Bek v Fizzell

[2001] NSWCA 357

CITATION:	Bek v Fizzell & Anor [2001] NSWCA 357
FILE NUMBER(S):	CA 40954/00
HEARING DATE(S):	5 October 2001
JUDGMENT DATE:	5 October 2001
PARTIES :	Tarek Bek (Appellant) v Paul Fizzell (First Respondent) AAMI Limited (Second Respondent)
JUDGMENT OF:	Giles JA at 1,12; Davies AJA at 2; Sperling J at 13

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	7123/98
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ

COUNSEL:	A: Mr S Galitsky 1R: In Person 2R: Mr J W Conomos
SOLICITORS:	A: Bechara & Company, Solicitors 1R: For Self 2R: McLachlan Chilton, Solicitors
CATCHWORDS:	Motor vehicle accident - whether appellant or first respondent was driver - whether fraudulent claim
LEGISLATION CITED:	Motor Accidents Act 1988, s 66A
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Vale v Vale [2001] NSWCA 245
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40954/00
DC 7123/98
GILES JA
DAVIES AJA
SPERLING J
FRIDAY, 5 OCTOBER 2001

TAREK BEK v PAUL FIZZELL & ANOR

JUDGMENT

1 GILES JA: We are in a position to deal with the matter now. I will ask Davies AJA to give his reasons.

2 DAVIES AJA: This is an appeal from a judgment of a Judge of the District Court of New South Wales, his Honour Judge R A Rolfe. His Honour dismissed a claim brought by Tarek Bek (“the appellant”) against Paul Fizzell (“the first respondent”), in proceedings in which AAMI Limited (“AAMI”), the second respondent, was joined as the second defendant pursuant to the provisions of s 66A of the Motor Accidents Act, 1988 (“the Act”).

3 In the proceedings before his Honour, the first respondent was not represented and did not give evidence.

4 The issue before his Honour proceeded upon the issue raised in AAMI's defence. The defence in terms alleged that the first respondent was not, as the appellant alleged, the driver of the vehicle and that the claim made was a fraudulent claim.

5 In this appeal, counsel for the appellant, Mr S Galitsky, placed considerable weight upon the principle enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 350, 353 and 363 that a serious allegation such as fraud must be proved by strong and cogent evidence.

6 However, this is not a case where the appellant was entitled to succeed unless AAMI proved fraud by evidence of that type. AAMI was joined pursuant to s 66A of the Act, which enables an insurer to be joined once it has given particulars alleging that the claim has not been made in good faith. If the matter then proceeds, as it did in this case, on the insurance company's defence, the obligation remains on the plaintiff in the proceedings to prove that he was entitled to damages arising out of the negligence of the driver of the vehicle, the third party policy in respect of which the driver held with the insurer.

7 In a recent decision, in Vale v Vale [2001] NSWCA 245, the President, with whom Ipp AJA agreed, said, at para [66]:-

"In a different context, the appellant submitted that s66A did not alter the plaintiff's burden of proof in a motor accident claim. Rather, it was said to be a facilitative provision allowing for the insurer to participate in the case by the calling of witnesses etc ... I accept that submission and that general description of s66A's role."
My own separate reasons, which dealt with s 66A, were to like effect.

8 When s 66A is invoked and the question of liability is raised, the onus is on the plaintiff to establish his or her entitlement to damages and he or she must do that on the ordinary onus of proof.

9 In the present case, there were many factors raised in the evidence before the trial Judge which showed a strong probability that the appellant was the driver and that the first respondent was the passenger. One factor was that the vehicle was used on a daily basis by the appellant as his own vehicle. Another was the evidence concerning the finding of the vehicle in Oxford Street in the early hours of the morning and the driving of it away at that point of time. This scenario was unlikely. Another was the circumstance of the accident itself in which the vehicle veered from its correct side of the road over the median strip and collided with a vehicle driven by Mr Antoniou. That factor itself suggests that it was driven by someone greatly affected by alcohol, as the appellant was at the time. Another was that the appellant and the first respondent hurriedly left the scene of the accident and the vehicle and went first, not to a hospital, but to the appellant’s home. Another factor was that the driver of the other vehicle, Mr Antoniou, identified the appellant as having been in the driver's seat. Another factor was that it was the appellant who was injured and was bleeding and that blood was found on the driver's side of the vehicle. Another was that the trial Judge considered that the appellant was not a truthful witness and that he had a history of ongoing dishonesty and deceit. Another was the first respondent was not called to give evidence.

10 All those factors fully justified the view taken by the trial Judge. Despite what has been put by Mr Galitsky, I see no error in the approach taken by the trial Judge. It appears to me that he approached the issue with considerable care. He took into account the fact that, if he were to find against the appellant, there would be an implication that the claim made was a fraudulent claim. He had regard to that fact and therefore, as I say, dealt with the matter carefully. He examined all aspects of the matter including the appellant’s past history and his past dishonest activities.

11 In my view, no error in the reasons for decision or the final conclusion of the trial Judge has been demonstrated. I would dismiss the appeal with costs.

12 GILES JA: I agree.

13 SPERLING J: I also agree.

14 GILES JA: The order will therefore be that the appeal is dismissed with costs.

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