Judgment date: 29 July 2011. Tran v Nominal Defendant [2011] NSWCA 220. Court of Appeal of New South Wales1

In Brief

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.

Background

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 unidentified vehicle.

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 the claimant.
  • They both observed that the claimant lost control of the motorcycle.
  • 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 accident.

Having considered the above evidence, the Court of Appeal was unable to locate any error in the trial judge's determination.

The Court of Appeal noted the decision in Dearman v Dearman2 where the High Court stated as follows:

"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 wrong principle."

As such, the Court of Appeal dismissed the appeal.

Implications

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 proof.

This highlights how important it is for insurers to conduct factual investigations and obtain accounts of the accident from all available witnesses.

1. McColl JA, Campbell JA and Sackville AJA

2. [1908] HCA 84

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