Nominal Defendant claims and principles of appellate review

Motor Vehicle Directions

Two recent decisions of the Court of Appeal concern claims where the very involvement of an unidentified vehicle has been at issue. As you can see, different results were achieved in each case.

Nominal Defendant v Rooskov [2012] NSWCA 43

On 20 March 2012, the Court of Appeal dismissed the Nominal Defendant’s Appeal against an award of substantial damages to a plaintiff cyclist who claimed an unidentified vehicle struck him from behind.


The plaintiff alleged he was ‘struck from behind by an unidentified motor vehicle which forced him off the road and into a ditch’ while riding his bike in Helensburgh in May 2005. He had not been wearing a helmet at the time. He alleged he suffered injuries including a head injury, but his main complaints stemmed from an alleged back injury.

The plaintiff made early complaint that he had been hit by a car, but also gave other accounts which included that he’d simply fallen from his bike, and that he didn’t have a good recollection of the incident. His notebook statement to police was to the following effect:

‘I remember a car was coming the other way a few seconds in front. I remember a car coming from behind me. This car locked its brakes while it was behind me. I thought I was going to get hit. I don’t no [sic] wether [sic] it hit me but I remember trying to get [off?] the side of the road. I thought it was going to hit me. I don’t remember much after that.’

The plaintiff was taken to Wollongong Hospital and clinical notes recorded the plaintiff suffered a loss of consciousness after the accident, and post traumatic amnesia (PTA) testing was arranged, with hospital staff recording that the plaintiff continued to be vague about the details of the accident for the next five days. There was a suggestion he was withdrawing from alcohol during his period of hospitalisation.

The COPS report outlined that the Plaintiff admitted consuming around 6 schooners of beer during the afternoon before the collision and he told hospital staff he could not recollect how the collision occurred. The investigating police officer noted a set of skid marks at the scene, but did not consider them fresh. He examined the plaintiff’s bicycle and concluded it showed no sign of damage indicating a rear end collision with a vehicle. The officer concluded that based on the lack of physical evidence it was ‘highly doubtful’ the accident occurred as the plaintiff alleged.

Liability was denied, and the issues were whether there was an unidentified vehicle at all, and if so, whether its driver was at fault.

Pharmacologist Dr Starmer reported that at the time of the accident, the plaintiff’s blood alcohol concentration was likely in the range of 0.196 – 0.221g/100ml, and quoted research which indicate that an inebriated cyclist (> 0.1g/100ml) was at least ten times more likely to suffer injury than a sober cyclist.

There was conflicting medical evidence about whether the plaintiff’s injuries were consistent with him having fallen from the bike, an issue of particular importance given the plaintiff’s level of intoxication. The treating neurosurgeon would not have expected such serious injury from a mere fall, whereas the plaintiff’s biomedical engineer Mr Griffiths considered the injuries could have occurred from a simply fall following a loss of control of the bike.

The trial judge (McLoughlin DCJ) was persuaded by the consistency of the contemporaneous evidence about the involvement of a motor vehicle, and held its driver had been negligent in colliding with the plaintiff’s bike. He awarded the plaintiff just under $560,000 after a 5% reduction for contributory negligence.

Court of Appeal’s decision

The Nominal Defendant appealed the liability finding, and in the alternative argued that the assessment of contributory negligence should have been 40%.

The Court of Appeal made some important observations in relation to Appellant Review Principles, and their distillation is instructive:

  • An appellate court is entitled, and required, to alter a finding of a trial judge if ‘… making proper allowance for the advantages of the trial judge, they conclude that an error has been shown …’
  • Appealing against a finding which is influenced by the trial judge’s impression of a witness (‘the subtle influence of demeanor’) is particularly difficult. If the judge has used, and there is no basis for saying that he or she has ‘palpably misused’ the advantage he or she has from seeing the witnesses, the appeal court will not intervene
  • There are ‘natural limitations’ on an appellate court that proceeds wholly or substantially on the documentary record of the trial, and the Appellate court’s obligation to review can only be carried out within those natural limitations. The inevitable advantage of a trial judge over an appellate court is one of the ‘natural limitations’ on the ability of an appeal court to be satisfied that the trial judge has erred
  • In relation to contributory negligence, the question of apportionment is a finding upon a question of proportion, of balance and of weighing different considerations. The Court of Appeal confirmed that a finding of contributory negligence by a trial judge, ‘is not reviewed lightly’.

The Nominal Defendant criticised many of the trial judge’s findings, including the fact that he did not accept the only expert evidence before him (from the investigating police officer) which was to the effect that the skid marks observed were not fresh. The Court of Appeal stated that even if the evidence in a case contains only one opinion expressed by an expert on a particular topic, it can still be open to a judge not to accept that opinion.

The trial judge was required to weigh other evidence against the police officer’s opinion, including the proximity of the skid marks to the place where the plaintiff went off the road, and the evidence about how their direction was consistent with the account of the accident that the plaintiff gave. His Honour’s approach had been correct.

In relation to contributory negligence, the Court of Appeal noted that while there was a mandatory finding of contributory negligence for the plaintiff’s failure to wear a helmet, his head injury formed only a minor part of the claim for damages. His main problems related to his back pain (something he would have sustained whether wearing a helmet or not), and it was his back problems which formed the basis of the award of damages for economic loss. With respect to intoxication, the court said that:

‘if there is any evidence to indicate the plaintiff should have been aware of the approach of the vehicle earlier than what he was, or could have responded in any other way than being forced from the roadway by the contact with the motor vehicle, then there would be a very strong case for a substantial finding of contributory negligence against the Plaintiff.’

The defendant had the onus of proof and failed to prove that the plaintiff’s intoxication contributed to his injuries. The trial judge’s discretion in relation to determining contributory negligence had not miscarried.

Authored by Nili Hali, Lawyer, Sydney.

Nominal Defendant v McLennan [2012] NSWCA 148

In this decision handed down on 18 May (a couple of months after Roostov), in a claim again involving a contentious allegation that a plaintiff had been hit by an unidentified motor vehicle, the Court of Appeal overturned the primary judge’s decision.

Charlie Williams, partner in our Sydney office, acted for the Nominal Defendant.


In McLennan, the plaintiff alleged he had been struck in Holsworthy train station car park by an unidentified vehicle prior to 5am on a weekday, and sustained serious injury, including a head injury, which rendered him unable to rise from the ground to seek assistance for about four hours. Although there must have been many commuters in the carpark in that period on a weekday morning, not one came to the plaintiff’s aid, or summoned medical assistance for him.

As in Rostoov, there was conflicting evidence about whether the plaintiff’s injuries were consistent with him being struck from behind by a motor vehicle. An alternative theory was that he may have been assaulted (something made more likely, the Nominal Defendant contended, because the plaintiff had been receiving threats before the accident).

Although his GP initially recorded that the plaintiff had no recollection of being hit from behind and sustaining his injuries, the plaintiff later claimed to remember hearing a car’s engine revving, and seeing some headlights behind him, and he asked the Court to infer that it was this vehicle which had struck him.

The Nominal Defendant relied on evidence from Professor Paul Spira, neurologist, that it was unlikely the plaintiff could have a true memory of the events in the seconds before his injury, considering he had sustained a head injury associated with an extended period of unconsciousness, and that in addition to being unable to remember events in a period after the incident (post traumatic amnesia), the plaintiff would have experienced a period of amnesia before the incident (retrograde amnesia).

In addition to challenging the truth of the plaintiff’s evidence about what he remembered on the morning he was injured, there were many other challenges to the plaintiff’s credit. The trial judge (Levy DCJ) observed that:

‘almost every aspect of the plaintiff’s claim was contested, including details of his pre-injury health and background situation, the factual and liability circumstances of his claimed injury, the extent of the claimed disabilities, as well as numerous quantum issues ….’

The trial judge found that the plaintiff had been prepared to provide misleading information to gain financial advantage (e.g. in prior workers compensation claims, and in dealings with the tax office and the Department of Housing), and this cast doubt on his credibility. The Nominal Defendant argued that because of all the successful challenges it made to the plaintiff’s credit, the trial judge ought not to believe the plaintiff about how the accident happened, and that as a result his claim should fail.

However, Levy DCJ still accepted the plaintiff’s version of the accident, upheld his claim and dismissed the Nominal Defendant’s complaint that the plaintiff hadn’t satisfied the requirement of due enquiry and search. He awarded damages of almost $645,000.

Court of Appeal’s Decision

In a majority decision, McColl JA and Macfarlan JA (Beazley JA dissenting) upheld the Nominal Defendant’s appeal, and remitted the matter to the District Court for retrial. The majority held that the trial judge failed to deal adequately with inconsistencies in the evidence and medical opinions, and he also erroneously substituted own opinion about some of the medical issues for the evidence he had from medical experts.

In relation to the crucial credit issues, and the trial judge’s acceptance of the plaintiff’s version of how he came to be injured, McColl JA observed that:

‘the primary judge’s conclusion that the (plaintiff) had, in substance, lied on many occasions over a period which spanned 12 or so years, including the period of the incident, to secure financial advantage, was in conflict with his conclusion … that the (plaintiff’s) ‘early’ consistent accounts of the incident were ‘credible and supportive of the inference that he was struck by a vehicle’. The plaintiff’s propensity to lie about such matters had to be taken into account in determining why the three documents the primary judge relied upon should be accepted. Merely to say the documents were ‘early’ and ‘consistent’ begged the question as to whether they were any more credible than the documents in respect of which the (plaintiff) had been found to have engaged in deceptive conduct. In my view the (Nominal Defendant) has established that the primary judge failed to use or palpably misused his advantage as a trial judge in finding in the (plaintiff’s) favour.’

In the result, the majority held that in relation to the mechanism of the plaintiff’s injury, it was equally probable he had been injured through an assault, and the plaintiff hadn’t discharged his onus of proof to justify the trial judge’s finding that he was injured by the negligent driving of a motor vehicle.  Had it been relevant to disposition of the appeal, McColl JA would not necessarily have endorsed the trial judge’s finding that the plaintiff had satisfied the requirements of due enquiry and search.

Her Honour observed:

‘it is not apparent why, should it be found at a new trial, that the (plaintiff) was of the view around the time he was injured that he may have been assaulted – even by use of a vehicle, that he was not required to inform the police of that view in order to discharge his due search and inquiry burden under s34 of the MAC Act. Contrary to the primary judge’s conclusion … it is not apparent that such a notification would have been futile. The plaintiff was able to identify those who had threatened him. An inquiry may not … have elicited a confession, but it may have led to the identification of a vehicle exhibiting signs of having struck the (plaintiff)’.

Authored by Judith Waldock, Partner, Sydney.

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