Australia: Rejection and acceptance of lay evidence

Curwoods Case Note
Last Updated: 8 October 2012
Article by Jessica Micallef

Lewis v Shimokawa [2012] NSWCA 300

Judgment date: 24 September 2012

Jurisdiction: Court of Appeal1

In Brief

Consistent evidence of a defendant and 3 witnesses in relation to the version of events of a motor vehicle accident, provided under lengthy cross-examination with only minor inconsistencies in detail, should be accepted, particularly where a court has concerns as to the plaintiff's credit.


The accident occurred on 21 November 2003 when the plaintiff drove her vehicle into the rear of a vehicle being driven by Mr McCaw (the first collision). This vehicle also contained his brother and a friend. Shortly after the plaintiff's vehicle collided with the rear of McCaw's vehicle, the defendant's vehicle collided with the rear of the plaintiff's vehicle (the second collision). The defendant's wife was a passenger in his vehicle.

The main issue in dispute was whether the plaintiff was in her vehicle at the time of the second collision. The plaintiff maintained that she did not alight from her vehicle after the first collision. However, Mr McCaw and his friend gave evidence that the plaintiff alighted from her vehicle, as did they, and they were engaged in conversation at the side of the freeway at the time of the second collision. The defendant and his wife also gave evidence that they observed a group of 4 persons, including the plaintiff, standing together by the side of the freeway when the second collision occurred.

Court of Appeal

The matter was initially heard in the District Court, with judgment being entered in favour of the plaintiff. On appeal, that judgment was set aside and the matter was returned to the District Court for a new trial on all the issues. The trial judge subsequently found in favour of the defendant. This decision was also appealed.

On appeal, Justice Hoeben, with Justices Bathurst and McColl in agreement, dismissed the appeal.

Due to the consecutive nature of the 2 motor vehicle accidents, the dispute as to the severity of impact of the first collision was relevant to determine whether the plaintiff's injury was caused by it. In this regard, Hoeben JA determined that the trial judge gave sufficient weight to the evidence, including the evidence of Mr McCaw and his friend that the first collision was minor and they were more concerned with the damage to their vehicle than any injury having been sustained by the plaintiff. Accordingly, weight was given to the plaintiff's evidence produced under cross-examination that, due to her estimation of speed and the distance between her vehicle and Mr McCaw's vehicle immediately before impact, an inference could be drawn that her van stopped abruptly. Further, the trial judge accepted Dr Conrad's evidence that there was no necessary correlation between the severity of an impact and the severity of an injury which followed from it. Hence, the first collision could have caused the plaintiff's injuries.

The trial judge considered the plaintiff's evidence to be unsatisfactory and further, that her demeanour was not impressive. However, Hoeben JA confirmed that her demeanour only made a minor contribution to the determination by the trial judge not to accept her evidence.

The trial judge observed that the plaintiff prevaricated and was evasive in her responses upon cross-examination as to whether she had read the transcript of the previous hearing before giving her evidence. She provided responses which were contradictory and inconsistent with regard to a pre-existing injury to her back which she sustained in July 2001, she failed to provide details of the witnesses, despite being required to do so, in her workers compensation claim form, and she made no mention of the assistance that she was receiving from her partner, in the first trial, despite a large domestic assistance claim being made.

In relation to the evidence of the defendant's witnesses, the trial judge considered that Mr McCaw and his friend had no advantage in giving anything other than truthful evidence and that there had been no relevant contamination of their recollection. Although Mr McCaw and his friend agreed that the plaintiff was standing with them at the time of the impact by the defendant's vehicle, they had her at a different position by reference to her vehicle. The trial judge, with whom Hoeben JA agreed, determined that whilst there were minor inconsistencies in the detail between their accounts of the event, this reinforced, rather than undermined, the credibility of the evidence.

The defendant's wife was cross-examined extensively and the trial judge was very impressed with her as a witness. A complication in her evidence was that an investigator had told her that Mr McCaw and his friend were asserting that the plaintiff was outside her vehicle at the time of the second collision. Further, the investigator interviewed the defendant and his wife together. Hoeben JA considered that the trial judge was mindful of the possibility of contamination of evidence and carefully assessed credibility of the defendant's wife.

The plaintiff sought to rely upon an expert report of Dr Helen Paterson, a lecturer in forensic psychology, regarding the contamination of eyewitness evidence. Hoeben JA considered that the matters addressed in her report were within the common experience of lawyers and judges, and although the trial judge did not specifically refer to the report, he was conscious of the risk of contamination of the witnesses' evidence, which was carefully scrutinised.

The plaintiff submitted that the value of the evidence of the defendant's witnesses was substantially devalued because the defendant did not call any of the investigators. Hoeben JA considered that this ground of appeal had not been made out as the defendant had conceded at trial and on appeal that the conduct of the investigator was inappropriate and that concession was used at trial to cross-examine the defendant and his wife.

Hoeben JA concluded that the trial judge appreciated that it would be astonishing if the recollections of the event by 3 witnesses and the defendant were all incorrect in the same critical detail, namely that they observed the plaintiff standing outside her vehicle at the time of the second collision. The trial judge was entitled to make his assessment of the witnesses and each of them endured a lengthy cross-examination.


It is clear that, in cases where the circumstances of the accident are contested, considerable weight will be given to lay evidence. In particular, the evidence of the plaintiff, with an emphasis on cross-examination, and whether there are issues of credit.

This can influence a judge to determine the weight of such evidence and, provided reasons are given, it is unlikely that a party will succeed in attempting to depart from these findings on appeal.

Inconsistencies in evidence should be considered when determining whether the evidence of a plaintiff, witnesses or the insured driver will be accepted as a whole.


1 Bathurst CJ, McColl and Hoeben JJA

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