Bezer v Bassan

[2019] NSWCA 50

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Bezer v Bassan [2019] NSWCA 50
Hearing dates:	31 January and 1 February 2019
Decision date:	21 March 2019
Before:	Macfarlan JA at [1]; Leeming JA at [84]; Payne JA at [138]
Decision:	Appeal dismissed with costs.
Catchwords:	TORTS – negligence – motor vehicle accident –whether fact finding process of primary judge miscarried – segmentation of decision-making process impermissible   COURTS – whether fact finding process of primary judge miscarried – segmentation of decision-making process impermissible
Legislation Cited:	Evidence Act 1995 (NSW), ss 55, 76 Uniform Civil Procedure Rules 2005 (NSW), rr 31.26(4), 51.53
Cases Cited:	Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 Boral Resources (NSW) Pty Ltd v Gangi [2014] NSWCA 287 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Mifsud v Campbell (1991) 21 NSWLR 725 Nguyen v Tran [2018] NSWCA 215; (2018) 86 MVR 16 Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806
Category:	Principal judgment
Parties:	Christopher Bezer (Appellant) Troy Bassan (Respondent)
Representation:	Counsel: D R Campbell SC / D L Del Monte / E E Grotte (Appellant) K P Rewell SC / W M Fitzsimmons (Respondent)   Solicitors: W D Hunt & Associates (Appellant) Hall & Wilcox Lawyers (Respondent)
File Number(s):	CA 2018/177223
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 31 May 2018 Before: Gibb DCJ File Number(s): DC 2015/7036

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant and respondent were involved in a single vehicle motor accident. The appellant claimed damages from the respondent in proceedings commenced in the District Court. The issue in the proceedings below was who of the appellant and the respondent was driving the vehicle at the time of the accident. The appellant and respondent each asserted that the other was the driver. The primary judge found that the appellant was the driver.

The question on appeal was whether the appellant had proved, on the balance of probabilities, that the respondent was the driver of the vehicle when it crashed.

The issues on appeal were:

(1)   Whether the primary judge’s approach to determining who was the driver of the vehicle involved impermissible segmentation of the decision-making process.

(2)   Whether the primary judge erred in admitting parts of a joint expert report that did not record agreement between the experts.

(3)   Whether the primary judge’s findings concerning the credit of the appellant and respondent should be set aside.

(4)   On the respondent’s Notice of Contention, whether the primary judgment could be sustained on the alternative ground that the expert evidence established that the passenger seat belt could only have been worn by the respondent and that the appellant must therefore have been the driver of the vehicle.

The Court