Australia: Limelight No 77: How much evidence is needed to dislodge the evidence of an otherwise credible plaintiff?

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

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.