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Limelight 10/17

How much evidence does a defendant need to adduce to dislodge the evidence of an otherwise credible plaintiff?

Author, Fiona Errington

Nominal Defendant v Cordin [2017] NSWCA 6


In many personal injury cases, the plaintiff can be the sole source of evidence of the circumstances of an accident. “Slip and trips” can be unwitnessed; motor vehicle accidents can involve unidentified vehicles that leave the scene.

With such accidents, where the identity of the vehicle involved cannot be established, a plaintiff can, in each State and Territory, bring proceedings against a statutory body established for the purpose of compensating people who are injured in such circumstances.

The lack of a different version of events often presents a seemingly insurmountable challenge in such a claim; however, in Nominal Defendant v Cordin [2017] NSWCA 6, this challenge was overcome on the basis that contemporaneous records were inconsistent with the plaintiff’s evidence.


On 2 September 2012, Michael Cordin was riding his mountain bicycle on Minyon Falls Road in the Nightcap National Park in New South Wales. He was familiar with the road and had just descended a steep part of the road to where it levelled off.  He was using his brakes to slow down in order to negotiate approaching potholes and was standing on his bicycle pedals when he felt himself falling rapidly forward off his bicycle. There were no witnesses to the accident. A passer-by driving in the direction in which Mr Cordin had been riding came upon him lying face down on the road in a pothole.

Mr Cordin was taken by ambulance to the Lismore Base Hospital and then transferred to the Princess Alexandra Hospital. He suffered severe injuries including head injuries.

Mr Cordin issued proceedings against the Nominal Defendant, the relevant NSW statutory body, for compensation.

First instance decision

Mr Cordin did not see a motor vehicle, but believed that one had “shunted” him from behind.

Mr Cordin’s wife visited him in the Princess Alexandra Hospital after the accident and gave evidence that he had told her at that time that he had been hit from behind by a vehicle.

Mr Cordin’s wife had contacted the Lismore police the next day to report the accident. She also contacted the Lismore City Council to report the state of the road. Both Mr Cordin and his wife had provided statements to NSW Police that he had been struck from behind by a vehicle.

The passers-by who attended the scene after the accident to assist Mr Cordin gave evidence that he was confused and incoherent. He did not tell the passers-by that he had been struck by a vehicle.

Judge Levy accepted expert evidence that, for Mr Cordin to have fallen off his bicycle in this matter, force must have been applied from behind.

His Honour also considered the contemporaneous records from the ambulance, Lismore Base Hospital, air ambulance, Princess Alexandra Hospital and Lismore Council, as well as the statements provided by Mr Cordin and his wife to NSW Police to determine whether the evidence was consistent with or contradicted his account. The ambulance and hospital records did not contain any account of Mr Cordin being struck from behind by a vehicle. Rather, these records referred to Mr Cordin hitting a pothole and falling off his bicycle.

His Honour determined to accept Mr Cordin’s evidence and awarded damages of $350,000. The Nominal Defendant appealed.


The Nominal Defendant sought to set aside Judge Levy’s findings on the basis of the test for appellate intervention in Fox v Percy (2003) 214 CLR 118. This required the Nominal Defendant to demonstrate that the judgment of Judge Levy was contrary to the “uncontroverted facts or uncontested testimony”, “glaringly improbable” or “contrary to compelling inferences”.

The main issue on appeal was the treatment by Judge Levy of the contemporaneous records. The Nominal Defendant contended that the contemporaneous medical records and Mr Cordin’s statements to NSW Police contradicted the conclusion that a motor vehicle was involved in the accident.

By a 2:1 majority, the Court of Appeal allowed the appeal and ordered a re-trial.

Justice Davies (with whom Emmett AJA agreed) considered that Mr Cordin’s case was circumstantial and that this required Judge Levy to consider the evidence as a whole. His Honour stated that the approach taken by Judge Levy to Mr Cordin’s evidence appeared to proceed on the assumption that the accident occurred as alleged him. The onus of proof was, however, on Mr Cordin. He had not seen or heard a motor vehicle and his case, at its highest, was that he felt himself going forward over his bicycle and believed he had been hit from behind. Judge Levy was required to consider Mr Cordin’s evidence in light of the contemporaneous records and there was no onus on the Nominal Defendant to demonstrate that these records proved that Mr Cordin had not been struck from behind.

Justice Davies considered that the analysis of the contemporaneous records seemingly undertaken by Judge Levy to ascertain whether Mr Cordin’s account was disproved amounted to either a reversal of the onus of proof or an inappropriate way of dealing with the evidence.  His Honour was of the view that Judge Levy had not given weight to the contemporaneous records and accordingly had not determined the case on the body of evidence presented.


The burden of proof to make out a case or an allegation remains on the claimant. This case also highlights the importance for a plaintiff of obtaining contemporaneous records of an account of an accident that support the stated position.

Date: 5 October 2017

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.