Australia: The Case Of The Flying Tissue Box – "Zurich Australian Insurance Limited v Raman"; "Gyimah v Mackay [2009] NSWCA" – The Dangers Of Unsafe Evidence

Last Updated: 2 September 2009

A recent Court of Appeal decision examined, amongst other things, whether the trial judge wrongly placed significant weight on photographic evidence of tissues and a tissue box in a taxi that was involved in an incident with a passenger.

The Court of Appeal decision in Zurich Australian Insurance Limited v Raman; Gyimah v Mackay [2009] NSWCA 221 highlights the dangers of a Court accepting expert evidence purely based on facts given by lay witnesses without any independent analysis and drawing unsafe inferences when faced with entirely different versions of the facts.


On 8 June 2003 Andrew Mackay was seriously injured in a motor vehicle incident involving a taxi owned by Foster Gyimah.  Mr Mackay brought proceedings in the District Court for damages alleging that Mr Gyimah's negligent driving caused his injuries.

Due to serious brain damage Mr Mackay was unable to recall what occurred.  However, he relied on his three friends who were present at the time of the incident.  In summary, the three witnesses gave evidence of entering the taxi at about 5.30am in the city and being told to leave the vehicle at a bus stop at Neutral Bay.  They asserted that, after the four men left the vehicle, Mr Gyimah suddenly reversed his taxi which struck the pavement.  They then noticed Mr Mackay lying injured on the ground and observed the bus stop pole had fallen onto the pavement.  There was no dispute that the rear of the taxi struck the bus stop pole.  Dr McIntosh, an associate professor in biomechanics, expressed the opinion that the pole had fallen on Mr Mackay's head and caused his injuries.

On the other hand, Mr Gyimah asserted that three of the four men got out of the taxi and one remained in the front seat.  One of the other men lent through the driver's window and attempted to strangle him.  At the same time, Mr Mackay and the others climbed on to the boot where they began to bounce about.  Fearing for his life, Mr Gyimah then attempted to drive away but was prevented by the passenger.  According to Mr Gyimah, a struggle ensued which led to the gear lever being put into reverse.  That is when the taxi jumped the curb and struck the pole.  Mr Bailey, a chemical and bio-medical engineer, was of the opinion that Mr Mackay was thrown backwards when the taxi reversed, the back of his head striking the aerial and he was thrown from the boot where he fell on his upper forehead.

The Tissue Box

At first instance, Nield DCJ found in favour of Mr Mackay and essentially accepted Mr Mackay's witnesses and rejected the evidence of Mr Gyimah and Mr Bailey.  Damages were assessed in the amount of $1,771,879.65.

His Honour made two important findings.

  1. That Mr Gyimah had deliberately and intentionally spread the tissues on the front passenger seat after the passenger had left the taxi so as to support what he told the taxi operator.  This piece of "objective evidence" undermined the evidence if the defendant according to Nield DCJ
  2. That Mr Gyimah failed to complain to the operator that one of his passengers had interefered with his driving of his taxi.  This further undermined Mr Gyimah's evidence.

Nield DCJ did not accept ten pieces of evidence that Mr Gyimah had given and by inference these findings supported his rejection of Mr Gyimah's evidence as a whole.  His Honour also rejected evidence from a former employee of Zurich who gave evidence of having a conversation with the passenger.

In relation to the experts, Nield DCJ accepted Dr McIntosh's evidence and rejected Mr Bailey's.  His Honour's acceptance of Mr Mackay's friends resulted in the acceptance of Dr McIntosh's conclusions as to the cause of the incident.

Thrown Or Scattered?

Mr Gyimah's appeal fell into the following four categories.

  1. The trial judge wrongly preferred the expert opinion of Dr McIntosh to that of Mr Bailey
  2. The trial judge wrongly attributed significant weight to two pieces of evidence (these being the tissues and the tissue box on the front seat and the radio transcripts)
  3. The trial judge wrongly refused to accept the evidence of the former Zurich employee
  4. The trial judge did not adequately deal with the credibility of the lay witnesses.

Justice Ipp (with whom McColl JA and Handley AJA agreed) delivered the main judgment.  His Honour outlined evidence of a prolonged period of drinking by Mr Mackay and his friends prior to the incident which the trial judge did not refer to in his judgment.  His Honour addressed the competing versions of events and outlined his interpretation of the objective facts.  Justice Ipp was of the opinion that there was a body of evidence that confirmed Mr Gyimah's account. 

In relation to the expert evidence, Justice Ipp highlighted two main criticisms made on behalf of Mr Gyimah of the theory that the bus stop pole struck Mr Mackay on the head.  Significantly, the trial judge made no mention of this in the judgment.  The issues of whether there was blood, human tissue and hair on the pole and, if not, the significance of the absence was critical to whether Dr McIntosh should have been accepted.  The trial judge made no findings in this regard and, according to Justice Ipp, appeared not to have applied his mind to these questions, which was a serious error.

According to Justice Ipp, it was incumbent on the trial judge to subject the two experts to rational analysis to determine whether one expert should be preferred and to make appropriate findings.  The trial judge's approach was fundamentally erroneous in resolving the difference between experts by holding firstly that he accepted Mr Mackay's three friends and secondly that Dr McIntosh's opinion explained how Mr Mackay was injured in accordance with that version.   His Honour considered that the trial should have proceeded as follows.

"Of course, a judge may discount the views of an expert because of a finding that the assumptions the expert made were erroneous.  But it is a different matter in a case such as the present, where the accuracy of the assumptions is dependent, significantly, on which expert opinion is correct.  His Honour did not regard the credibility of Dr McIntosh as differing from that of Mr Bailey such as to be a reason for preferring Dr McIntosh.  Thus, the difference between the experts should have been resolved by addressing, properly, the merits of their evidence by way of rational analysis.  Nothing in the way the case was presented, or in his Honour's reasons themselves, relieved him of "the duties of analysis and the provision of reasons to demonstrate and explain that such analysis occurred".

In relation to the second category, Justice Ipp reviewed the evidence concerning the tissue and tissue box and considered it was quite unsafe of the trial judge to draw the inference that he did.  Justice Ipp was of the view that the position of the tissues was not inconsistent with the tissues (or box) being thrown towards the front passenger from the rear passengers.  The rear passengers were indulging in horseplay and the tissues could have been thrown over the front passenger's head ending up as seen on the photographs.

The trial judge placed significance on Mr Gyimah's statement to the radio operator that he had moved his taxi.  After setting out the evidence on this point, Justice Ipp was of the opinion that Mr Gyimah's statement did not undermine his evidence and the trial judge erred in this regard.  According to Justice Ipp, no adverse inference should be drawn against Mr Gyimah for failing to mention to the operator that the passenger had interfered with his driving and the errors in relation to the radio calls significantly influenced the trial judge in the credibility findings he made.

With respect to the third ground, Justice Ipp came to the view that the reasons the trial judge gave for not accepting the former employee's evidence were without substance as the trial judge did not embark on a rational analysis of the witnesses.  As a consequence, his Honour found that the trial judge's finding on this issue was unsafe.

His Honour addressed the fourth category and commented that demeanor alone, particularly in these circumstances, was not a satisfactory ground for rejecting Mr Gyimah's testimony.  There were several pieces of objective evidence that had to be weighed as well.  Having said that, his Honour noted that, in principle, it is open to a judge to adopt the approach of the trial judge (i.e. a demeanour-based finding).  However, Mr Gyimah by and large gave consistent evidence which was not mentioned by the trial judge.

Justice Ipp was of the opinion that the trial judge's findings involved a failure to use, or a misuse, of his advantage as trial judge.  The appeal was allowed and a retrial ordered.

Getting The Evidence Right

The decision highlights the need for judges to properly analyse the evidence from competing experts regardless of the lay evidence.  While lay evidence is important in establishing the factual basis upon which an expert's findings are based, a judge should not solely base his/her decision to accept one expert in preference to another without objectively analysing the experts' opinion and setting out the reasons for their decision.

For practitioners, the decision is a timely reminder for experts to be instructed to properly set out the assumptions underlying (without prejudging the lay evidence), and the basis for, their opinions.




Ray Giblett

t (02) 9931 4833


Con Kakakios

t (02) 9931 4863


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