Inconsistent evidence results in judgment for the Nominal Defendant

03 March 2020

A plaintiff who alleged he was struck by a vehicle gave inconsistent evidence about the circumstances of the incident, the mechanism of injury, and his ongoing impairment, thereby failing to establish breach and causation.

In issue

  • Whether the plaintiff’s oral evidence was inconsistent with the factual circumstances and mechanism of injury established by medical records and the defendant’s witness and expert evidence
  • Whether the Court could be satisfied on the balance of probabilities that the incident occurred as alleged
  • Whether the plaintiff’s injuries were as alleged and attributable to the incident

The background

The plaintiff, Mr Aiman Elkodat, sought damages from the Nominal Defendant under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) for personal injuries suffered by him which were alleged to have occurred as a result of the negligence of a driver of an unidentified vehicle which struck him whilst walking across a pedestrian crossing on 3 August 2015. The plaintiff alleged he was with his friend Mr Savvas at the time of the incident. The plaintiff did not reach the impairment threshold of 10% under section 131 of the Act and could not be awarded damages for non-economic loss.

The plaintiff alleged that he was struck by the vehicle on his left hand side and was thrown up onto the bonnet of the vehicle and into the windscreen. The driver of the vehicle did not stop to render assistance and drove off.

The Nominal Defendant admitted that the plaintiff had undertaken due enquiry and search in relation to the unidentified vehicle. However it argued that the plaintiff had not established his case to the required standard.

The decision at trial

The defendant denied the allegations in the plaintiff’s Statement of Claim and specifically denied that an unidentified vehicle collided with the plaintiff as alleged. The defendant relied on inconsistencies between the plaintiff’s written and oral testimony and the evidence of other lay and expert witnesses, as well inconsistencies in the medical evidence in support of its defence of the claim. The Nominal Defendant also relied on the decision in The Nominal Defendant v Cordin [2019] NSWCA 85, to argue that it was in a position of disadvantage as it did not know how the incident actually occurred.

After considering the evidence, the court held that the plaintiff had not established on the balance of probabilities that the accident occurred as alleged including because: of the inconsistences between the signed statements of the plaintiff and his oral evidence; the plaintiff’s witness, Mr Savvas gave significantly inconsistent evidence about the light at the time of the accident; the evidence of the time of the accident was inconsistent with the hospital and other records; the objective evidence that there was glass on the plaintiff after the accident including in his mouth was inconsistent with the mechanism of injury/location of the incident as alleged by the plaintiff; and also because the plaintiff altered his version of the accident from that in the Statement of Claim and in his latter signed statements.

Although it was not strictly necessary to consider damages given the finding that the Nominal Defendant was not liable, the Court noted that it would have awarded a total of $40,974.60 for past & future economic loss, and past & future treatment expenses. In making no allowance for future economic loss, the court specifically noted the plaintiff was currently fit to engage in his pre-accident employment. Any inability to do so was not related to the injuries in the alleged accident and due to non-accident related health problems.

Implications for you

This case highlights the importance of identifying inconsistencies in a plaintiff’s evidence regarding the circumstances of an alleged motor vehicle incident. This can be done by closely examining statements of the plaintiff in their statement of claim and oral evidence and contrasting these with the evidence given to experts, liability investigators, and during cross-examination.

Elkodat v The Nominal Defendant [2020] NSWDC 14

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