Guest v The Nominal Defendant

The appellant, Mr Guest, sustained injuries in circumstances he could not recall due to partial amnesia. He alleged he had been struck by a motor vehicle and brought proceedings against the Nominal Defendant. The trial judge, faced with two alternative expert theories to explain the appellant's injuries, declined to accept either and dismissed the claim. The appellant appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether an appellate court could overturn a trial judge's decision when that decision was based on the conflicting views of expert witnesses, and whether a trial judge was entitled to reject both expert theories presented. The court also considered whether a driver's failure to stop after an accident constituted an admission by conduct that would bind the Nominal Defendant.

The Court of Appeal affirmed the principles established in *Rhesa Shipping Co SA v Edmunds* ("The Popi M"), holding that an appellate court should be slow to overturn a trial judge's findings of fact, particularly where those findings involve the determination of probabilities arising from conflicting expert evidence. The court noted that the trial judge's task was to determine the probabilities and that it was open to the judge to find that neither expert theory was sufficiently probable to establish the appellant's case. The court found no error in the trial judge's assessment of the evidence and the application of the relevant legal principles.

The appeal was dismissed with costs.