Australia: Insurers take heart: Court of Appeal scrutinises unjustly dismissed evidence

Last Updated: 6 March 2011
Article by Gerry Tzortzatos

Judgment date: 17 February 2011

Nominal Defendant v Saleh [2011] NSWCA 16

Court of Appeal of New South Wales 1

In Brief

  • A court must give due consideration to each parties' evidence and not dismiss it off hand.
  • Where a court is likely to completely reject a party's expert evidence it must ensure the party has had an opportunity to address the cause of the rejection.


The claimant was injured in an accident on 6 June 2000. He alleged the accident occurred because an unidentified vehicle merged lanes in front of his vehicle, hitting it and causing him to lose control and collide with a power pole. The claimant had no recollection of the accident as a result of his injuries. He relied on the evidence of his passenger. The insurer relied on the evidence of two witnesses who were driving behind the claimant immediately prior to the accident. The claimant was charged by Police with negligent driving.

The insurer defended the proceedings on the following grounds:

  1. It disputed the assertion that an unidentified motor vehicle was involved in the accident.
  2. In the event that an unidentified motor vehicle was involved, it asserted the respondent had failed to establish that he had conducted "due inquiry and search" to identify the owner and/or driver.
  3. 3. It claimed the accident was caused by the respondent's inappropriate application of the handbrake.
  4. 4. It claimed the respondent was guilty of contributory negligence, in that he was speeding and in applying the handbrake.

The primary judge found in favour of the claimant in all disputed issues regarding liability, contributory negligence and damages. In doing so, the primary judge accepted the evidence of the passenger and rejected the evidence of the other driver as being inaccurate. The primary judge also rejected the evidence of the insurer's expert witness partly on the grounds that the opinion was highly speculative and partly because he considered the evidence the expert relied upon did not accord with his factual findings. He placed little weight on the claimant's expert evidence as he considered it highly speculative. The award of damages exceeded $1.3 m. The insurer appealed the decision.

Court of Appeal

The Court of Appeal found that it was unfair that the primary judge dismissed the evidence of the other drivers on the grounds of several minor inconsistencies (except where it was favourable to the claimant's case) but accepted the evidence of the passenger (despite the fact that it contained several inconsistencies as well). The court stated:

"248. In my view the primary judge's criticisms of the [insurer's] lay witnesses and selective use of their evidence to support the [claimant's] case in the absence of cross-examination or submissions and his inconsistent use of critical parts of [the other drivers'] evidence to support the [claimant's] case demonstrate that, partly by reason of denial of procedural fairness, his preference for the [claimant's] case was not soundly based."

The primary judge rejected the insurer's expert evidence on a number of grounds, including:

  1. The expert relied upon the transcript of the passenger's evidence from the Local court proceedings. The transcript was not tendered to evidence and the primary judge drew a negative inference as to its accuracy.
  2. The primary judge was critical of the expert's assumption regarding where the claimant commenced braking.
  3. The primary judge did not accept the accuracy of a Police sketch upon which the expert relied.
  4. The primary judge was critical of expert's use of photographs of the claimant's vehicle to estimate the speed of the vehicle at impact.

The court noted that none of these issues were put to the expert in cross examination. The court held this amounted to a denial of procedural fairness because:

"24. Where a party is represented the focus will ordinarily be on what should in fairness and justice be made known to the representative. It is not required that the representative be apprised of the judge's views generally, although if the judge is minded to decide the case on a completely different basis from that on which the case is being conducted that should be raised."

The court also found that the rejection of the expert evidence was erroneous on the basis that the primary judge ought to have inquired whether "even though the facts assumed may not correspond 'with complete precision' with the facts established, they [were] 'sufficiently like' the facts established 'to render the opinion of the expert of any value".

Ultimately, the court set aside the primary judge's decision, stating:

"314. The primary judge's approach deprived the appellant of a fair trial and his fact finding miscarried. The [insurer] had an arguable case based on its lay and expert evidence that the [claimant's] version of events should not be accepted. The primary judge's approach to analysing that case and errors in doing so deprived it of the possibility of a successful outcome amounting to a substantial miscarriage of justice."


This case represents a successful appeal against a judgment where the insurer's evidence was not considered in a fair light and the insurer was not afforded an opportunity to address any perceived gaps in its evidence. Insurers should take heart that the Court of Appeal will scrutinise lopsided verdicts which arise when their evidence is unjustly dismissed.

1 Beazley JA, Giles JA and McColl JA

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