Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: McLennan v Nominal Defendant [2014] NSWCA 332
• Hearing dates: 23 June 2014
• Decision date: 25 September 2014
• Before: Basten JA at [1]; Emmett JA at [33]; Simpson J at [127]

Decision

Appeal dismissed with costs.

[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: TORTS - negligence - claim against Nominal Defendant - whether the appellant was injured in a motor vehicle accident - whether, if so, the appellant's injuries were the result of the driver's negligence - whether the appellant had undertaken "due inquiry and search" for the purposes of s 34 of the Motor Accidents Compensation Act 1999 (NSW) in order to ascertain the identity of the motor vehicle
• Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 34
• Cases Cited: Guest v The Nominal Defendant [2006] NSWCA 77; Harrison v Nominal Defendant (1975) 50 ALJR 330; Holloway v McFeeters [1956] HCA 25; 94 CLR 470; Jones v Dunkel [1959] HCA 8; 101 CLR 298; Nominal Defendant v McLennan [2012] NSWCA 148; Nominal Defendant v Meakes [2012] NSWCA 66; Nominal Defendant v Puglisi (1984) 54 ALR 636; Nominal Defendant v Ross [2014] NSWCA 212; Oztan v NSW Insurance Ministerial Corporation (1995) 23 MVR 259; Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1 WLR 948
• Category: Principal judgment
• Parties: Terrence McLennan (Appellant); Nominal Defendant (Respondent)
• Representation: Counsel: M Daley (Appellant); J Poulos QC with J Ryan (Respondent); Solicitors: Brydens Compensation Lawyers (Appellant); Moray & Agnew (Respondent)
• File Number(s): 2013/168169

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2013-05-17 00:00:00
• Before: Garling ADCJ
• File Number(s): 2004/193754

Judgment

1 BASTEN JA: On 5 September 2000, the appellant, Terrence McLennan, suffered significant physical injuries whilst on his way to work. He said that he left home at about 4:30am and drove to Holsworthy railway station, intending to catch a train to the city at about 5am. He said in his evidence that he reached the car park of the railway station: he claimed to have been there for approximately four hours before driving home, reaching his house at about 10am. What happened to him in the interim was by no means clear. His case against the Nominal Defendant depended upon him being hit by a motor vehicle in the car park of Holsworthy railway station. If his own account were to be believed, he arrived at the railway station, parked his car, took his jacket and shut his car in order to proceed to the platform to catch his train. He later regained consciousness at about 9am, some two hours after sunrise, lying between two parked cars about two rows from his car. He said that he found his car, sat in it for approximately an hour and then drove home. On that account, he was, as the trial judge described him, "a large man" who must have been lying on the ground in the car park of a railway station on a working day, at one of the busiest times, but no one saw him or, if they did, no one troubled to report that fact to anyone in authority.

2 If that part of the story were true and he was hit by a motor vehicle shortly after leaving his own vehicle, the medical evidence suggested there would have been a significant period of retrograde amnesia, that is an inability to remember what happened preceding the moment of sustaining the injury, back in time for at least 20 seconds and possibly longer. The appellant gave evidence of hearing a vehicle and noticing lights behind him, shortly before he lost consciousness. The trial judge rejected that evidence: judgment, pp 14 and 20.

3 Cross-examination of the appellant revealed that he had told lies on a number of occasions for his own financial advantage. The trial judge was disinclined to accept his evidence absent corroboration. The only corroboration of any aspect of his story was his physical condition after he returned home. The appellant saw his general practitioner, Dr Tablante the following day. His medical record indicated that the appellant suffered "multiple bruising to the chest, lower limbs, neck and head and bruising to the front of the neck and a lump on his head": judgment, p 14. The evidence of the appellant's wife was not consistent in all respects with that of the general practitioner, but the trial judge accepted the practitioner's evidence: judgment, p 15.

4 There was a possibility that the injuries were suffered in an attack. Approximately two weeks before the events of 5 September 2000, the appellant had been called to give evidence with respect to a shooting in the car park of a Hungry Jack's outlet where he then worked, the accused being a member of a notorious family, several of whom had criminal records for violence. Whilst waiting to give evidence pursuant to a subpoena in the foyer of the court, a member of the family had threatened him with reprisals if he gave evidence. As it turned out he did not give evidence. Although the appellant stated that he did not fear the family, the trial judge was required to consider whether his injuries may have been caused by an assault and bashing, rather than a motor vehicle accident.

5 It was possible that, if there had been an attack, it involved the use of a motor vehicle and the appellant was deliberately run down. However, the statement of claim filed in the District Court on 22 December 2004 was limited to a claim in negligence.

6 In order to succeed against the Nominal Defendant, the appellant had to establish that:

(a) he was injured in a motor vehicle accident;

(b) the accident was caused by the negligence of the driver of the vehicle, and

(c) after "due inquiry or search to identify the vehicle", the identity of the other motor vehicle was not known.

Judgment in District Court

7 The trial judge (Garling ADCJ) dismissed the appellant's claim. It is convenient to deal separately with the third step, at which the appellant failed. As to the first two steps the judge concluded that the appellant failed to establish negligence. This finding will be addressed first in considering steps (a) and (b).

8 As to (a), it is not entirely clear that the trial judge made a finding as to whether the injuries suffered by the appellant were caused by a motor vehicle or not. He rejected the proposition that the injuries were caused by "a trip and fall": judgment, p 23. The judge continued at p 26:

"So all I know is he drives to the station, parks his car, gets out, puts on his jacket, a long time later he says he is on his left side between two cars. What happened?

The fact is, I do not know. I have an inference he was struck by a car. I have another strong inference he may have been assaulted. ... I have two conflicting inferences, both strong, both competing. If I have to pick one I would feel that he was probably struck by a motor vehicle. But there are still two very much competing inferences and even if I find he was struck by a motor vehicle, for the reasons I have given, I am not satisfied there was any negligence. I simply do not know what happened."

9 One reading of this passage is that the judge did not make a finding that the appellant was struck by a motor vehicle. That is, he was content to assume that fact and consider whether he was satisfied on the balance of probabilities that the driver was negligent.

10 The alternative reading is that he did accept as "probable" that the appellant was struck by a motor vehicle, but nevertheless found there was no negligence established. The appellant relied upon the latter reading, which allowed him to focus on the subsequent finding, undoubtedly made, that the judge was not satisfied that negligence had been proved: judgment, p 27.

11 The respondent contended that the judge had not been satisfied that there was a motor vehicle accident. The respondent relied upon three propositions. First, the sentence set out above suggesting the probability that the appellant was struck by a motor vehicle commenced with the words, "[i]f I have to pick one" inference and the discussion continues in the next sentence, "[b]ut there are still two very much competing inferences" and continues "even if I find he was struck by a motor vehicle ...". Each step is premised on a contingency which is not resolved. Secondly, the trial judge had spent some time considering whether the appellant's evidence that he had heard a revving engine and seen the lights of the car immediately before he lost consciousness was a true recollection. He rejected that evidence. Thirdly, the trial judge rejected the expert evidence of a Ms Orton who sought to demonstrate that the injuries were of a kind consistent only with the consequences of a motor vehicle accident.

12 Inconsistently with the appellant's submissions that the judge had made a finding that there was a motor vehicle accident, the notice of appeal assumed that he had not done so, but should have. The respondent's reading of the passage set out above should be accepted, namely that no finding was made, but rather the judge relied upon his lack of satisfaction as to negligence. The appellant contended that it was necessary for the judge to make a finding as to whether the appellant was hit by a motor vehicle and that, on the evidence, such a finding reflected the probabilities.

13 As to (b), the judge accepted that if the appellant were struck by a motor vehicle, he was struck from behind. He continued (judgment, p 26):

"There is absolutely no evidence before me that there was negligence. Nor do I believe that I could find that, because the driver left the scene, there could only be one conclusion, that he left because he felt he was negligent. ... The accident may have happened, if it did happen, any way and indeed the driver may have left scene for all sorts of reasons unconnected with his belief of negligence."

14 This passage was at least infelicitously expressed. It was wrong to say there was "absolutely no evidence" as to negligence. If the injuries were caused in a motor vehicle accident, there was an available inference that the driver was travelling too fast. Further, if there were a motor vehicle accident, there was an available inference that the driver realised that he or she had collided with a pedestrian, in which case, to drive off without stopping or seeking to assist could give rise to an inference that the driver knew he or she was at fault.

15 The reference to there being "absolutely no evidence" of negligence may have involved an unfortunate rhetorical flourish. The preferable reading is that the judge was referring to the absence of any direct evidence as to how the accident occurred, without which it was at least difficult to determine whether the driver was at fault in any particular respect, or whether the appellant unexpectedly walked in front of a moving vehicle.

16 Further, the judge appeared to require that, to draw an inference from flight, he had to be satisfied that it was the only inference reasonably available. That appeared to apply a criminal standard, rather than the civil standard. The inference derived from flight could have been one strand in reasoning to a conclusion on the balance of probabilities.

17 The second passage thus revealed an error which appears to be material. It was wrong to reject the evidence that the driver had left the scene because of lack of certainty as to why that had happened. Accordingly, it is necessary for this Court to reconsider the evidence to determine whether the appellant should have succeeded on the question of negligence, unless the appellant were to fail in any event at the third stage.

Due search and inquiry

18 As to (c), there was a finding, challenged on the appeal, that the appellant had not fulfilled the statutory precondition to bringing proceedings against the Nominal Defendant, namely that, after due search and inquiry, the identity of the vehicle cannot be established: Motor Accidents Compensation Act 1999 (NSW), s 34(1) (as in force in September 2000). The appellant gave evidence that he reported the accident to the police, but there was no record of any such report and there were statements by him in subsequent documentation that he had not reported the accident. The trial judge did not accept his evidence that this had happened. There is no reason to interfere with that finding of fact. The judge accepted that he put up notices at the station inquiring as to whether anyone had seen anything untoward on the morning of 5 September 2000. However, the judge could not determine when those notices were put up and was not satisfied that they constituted due search and inquiry. Again, there is no basis to interfere with that finding.

19 The alternative approach adopted by the appeal grounds was to attack the finding that there needed to be due search and inquiry, on the basis that such steps would have been futile and were therefore not required: Harrison v Nominal Defendant (1975) 50 ALJR 330. The trial judge stated at p 28:

"In this case I believe there needed to be due inquiry and search. This is a case in which, right from the beginning, there was a real dispute and query as to what happened. Was the plaintiff struck by a motor vehicle? He could not say so. If indeed he had reported it and it had been investigated by the police, they may have been able to find evidence which may have assisted them. It is possible to have evidence on the road, debris, broken parts of a vehicle, or indeed to find a witness. This accident happens in a car park where there are a number of people even at 5 o'clock in the morning and then continuing through after that where he is lying on the ground, and it may be that someone may have seen something to enable them to assist. That evidence may have led to the vehicle being found."

20 This aspect of the case is by no means easy to assess. On one view, the whole of the appellant's story was implausible. It involved the appellant being hit from behind by a vehicle which, apart from the inference to be drawn from the fact that he did not suffer any fractures, could not have been going in excess of 25-30kph, given the constraints of the car parking area. Somehow he was deposited sideways between two parked vehicles. (The evidence did not disclose how far he was from the roadway between the rows of parked vehicles.) He apparently lay in that area for some four hours from shortly before 5am until about 9am. Sunrise was at 7:08am. Evidence from the State Rail Authority indicated likely entries and exits on a weekday at Holsworthy station between 2am and 6am as 100 arrivals and 10 departures. Between 8am and 9.30am the respective figures were 1,700 and 290. (The statistics do not reveal how many persons used the car park.) It was at least unlikely that, had he lain there for some four hours, he would not have been observed by somebody. Given the implausibility of his account, it is difficult to assess the likelihood that due search and inquiry would have produced positive information. However, on the assumption that there was a motor vehicle accident at the station car park, there must have been a real chance that prompt reporting of the incident would have led to the discovery of a person who had heard or observed something relevant to establishing the identity of the vehicle.

21 Given these factors, the finding of the trial judge that there had been a failure to carry out due search and inquiry, in circumstances where it was not shown that prompt action would have been futile, was not erroneous.

Was there a negligent driver?

22 The last conclusion is sufficient to dispose of the appeal: nevertheless, given the focus of the submissions, it is appropriate to deal with the alternative basis for dismissing the claim, namely lack of satisfaction that the appellant was struck as a result of the negligent driving of a motor vehicle.

23 The existence of a vehicle and the question of negligence may properly be dealt with as a composite issue, as it was by the trial judge. However, the reasoning which follows suggests that the final focus should have been on the involvement of a motor vehicle, rather than on the issue of negligence of an assumed driver. In any event, there was a real risk of error in the appellant's approach which demanded that the judge first determine whether there had been a motor vehicle accident, before determining the question of negligence. It is the attempt to segregate the circumstances into discrete areas which is apt to lead to error. The reason for that conclusion is revealed by the discussion with respect to the supposed flight of the offending driver. The underlying fact is that no person stopped to attend to the injured appellant in the car park. The inference relied upon by the appellant involved four suppositions, namely that (a) he was hit by a motor vehicle; (b) the driver was aware that he or she had hit a person; (c) the driver believed he or she was at fault, and (d) the driver therefore left the scene without stopping. Leaving to one side the first step, the second step may be accepted as highly likely: given the injuries suffered by the plaintiff, the collision must have been direct and involved a significant impact; accordingly, it is unlikely that the driver would have been unaware that it occurred.

24 The third step is less readily accepted. The appellant's evidence, presumably based on his practice, was that he would leave his car and walk along the roadway behind parked cars at a sufficient distance, estimated at 6-9 inches, so as to avoid walking into any towbars: Tcpt, 06/05/13, p 19(30). The roadway between the rows of parked cars was 8.6 metres wide, giving ample room for vehicles to pass each other. The likelihood that a driver would have been close enough to the backs of parked cars to hit the plaintiff, engaged in his usual practice, must be reasonably low. Still leaving to one side the possibility that the appellant was not hit by a vehicle, the possibility that he was hit by a driver who perceived himself or herself to be at fault is also low. Of course low possibilities cannot contradict a known fact. Thus, if one starts with the assumption that the appellant was hit by a vehicle, these contingencies become irrelevant.

25 However, given the fact that the appellant had been the subject of plausible threats of violence less than two weeks earlier, the possibility that he was in fact hit by a vehicle was not an appropriate assumption. It was an unknown which needed to be assessed in the light of all the circumstances. The fact that no vehicle stopped at the scene of the alleged accident would be entirely consistent with the fact that there was no accident. Indeed, the fact that no vehicle stopped was itself suggestive of the absence of an accident. Once the various steps in the argument are analysed, the fact that no vehicle stopped is significantly more likely to be because there was no accident than because a driver fled the scene of an accident.

26 Before concluding that the appellant failed to demonstrate on the balance of probabilities that he had been hit by a motor vehicle, it is necessary to have regard to the expert evidence as to the cause of his injuries. Some of the injuries were undoubtedly consistent with being hit from behind by a motor vehicle. However, two aspects of his injuries were not so readily explained. The first was the blow to the head, which undoubtedly occurred, although there was uncertainty as to whether it involved a blow to the top of the head or at the rear of the skull. Two diagrams were admitted in evidence (Ex 35) illustrating the different accounts in the evidence. Secondly, depending on the size and configuration of the vehicle, on being hit the appellant might have been thrown forward or, if he landed on the bonnet of a car, rolled off to one side. On either view, there was a reasonable chance that he would receive some injury to his hands, but there was none. Both of these features would have been explicable on the hypothesis that he was assaulted and bashed. That hypothesis was also consistent with him ending up between rows of parked cars, rather than on the roadway where a collision must have occurred.

27 Evidence that the injuries were consistent with being struck from behind by a motor vehicle depended primarily on the expert evidence of Ms Orton, a mechanical engineer with expertise in "vehicular collision reconstruction". Her evidence as to consistency was supported by the respondent's expert, Mr Griffiths. In her first report, Ms Orton demonstrated satisfactorily that the injuries received by the appellant were consistent with collision from behind by a motor vehicle, and seems to have assumed that the vehicle was most likely a sedan or similar vehicle, which caused the appellant to be struck on the legs and fall backward onto the bonnet, before rolling off as the vehicle turned at the end of the row of parked cars. She did not, however, give serious consideration to the possibility that he was assaulted.

28 In her second report Ms Orton did address that possibility but rejected it on the basis of statistics suggesting that certain parts of the body were more likely to be injured or lacerated by an assault than others. Thus, because 53% of victims in a particular study had injuries to the face, and the appellant did not, it could be inferred that he was unlikely to have been assaulted. That reasoning provided no assistance to the Court. More plausibly, Ms Orton suggested that one would not expect to see "uniform bilateral bruising" following an assault with "a bat or shoe". Whether that description applied to the somewhat rudimentary summary of injuries to the appellant might be doubted. Nor was that opinion obviously within her expertise as a mechanical engineer.

29 In cross-examination, Ms Orton conceded that she was not aware of any evidence that the appellant may have been at risk of assault: Tcpt, 10/05/13, p 457(30)-(45). She also worked on the assumption that he had heard the revving of a car engine and had seen lights just prior to the collision, evidence which the trial judge did not accept.

30 Both experts were extensively cross-examined: the trial judge accepted that "one of the scenarios available is that [the appellant] was struck by a motor vehicle": judgment, p 22. He also said, contrary to the evidence of Ms Orton, that there was "no doubt in my mind that the [appellant] could have been assaulted": judgment, p 23. Those findings were unassailable: in the event, the evidence of the experts did not take the matter very much further.

31 In these circumstances the preferable conclusion was that the appellant did not establish on the balance of probabilities that he had been struck by a motor vehicle. Although not in precisely the terms adopted by the trial judge, this conclusion is consistent with his findings.

Conclusion

32 The appeal should be dismissed: the appellant must pay the respondent's costs of the proceedings in this Court.

33 EMMETT JA: The appellant, Mr Terrence McLennan, was injured in the car park adjacent to Holsworthy Railway Station on his way to work on 5 September 2000. He sued the respondent, the Nominal Defendant, in the District Court. The proceedings were brought under s 34 of the Motor Accidents Compensation Act 1999 (NSW) (the Compensation Act) on the basis that Mr McLennan's injuries were the result of being struck by a motor vehicle, the identity of which could not be ascertained after due enquiry and search.

34 At the applicable time, s 34(1) of the Compensation Act relevantly provided that an action for the recovery of damages in respect of 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 after due enquiry and search be established, be brought against the Nominal Defendant. Under s 34(3), the Nominal Defendant is liable in respect of any such action as if it were the owner or driver of the motor vehicle.

35 Mr McLennan was successful in obtaining a verdict in the District Court. However, that verdict was overturned by this Court and the matter was remitted to the District Court for a new trial. Following a further trial, a judge of the District Court found in favour of the Nominal Defendant on 17 May 2013 and ordered Mr McLennan to pay the Nominal Defendant's costs of both trials. His Honour directed the entry of judgment accordingly.

36 Mr McLennan now appeals from the orders made on 17 May 2013, which were entered on 20 May 2013. Before dealing with the grounds of appeal, it is necessary to say something about Mr McLennan's claims and the reasons of the trial judge.

The Claims and the Trial Judge's Reasons

Mr McLennan's claims

37 In his statement of claim filed on 22 December 2004, Mr McLennan alleged that, on 5 September 2000, while he was walking in the car park towards Holsworthy Station, for the purpose of catching a train to work, he was struck from behind by a vehicle, the identity of which could not be ascertained after due enquiry and search. He alleged that, in the circumstances, the driver of the vehicle was negligent in:

• travelling at an excessive speed;
• failing to keep a proper lookout;
• failing to heed Mr McLennan's presence within the car park;
• failing to sound the horn;
• failing to ascertain that Mr McLennan was walking in the area for the purpose of catching a train; and
• failing to stop, swerve, or otherwise manoeuvre so as to avoid a collision.

Mr McLennan also relied on the fact that the driver of the vehicle "decamped" after the accident, thereby making an admission of negligence.

38 Mr McLennan's case on liability before the trial judge was summarised by his Honour as being that, while walking to the railway station, having alighted from his car in the car park, he was struck by an unidentified motor vehicle, which then "decamped the scene". He alleged that he was thrust up onto the bonnet of the motor vehicle, such that the driver must have been aware of what he or she had done. He argued that a safe speed for the car park was not more than 10 kph and that the driver of the vehicle was negligent either in driving at a speed that was excessive or in failing to keep a proper lookout. He contended that an inference could be drawn to that effect from the fact that the driver decamped from the scene.

39 Mr McLennan gave evidence that he left home on the morning in question at about 4.30am and drove to the car park where he was intending to catch a train at about 5am. There were about 30 cars in the car park. There was no lighting in the car park and it was dark when he arrived. On the day in question, sunrise was at 7.08am. He parked his car in a designated car parking spot, alighted from his car, put on his jacket and locked the car.

40 Mr McLennan said that he then walked from his car and turned to the left, walking close to the parked vehicles, towards the entrance to the railway station. He said that, after he had walked about one car space, he heard a car "revving" behind him and a light came on from behind him. As he walked along, the light became brighter and he thought it was coming towards him. His next recollection was waking up some indeterminate time later, from either a coma or post-traumatic amnestic state, lying on his left side between two parked cars, two spaces along from where his car was parked. When he regained awareness, it was light. He was confused and his right shoulder was sore and he had a lump on the back of his head. Both of his hips, his left knee, his left ankle and his neck were also sore. His trousers were torn on the knee and his clothes were dirty and he had a massive headache.

41 Mr McLennan said that he struggled to get up, returned to his car and sat in his car for some time. He does not remember for how long he sat in his car. He drove his car home, where he arrived at about 10am. He said that he asked his wife to ring Mr Ravi Singh at Hungry Jack's, where he worked, to say that he would not be in to work because he was injured. He then went to bed.

42 Mr McLennan's wife gave evidence that she reported Mr McLennan's injury to Mr Singh when he arrived home late in the morning of 5 September 2000. Mr McLennan's employer sent a report concerning Mr McLennan to its workers' compensation insurer. In the report, which was dated 5 September 2000, the "circumstances or accident" that caused Mr McLennan's injury were described as follows:

Was hit by a vehicle whilst crossing road to get to a train station.

The report was signed by Mr Singh. Thus, it is clear enough that the possibility of having been struck by a motor vehicle was raised at an early stage.

43 Mr McLennan's evidence was that, on 6 September 2000, he telephoned Liverpool Police Station to report the incident. Mr McLennan's wife said that a couple of weeks after the incident, she drove him to the Green Valley Police Station and waited in the car while he went inside. There was no police report in evidence before the trial judge. On 17 September 2000, Mr McLennan filled in a journey claim form for workers' compensation purposes. There was no mention in that form of reporting the incident to the police. Rather, where details for a police report were called for, the form was left blank. Later, Mr McLennan filled in another form in which he did not indicate that he had reported the incident to the police. The trial judge did not accept that Mr McLennan had reported the matter either to Liverpool Police or to Green Valley Police.

44 Mr McLennan also said that he subsequently posted a flyer at Holsworthy Station asking if anyone had seen anything in the car park on the date of the accident. Mr McLennan was not sure when he posted it, but said that it was before he saw his solicitors in September 2001. No copy of the flyer was in evidence. However, the trial judge accepted that a flyer had been posted at some stage after the incident.

Medical evidence as to the cause of Mr McLennan's injuries

45 Mr McLennan adduced evidence from a number of medical practitioners whom he had consulted over a period of time beginning on the day after the incident on 5 September 2000. That evidence described the nature of Mr McLennan's injuries. Some of the medical reports also expressed opinions about the consistency of his injuries with their cause as stated by Mr McLennan, namely, that he had been hit from behind by a motor vehicle. An alternative cause of Mr McLennan's injuries mentioned in some medical reports, which was advanced before the trial judge and canvassed by his Honour, was that Mr McLennan had been assaulted.

46 The references in the medical reports to a possible assault relate to another incident that occurred shortly before the incident in the Holsworthy Station car park. Approximately one week before the incident on 5 September 2000, Mr McLennan had attended Liverpool District Court in connection with charges laid by the police against one Moustapha Dib. Mr McLennan had been subpoenaed to give evidence at the trial of Mr Dib. The charges related to a shooting in the car park area attached to the Kentucky Fried Chicken restaurant at Punchbowl, where Mr McLennan worked at the time. The allegation was that a member of the Dib family jumped out of a car and emptied the magazine of a pistol into another car, in the direction of a man and woman standing there.

47 Mr McLennan had been the manager of the restaurant, where he was a "troubleshooter". He said that there were constant problems in the restaurant car park area relating to drug dealing and he knew that members of the Dib family were concerned with drug dealing. Mr McLennan had picked up spent bullets in the car park area and had given a statement to the police. He said that, while he was sitting outside Liverpool District Court, a threat was made to him by a member of the Dib family. Mr McLennan was told not to testify or "something would happen", as the trial judge recorded. He said that he was not concerned about the threat.

48 Mr McLennan agreed that Moustapha Dib was "dangerous and feral". He knew that the Dib family was a major drug family in Sydney and that they had a reputation for making threats and carrying them out. A criminal record relating to Moustapha Dib, which was apparently tendered without objection, showed that he was a violent person who had been convicted of murder.

49 Turning to the medical evidence, Mr McLennan adduced evidence from his general practitioner, Dr Augusto Tablante, whom he consulted on the day after the incident. Dr Tablante's contemporaneous clinical note records the following:

Hit at Holsworthy Station from behind/no recollection of incident. Awoke with multiple bruising to chest/[lower legs]/neck/head.

50 Dr Tablante subsequently referred Mr McLennan to Prof James Lance, a consultant neurologist. In a report to Dr Tablante of 13 March 2001, Prof Lance referred to "an accident on 5/9/00 at about 4.30am in a car park at a railway station while he was on the way to work". Professor Lance said that it was not known "whether he was assaulted or struck by a car" and that he "regained awareness after about 40 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 the top of his head." Professor Lance recorded that it was some time before Mr McLennan realised that his car was in the car park, after which he sat in the car, feeling off-balance. He then drove home, arriving there at about 10am. He took analgesics and went to bed. The information recorded by Prof Lance must be taken to be from the history given to him by Mr McLennan or Dr Tablante. Thus, it is clear enough that the possibility that Mr McLennan was assaulted was also raised at an early stage.

51 On 16 November 2004, Dr Tablante gave a certificate that Mr McLennan had sustained an injury on 5 September 2000 and that he had been to Dr Tablante's clinic on 6 September 2000 for examination and further management. The certificate said that Mr McLennan did not have a clear recollection of events of the injury. He said that his examination showed multiple bruising consistent with being hit from behind by a vehicle and falling to the ground unconscious. Dr Tablante said that he also sustained injuries to his head and front due to the impact on the ground.

52 When Dr Tablante was asked what was the basis of the view that he expressed in 2004 that the multiple bruising he examined when he first saw Mr McLennan was consistent with being hit from behind by a motor vehicle, he responded that the opinion was mainly due to the distribution of the bruising. He said that the bruising to the back of the lower limbs, right across both sides, led him to that view. His view was that that bruising would be consistent with a collision with the bumper bar of a car. Dr Tablante said that the bruising was all the way across the posterior part of Mr McLennan's lower limbs. It was bluish and light at that particular time. As time went by, the bruising became darker and more evident, and eventually went away.

53 Dr Tablante was asked about a referral note that he had written to Prof Lance on 11 March 2001, in which he appeared to query whether Mr McLennan had been assaulted. He was asked whether he had had any conversation with Mr McLennan about threats that may have been made to him and said not that he could recall. He agreed that his recollection could be defective or faulty.

54 In 2005, Mr McLennan's solicitors arranged for him to be examined by Dr Max Ellis for the purpose of providing a medico-legal report. Mr McLennan told Dr Ellis in October 2005 that he "heard a car revving up behind him and he was hit by the vehicle which took off and has never been identified subsequently". He told Dr Ellis that he believed that he had been hit on purpose by a local drug syndicate. Dr Ellis then recounted Mr McLennan's encounter with the Dib family at the trial of Moustapha Dib.

55 In a report dated 8 February 2007, Dr Tablante said that Mr McLennan had presented at his clinic on 6 September 2000, when he told Dr Tablante that he had suffered a work-related injury on 5 September 2000, when he was hit from behind by a car whilst at the car park of Holsworthy Railway Station. The report said that Mr McLennan did not have any recollection of the actual incident as he was hit from behind and he awoke lying on the ground after approximately 30 minutes. Dr Tablante said in the report that his examination at the time revealed multiple bruising to the chest and lower limbs and that Mr McLennan also had soft tissue tenderness to the head and cervical region of the spine.

56 The trial judge said that there was a dispute as to where the bruising was, as between Dr Tablante and the evidence of Mr McLennan's wife and perhaps Mr McLennan himself. His Honour accepted what Dr Tablante said on that matter.

Medical evidence as to the period of unconsciousness and the trial judge's conclusions

57 Evidence was adduced from two specialist neurologists, Dr Ivan Lorentz on behalf of Mr McLennan, and Assoc Prof Paul Spira on behalf of the Nominal Defendant. Dr Lorentz formed the view that Mr McLennan did not remember a blow to his head and that the last thing that he remembered was the noise of the car and the lights. On that basis, Dr Lorentz estimated that Mr McLennan would probably have suffered retrograde amnesia of brief duration, perhaps 20 seconds, and possibly less. Dr Lorentz said that retrograde amnesia can vary very much in duration. He said that retrograde amnesia that is reported to be extremely long is often psychogenic and that, in most cases, the retrograde amnesia is in fact of brief duration. Dr Lorentz also said that two to three hours is a substantial period of unconsciousness and that he would not expect a person having suffered that length of unconsciousness to be able to drive himself home within another hour. He said that it was "incomprehensible" that that could have happened. Where a head injury leads to a long period of unconsciousness, he said, there is likely to be a marked disturbance in the brain tissue.

58 Associate Professor Spira said that any period of true unconsciousness can create retrograde amnesia, which he defined as "the period of time from the moment of sustaining an injury backward to the last clear and distinct memory that the patient has of their activities". He said he would expect a longer period of retrograde amnesia than 20 to 30 seconds if there was a period of unconsciousness of half an hour. He said that it was not uncommon for a concussive blow, such as on a football field, to produce fifteen minutes or half an hour of retrograde amnesia. Associate Professor Spira found it impossible to accept that someone with four hours of unconsciousness could have a level of recollection that Mr McLennan claimed to have. He said that, even with half an hour of unconsciousness, he would expect that that level of detail would not be available and that the person would not be able to recall those events. When asked whether it was likely that Mr McLennan had a genuine memory or a non-genuine memory, Assoc Prof Spira said that it may be a genuine memory and therefore there was something wrong with the history after the incident. Alternatively, he said, there may be no genuine memory, in which case the events after the incident would be correct.

59 The trial judge had difficulty in reconciling a prolonged unconsciousness, even of half an hour, with an absolute recollection of a car revving and of approaching lights seconds before impact. His Honour could not "accept both sides of that equation". His Honour understood that both experts, whilst giving differing times as to what they thought the period of retrograde amnesia may be, agreed that it depended upon how long the patient was unconscious. They both agreed that there would be a period during which there would be retrograde amnesia.

60 The trial judge did not believe Mr McLennan's evidence in any area in which it was in dispute, unless it was backed up by other evidence that was clearly correct. His Honour considered that Mr McLennan had told a number of untruths and had admitted to doing so. His Honour also regarded Mr McLennan's wife as an unsatisfactory witness and also had difficulty in accepting evidence from her where it was challenged. In the appeal, Mr McLennan does not challenge those findings as to credit. However, he contends that the decision of the trial judge does not depend upon any credit finding.

61 The trial judge found that, while a lot of people use the area of the Holsworthy Station car park, it seems that Mr McLennan was not seen. He was a large man. The trial judge found that it was clear that the period of either unconsciousness or amnesia suffered by Mr McLennan lasted for a significant period of time. His Honour postulated that it was likely that Mr McLennan did not regain consciousness until about 9am, having become unconscious at about 5am.

62 The trial judge said that, if he ignored the medical evidence that Mr McLennan had no or very little actual memory of what happened and simply accepted Mr McLennan's evidence, he would find that Mr McLennan walked from his car and passed a spare car space to the left where he heard revving and saw lights. He remembered nothing else until he woke up between two cars some considerable time later. His Honour said that the expert doctors said that he could not accept that version.

63 The trial judge then observed that, assuming he put aside the expert evidence, there was no corroboration of Mr McLennan's version of events, except for the initial history said to have been given to Dr Tablante, in which Mr McLennan did not mention any motor vehicle or the revving of an engine or seeing lights. His Honour had doubts about the accuracy of Dr Tablante's evidence as to Mr McLennan's history, in circumstances where the doctor was thinking back many years and had no substantial notes to support some of his evidence. Indeed, his Honour considered that other documents threw doubt on the reliability of Dr Tablante's memory.

64 The trial judge observed that, while Dr Tablante said that Mr McLennan had told him about the headlights in the first consultation, there is no mention of that in his contemporaneous notes, which, his Honour observed, do not mention much at all. His Honour considered that Dr Tablante's recollection at times was clearly faulty. For example, he recorded in his notes that Mr McLennan was coming home, not going to work, at the time he sustained his injuries. He wrote a note to Prof Lance querying whether there had been an assault. His Honour therefore did not accept that Mr McLennan told Dr Tablante about having seen lights at the first consultation. His Honour ultimately concluded that he could not accept Mr McLennan's evidence of having heard a car revving and seeing lights coming towards him.

Engineering evidence as to the cause of Mr McLennan's injuries and the trial judge's conclusions

65 Mr McLennan also adduced evidence from Ms Tia Orton, a forensic engineer, who has specialist knowledge in vehicle crash worthiness analysis, vehicular collision reconstruction, biomechanical analysis, mechanical failure analysis, workplace safety and industrial incidents. Ms Orton provided a report, which was apparently admitted without objection. In her report, Ms Orton expressed the opinion, on the balance of probabilities, that:

• the trauma sustained by Mr McLennan was consistent with the kinematics experienced by a pedestrian and a vehicle to posterior impact at an impact speed of less than 30 kph;
• Mr McLennan's point of rest would be consistent with a vehicle striking him and subsequently executing a right-hand turn toward the car park exit;
• there were no identifiable obstructions to the line of sight for a driver travelling westbound in the car park travel lane during daylight;
• the failure of a driver to observe Mr McLennan's presence in the travel lane in darkness would suggest that the vehicle's headlamps were not illuminated;
• there would have been adequate lateral and longitudinal distance and line of sight visibility available to a driver travelling within the travel lane at a speed of less than 30 kph to execute a successful avoidance manoeuvre, such as stopping or swerving, that would have prevented the collision.

Ms Orton agreed that her opinion was based purely on information as to the injuries suffered by Mr McLennan, which she obtained from various documents, and on statistics and other tests that she carried out.

66 The Nominal Defendant adduced evidence from Mr Michael Griffiths, a biomedical and mechanical engineer. He provided a report, which was also admitted without objection, in which he expressed the opinion that the pattern of injuries that he understood were suffered by Mr McLennan were "not sufficiently well described to link [the injuries] uniquely to any particular event [or] source". Mr Griffiths considered that the injuries in question could have been received from a variety of sources, including an assault, minor off-balancing impact from a vehicle or a trip and fall. He concluded that Mr McLennan's injuries could be consistent with being struck from behind by a vehicle, could be consistent with a simple trip and fall, and could be consistent with an assault or any kind of incident resulting in a fall. He considered that there was no unique pattern or specific injury nature demonstrated by Mr McLennan that uniquely identified the claimed injuries with an impact from a vehicle. More particularly, he attached significance to the fact that there was no description of any acute head trauma with the potential to lead to ongoing brain injury.

67 In response to Mr Griffiths's report, Ms Orton provided a further report, which was also admitted without objection. In that report, Ms Orton expressed the following supplementary opinions:

• the opinions of Mr Griffiths were completely subjective and had been provided without scientific basis and could not be fully evaluated because he had provided no scientific basis, literature, material, examinations, tests or other investigations to support the opinions he gave;
• the speculative mechanisms of the injuries presented by Mr Griffiths, including a simple fall, trip and fall, or blunt force assault, were not consistent with the trauma sustained by Mr McLennan as described by Dr Tablante;
• the reported trauma sustained by Mr McLennan was significantly more consistent with a motor vehicle collision than with any other speculative scenario presented by Mr Griffiths.

68 Ms Orton said that it would have taken 1.2 seconds for Mr McLennan to walk from where he reached the roadway to the spot where he says he was struck and that he would have been visible during that period. The trial judge said that the normal driver's reaction time was 1.5 seconds and that it would therefore appear that there was no time for a driver to stop. His Honour then considered whether the driver could have seen Mr McLennan as he left his vehicle, for example, because his head and shoulders would be visible in the dark above his car for a relatively short distance before he reached the roadway. His Honour also considered whether Mr McLennan might have taken a slightly longer route down the side of his car and then onto the roadway before he turned to walk to the station. His Honour considered that that would have given a slightly longer time for possible detection of Mr McLennan.

69 The trial judge considered that, if a driver of a vehicle in the car park in the dark noticed a person emerge from his vehicle and walk along the side of the vehicle, that driver would not be obliged to start braking immediately just in case the person walked onto the road. His Honour concluded that, if he accepted Mr McLennan's version of events and accepted that he was struck by a motor vehicle from behind, there could be no negligence on the part of the driver of the unidentified vehicle.

70 The trial judge referred to the opinion of Ms Orton that Mr McLennan was hit by a vehicle from behind quite close to the parked cars at a place where there was 8.5 metres for a vehicle to pass. She inferred that, if the driver had made a right-hand turn, Mr McLennan could have been thrown to the position where he later found himself. The trial judge considered that, if that were correct, having regard to his earlier conclusions, he could not find that there was negligence.

71 The trial judge observed that, if he found that there was retrograde amnesia, as he was bound to, then he would reject most of the version of events asserted by Mr McLennan. His Honour said that, if it is assumed that Mr McLennan had retrograde amnesia for 20 seconds and he took 1.4 seconds to walk a metre, and that it took some time to get out of his car, then it was possible that he would have memory of little else other than of parking his car, getting out of his car and getting his coat. His Honour did not consider that the 20-second period of retrograde amnesia could cover anything that happened after that.

72 The trial judge considered that, if one accepts that period of amnesia, Mr McLennan clearly knew where his car was parked. Indeed, when he awoke, he went to his car and he clearly knew where it was parked and his Honour accepted that he had a memory of that matter. His Honour found that, on the evidence called by Mr McLennan, his last memory must have been of parking his car, getting out and putting on his jacket.

73 The trial judge then repeated that, assuming he accepted that Mr McLennan was struck by a motor vehicle, he simply could not see where there could be negligence. His Honour did not consider that a driver of a car would have sufficient time in the dark to have seen Mr McLennan before striking him. However, a far greater problem, his Honour said, was that he simply had no idea what Mr McLennan did, since Mr McLennan was unable to say whether he walked onto the middle of the road and knew nothing other than where he ended up.

74 The trial judge then considered whether it was a motor vehicle or an assault that caused Mr McLennan's injuries. His Honour accepted that there was no dispute that one of the available scenarios was that Mr McLennan was struck by a motor vehicle. However, his Honour considered that he must also look at the other scenario of Mr McLennan being assaulted. His Honour referred to the fact that Mr McLennan had been involved in a criminal trial and had been threatened by people who were quite vicious criminals and quite capable, should there be a reason, of carrying out an assault on Mr McLennan. His Honour did not believe that the idea of assault was something that Mr McLennan did not think about until 2005. Professor Lance wrote to Dr Tablante on 13 March 2001, saying that, as Dr Tablante knew, Mr McLennan had suffered an accident on 5 September 2000 and that it was not known whether he was assaulted or struck by a car.

75 Ms Orton's opinion was that Mr McLennan could not have received the injuries in an assault. However, the trial judge did not consider that the statistics on which she relied for that opinion were of any use. There was no doubt in his Honour's mind that Mr McLennan could have been assaulted. His injuries to the head, throat, chest and lower legs were all, in his Honour's view, consistent with a severe assault. It was argued that injuries to both hips would be unlikely in an assault. However, his Honour had regard to the possibility that Mr McLennan may have been assaulted by two, three or four or more people. If they first knocked him to the ground and then set about him with their boots, or even an implement, there is no doubt that he could have sustained those injuries.

The trial judge's findings on negligence

76 The trial judge accepted that he could find that the driver of the vehicle, if it was a vehicle that hit Mr McLennan, had "decamped" because he believed he was negligent. However, his Honour queried whether that was the only reasonable inference available, saying that, in the circumstances, he had to consider whether Mr McLennan could have been attacked by a member of the Dib family, as Mr McLennan had indicated to Dr Ellis in 2005.

77 The trial judge referred to the reasons of this Court in the earlier appeal by Mr McLennan, in which the Court observed that Mr McLennan's case turned substantially on the circumstantial evidence concerning the alleged accident and the inferences to be drawn from that evidence. The earlier Court observed that, in such a case, Mr McLennan had to establish circumstances raising a more probable inference in favour of what he alleged. It was sufficient if the circumstances appearing in the evidence gave rise to a reasonable and definite inference. However, they had to do more than give rise to conflicting inferences of equal degrees of probability, such that the choice between them was a mere matter of conjecture.

78 The trial judge was satisfied that Mr McLennan did not have a memory of many of the things that he gave evidence about and that his recollection would have been limited to alighting from his car and putting on his jacket. Because of his retrograde amnesia, he would have had no memory beyond that. His Honour accepted the opinion of Assoc Prof Spira as to the length of the period of either unconsciousness or post-traumatic amnesia as being a long period of loss of consciousness. However, his Honour accepted the evidence of Mr McLennan that he was lying between two cars. Thus, his Honour said, all that one knows is that Mr McLennan drove to the station, parked his car, got out and put on his jacket. A long time later, he found himself on his left side between two cars.

79 The trial judge postulated the question, "What happened?" and answered it, "I do not know". His Honour said that there was an inference that Mr McLennan was struck by a car and that there was also a strong inference that he may have been assaulted. He continued as follows:

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

I have added emphasis and will deal with the significance of the emphasised parts below.

80 The primary judge found that there was "absolutely no evidence" that there was negligence. His Honour did not consider that, because the driver left the scene, there could only be one conclusion, namely, that he left because he felt he was negligent. His Honour observed that any such driver had to be driving very close to the parked cars and at a speed under 30 kph. Mr McLennan could only have been in view for a minimal period of time and the accident, if it did happen, may have happened anyway. Indeed, his Honour said, the driver may have left the scene for all sorts of reasons unconnected with any belief of negligence.

81 The trial judge said that the driver of the vehicle may have been aware of something, but he was not prepared to accept totally what Ms Orton said. His Honour was not satisfied that Ms Orton's reports showed that there could only be one way that the accident happened. While Ms Orton gave a version of what may have happened, his Honour considered that there could have been other ways and was not prepared to find that Mr McLennan had satisfied him that there was any negligence.

82 The trial judge then considered the question of due enquiry and search, as required by s 34(1) of the Compensation Act. His Honour was not satisfied that Mr McLennan had reported the incident to the police. He said that while Mr McLennan did "put up some notices", his Honour was not sure when that was done. His Honour accepted that there may be cases in which one does not need to make any enquiry and search if it would be futile. However, it is necessary for the plaintiff in such a case to show that the identity of the vehicle is incapable of being established.

83 The trial judge considered that, in this case, there was a need for due enquiry and search. Right from the beginning, there was a real dispute and query as to what happened. His Honour considered that, if Mr McLennan had reported the incident, and it had been investigated by the police, the police may have been able to find evidence that may have assisted them. His Honour considered that it was possible that there was evidence on the road, such as debris, broken parts of the vehicle, or indeed that a witness might be found. His Honour observed that the incident occurred in a car park where there were a number of people, even at 5am in the morning. It may be that someone had seen something while Mr McLennan was lying on the ground that would enable the police to assist. That may have led to a vehicle being found.

84 The trial judge attached significance to the fact that Mr McLennan knew that he had been threatened by a dangerous family and that enquiries could have been made. The police knew exactly who those people were and would have known what cars they drove. His Honour considered that the police would have been able to investigate as to whether there was any damage to cars being used by the Dib family and as to whether those people could be of any assistance to them. His Honour considered that, had Mr McLennan told the police that the Dib family could have been involved, the police would have thoroughly investigated the matter. That was not done. His Honour was not satisfied that due enquiry and search had been carried out.

The Appeal

85 Mr McLennan makes three broad complaints about the reasons of the trial judge. Ten grounds of appeal were pressed. Grounds 1 and 6 are concerned with failure by the trial judge to find that Mr McLennan's injuries were caused by a motor vehicle accident. Grounds 2, 3, 4, 5 and 7 are concerned with the trial judge's conclusion that there was no evidence of negligence in relation to the driving of any motor vehicle that might have been involved. Grounds 8, 9 and 10 are concerned with the trial judge's conclusion that there was insufficient evidence of due enquiry and search for the identity of any vehicle that may have been involved.

Whether Mr McLennan was struck by a motor vehicle

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

87 A judge is not always bound to make a finding one way or the other with regard to the facts averred by the parties. It is open to say that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. While it may be undesirable to decide cases on the burden of proof if one can legitimately avoid having to do so, there are cases in which, owing to the unsatisfactory state of the evidence, deciding on the burden of proof is the only just course for the court to take. It may be that, when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated, the improbable explanation may be accepted. However, that state of affairs must be shown to exist. Further, the legal concept of proof of a case on the balance of probabilities must be applied with common sense. Before a trial judge finds that a particular event occurred, he must be satisfied on the evidence that it is more likely than not to have occurred. If the trial judge concludes, on a series of cogent grounds, that the occurrence of an event is extremely improbable, a finding that it is nevertheless more likely to have occurred than not does not accord with commonsense. That is particularly so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden (see Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1 WLR 948 at 955-6).

88 The essence of the first complaint in the appeal is that, having said that if he had to pick one of two competing inferences he would feel that he was probably struck by a motor vehicle, the trial judge erred in failing to find that Mr McLennan was injured in a motor vehicle accident. There was no evidence of any other way in which the injuries could have been occasioned, except for assault. The specific passage about which Mr McLennan complains is set out above (at [79]). Mr McLennan contends that the passage amounts to a finding in his favour that he was injured by reason of a motor vehicle accident. I have emphasised several phrases in the passage that indicate the essence of the trial judge's reasoning.

89 The trial judge considered that he had "two conflicting inferences, both strong, both competing". Thus, his Honour was dealing with two possible explanations for Mr McLennan's injuries. One explanation was that he was struck by a car. The other was that he had been assaulted. His Honour concluded that it was not possible for him to decide, on the balance of probabilities, which of those explanations was correct. On a fair reading of the whole of the passage, it is clear enough that his Honour made no finding that Mr McLennan was struck by a motor vehicle.

90 His Honour said that, if he had to pick one of the hypotheses, he would feel that Mr McLennan was probably struck by a motor vehicle. His Honour also said that, if he was struck by a motor vehicle, he was struck from behind. The language is inconsistent with his Honour's making a finding, on the balance of probabilities, that Mr McLennan was actually struck by a motor vehicle. That is confirmed by the statement that his Honour simply did not know what happened. Thus, clearly enough, his Honour was saying that, on the material before him, he could not decide which of the two possibilities was the more probable. Certainly, he had the evidence of Ms Orton to the effect that the injuries suffered by Mr McLennan were consistent with being struck by a motor vehicle. Further, Mr Griffiths accepted that being struck by a motor vehicle was a possibility. Nevertheless, his Honour dealt with the evidence and was not persuaded, on the balance of probabilities, that Mr McLennan was struck by a motor vehicle.

91 It was not incumbent upon Mr McLennan to eliminate all other possibilities. However, I do not understand the trial judge to have approached the matter on that basis. There were two competing hypotheses. Once his Honour made a finding concerning retrograde amnesia, both hypotheses were open. That is to say, his Honour found that Mr McLennan drove to the car park, parked his car, alighted from the car and put on his jacket. Some hours later he regained consciousness, lying on his side between two cars, several car spaces from where he had parked his car. His Honour found, in effect, that there was no evidence as to what happened between the time when Mr McLennan put on his jacket and the time when he regained consciousness lying on the ground. On the basis of those findings, which are not challenged, it was open to his Honour to conclude that he was not persuaded, on the balance of probabilities, that Mr McLennan had been struck from behind by a motor vehicle. I do not consider that there was any error in that finding.

Negligence

92 In his notice of appeal, Mr McLennan complained that the trial judge erred:

• in finding that Mr McLennan had failed to prove that the driver of the unidentified vehicle was negligent;
• in finding that there was no evidence of negligence notwithstanding the opinion of Ms Orton and the fact that the driver of the unidentified vehicle "decamped the scene";
• in finding that the driver of the unidentified vehicle "may have been aware of something" (that is, that a person had been hit) in circumstances where the expert evidence suggested that the driver must have been aware of having struck Mr McLennan; and
• in not finding that the driver of the unidentified vehicle was negligent in circumstances where it was open to his Honour to do so on the ground that he "decamped", giving rise to an inference that the driver believed he was negligent.

93 The question of negligence arises only if a finding is made that the injuries suffered by Mr McLennan were occasioned by his being struck from behind by a motor vehicle. In the light of the conclusion reached above, the question of negligence therefore does not strictly arise. However, it is appropriate to say something about the contentions.

94 Mr McLennan complains that one of the scenarios pressed by him at the trial was not dealt with by the trial judge. Putting aside one of the scenarios that is no longer pressed by him, Mr McLennan advanced two possible scenarios. The first was that the best explanation of his injuries was that the motor vehicle struck Mr McLennan as a result of the driver's negligence, such that he was thrust onto the bonnet of the motor vehicle before falling off onto the roadway. The second was that the driver of the vehicle intentionally ran over Mr McLennan in an act of criminal assault.

95 Clearly, the trial judge dealt with the first scenario. It is not entirely clear that his Honour did not deal with the second scenario. That is to say, his Honour's reasoning deals with the possibility that Mr McLennan's injuries were the result of an assault, although his Honour did not deal specifically with the possibility that the assault was by means of a motor vehicle. On the other hand, that possibility was never pleaded by Mr McLennan. The allegation was that his injuries were the result of the driver being negligent. In oral address, counsel for Mr McLennan said that there was an alternative case, "which I don't press strongly", that the driver intentionally ran Mr McLennan over.

96 Counsel for Mr McLennan submitted to the trial judge that if his Honour were to find that Mr McLennan had been intentionally run down, liability would be clear. Counsel said, however, that the difficulty with that theory was that there was "just no evidence that could support it", on Assoc Prof Spira's view. Counsel addressed the theory on the basis that it was being advanced by the Nominal Defendant and not on behalf of Mr McLennan. In essence, counsel for Mr McLennan rejected any assault theory, whether it be by the use of a motor vehicle or otherwise.

97 Mr McLennan contends that the trial judge made a number of errors in concluding that there was no evidence of negligence. It is desirable to deal separately with each of the contentions.

98 First, Mr McLennan contends that the trial judge erred in concluding that the driver of a car would not have had sufficient time in the dark to see Mr McLennan before striking him, in circumstances where that conclusion was based on Mr McLennan's evidence as to the time that elapsed. That evidence was rejected on the basis of the opinion of the neurologists that his last memory was of getting out of his car and putting on his jacket. Secondly, Mr McLennan contends that the trial judge made a finding that was inconsistent with that first finding, in so far as his Honour said that he did not know whether Mr McLennan walked onto the middle of the road and knew nothing other than where he ended up.

99 Mr McLennan contends that, if his Honour did not know those things, then he could not have formed a view about the length of time that the driver of the vehicle would have had to avoid Mr McLennan. Further, he contends, the finding ignores the injury pattern suffered by Mr McLennan and the evidence of Ms Orton. In addition, he contends that the finding ignores the inference that is available from the flight of the driver. Mr McLennan contends that the trial judge did not need to know those matters in order to be able to draw an inference of negligence and that it was enough to know that Mr McLennan was on a roadway in a public car park and that the driver absconded in circumstances where he must be taken to have known that Mr McLennan had been struck. An inference of negligence, Mr McLennan submits, should therefore have been drawn. In any event, Mr McLennan says, for him to have ended up between two parked cars strongly supports the conclusion that he was not in the middle of the road, but had been in relatively close proximity to the rear of the parked cars.

100 The third error asserted by Mr McLennan is that the trial judge acknowledged that an inference was available that the driver of the motor vehicle absconded because he believed he was negligent but did not draw that inference because his Honour asked himself the wrong question, namely, whether that was the only reasonable inference. Mr McLennan contends that the test was what inference, if any, ought to be drawn on the balance of probabilities and that a test of that nature contemplates that there are likely to be other inferences available. However, the trial judge did contemplate the existence of other available inferences, without describing what they may have been.

101 The fourth error asserted is that the trial judge asked what had happened and said that he did not know. Mr McLennan says that his Honour was never going to be in a position to know what happened, in circumstances where there were no witnesses and Mr McLennan suffered from retrograde amnesia. Thus, he contends, the issue was whether or not the facts as proved and found gave rise to an inference. He says that the "decamping" of the driver in the absence of countervailing considerations was sufficient to give rise to the inference of negligence.

102 The fifth error is said to be the trial judge's observation that there was absolutely no evidence before him that there was negligence, in circumstances where Mr Griffiths accepted that it was possible that the injury could have been occasioned as asserted by Mr McLennan. There was evidence as to the safety requirements in car parks because of the possibility of people walking to and from their vehicles, that is, that vehicles should proceed at a slow speed and no more than 10 kph. Again, Mr McLennan emphasises the fact that, on the hypothesis in question, the driver of the unidentified vehicle had absconded.

103 The sixth error asserted by Mr McLennan is that the primary judge made findings that the unidentified vehicle was being driven very close to the parked cars and at a speed under 30 kph and that Mr McLennan could only have been in view for a minimal period of time, which findings were said to be contrary to the earlier findings that Mr McLennan's last recollection was putting on his jacket at his motor vehicle and there being no other evidence as to what happened thereafter. That is to say, Mr McLennan repeats his reliance on the fact that the trial judge rejected his evidence of a recollection of anything after he put on his jacket and before he awoke lying on the ground.

104 The seventh error that Mr McLennan complains of is the finding by the trial judge that the accident may have happened, if it did happen, in any event, and that the driver may have left the scene for all sorts of reasons unconnected with his belief of negligence. Mr McLennan points out that his Honour made no mention of any material that would allow such a finding to be made and did not identify any other reason that would cause an innocent driver to strike a pedestrian from behind, have the pedestrian land on the bonnet and windscreen and fall to the side of the road unconscious, without rendering some sort of aid.

105 The eighth error that Mr McLennan complains of is the trial judge's finding that there was no evidence other than simply the injuries to Mr McLennan. He says that that was inconsistent with his Honour's reasoning that there was no material on which to act. Again, he complains that the finding ignores the expert evidence of Ms Orton.

106 Next, Mr McLennan complains that the finding by the trial judge that the driver of the vehicle may have been aware of something was not open in circumstances where that was never suggested to Ms Orton, and no evidence was adduced from Mr Griffiths, that the accident may have happened in other ways than being struck from behind, as Ms Orton's computer modelling indicated. He says that the only inference available on the expert evidence was that the driver must have known of the collision. That was not challenged at the trial.

107 Finally, Mr McLennan complains about the trial judge's conclusion that he was not totally convinced by Ms Orton's evidence that there can only be one way that the accident happened. Mr McLennan complains that it was never put to Ms Orton in cross-examination that there could have been other ways in which the accident might have happened consistent with the injury pattern upon which she based her opinions. He says that the trial proceeded on the basis that, if it was a motor vehicle accident, the injuries occurred in a manner similar to that described by Ms Orton.

108 The Nominal Defendant submits that the contentions of Mr McLennan are predicated upon an assumption that there will always be negligence on the part of a driver of a vehicle in a pedestrian collision if the driver leaves the scene. The Nominal Defendant contends that the trial judge considered the expert evidence, part of which was based on unproven assumptions as to how long Mr McLennan would have been on the roadway prior to being struck by the unidentified vehicle.

109 In effect, the Nominal Defendant says, the essence of the conclusion reached by the trial judge was that he was not satisfied that the driver of a vehicle had sufficient time to react and avoid Mr McLennan, assuming that a motor vehicle was involved in Mr McLennan's injuries. His Honour's reasoning does not necessarily depend upon Mr McLennan's evidence of having heard a car "revving" and seeing lights. It was open to his Honour to hypothesise on the balance of probabilities as to how long it would have taken Mr McLennan to walk the distance in question. His Honour accepted Mr McLennan's evidence as to where he found himself when he regained awareness.

110 Thus, the Nominal Defendant contends, even if a motor vehicle was involved, there was simply no evidence upon which it could be found that the driver of the vehicle was negligent. The Nominal Defendant says that the paucity of evidence available compels such a finding. There was insufficient material from which an inference of negligence, in failing to keep a proper lookout, could be drawn. The plaintiff must fail in a case where he does not offer evidence supporting some positive inference implying negligence. The Nominal Defendant contends that the conclusion of the trial judge that there was no negligence is not glaringly improbable and there is no incontrovertible evidence pointing in favour of negligence. Therefore, it is said, no error on the part of the trial judge has been demonstrated.

111 As I have said, it is not necessary to express a final view on the question of negligence. However, if it were necessary, I would be disposed to accept the contentions advanced on behalf of the Nominal Defendant that there was no error on the part of the trial judge in concluding that there was insufficient evidence as to what happened, assuming that Mr McLennan was struck by a motor vehicle from behind, to conclude that the driver of such a hypothetical motor vehicle was negligent.

Due enquiry and search

112 In his notice of appeal, Mr McLennan complains that the trial judge erred:

• in finding that Mr McLennan had not satisfied his obligation of due enquiry and search;
• in failing to find that any due enquiry and search would, in the circumstances, have been futile; and
• in failing to consider and give weight to the effects of Mr McLennan's injuries in determining what was required by way of due enquiry and search.

113 In order to satisfy the relevant prerequisite of s 34(1) of the Compensation Act, a plaintiff must show, to the appropriate standard, either that there has been due enquiry and search but that the identity of the relevant vehicle has not been established, or that, although there has not been due enquiry and search, such an enquiry and search would not have established the identity of the relevant vehicle (Nominal Defendant v Meakes [2012] NSWCA 66 at [55]). The question is not simply whether due enquiries and search have been made. The terms of the provision must be borne in mind. They cover the case of death, as well as bodily injury, caused by or arising out of the use of a motor vehicle, in circumstances where the identity of the motor vehicle cannot be established after due enquiry and search.

114 The stipulation that the identity of the vehicle be incapable of being established is made for the protection of the Nominal Defendant and imposes no obligation, as such, on a prospective plaintiff. On the other hand, a prospective plaintiff must demonstrate that the identity of the vehicle is incapable of being established, in order to succeed in an action. If, in the circumstances of the case, it is evident that the identity of the vehicle could not be established by due enquiry and search, the stipulation may be held to be established even though no enquiry or search, which would be destined to be futile, has been made (see Harrison v The Nominal Defendant (1976) 50 ALJR 330 at 331-332)

115 Section 34(1) does not require that, in every case, irrespective of its circumstances, some enquiry and search should have been made. Whether or not the identity of the vehicle might have been established after enquiry and search appropriate to the circumstances of the case had been made is a question of fact. The question is not whether some enquiry and search has been made. Use of the word "due" emphasises that the question is whether the identity of the vehicle cannot be established even though such enquiry and search as might appropriately be made in the circumstances of the case has taken place. The words "after due enquiry and search" should not be divorced from the total expression of the condition on which the action against the Nominal Defendant may be brought. Whether or not the tribunal of fact is satisfied that the identity of the vehicle cannot be established after such enquiry and search of which the circumstances admit will depend on all the circumstances of the case (see Harrison v The Nominal Defendant at 332).

116 Mr McLennan contends that any enquiry and search in the present case would have been futile and would not have established the identity of the driver of the unidentified vehicle. He complains that the reasoning of the trial judge was erroneous in so far as he observed that in the present case there was a "real dispute and query" as to what had happened. He points out that the requirement of due enquiry and search is for the purpose of determining the unidentified vehicle. It is not for the purpose of determining whether or not there was an unidentified vehicle. He says the trial judge should have found, if the accident had been reported earlier, that it would have been futile if investigations had been conducted.

117 Mr McLennan also contends that, since he did not know that he had been involved in a motor vehicle accident, the obligation of due enquiry and search would not apply to him, at least in the early days when an enquiry and search, if it was ever going to produce anything, may have produced something. He says that a week or two later, when "the realisation of things started to fall on [him]", a report to the police at that stage would certainly have been futile. However, the evidence given by Mr McLennan that he did go to the police shortly after the incident is of course inconsistent with his explanation for not going to the police immediately because he did not know that he had been involved in a motor vehicle accident.

118 In addition, Mr McLennan says that having regard to his emotional state at that time and the nature of his head injury, he ought not to have been making serious legal decisions and was not capable of making decisions as to his best interests for some time. He complains that the trial judge did not deal with that evidence. However, it does not appear to have been suggested to the trial judge that Mr McLennan had made the searches and enquiries that were relevant in the circumstances of his medical position at the time. Thus, his Honour was not asked to make a finding that, having regard to his medical condition, it was not reasonable for him to have made any further enquiries with the view to identifying the vehicle.

119 Mr McLennan also complains about the reasoning of the trial judge relating to the threat by the Dib family. He says that that enquiry as to the possibility of a criminal assault, as distinct from an assault by means of driving a motor vehicle, is not the purpose for which s 34 was enacted. He says that the possibility that those who threatened him may have run him down with a motor vehicle is inconsistent with the findings of the primary judge that there was no evidence of negligence. He says that, if it was a serious prospect that Mr McLennan had been run down deliberately, the trial judge ought to have made a finding to that effect and found that, apart from due search and enquiry, the Nominal Defendant was liable. He contends that the way in which the trial judge approached the question of liability precluded a consideration of due search and enquiry on the basis that it might have disclosed evidence that the Dib family had deliberately run Mr McLennan down.

120 There was no challenge by Mr McLennan to the finding by the trial judge that the incident was not reported to the police, despite the evidence given by Mr McLennan and his wife. However, Mr McLennan complains about the finding made by the trial judge that, had he reported the incident to the police, the police would have investigated the Dib family to see whether or not there was any damage to cars used by them and as to whether they could give any assistance to the police. He says that there was no evidence that such a report would have yielded any meaningful result. On the contrary, he says, the evidence disclosed that members of the Dib family were hardened criminals who were well versed with the police and police procedures and had gone to elaborate lengths to cover up their crimes in the past. He says that it is fanciful to infer that such persons would have confessed or provided the police with any information about the incident, assuming that they had been involved in the incident.

121 In any event, Mr McLennan says, there was no reason to suspect the Dib family since the threat to him was conditioned upon his giving evidence against them. He did not do so and the offender was acquitted of the charges in respect of which he was to give evidence.

122 Further, Mr McLennan says, if the Dib family used any vehicle for the purposes of a crime, it would undoubtedly have been a stolen vehicle and would have been disposed of. The evidence before the trial judge disclosed that there was no vehicle registered in the names of the Dib family members at the relevant time. Thus, Mr McLennan says, any reporting of the incident to the police would not have produced any likelihood of identifying a vehicle.

123 Mr McLennan points to his evidence that he set up flyers around Holsworthy Station some months after the accident and that they produced no meaningful result, although there was no finding by the trial judge as to when the flyers were set up. The expert evidence suggested that it was unlikely that there would be any meaningful evidence left on the roadway. Mr McLennan reported the incident to his employer and to the relevant workers' compensation insurer. He says that an inference should be drawn that the workers' compensation insurer would have an interest in seeking recovery from the driver of any such unidentified motor vehicle, but no search and enquiry was undertaken by them. The short answer to that proposition, however, is that there is no evidence that Mr McLennan told his employer or the workers' compensation insurer that he had been struck by an unidentified motor vehicle.

124 The Nominal Defendant contends that, in the present case, the circumstances were such that reporting the incident to the police was not only reasonable, but would have been logical, given the recent threat made to Mr McLennan and his concern about the threat. In the present case, Mr McLennan was aware of the very real possibility of assault. Further, he claimed to have been lying on the ground for several hours. There was, therefore, every prospect that an enquiry of witnesses carried out promptly may have shed light on the circumstances of Mr McLennan's plight. The Nominal Defendant contends that the circumstances referred to by the trial judge mandated that Mr McLennan carry out due enquiry and search and that the trial judge was correct in finding that he had failed to do so.

125 While it is not strictly necessary to decide the question, I would be disposed to conclude, as the Nominal Defendant contends, that it is not apparent why, in circumstances where Mr McLennan believed at the time that he was injured that he may have been assaulted, he was not required to inform the police of that view in order to discharge the burden imposed by s 34(1) of the Compensation Act. It is by no means apparent that such notification would have been futile. Mr McLennan was able to identify those who had threatened him. An enquiry may not have elicited a confession, but it may have led to the identification of a vehicle exhibiting signs of having struck him (see Nominal Defendant v McLennan [2012] NSWCA 148 at [228]).

Conclusion

126 It follows from the above that the appeal should be dismissed with costs.

127 SIMPSON J: I have read in draft the judgment of Emmett JA. His Honour has comprehensively set out the relevant evidence. I will endeavour to avoid unnecessary repetition. Since embarking on the preparation of these reasons, I have also had the opportunity of reading in draft the judgment of Basten JA. I have come to a different view to that of their Honours.

128 The appellant's case at trial, put briefly, was as follows.

129 At about 4.55am on 5 September 2000 he arrived in his motor vehicle at the car park of the Holsworthy Railway Station. It was dark. There was no artificial lighting. There were cars parked in the car park. The appellant alighted from his vehicle, and walked a short distance in the central aisle of the car park in the middle lane. A motor vehicle behind him "revved", and drove towards him, and struck him in the back. He lost consciousness for several hours. He regained consciousness and walked to his vehicle, in which he sat for a time before driving home, where he arrived at about 10.00am. He had injuries to his body and a severe headache. He took some painkillers and went to bed. He had no way of identifying the vehicle that had struck him.

130 The following day he consulted his general practitioner, Dr Augusto Tablante, who made a brief note of his injuries. He reported the matter to police.

131 About a week later, he made and distributed a "flyer" seeking information from anybody who might have witnessed the event. He received one reply that provided no useful information. Accordingly, he took proceedings against the Nominal Defendant.

The issues in the trial

132 What was in issue in the trial was:

(i) the cause of the appellant's injuries: three alternatives were canvassed - that he was struck by a motor vehicle, that he was assaulted, or that there was some other unidentifiable cause;

(ii) if the injuries were caused by a motor vehicle, whether they were the result of negligence on the part of the driver of the motor vehicle;

(iii) whether the appellant had established that he had, for the purposes of s 34 of the Motor Accidents Compensation Act 1999 (NSW) ("the Compensation Act"), undertaken due inquiry and search in order to ascertain the identity of the motor vehicle that struck him.

133 The trial before Garling ADCJ was a second trial of the plaintiff's claim. The first, which resulted in a verdict in his favour, was the subject of a successful appeal to this Court (Nominal Defendant v McLennan [2012] NSWCA 148), which ordered a new trial.

(i) the cause of the appellant's injuries

The evidence

134 The only direct evidence of the incident in which the appellant was injured was that given by him. His evidence was that he arrived at the car park while it was still dark. His usual practice was to take a blazer and perhaps a briefcase from the car and walk along the central aisle in the middle lane towards the station. On this occasion, he said, he walked about six to nine inches from the back of the parked cars (in order to avoid any towbars). Photographs of the car park suggest that there were no dedicated pedestrian pathways. Commuters alighting from their vehicles and walking to the station were obliged to use passageways shared with vehicles entering or exiting the car park. The appellant said that he had walked about "one spot" (that is, one car space) when he heard a vehicle behind him "rev". A light came on behind him which became brighter (indicating that it was coming towards him). The revving sounded as though the driver had "put his foot to the floor". His next recollection was of waking up, lying on his left side, between two parked cars, about two car spaces from where he had first heard the car behind me. (It was agreed that sunrise that day was at about 7.00am.) He was extremely confused, his right shoulder was sore, and he had a lump on the back of his head. Both hips were sore, as was his left knee, left ankle and neck. His clothing was torn at the left knee and dirty. He had "a massive headache". He struggled to get up, looked around, and sat in his car for a time before driving home. It was then about 10.00am. He took painkillers and went to bed; he consulted his general practitioner, Dr Tablante, the following day.

135 The appellant was never able to say with certainty that he had been struck by a motor vehicle, or that that was the cause of his injuries. Evidence to provide the foundation for an inference to that effect was obtained from Dr Tablante, and from a senior forensic engineer, Ms Tia Orton.

136 Dr Tablante made a note of the consultation of 6 September, the entirety of which was:

"Hit at Holsworthy Station from behind. No recollection of incident. Awoke with multiple bruising to chest/LL [lower limb]/neck/head. O/E [On examination] alert N [normal] range of spine chest clear, heart sounds clear

Rest/MC [medical certificate]/digesic."

137 On 16 November 2004 Dr Tablante wrote a certificate, which was in the following terms:

"Sustained an injury on the 5/9/00.

 He saw this clinic on the 6/9/00 for examination and future management.

 He does not have a clear recollection of events of the injury.

 The examination showed multiple bruising consistent with being hit from behind by a vehicle and falling to the ground unconscious.

He also sustained injuries to his head + front due to the impact on the ground."

138 Dr Tablante gave oral evidence. He recalled the appellant telling him that he was coming home from work, and, after losing consciousness, woke after a few minutes on the ground "a bit dazed". (It is clear that Dr Tablante's recollection was faulty insofar as he said that the appellant was returning home from work, and that he had lost consciousness only for a few minutes.)

139 He was asked about the opinion expressed in the report of 16 November 2004, in which he had expressed the view that the appellant's bruising was consistent with being hit from behind by a vehicle. He said that he formed this view:

"Mainly due to the distribution of the bruising that he actually had."

This was particularly because of injuries to the back of the lower limbs, right across both sides. He thought that this would have been caused by the bumper bar of the car.

140 Ms Orton (who was accepted as having relevant expertise) provided two reports, the first dated 8 October 2012. Both reports post-dated the order for a new trial and she had access to the transcript of the first trial. She made reference to the cross-examination of Dr Tablante in that trial. Ms Orton set out the factual underpinnings in her first report, which included information given by the appellant, essentially in accordance with that he gave in the first trial, and included reference to the location and nature of his injuries. There was also other information to which Ms Orton had regard.

141 Ms Orton canvassed various classifications of "vehicle-pedestrian" impacts. She said:

"It is the opinion of the author based on extensive experience investigating vehicle-pedestrian impacts and supported by the research and testing discussed [above] that the injuries sustained by Mr McLennan are indicative of a vehicle impact.

Particularly, the presence of bilateral bruising to the posterior of his lower extremities and trauma to the top/posterior of his head and neck would be indicative of (and consistent with) a vehicle impact to the posterior of his body. The grazing to his chest/upper abdomen and anterior legs (left knee) would be consistent with ground impact that would have occurred subsequent to the initial vehicle impact." (italics added)

142 Ms Orton then outlined various tests that she undertook, and summarised her conclusions as follows:

"1. The trauma sustained by Mr McLennan is consistent with the kinematics experienced by a pedestrian in a vehicle to posterior impact at an impact speed of less than 30 km/h.

2. Mr McLennan's point of rest would be consistent with a vehicle striking him and subsequently executing a right-hand turn towards the car park exit.

3. There were no identifiable obstructions to the line-of-sight for a driver travelling westbound in the subject car park travel lane during daylight. The failure of a driver to observe Mr McLennan's presence in the travel lane in darkness would suggest the vehicle's headlamps were not illuminated.

4. There would have been adequate lateral and longitudinal distance and line-of-sight visibility available to a driver travelling within the subject car park travel lane at a speed of less than 30 km/h to execute a successful avoidance manoeuvre (i.e. stopping or swerving) that would have prevented the collision."

143 The respondent also relied upon two expert reports. They were reports of a biomedical and mechanical engineer, Mr Michael Griffiths. The first of these was dated 19 August 2005, but had not been provided to Ms Orton (or, it seems, to the appellant's solicitors) prior to Ms Orton's report of October 2012. Mr Griffiths was also accepted as having relevant expertise.

144 Mr Griffiths said:

"The breadth of the request put to me was as to whether, based on the physical evidence of the physiological injury trauma sustained by TERRY McLENNAN, I could determine the nature of the injury source, and its consistency with impact from a vehicle from behind."

He expressed his conclusions in that report as follows:

"- TERRY McLENNAN's injuries could be consistent with being struck from behind by a vehicle

- TERRY McLENNAN's injuries could also be consistent with a simple fall and trip, or an assault, or any kind of incident resulting in a fall

- there is no unique pattern or specific injury nature demonstrated which uniquely identifies the claimed injuries with impact from a vehicle

- more particularly, there is no description of any acute head trauma with the potential to lead to ongoing brain injury

- road safety studies of acute head trauma have not identified any cause and effect link between the mild (bruising) head trauma and chronic migraine headache."

145 Mr Griffiths' second report was dated 12 April 2013. It contains no indication that he had been provided with Ms Orton's report. He was, however, provided with a great deal of other material. He outlined the "possible injuries" and said:

"So the question becomes, does a pattern of injury consisting of:-

- faint bruising to the rear aspect of both knees

- grazing to the front of the left knee

- bruising and swelling somewhere on the back of the head,

- bruising on the chest, and

- bruising, possibly with grazing, on the right shoulder

describe an injury pattern which is more consistent with being struck from behind by a car, than other possible injury mechanisms.

The first part of a science based review is to assess possible injury mechanisms for each individual injury."

He noted some deficiencies in the information available to him. He concluded:

"The reasoning processes here found that the 'chosen' pattern of injuries is not suggestive of any particular injury mechanism. It could be consistent with assault, a trip and fall, or contact with a motor vehicle.

In making that assessment, the poor quality of the foundation material upon which the assessments are being made (i.e. contemporaneous records of injury) make identification of an injury pattern somewhat speculative, and subsequent evaluation of possible injury mechanisms even more speculative.

Ultimately, the 'chosen' injury pattern could be consistent with many different scenarios. It is definitely not uniquely consistent with rear impact from a motor vehicle." (italics added)

146 It will be observed that both experts accepted that the appellant's injuries were "consistent with" motor vehicle impact. However, Ms Orton went further, and expressed the clear view that the injuries were "indicative" of vehicle impact. There is no equivalent opinion (positive or negative) in Mr Griffiths' reports.

147 In response to Mr Griffiths' reports, Ms Orton provided a supplementary report, in which she offered a critique of both of Mr Griffiths' reports. She described his opinions as "completely subjective and ... provided without scientific basis". She said that his opinions could not be fully evaluated because of the absence of "scientific basis, literature, material, examinations, tests or other investigations to support the opinions given". She said:

"6. The speculative mechanisms of injury presented by Mr Griffiths including a simple fall, trip and fall or blunt-force assault are not consistent with the trauma sustained by Mr McLennan (as described by Dr Tablante).

7. The reported trauma sustained by Mr McLennan is significantly more consistent with a motor vehicle collision than with any other speculative scenario presented by Mr Griffiths."

148 Evidence was also given by two neurologists, one called by each of the parties. The neurologists were in agreement that, having regard to the period of unconsciousness suffered by the appellant, it would be expected that there would be a period of retrograde amnesia. The retrograde amnesia would have blocked out any recollection of events for a period prior to the trauma. Where the neurologists differed was as to the extent, or period, of the retrograde amnesia.

An alternative scenario: assault

149 Although Mr Griffiths postulated three possible scenarios (one being "trip and fall"), only two (motor vehicle impact and assault) were the subject of any real consideration in the trial.

150 The assault scenario arose in the evidence in chief of the appellant. In short, his evidence was that, on an earlier occasion, he had become involved as a possible witness in criminal proceedings against a man called Moustafa Dib, as a result of an alleged shooting in the car park of a fast food outlet where the appellant then worked. Moustafa Dib was a member of a well-known criminal family. In his evidence, the appellant said that, about a week before his injury, he had been served with a subpoena to attend court in relation to the shooting incident. He attended the court. While he was waiting, he was threatened by a member of the Dib family. His evidence was:

"He just threatened that if I gave evidence they'd do something. He wasn't specific about what the something was."

He said that one police officer was present, possibly two, but neither appeared to take any interest in what had happened. In any event, he was not called to give evidence.

151 The evidence in the trial included part of the transcript of the evidence of those criminal proceedings. The transcript shows that the jury returned a verdict of not guilty by direction of the trial judge.

The findings of the primary judge

152 Just what finding the primary judge made about the cause of the appellant's injury is the subject of some debate. His Honour posed for himself the question "what happened?", which he then answered as follows:

"The fact is, I do not know. I have an inference he was struck by a car. I have another strong inference he may have been assaulted. I suppose there is a third inference which was not really discussed. But none of this may have happened at all and I am not going to look into that or consider it. I have two conflicting inferences, both strong, both competing. If I have to pick one I would feel that he was probably struck by a motor vehicle. But there are still two very much competing inferences and even if I find he was struck by a motor vehicle, for the reasons I have given, I am not satisfied there was any negligence. I simply do not know what happened. I do not know other than, if he was struck by a motor vehicle, he was struck from behind and I know where he was laying (sic). Anything could have happened in that period." (italics added)

153 At an early stage in his reasons, the primary judge made seriously adverse findings concerning the appellant's credibility. He said:

"I cannot believe the plaintiff's evidence in any area in which it is in dispute, unless it is backed up by other evidence which was clearly correct."

He went on to give reasons for that conclusion, and re-stated that he had no confidence in the appellant's evidence. In particular, he did not accept the appellant's recollection of having heard a car behind him rev, or of having seen lights. This was not only because of his adverse view of the appellant's credibility - it was also because of the neurological evidence concerning the retrograde amnesia. In that respect, he found:

"... his last memory was at the car and getting out and putting his jacket on."

154 Prior to that, he had referred in some detail to Dr Tablante's evidence. With respect to the location of the bruising, he said that he accepted Dr Tablante's account. Later, however, he expressed doubts about Dr Tablante's evidence as to history, where Dr Tablante was giving evidence from recollection and not from his notes.

155 He then referred extensively to the evidence of Ms Orton and of Mr Griffiths. He rejected Mr Griffiths' "trip and fall" scenario, and said:

"I then have to consider what caused his injuries. Was it a motor vehicle? Was it an assault? It could be a motor vehicle. Ms Orton says it was ...

I do not believe that it is in dispute that one of the scenarios available is that he was struck by a motor vehicle. Both experts said that and Dr Tablante also came to that view. But then I have to look at another scenario, was the plaintiff assaulted? The plaintiff, we know, had been involved in this criminal trial. He had been threatened and he was dealing with people who, I think it is generally agreed, were quite vicious criminals quite capable of assault, and quite capable, should there be a reason, of carrying out an assault on him ...

There is no doubt in my mind that the plaintiff could have been assaulted. Injuries to the head, throat, chest and lower legs are all, in my view, consistent with a severe assault. He did have injuries to both hips, and it is argued it is unlikely in an assault that he would have had those injuries. However, that is leaving aside, in my view, the fact that he could have been assaulted by two, three or four or more people and if they first knocked him to the ground, then set about him with their boots or their shoes or whatever, or even an implement, there is no doubt he could have been assaulted."

156 In the course of considering whether there was negligence (to which I will come) the primary judge said:

"The driver of the vehicle may have been aware of something. I have no idea. I have one version of how the accident may have happened, but perhaps it happened other ways. I am just not prepared to accept totally what Ms Orton said. I have considered what she said. I am not totally convinced of it and I am not satisfied that it just shows there can only be one way this accident happened. She has given a version of what may have happened. There could have been other ways and, in the end, having reviewed the case at length, I am not prepared to find that the plaintiff has satisfied the Court that there was any negligence." (italics added)

(ii) negligence

157 There was no additional evidence specifically related to whether (on the hypothesis that the appellant was hit by a car) the driver of the vehicle was negligent. It was accepted that, if this had happened, the driver had "decamped". It was not in issue that, had the appellant been hit by a car, the driver would have been aware of it.

158 The appellant relied upon the decisions in Holloway v McFeeters [1956] HCA 25; 94 CLR 470 and Nominal Defendant v Puglisi (1984) 54 ALR 636 to urge that an inference ought to be drawn that the driver decamped as a result of consciousness of his or her own negligence.

The primary judge's findings

159 The primary judge referred to negligence on a number of occasions throughout the judgment. He said:

"If I do accept what he [the appellant] says, where is the negligence? Ms Orton was asked from where the plaintiff reached the roadway, how long would it take him to walk to the spot he said he was struck? That is, how long would he be visible from that point where he came onto the road till struck? The answer, as I understand it, is 1.2 seconds. The normal driver's reaction time is 1.5 seconds. It would appear there was no time to stop. However, could the driver have seen him as he left his vehicle, that is, would his head and shoulder be visible in the dark above the car for a relatively short distance before he reached the road, and then the time he was on the road before he was struck? Did the plaintiff take a slightly longer route, that is, down the side of his car and then onto the roadway where he turns to walk? That would give a slightly longer time for observation for possible detection of the plaintiff.

If a driver is driving a vehicle in a carpark he notes in the dark a person emerge from his vehicle and walk along the side of the vehicle, then is he obliged to immediately start braking in case the person walks onto the road? I do not believe so. It would seem to me if the plaintiff's version was accepted and that I accept he was struck by a motor vehicle from behind, there could be no negligence on behalf of the driver of the unidentified vehicle."

160 He then found that, even if he accepted the appellant's version:

"I still could not find that there was negligence."

161 He then factored into his consideration his rejection, by reason of retrograde amnesia, of the appellant's evidence and, in effect, reinforced his stated opinion. He then turned to the expert evidence. For the purpose of that exercise, he accepted that the appellant was struck by a motor vehicle and said:

"... and if I look at the scenarios that are set out including the tests and I look at the various injuries which are set out, then I simply cannot see where there could be negligence. I cannot see that car would have sufficient time in the dark to have seen the plaintiff before striking him. But I have a far greater problem than that. That is, I simply have no idea what the plaintiff did. I do not know whether he walked onto the middle of the road. I know nothing other than where he ended up."

162 A little later, having mentioned Holloway v McFeeters and Puglisi, he said:

"There is no doubt I can find the driver of the vehicle, if it was a vehicle which hit the plaintiff, decamped because he believed he was negligent, and is that the only reasonable inference?"

163 Later, he said:

"There is absolutely no evidence before me that there was negligence. Nor do I believe that I could find that, because the driver left the scene, there could only be one conclusion, that he left because he felt he was negligent. Whoever the driver was, from what I can gather, he had to be driving very close to the parked cars and at speed under thirty kilometres per hour. The plaintiff could only have been in view for a minimal period of time. The accident may have happened, if it did happen, any way and indeed the driver may have left the scene for all sorts of reasons unconnected with his belief of negligence ..."

164 He then went on to the passage already extracted, in which he said he was not prepared "to accept totally" Ms Orton's evidence.

(iii) due inquiry and search

165 As at September 2000, s 34 of the Compensation Act provided:

"(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 after due inquiry and search be established, be brought against the Nominal Defendant.

(2) ...

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

The evidence

166 The appellant gave evidence that, the day after his injury, he telephoned the Liverpool Police Station and reported what had had happened to a female officer. He said he gave his name, address and the location of the accident but he never heard any more from the police. He said that, about a week later he "posted a flyer", which he fixed on poles around the Holsworthy Station and in the entrance to the railway station. The only response he received was from somebody offering to say anything he wanted for the "right amount of money".

The findings of the primary judge

167 The primary judge was satisfied that due inquiry and search had not been made. He considered that, if the appellant had reported the matter to police, some evidence of debris may have been found on the road, or a witness may have been located.

168 He further considered that the threats made to the appellant by the Dib family were relevant. This was because the police could have investigated vehicles used by that family.

169 The primary judge rejected the appellant's evidence that he had reported the incident to police. He accepted that he had "put up some notices", but said he did not know when that was done. Given the rejection by the primary judge of the appellant's evidence that he had reported the matter to police, the only evidence of "due inquiry and search" was that the appellant had posted "flyers".

THE APPEAL

Issue (i): the cause of the injuries

170 Only the first ground of appeal went to this issue. It is framed as follows:

"The trial judge erred in failing to find that the appellant was injured in a motor vehicle accident having found at page 26 that 'if I had to pick one I would feel that he was probably struck by a motor vehicle'."

171 The submissions on behalf of the appellant with respect to this ground hinged very substantially on the primary judge's observation:

"If I have to pick one I would feel that he was probably struck by a motor vehicle."

172 This, it was contended, in the circumstances amounted to a finding that, on the balance of probabilities, the motor vehicle theory was more probable. It was, therefore, submitted, an error for the primary judge to fail to make an express finding to that effect. It was submitted that three alternatives were available to his Honour:

• that the motor vehicle theory was more probable;
• that the assault theory was more probable;
• that it was not possible to determine that either one was more probable.

173 It was submitted that a conclusion that the motor vehicle theory was more probable was dictated by analysis of the expert evidence.

Resolution of Issue (i)

174 Once the primary judge rejected the evidence of the appellant, determination of the cause of his injury depended entirely upon inference. The question called for careful analysis of the relevant evidence. The relevant evidence included Dr Tablante's evidence with respect to the nature and location of the appellant's injuries, and, more particularly, of the expert engineers' evidence. In my opinion, the assault theory ought to have been discarded. There was simply no evidence to support it. It was an error to regard it as a "strong" inference competing with the motor vehicle inference. I will explain that.

175 The assault theory rested upon the appellant's evidence of threats made to him by a member of the Dib family. In this respect, it will be recalled that the direct evidence which he gave was that the threat was predicated on his giving evidence. He did not give evidence. The trial of Moustafa Dib concluded on 23 August 2000 - two weeks before the appellant's injury - with the acquittal of Moustafa Dib by direction of the judge. There was no evidentiary basis for accepting the assault theory as even a reasonable possibility, let alone a strongly competing one. It was, at best, pure speculation.

176 That left only, as a realistic possibility, the motor vehicle theory. Of course, the primary judge was not obliged to accept that the appellant had been struck by a motor vehicle. But, in the light of Ms Orton's evidence, together with that of Mr Griffiths, it would be very difficult to find that the appellant had been injured by some other means. At the very least, the appropriate degree of analysis was not applied to the question. The primary judge said that he was not prepared "to accept totally" Ms Orton's evidence. That, in my opinion, reflects an erroneous approach. His Honour was not called upon to "accept totally" Ms Orton's evidence. He was called upon to determine, in the light of her evidence, together with that of Mr Griffiths, (and the other evidence in the trial) which was the more probable inference. His Honour gave no reasons for his partial rejection of Ms Orton's evidence. Nor did he explain what part or parts of it he rejected. In my opinion, the evidence, properly analysed, left no room for any conclusion other than that the appellant was injured by being struck by a motor vehicle.

177 In my opinion, ground 1 of the appeal ought to be upheld.

Issue (ii): negligence

178 Once it is accepted that the appellant was hit by a motor vehicle and injured, the question is whether it is established that those injuries were caused by the negligence of the driver of the motor vehicle. I have set out above the relevant passages from the judgment that deal with this issue.

Resolution of Issue (ii)

179 In my opinion, there are errors in the approach taken by the primary judge on this issue also. On a number of occasions, he said that he "could" not find negligence on the part of the driver. Moreover, in considering the question of the abandonment of the scene by the driver, he asked:

"... and is that the only reasonable inference?"

the "only reasonable inference" being that the driver decamped because he believed he was negligent. The same approach can be seen in other passages where the primary judge said, for example:

"Nor do I believe that I could find that, because the driver left the scene, there could only be one conclusion, that he left because he felt he was negligent."

And, on the following page, he said, in respect of Ms Orton's evidence:

"... I am not satisfied that it just shows there can only be one way this accident happened."

180 I accept that it is not the case that, whenever a pedestrian is struck by a motor vehicle, it automatically or naturally follows that that is the result of negligence. Children run onto roadways, intoxicated persons stumble into the paths of moving vehicles, and others may be distracted and step off a pavement before an approaching vehicle has time to stop. None of these scenarios here applies. Even on the limited evidence the primary judge accepted, the appellant was a pedestrian in a commuter car park at a railway station, on a shared access way. Any motorist could be expected to anticipate that there would be pedestrians making their way from their cars to the station. It was dark. The primary judge said that he did not believe that, even when a driver in a dark car park sees a person emerge from his vehicle and walk along the side of the vehicle, that driver was obliged immediately to start braking in case the pedestrian walked onto the road. In my opinion that is incorrect. A driver is obliged to keep a proper lookout in the prevailing circumstances. Those circumstances include the lighting conditions and the inevitability that persons who have parked their cars will be making their way to the station on the shared roadway. In my opinion an inference was available that the driver of the vehicle ought to have seen the appellant in time to stop, and ought to have been driving at a speed that would enable him or her to take account of the possibility of the existence of pedestrians.

181 It may be that it was not necessary that the primary judge draw that inference. In my opinion, in concluding that "there could be no negligence" - a view expressed more than once - the primary judge failed to ask himself the correct question - that is, what inferences ought to be drawn in all of the circumstances. The "decamping" of the driver was one such circumstance.

182 Further, the reference to "the only reasonable inference" and "nor do I believe that ... there could be only one conclusion" (for the driver leaving the scene) imported into the consideration the test applicable to circumstantial cases and the drawing of inferences in the criminal law. Those tests have no place in civil law, and created too high a hurdle.

183 In my opinion, error has been established in that the primary judge failed to perform the exercise required of him. That exercise was to determine, on the evidence, what inference to draw.

Issue (iii): due inquiry and search

Resolution of Issue (iii)

184 It is now well established that s 34 of the Compensation Act does not require:

"the conduct of a charade or the pursuit of routine advertisements and inquiries that were not, realistically, likely to produce results ..." (Oztan v NSW Insurance Ministerial Corporation (1995) 23 MVR 259)

185 That proposition derives from the decision of the High Court in Harrison v Nominal Defendant [1975] 50 ALJR 330. There Barwick CJ said:

"The section does not, in my opinion, require that in every case, irrespective of its circumstances, some inquiry and search should have been made. Whether or not the identity of the vehicle might have been established after search and inquiry appropriate to the circumstances of the case had been made is a question of fact ... The presence of the word 'due' in the subsection emphasizes that the question is whether the identity of the vehicle cannot be established though such search and inquiry as might appropriately be made in the circumstances of the case had taken place." (italics added)

His Honour also said:

"This is not to say that where there is available a clue to the identity of the vehicle it ought not to be followed up or the trail allowed to grow cold; but where there is no clue of any kind it seems to me that it is open to a tribunal of fact to find in the circumstances of the case that the identity of the vehicle cannot be established as in the terms of the subsection."

186 It is apparent, from Harrison and Oztan, that one focus of the inquiry is what is encompassed by the word "due" in s 34: see also The Nominal Defendant v Ross [2014] NSWCA 212 at [64]. What is "due" is what is reasonable in all of the circumstances: Oztan, Ross.

187 The respondent's argument in respect of due inquiry and search in this appeal depended on the proposition that, if the appellant had made the report to the police that he asserted he did, police would have been in a position to investigate. In particular, police would have been in a position to investigate any motor vehicles owned or used by members of the Dib family. In other words, there is an underlying assumption that the assault theory explains the appellant's injuries. That is the same approach that was taken by the primary judge. I have rejected the assault theory as a reasonable possibility. Inquiries made by police with a view to casting blame on the Dib family would not be expected to have achieved the object of identifying the motor vehicle. It was also suggested that early reporting to police would have enabled examination of the car park for car parts or debris.

188 In the immediate aftermath of the incident, the appellant was not in any position to make a report, and was not in such a position during the several hours that he was unconscious. He was not in any position to report during the remainder of that day, when he was suffering the severe effects of his injuries. It is unlikely that any debris located in the car park after that time would have yielded any evidence, or anything of significance to any line of inquiry.

189 The primary judge accepted that the appellant did post notices around the car park and station, although he was not sure when that happened. (A statutory declaration tendered in evidence on behalf of the respondent asserted that it was about a week after the incident.) It is hardly surprising that the notices failed to bring forth any witness to what had happened. If there had been any witnesses, at least any who were prepared to come forward, a week afterwards, it might be expected that those witnesses would have taken some action, by way of obtaining help for the appellant, at the time.

190 There was little, if anything, else the appellant could have done to establish the identity of the motor vehicle.

191 In my opinion this is a case where the appellant's efforts, sparse though they were, satisfy the requirements of s 34.

192 In my opinion the appeal ought to be allowed. That raises the question (moot, having regard to the views of Basten JA and Emmett JA) as to what consequential orders ought to be made. It was agreed that this Court is in a position to make relevant findings in the event that it be thought that the primary judge failed to do so. I have outlined above the view I would take as to the first question - whether the appellant was struck by a motor vehicle. In my opinion, it is appropriate also to conclude that the inference ought to be drawn that the driver of the motor vehicle was negligent. That being the case, the plaintiff is entitled to a verdict.

193 There was some doubt as to the status of the award of damages made by the judge in the first trial, set aside by this Court on appeal. Since I am in a minority, it is unnecessary to resolve that issue.

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Decision last updated: 25 September 2014