Australia: Case Note: Petracho v Griffiths [2007] NSWCA 302 26 October 2007

Last Updated: 20 November 2007
Article by Peter Hunt

In Brief

  • When alleging contributory negligence, based upon the failure to wear a seatbelt, the onus is on the Defendant to establish that a seatbelt was not worn.
  • Where only one party has obtained an expert’s report on an issue, the Court is not obliged to accept that expert’s opinion.
  • When giving expert evidence, an expert witness is required to be objective and take into account anomalies in the case which may support a different conclusion.


The NSW Court of Appeal handed down its decision in Petracho v Griffiths on 26 October 2007. The decision concerned an appeal by the Defendant from a decision by Murrell DCJ, refusing to make any reduction for contributory negligence. The Defendant argued at first instance that the Plaintiff contributed to his injuries because he had failed to wear a seatbelt.

Judge Murrell ultimately found that the Defendant had failed to establish that the Plaintiff was not wearing a seatbelt at the time of the accident.

The Plaintiff sustained a major extensive frontal skull fracture in the accident, with part of his brain being forced out through the open wound. He was awarded over $2 million.

In alleging that the Plaintiff was not wearing a seatbelt at the time of the accident, the Defendant relied upon:

  • Conflicting statements by the Plaintiff as to whether he was wearing a seatbelt,
  • Evidence from a Police Officer that there were no load marks to the seatbelt, and
  • Expert evidence that the Plaintiff’s severe head injury was consistent with not having worn a seatbelt.

At first instance, Murrell DCJ concluded, as follows, on the seatbelt issue:

"Undoubtedly, [the Plaintiff] believes that he was wearing a seatbelt at the time of the accident. The length and circumstances of the period between the accident and when [the Plaintiff] told ambulance officers that he was wearing a seatbelt was such that reconstruction is most unlikely. The driver did not give evidence, although it was her statutory and common sense responsibility to ascertain whether [the Plaintiff] was wearing a seatbelt. I infer that the driver could not contradict [the Plaintiff’s] evidence. While the scientific evidence supports the hypothesis that [the Plaintiff] was not wearing a seatbelt, disregarding [the Plaintiff’s] evidence, the only certainty is that he struck his forehead on something directly in front of it. No one knows the direction of [the Plaintiff’s] gaze immediately prior to the impact. No one can identify the object which he hit, its proximity to his torso, or the body motion which brought [the Plaintiff’s] head into contact with that object. Consequently, I am not satisfied that [the Plaintiff] failed to wear a seatbelt."

The Defendant appealed from this finding.

Court of Appeal

The leading Judgment in the Court of Appeal was delivered by McColl JA, with whom Beazley JA agreed. Justice Basten delivered separate reasons which, essentially, concurred with those delivered by McColl JA.

At the outset, McColl JA confirmed that the onus was on the Defendant to establish the defence under s 138:

"56 The appellant accepted that she bore the burden of proving that the respondent was not wearing a seatbelt for the purposes of s 138 of the Motor Accidents Compensation Act. She sought to discharge that burden essentially by relying on the expert evidence and the position of the respondent’s injury and attacking the respondent’s contemporaneous statements as unreliable and his evidence at trial as a reconstruction."

Whilst the Plaintiff, himself, relied upon no expert evidence, McColl JA noted that it did not follow that the Court was bound to accept the Defendant’s expert’s opinion:

"57. However the expert evidence depended upon the primary facts. It was incumbent upon the primary judge, as on this Court conducting its re-hearing function, to assess the opinions upon which the appellant relied independently. Even though the respondent called no expert evidence, neither the primary judge, or this Court, was obliged to accept the appellant’s expert evidence: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (at [68], [89]) per Heydon JA."

Ultimately, McColl JA agreed with Murrell DCJ that the Defendant had failed to discharge its onus of establishing its defence of contributory negligence due to deficiencies in the evidence upon which the Defendant relied. Specifically, her Honour held:

"60 In my view [the Senior Constable’s] evidence was severely compromised by what appears to have been a superficial inspection of only one aspect of the seatbelt and the formation of his opinion without any regard to [the Plaintiff’s] position in the car immediately prior to impact. It did not constitute evidence that [the Plaintiff] was not wearing his seatbelt.

"61 [The Defendant’s expert] evidence was, in my opinion, compromised by its failure to have regard to all the relevant facts, including the inconsistent injury patterns. Once [the Senior Constable’s] opinion about his inspection of the seatbelt was compromised, one of the important bases of [the Defendant’s expert’s] opinion was removed.

"62 Further the value of [the Defendant’s expert’s] opinion was, in my view, compromised by anomalous aspects of the accident to which he failed to have regard in his report and whose significance, it was apparent, he was reluctant to concede in cross-examination."

The anomalies referred to by McColl JA – to which the Defendant’s expert failed to have regard – included the absence of any injury to the Defendant, who was in the most dangerous part of the vehicle and was not wearing a seatbelt, together with the absence of any physical injuries to the Plaintiff, other than his severe head injury.

Indeed, McColl JA was critical of the Defendant’s expert for not taking an objective approach to the preparation of his report:

"67 This Court is obliged to take all the evidence into account in exercising its re-hearing function. It is also obliged to take into account that [the Defendant’s expert’s] report failed to come to grips with the inconsistent injury patterns, not only in relation to the respondent, but also in relation to the appellant.

"68 In my view, [the Defendant’s expert’s]’ failure to include in his report the anomalies to which I have referred, and his response in cross-examination that he was looking at whether "this head injury [could] have occurred to a restrained occupant in this crash", suggest that he failed to take an objective approach to his task."

Given these findings, the Court of Appeal dismissed the Appeal.

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.

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