only controversy on this issue was the duration of his loss of consciousness. It also complained that the primary judge erred in impermissibly substituting his own opinion for Professor Spira's, in concluding that, rather than suffering from retrograde amnesia, the respondent had "suffered from a brief loss of consciousness, which, in combination with the adrenaline effect, explains why [he] has a gap in his memory."

120 Conversely, the appellant complained that the primary judge placed too much reliance on Dr Tablante's opinion as to the cause of the respondent's injuries which, it submitted, was as conjectural as the respondent's theory of his accident - being based merely on the fact that the respondent said he was injured in a car park and his claimed observation of lights and an engine. To the extent that Dr Tablante said the respondent had told him he saw lights and heard a car engine, the appellant pointed out that these matters did not appear in his notes of 6 September 2000.

121 Next, the appellant submitted that, even if the respondent was struck by a car, he had not satisfied the requirements of due search and inquiry under s 34 of the MAC Act. It asserted that the possibility that the respondent was assaulted with a weapon and kicked while he was on the ground on 5 September 2000 could not be dismissed. It pointed to Mrs McLennan's evidence that within a week or two of the incident, the respondent mentioned the possibility of his accident being connected with the threat made against him at Liverpool Court House as corroborative of this possibility. It complained that the primary judge did not deal with an inconsistency between the respondent and his wife as to when they discussed the possibility that his injuries might have been inflicted in an assault. It contended that it was necessary for his Honour to resolve this inconsistency because, had he accepted that the respondent had believed he had been assaulted (whether by the use of a car or a physical assault) he should have concluded that these were matters he should have drawn to the police's attention in order to discharge his s 34 obligation.

122 Returning to the credit issues, the appellant submitted that it was not apparent how, if at all, the primary judge took his adverse credit findings into account in considering the issue as to how the respondent sustained his injuries. It contended that, having regard to these credit findings, the respondent's credit was so damaged that his case could not be accepted without objective corroboration. It submitted that there was no such corroboration of the respondent's account and that the primary judge's reliance in reaching his liability conclusion on the respondent's prior statements about what had befallen him was to have recourse to material as conjectural as the respondent's evidence at trial. It contended that the manner in which his Honour treated his credit findings demonstrated that he had palpably misused his position as a trial judge.

123 Next, the appellant complained that in stating, in substance, that notwithstanding the success of its attack on the respondent's credit, the appellant had not established that his claim should be rejected in its entirety (primary judgment (at [13], [311])), the primary judge reversed the onus of proof in a manner which infected his liability findings.

124 Finally, the appellant also addressed submissions to the issues of contributory negligence, the disability findings and damages for past and future economic loss. Having regard to the conclusion I have reached on the liability aspect of the appeal, it is unnecessary to recount those submissions in detail. In short, the appellant contended first, that his Honour ought to have found the appellant guilty of contributory negligence; secondly, that he ought not, having regard to his adverse credit findings, have found the respondent suffered from the principal disability (migraines) of which he complained, they being of a subjective nature, acceptance of which depended on his being accepted as a witness of truth; and finally, that he erred in assessing damages for past and future economic loss and in failing to make a reduction for the saving of work related expenses which would have been incurred had the respondent remained in employment.

RESPONDENT'S SUBMISSIONS

125 The respondent submitted that primary judge's finding that he was injured in a motor vehicle accident was open to him on the evidence and that the appellant had failed to establish any appealable error.

126 First, the respondent argued that the fact he was injured while travelling to work meant that his injuries would always be covered by workers compensation and, accordingly, there was no reason for him to have invented a story about having been struck by a motor vehicle. He pointed to the fact that he had consistently said that he was unsure about what happened to him as evidence of his frankness. He relied on the fact that the workers compensation insurer had accepted his claim as genuine and continued to pay him workers compensation as demonstrating he was on his way to work when he was injured.

127 Secondly, the respondent emphasised that the criminal proceedings during which he was threatened led to the accused being acquitted without the respondent giving evidence. Accordingly, he submitted, it was difficult to see that there could be any plausible connection between the criminal trial and his accident. He contended that the suggestion an assailant might have been involved in the accident was "nothing more than a red herring". He also contended that the primary judge was aware of conflicting evidence between the respondent and his wife about when they discussed the possibility that he was injured in an assault and gave it due consideration.

128 Thirdly, the respondent submitted that the appellant failed in its attack on Dr Tablante's credibility and, in these circumstances, it was unsurprising that the primary judge would prefer his evidence (he having had the advantage of seeing the respondent the day after the accident) as to the most probable explanation for his injuries to Dr Spira's. He pointed out that on a reading of the medical evidence, no expert said the respondent's injuries could not be consistent with a motor vehicle accident. He added that the differences between Mrs McLennan and Dr Tablante's observation of the position of bruising on his body could be attributed to the passage of time and did not undermine the finding that they were caused by a motor vehicle accident. He submitted that the appellant's submission that if he had been hit by a vehicle "at speed" he should have suffered more injures was speculation as there was no evidence of the speed of the vehicle which struck him. He also contended there was no expert evidence as to the probable pattern of injury on such a hypothetical scenario in any event.

129 Fourthly, insofar as the retrograde amnesia issue was concerned, the respondent contended that the appellant's case on this point depended on him having suffered a prolonged period of unconsciousness. He argued that the best evidence on this issue was that given by his treating doctor in relation to his observations the day after the incident. He submitted that the primary judge reviewed the evidence relating to the period of unconsciousness at some length before finding (at [388]), based on Dr Tablante's evidence in cross-examination, that he suffered "a very brief loss of consciousness." He contended that the primary judge's reference to the adrenaline effect was a permissible explanation as to why the respondent could have described his loss of consciousness as being longer than it actually was and that he did not make any finding that the respondent was affected by the adrenaline effect independently of a brief period of loss of consciousness.

130 Fifthly, the respondent challenged the proposition that due search and inquiry required him to report to the police any suspicion of a connection between his injuries and the criminal trial. He said the primary judge was correct in holding that the "requirement of due inquiry and search does not mean there must be some inquiry undertaken where search would be futile."

131 Sixthly, the respondent argued that the trial judge's findings on the question of negligence were clearly open to him. He submitted that it would have been improbable for a driver to hit him without being aware of it. He contended that the driver's flight was an admission of negligence.

132 Finally, the respondent submitted that the primary judge carefully examined, and made a finding on, each attack the appellant made on his credit. He argued that his Honour took those findings into account appropriately in considering his evidence of the circumstances surrounding the incident and in relying on the contemporaneous accounts of Dr Tablante and Mrs McLennan. He contended there was there was no error or glaring improbability in the primary judge's use of the credit findings.

133 The respondent also made submissions supporting the primary judge's conclusions on contributory negligence and, subject to his cross-appeal, damages, which are unnecessary to recount in detail.

THE CROSS-APPEAL

134 The cross-appeal challenged the primary judge's finding that the respondent would not have continued to work until the "usual" retirement age of 67 and his Honour's application of a 25 per cent discount for vicissitudes, rather than 15 per cent. The respondent complained that the choice of a discount figure involved double counting as his Honour relied on the same factors to apply the higher discount as he used in concluding that he would have had a shorter working life in any event. He also challenged the primary judge's finding that he had not satisfied the statutory test for domestic assistance prior to October 2005.

135 The appellant contended that the primary judge's findings challenged in the cross-appeal could not be impugned having regard to the respondent's pre-injury, or independent, disabilities of back injury, hypertension and diabetes mellitus. Insofar as domestic assistance was concerned, the appellant submitted that this was an illustration of the primary judge appropriately giving weight to his adverse credit findings in a manner he should have applied in considering the liability case.

CONSIDERATION

136 This appeal is by way of rehearing. The Court has power to draw inferences, make findings of fact and make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires: s 75A, Supreme Court Act 1970.

137 Insofar as the drawing of inference is concerned, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge [and] [i]n deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.": Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 (at 551) per Gibbs ACJ, Jacobs and Murphy JJ.

138 In Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 (affirmed on appeal: Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537), in discussing the nature of a s 75A appeal, Allsop P, Beazley and Basten JJA said, relevantly:

"14 As made clear in Fox v Percy, on an appeal by way of rehearing, the Court is not restricted to correcting errors of law. Rather, and subject to an important qualification, the Court is required to assess the evidence, inferences and evaluative judgments required to be made to determine the case. So much is treated as its statutory obligation. ...

15 The qualification referred to above involves the limitations on the ability of the appellate court to comprehend fully the evidence and process of the trial. The appellate court suffers from three kinds of limitation in that regard:

(a) not having seen or heard witnesses give evidence and not having seen the whole of the evidence develop and fall out at the trial;

(b) even in respect of documentary evidence and transcripts of oral evidence, not having complete familiarity with the whole of the record often occurring over an extended period of time which the trial judge is likely to have had; and

(c) notwithstanding the requirement that the trial judge provide written reasons for his or her decision, not having access to every detail of the reasoning process which, almost inevitably, will escape the resources and ability of the most diligent trial judge to record in full.

16 This list is not intended to be exhaustive, but it is useful to bear in mind the points at which an appellate court will need to consider the limitations on its own ability to assess the decision from which the appeal is brought. Those limitations are not restricted to circumstances where findings of credibility have been made. Nor are those limitations restricted to the notion of 'an unexpressed and unstated "subtle influence of demeanour" ', as described by Kirby J in CSR Ltd v Della Maddalena at [44]. In recent times the limitations of the use of the 'subtle influence of demeanour' in the assessment of witnesses giving oral testimony has been pointed out: see Fox v Percy at [28] - [31]; and CSR v Della Maddalena at [180]. The limitations include a degree of wariness about the risks of intuitive judgment which has led to a greater emphasis being placed on objective circumstances, such as consistency with contemporaneous records, by appellate courts." (Emphasis added)

See also the valuable discussion and collection of authorities in Nominal Defendant v Rooskov [2012] NSWCA 43 (at [91] ff) per Campbell JA (Young JA and Garling J agreeing).

139 The respondent's case turned substantially on the circumstantial evidence he could give concerning the alleged accident and the inferences to be drawn from that evidence. In such a case, he had to establish circumstances raising a more probable inference in favour of what [he] alleged. It was sufficient if the circumstances appearing in evidence gave rise to a reasonable and definite inference, but they had to "do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture": Luxton v Vines (at 358) per Dixon, Fullagar and Kitto JJ, quoting Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (at 5). It should be borne in mind, as Ipp JA (Handley JA agreeing) pointed out in his valuable discussion in Guest v The Nominal Defendant [2006] NSWCA 77 (at [107]), (an appeal from a trial which turned on circumstantial evidence and the inferences to be drawn from that evidence and where there were no incontrovertible facts or uncontested testimony demonstrating that the trial judge's conclusions were either erroneous or correct), that "a trier of fact, confronted with divergent cases being advanced by the parties, may decline to accept either case".

140 Spigelman CJ (with whom Davies AJA relevantly agreed) discussed the difficulty in distinguishing between conjecture and inference in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 (at [84] ff). As was apparent from the authorities his Honour discussed (at [85] - [88]), while the distinction exists, "[i]t is often difficult to distinguish between permissible inference and conjecture [and] [c]haracterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division". Gummow J referred to this passage in Spigelman CJ's reasons with apparent approval in Lithgow City Council v Jackson [2011] HCA 36; (2011) 85 ALJR 1130 (at [94]) (and to Luxton v Vines) in observing:

"While 'a more probable inference' may fall short of certainty, it must be more than an inference of equal degree of probability with other inferences, so as to avoid guess or conjecture. In establishing an inference of a greater degree of likelihood, it is only necessary to demonstrate that a competing inference is less likely, not that it is inherently improbable."

141 A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his (or her) advantage": Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 (at 479) per Brennan, Gaudron and McHugh JJ. The plurality concluded that the Full Court had erred in overturning a trial judge's decision in circumstances where the trial judge had "dealt in detail with the inconsistencies between the plaintiff's evidence and his out-of-court statements [and] [n]o ground exist[ed] for concluding that the judge failed to use or palpably misused his advantage".

142 In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]), Gleeson CJ, Gummow and Kirby JJ referred to the "disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share". They confirmed (at [27]) the "continuing application of the corrective" stated in, among others, Devries v Australian National Railways Commission. Further (at [28]), their Honours stated:

" ... [t]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings."

143 In determining whether a witness' evidence should be accepted, it is necessary for the trial judge to weigh the evidence as a whole, rather than to evaluate the evidence on one issue, then consider whether other evidence "denied that evaluation": Agbaba v Witter (1977) 14 ALR 187 (at 191) per Barwick CJ (Mason and Stephen JJ agreeing). A court of appeal has jurisdiction to set aside a finding based in part on credibility if, on a critical examination of the whole of the evidence, it is clear that the primary judge's impression on the subject of a witness's demeanour was mistaken: Yuill v Yuill [1945] 1 All ER 183; [1945] P 15 at (20 - 22) per Lord Greene MR.

The credit issue

144 As I have said, the primary judge made substantial credit findings adverse to the respondent. In the light of those findings, he decided (at [261]) that he should "proceed cautiously on an issue by issue analysis of the matters in dispute, rather than to apply a blanket credit finding against the plaintiff". His Honour said that fairness dictated this approach as there should be "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." Similar observations were made at [287] and [311].

145 Earlier in his Honour's reasons (at [14]), having noted that the credit issues the appellant raised spanned both the liability and damages issues, he had segregated the reasons for this credit conclusion into the appropriate categories, his Honour said (at [15]) that simply because he had done so he "should not be taken to have made separate determinations of individual credit issues without having considered the overall inter-relationship of the credit challenges made by the defendant when determining the issues".

146 The appellant complains that it is not readily apparent what the primary judge meant in his summary (at [15]). Nor, it contends, is it evident that his Honour considered credit issues in his findings on how the respondent's injuries were sustained. Rather, it contends that his Honour's comments (at [261], [287] and [311]) suggest that his Honour did confine issues of credit in a manner he had professedly eschewed.

147 The primary judge referred (at [14]) to Handley JA's judgment in Malco Engineering Pty Ltd v Ferreira (at 117) as leaving it "open for [him] to either accept or reject parts of the plaintiff's evidence as dictated by the results of analysis of the evidence". That statement is correct, but it must be understood in context.

148 Malco Engineering v Ferreira concerned an application for compensation for injuries that the respondent claimed he suffered at work. During the hearing, the respondent gave false evidence regarding his wife's dependency and the extent of his disability. Nonetheless, the trial judge accepted his evidence regarding the injuries. The Court of Appeal allowed the defendant's appeal. In his judgment, Handley JA made a number of comments about the approach that courts should take where a witness' credit is questionable. His Honour said (at 118 - 119):

"In my opinion the perjury by the worker required the trial Judge to carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of his evidence may have been acceptable because it was confirmed by other independent or objective evidence. However where the worker's evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings.

This did not necessarily require the trial Judge to reject the whole of his evidence. Nor on the other hand was the trial Judge entitled to simply accept the whole of his evidence except those parts that the respondents had established was false.

...

In my opinion, and with the greatest respect, ... the trial Judge failed to use and culpably misused the advantage he had in seeing and hearing the oral evidence of the plaintiff. It was not open to his Honour, as the Judge of fact, to decide that the proved perjury in this case was in any sense a 'penalty' which was 'inflicted' on the worker or that his proved lies had 'a finite life'. Nor in my opinion could the trial Judge properly determine this case by simply deciding to quarantine the worker's proved lies and not use, or 'transpose' them in order to carefully weigh other parts of his evidence which were neither corroborated nor shown to be false." (Emphasis added)

149 In Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (at [34]), Heydon JA applied Handley JA's comments in Malco Engineering Pty Ltd v Ferreira in deciding that the trial judge in that case had not "failed to use or palpably misused the advantage he had of seeing and hearing the plaintiff ...". His Honour said:

"[35] ... [C]ounsel for the defendant contended that the trial judge had not complied with the passage set out above from Handley JA's reasons for judgment in Malco Engineering Pty Ltd v Ferreria (1994) 10 NSWCCR 117 at 118. That contention is not made out. Handley JA did not say that where a party-witness has lied, the balance of the testimony can never be accepted without corroboration. All he said was that the balance of the testimony in that case called for careful assessment. What the trial judge here provided was careful assessment. Counsel for the defendant fell back onto the contention that while the trial judge could have accepted parts of the plaintiff's evidence, he could not do so without 'proper reason'. He said: 'Just because they say something, you can't just accept that when you know they're a liar.' But though the trial judge gave no reason for accepting the evidence of the plaintiff about the fact that the shoe Professor Morton tested was the shoe she wore, and about how much she wore it after the accident, he was entitled to accept her evidence on the basis of the overall character of her testimony, part of which was to be disbelieved for particular reasons, part of which was to be believed because it was corroborated, and part of which was, though not corroborated, not affected by any particular reason not to accept it. Finally, counsel for the defendant said that even if the approach for which he was contending was not a universal rule, it was appropriate to employ it in particular cases, and this was one. The difficulty is that it has not been shown that the trial judge failed to assess and analyse the totality of the plaintiff's evidence against the background of the other evidence in such a way as to cast doubt on his conclusions that substantial parts of her evidence could be accepted. It is common enough in litigation for witnesses with a truthful story to succumb to the temptation of gilding the lily or over-egging the pudding. The test for the trier of fact is to separate the truthful parts from the rest. While it may be that other triers of fact would have arrived at conclusions different from those of the trial judge in this case, the fact is that the conclusions that he arrived at were not implausible. The weaknesses of parts of the plaintiff's evidence here, while troubling, were not so great as to call for a rejection of all the uncorroborated parts of it." (Emphasis added)

150 In Divall v Mifsud [2005] NSWCA 447, M W Campbell AJA (Ipp and McColl JJA agreeing) found (at [42]) that the trial judge in that case had not "performed the duty set out by Handley JA, which depends upon the fact of the untruthful evidence not how it was dealt with in Malco". His Honour noted (at [45]) that if the trial judge did accept the respondent's account, "he was bound to refer to this important issue in his reasons and say something, even if brief, as to why he adopted that course". In the absence of reasons as to why the trial judge took a favourable view of the respondent's credit, and because of its significance in determining liability, the court allowed the appeal and ordered a new trial.

151 In Brown v Harding [2008] NSWCA 51, Hodgson JA, Hidden and Hislop JJ upheld an appeal on the basis that the trial judge's reasoning process in relation to a finding that a witness had lied was contradictory. The trial judge had found (at [12]) that a witness had lied about being drunk when he drove a stolen car "in an attempt to reduce his personal responsibility for the injuries to the [plaintiff] and the death of [the other passenger]" but was not persuaded that this lie directly impacted on the witness' credit. The court concluded (at [30]) that the finding the witness had lied "disclosed a reason for [him] ... relevantly, to lie as to the appellant's involvement in the theft of the vehicle" in which he was injured. It also concluded (at [31]) that the trial judge's conclusion that it was likely the witness had lied in order to reduce his personal responsibility was in conflict with her finding that the witness had no obvious reason for lying about the involvement of the plaintiff and was indicative of an erroneous reasoning process requiring the appeal to be upheld. Their Honours ordered a new trial because of the credit and demeanour issues.

Liability

152 The appellant's attack on the respondent's liability case was, as I said at the outset of these reasons, intrinsically interwoven with the credit issue. It contended that the respondent's case was inherently improbable. It said that the respondent had, from the outset, no, or no real, idea as to how he had been injured. It relied, in part, on inconsistent reports the respondent had given concerning the incident in which he was injured and his equivocation in those accounts as to how he was injured. It also relied upon the proposition that, viewed objectively, the injuries the respondent suffered were inconsistent with having been struck from behind by a motor vehicle - the mechanism of injury theory.

153 Although it was not necessary that it establish anything other than that the respondent had failed to discharge his burden of proving that, more probably than not, he had been injured in the manner for which he contended, the appellant also pointed to another possible explanation for the respondent's injuries: the execution of the threat made to the respondent at Liverpool Court House.

154 The appellant also sought to cast doubt on the respondent's case that he could recollect hearing a car and seeing headlights before the accident by relying on Professor Spira's evidence that having regard to the period the respondent was most probably unconscious, he would have suffered retrograde amnesia such that he would have been unable to recall events for a few minutes prior to suffering whatever accident befell him. Inextricably interwoven with these matters, as I said at the outset of these reasons, were the appellant's attacks on the respondent's credit.

155 The appellant also contended that the respondent's credit was so damaged by the evidence of his deception of potential employers, of the Commissioner of Taxation, the Department of Housing and Dr Tablante - all for the purposes of financial benefit - that it was fatal to acceptance of the claim. These findings should be briefly re-visited for context. As the primary judge accepted (albeit that his Honour did not express it in these terms), the respondent had lied in employment applications dating back to July 1990. His Honour described one such lie in manners as "patently untrue". This related to the non-disclosure of the respondent's receipt of workers compensation while employed with Waugh & Josephson both to KFC and Woolworths, omissions the primary judge accepted (at [234]) were not coincidental. These "non-disclosures" as the primary judge also accepted (at [240]) demonstrated that the respondent had "in the past been prepared to conceal relevant information in order to try and secure an advantage for himself."

156 In addition, during a period which was closely correlated with the period soon after his accident, the respondent failed to disclose in his 2001 and 2002 income tax returns his receipt of workers compensation payments - a non-disclosure his Honour characterised (at [269]) as demonstrating a "lack of probity ... reflect[ing] poorly on the plaintiff's credit". The primary judge also accepted that in 2002 the respondent failed to disclose to the Department of Housing workers compensation payments of at least $30,000 - a non-disclosure his Honour found the respondent was actively involved in. Once again, his Honour concluded this non-disclosure reflected poorly on the respondent's credit.

157 Finally, for relevant purposes, there was deception intimately connected with the respondent's claim for financial benefit arising from the injuries the subject of these proceedings. The respondent withheld from Dr Tablante the fact that he was working at Woolworths at the time he was asking that doctor to issue to him certificates certifying that he was unfit to work in order that he could obtain workers compensation benefits - a non-disclosure his Honour characterised as "discreditable". He also swore a false statutory declaration for the purposes of retaining the workers compensation payments in relation to those injuries.

158 In considering the adverse credit findings, I have borne in mind that the primary judge appears to have made one unwarranted adverse finding - in concluding the respondent had not disclosed his Hungry Jacks employment, or the injury the subject of these proceedings, when applying for a position at Woolworths in October 2000. The weight of the other adverse credit findings is such that this erroneous finding does not displace the strength of the appellant's case on this issue.

159 The primary judge seemed to accept (at [261]), that the respondent's credibility had been "damaged ... generally". However, notwithstanding that statement, his Honour said he should "proceed cautiously on an issue by issue analysis of the matters in dispute, rather than to apply a blanket credit finding against the [respondent]" (at [261]). Before returning to his Honour's reasoning towards his conclusion that, notwithstanding his adverse credit findings, he could accept the respondent's liability case, it is necessary to set out, in somewhat greater detail, key aspects of the evidence which formed the basis of the appellant's attack on the liability case and which demanded close scrutiny in the light of the many matters adverse to the respondent's credit.

Reports of the incident

160 On 5 September 2000, Mr Singh, who appears to have been the respondent's supervisor at Hungry Jacks, completed an "Employer's Report of Injury". It stated that the injury to the respondent occurred at 6.00am and was reported at 2.00pm. Against the question asking "Where did injury occur", the box "Vehicle accident while at work" was ticked, as was the box against "Travelling to or from place of employment". In the section dealing with the circumstances of the accident causing injury, the words "was hit by a vehicle while crossing road to get to a train station" appear.

161 I have already set out Dr Tablante's notes of his examination on 6 September 2000 of the respondent's injury, but repeat it in this collation of reasonably contemporaneous accounts. He recorded:

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

162 On 6 September 2000 Dr Tablante completed a medical certificate certifying that the respondent was unable to attend work for a week due to "multiple bruising/concussion/post collision".

163 On 12 September 2000, Dr Tablante completed a NSW Workers Compensation Medical Certificate stating that following examination of the respondent he was suffering from "multiple bruising/persistent headache/concussion".

164 On 17 September 2000 the respondent completed an "Employee's 'Injury on the journey' Claim" in which he stated under the heading, "Accident Details":

"I was walking through the car park on the way to the train station. I heard a car coming up behind me and that's the last thing I can remember (hit by car)."

Against the question: "Who in your opinion was responsible for the accident", he wrote: "The person that hit me" and against the question "And why", wrote: "I was walking in a car park."

165 In an "Employee's Compensation Claim Form" dated 27 September 2000, the respondent wrote, relevantly:

"... 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."

166 On 28 September 2000 Dr Tablante referred the respondent to Dr Rail, a consultant neurologist, in a letter which stated:

"... post MVA - hit by ? car

no recollection of being hit ..."

167 On 5 October 2000, Dr Rail wrote to Dr Tablante saying:

"Mr McLennan was involved in an accident on 5 September 2000. He was at Holsworthy parking lot and was probably hit by a car. He was knocked unconscious for about half an hour ..."

168 On 12 October 2000, the respondent applied for a management position at Woolworths. When asked if he had ever claimed workers compensation with a previous employer, he wrote: "Hit by car on the way to work (I was pedestrian)."

169 On 11 March 2001, Dr Tablante referred the respondent to Professor Lance, another consultant neurologist, under cover of a note in which he wrote:

"History - pt on way home from work was ?assaulted at train station. Pt had no recollection of incident but since the [sic, then] was having recurrent [?] global headaches..."

170 In his report to Dr Tablante of 13 March 2001, Professor Lance wrote:

"As you know he had an accident on 5/9/00 at about 4.30am in a car park at a railway station while he was on his way to work. It is now [sic, not] now [sic, known] whether he was assaulted or struck by a car, but he regained awareness after about forty minutes, feeling confused with bruises on his left hip, knee and ankle as well as his right shoulder and hand. He had a lump on top of his head ... ."

171 On 8 January 2001, Dr Parameswaran, a consultant orthopaedic surgeon, saw the respondent. He recorded the respondent as having been hit by a car in the car park at Holsworthy Railway station. He said the respondent said he had "pain in the left ankle, pain in the left knee, pain in the left loin, pain in the right shoulder and a contusion of the scalp."

172 On 5 June 2001, the respondent completed a "Motor Accident Personal Injury Claim Form". When asked what the weather conditions were, he wrote "Cold and Dark". Against the question "[w]hat was your part in the accident, he wrote, "I think I was hit by a car whilst walking through the car park" (emphasis added). In the section calling for a brief description of the accident, he wrote:

""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."

173 On 19 February 2002, Dr Vignaendra, a consultant neurologist, saw the respondent. He recorded under the history section of his report:

"Mr McLennan ... parked his car and walked towards the station when he was knocked down by a vehicle. The incident occurred between the hours of 4.30am and 5.00am. He could recall the noise of a vehicle and lights behind him and the next thing he remembers is waking up lying on the ground, feeling groggy and not knowing where he was. Some time later he recovered awareness and spotted his parked car. He claimed to have slept in the car for a while and later woken up and driven home ..."

174 In contrast to Dr Parameswaran, Dr Vignaendra recorded the respondent's complaints as having been:

"His initial symptoms were a swelling of the right ankle, pain in the right hip and left shoulder region and a severe headache. He also had a lump on the top of his head."

175 In a report dated 20 January 2003, the day of the consultation, Dr O'Neill, a consultant neurologist, quoted the respondent as having said: "I still cannot be sure what happened; whether I was hit by a car". In his conclusions, Dr O'Neill wrote:

"It is unclear as to what took place in the incident in the car park on 5.9.2000. Mr. McLennan may have been hit by a vehicle or he may have fallen. In any case it would seem he sustained a mild closed head injury which, in my view, would not be expected to result in any subsequent medical problem."

176 Dr Ellis, a consultant orthopaedic surgeon, saw the respondent at his solicitor's request to prepare a medico-legal report in October 2005. In his report dated 26 October 2005, he wrote in the history section:

"He was involved in a motor vehicle injury [sic, accident] on the 5.9.00 on his way to work ... He heard a car revving up behind him and was hit by the vehicle which took off and has never been identified subsequently. [He] believes that he was hit purposefully by a local drug syndicate. He was forced by the police with a threat of arrest, to give evidence against the syndicate who had been involved in an armed assault outside of his Hungry Jack's store. He objected to giving evidence because his life had been threatened by the group but was forced to comply by the police and a week later this unexplained attack on his life was made."

The primary judge (at [117]) recorded of this history: "[i]f correctly recorded, this could only have been speculation on the plaintiff's part".

The assault theory

177 In his evidence in chief, the respondent gave evidence that (on a date which it emerged from other evidence was 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 the alleged assailant, which was to take place at Liverpool Court House on 21 August 2000. Apparently the accused was acquitted because, the respondent believed, the alleged victim and another witness did not appear. The respondent did not give evidence, but waited at court for five days before he was released from his subpoena. During that period, he claimed the accused's younger brother said to him: " '[d]on't testify or something will happen' to [you]." He claimed a police officer was sitting next to him at the time.

178 The incident in the car park took place a couple of weeks after the respondent was threatened at court.

179 In cross-examination, the respondent said that when he returned home on 5 September 2000 and discussed the incident with his wife, he "just told [her] [he]'d had an accident". He did not associate the accident with "having to give evidence against [the accused]" or "going to Liverpool Court", nor did "she say anything about it". At that stage he did not accept "there was a possibility that that might be the case". The following exchange took place:

"Q. What is it that has made you aware that there might have been a possibility that you were assaulted because of something you had done in respect to that case?

A. Just over a period of time, it just niggled at me and I thought maybe that's what it was about, or it could have been just totally random. I'm not sure.

Q. Random, in the sense that -

A. Just unlucky me."

180 Later in cross-examination, the respondent said he did not think that what happened to him on 5 September was connected to the events at Liverpool Court House "in any way, shape or form". He said that the thought the two events were connected did not come to him "until several years after the incident", because he "spent several years wondering why it happened, and that's the only thing I could come to a conclusion that had anything to do with it, and it's still only conjecture; I have no idea". He rejected the proposition that "as a matter of common sense it would take about 10 seconds ... to put these two things together in [his] mind".

181 Mrs McLennan gave evidence that a couple of weeks before 5 September 2000, the respondent told her his life had been "threatened" in connection with the court case in which he was to give evidence. The threat was made at court by a person she understood to be a "drug lord" who had been charged with murder. She considered the threat to be real one. She said the respondent told her he did not know what he was going to do, but that the "Police told him they would protect him if he testified". The respondent also told her, before 5 September 2000, that he was worried that the threat might be carried out. In response to a question "[d]id he tell you after the accident at the car park that he thought that they might have got him on some way", she said "[h]e suggested it could have been". They discussed telling the police a week or two after the incident. She said she and the respondent discussed whether they should tell the police about a week or two weeks after 5 September 2000 but nothing occurred. In response to a question as to whether the respondent told her why he decided not to contact the police, she said that her "understanding is that if [the drug lord] was going to get you he'll get you. It wouldn't matter how much protection the Police gave you."

The retrograde amnesia issue

182 The appellant strongly criticised the primary judge for wrongly stating that the question whether the respondent lost consciousness in the incident was a matter of controversy, asserting the only issue on this point was the period of loss of consciousness. It next complained that the primary judge's approach to this issue miscarried because he failed to make a finding as to the period for which the respondent lost consciousness.

183 This complaint turned on the primary judge's consideration of Professor Spira's evidence. An allied complaint was that the primary judge misused Professor Spira's evidence about the adrenaline effect and impermissibly substituted his own medical opinion for the Professor's.

184 Before going to Professor Spira's evidence, it is necessary to set out a passage from the respondent's evidence about the incident on 5 September 2000. In chief, he said:

"Q. So you parked your car, you told me?

A. Yes.

Q. How far from the entrance to the railway station, roughly?

A. About a hundred feet.

Q. What did you then do?

A. Walked along the back of the cars in my row, to the main central aisle, and then walked down to the - well, normally walked down to the railway station.

Q. How far had you got before you noticed a problem?

A. I got two or three cars away from where I parked.

Q. Then what, if thinking, did you notice?

A. I heard a vehicle start up and rev and lights come on.

Q. When you say you heard the vehicle 'rev', are you able to describe that for me please?

A. Just like someone put their foot on the accelerator, like all the way to the floor.

Q. You said the lights came on?

A. Yes

Q. Did you turn around at that stage?

A. No, I didn't.

Q. Were you able to gauge from the sound of the car revving how far the care was from you?

A. No, I couldn't.

Q. From the sound it was making, could you tell whether the car was moving or not?

A. I could tell it was coming towards me because of the noise and the lights.

Q. How could you tell that from the lights? What were they doing, what makes you say that?

A. The lights were getting brighter, the light around me.

Q. After that, have you any further memory involving being struck?

A. No, I don't.

Q. What is your next memory?

A. Waking up in the car park. I was laying between two cars.

HIS HONOUR:

Q. How close to the line of cars were you walking?

A. I was right on the back of cars. I left about six inches so I didn't hit any tow bars if they were there

Q. That was to your left or to your right?

A. They were on my left.

Q. So what was the room on your right?

A. It would have been 15 odd feet.

LIDDEN

Q. When you have that memory, being between the cars, in what position were you?

A. I was laying on my side.

Q. Which side?

A. Left side.

Q. About how far from where you had been, where you have your last memory of the engine and the lights?

A. Three or four feet." (Emphasis added)

185 In cross-examination, the respondent gave the following evidence

"Q. In the car park. No-one came to your 'assistance', that's the word that you use. Now you've given your evidence about waking up. Of course, this is September. You would have looked at your watch, I take it, to work out that you'd been unconscious for several hours?

A. Yes.

Q. Was it daylight?

A. Yes, it was.

Q. This is a large parking lot?

A. Yes, it is." (Emphasis added)

186 At a later stage in cross-examination the respondent was asked again about the incident:

"Q. Just going to the incident in the carpark. You never at any stage looked around when you saw the lights coming towards you, did you?

A. No

Q. Not even checked over your shoulder?

A. No.

Q. Because you didn't anticipate there would be any problem?

A. That's correct.

Q. You don't know how long before you lost consciousness that event took place, do you?

A. No.

Q. You might have seen lights and heard a car minutes before being struck, mightn't you?

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."

187 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".

188 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. ..."

189 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."

190 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)

191 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

192 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.

193 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.

194 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.

195 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.

196 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.

197 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)

198 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. ..."

199 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."

200 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."

201 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

202 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.

203 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".

204 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.

205 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.

206 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).

207 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.

208 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.

209 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.

210 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".

211 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.

212 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).

213 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.

214 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.

215 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]).

216 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.

217 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).

218 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.

219 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.

220 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.

221 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]).

222 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.

223 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.

224 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.

225 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.

226 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.

227 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.

228 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

229 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.

230 MACFARLAN JA: I agree with McColl JA.

**********

Amendments

18 May 2012 - Internal reference corrected
Amended paragraphs: [191]

Decision last updated: 18 May 2012