Nominal Defendant v Dowedeit

The appeal concerned a claim for damages under the *Motor Accidents Compensation Act 1999* (NSW) brought by the respondent against the Nominal Defendant. The respondent had sustained serious injuries and was found lying on a footpath. The central dispute was whether these injuries were caused by a collision with a motor vehicle, as found by the primary judge, or by a fall from a balcony. The Nominal Defendant challenged the primary judge's factual findings regarding the respondent's position on the footpath, the likelihood of a motor vehicle collision, and the respondent's contemporaneous account of his movements.

The court was required to determine whether the primary judge erred in finding that a collision with a motor vehicle was the most probable cause of the respondent's injuries, given the competing witness evidence and police photographs. Further, the court had to consider whether the primary judge was correct in accepting the respondent's belief that he was hit by a car, and whether the primary judge was justified in finding the expert evidence to be of little assistance. The court also had to review the primary judge's finding of contributory negligence and the assessment of a 50% reduction in damages, considering whether this assessment was manifestly inadequate or excessive in light of the limited information available about the circumstances of the accident.

The court dismissed the appeal and the cross-appeal. The judges found no error in the primary judge's factual findings regarding the cause of the respondent's injuries, accepting that the primary judge had properly considered the available evidence, including witness statements, expert opinions, and the nature of the injuries. The court upheld the primary judge's assessment of contributory negligence, concluding that the 50% reduction was not manifestly inadequate or excessive, given the respondent's failure to look and the limited evidence concerning the accident's circumstances. The appellant was ordered to pay 90% of the respondent's costs in the Court of Appeal.