Judgment date: 29 July 2011. Tran v Nominal Defendant
 NSWCA 220. Court of Appeal of New South
Where a tribunal of first instance accepts the evidence in
favour of the party upon whom the burden of proof does not lie, the
determination should not be disturbed on appeal unless it was based
on a clearly erroneous principle.
The claimant was involved in an accident on 5 July 2006 when his
motorcycle slewed across the road colliding with a signpost and
then a power pole. He alleged an unidentified vehicle forced him
off the road, causing the accident, an account that he had
maintained since he first described the accident to witnesses
immediately after it occurred. The insurer called 2 eye witnesses
who gave sometimes conflicting evidence, but who agreed that the
claimant fell from the motorcycle because he lost control. At first
instance the trial judge was not satisfied that the claimant was
injured as the result of the negligence of an unidentified vehicle.
He found damages would have been in excess of $900,000 with no
contributory negligence had negligence been established against the
The claimant appealed the decision on the grounds that the trial
judge erred in preferring the evidence of the independent witnesses
over the balance of the evidence.
Court of Appeal
In considering the evidence of the independent witnesses, the
Court of Appeal noted:
They both stated the claimant was travelling in the middle lane
prior to the accident.
They both stated the claimant pulled out into the kerbside
lane, presumably to overtake a slower vehicle in front of him.
Neither of them saw any vehicle merge into the lane in front of
They both observed that the claimant lost control of the
They both heard the claimant state that he was cut off by
another vehicle at the scene of the accident.
They were not consistent with each other as to the number and
location of other vehicles on the road at the time of the
Having considered the above evidence, the Court of Appeal was
unable to locate any error in the trial judge's
The Court of Appeal noted the decision in Dearman v
Dearman2 where the High Court stated as
"If the tribunal of first
instance having seen and heard the witnesses comes to a conclusion
in favour of the party upon whom the burden of proof does not lie
it is almost hopeless to try to induce a Court of Appeal to
interfere with that finding unless it has clearly proceeded upon a
As such, the Court of Appeal dismissed the appeal.
This case demonstrates the difficulty claimants face when
bringing claims against the Nominal Defendant. It is not sufficient
that the claimant's evidence of the accident is consistent with
their earliest account of same. Conflicting evidence, even evidence
which is not entirely consistent, may be sufficient to cause the
claimant to fall short of discharging his or her burden of
This highlights how important it is for insurers to conduct
factual investigations and obtain accounts of the accident from all
1. McColl JA, Campbell JA and Sackville AJA
2.  HCA 84
Ranked No 1 - Australia's fastest growing law firm'
(Legal Partnership Survey, The Australian July 2010)
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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”
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).