Nominal Defendant v Ismail - [2014] NSWCA 432

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nominal Defendant v Ismail [2014] NSWCA 432
Hearing dates: 13 November 2014
Decision date: 17 December 2014
Before: Basten JA at [1];
Barrett JA at [76];
Emmett JA at [77]
Decision:
(1) Allow the appeal and set aside orders (1) and (2) made in the District Court on 31 March 2014.
(2) Order that there be a retrial of the questions of liability and, if liability is established, contributory negligence.
(3) Dismiss the appellant's motion to allow further evidence on appeal;
(4) Dismiss the cross-appeal.
(5) Order that the respondent and cross-appellant (Ms Ismail) pay the costs of the appellant and cross-respondent (Nominal Defendant) in this Court, including the costs of the motion.
(6) Grant the respondent (Ms Ismail) a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
APPEAL AND NEW TRIAL - order for new trial - findings based on inadmissible evidence - whether unchallenged findings sufficient to determine liability without need for a retrial - inconsistencies between witnesses' account of accident - whether inconsistencies can be resolved by appellate court - opportunity at trial to assess reliability of accounts on the basis of witnesses' oral presentation

DAMAGES - assessment - whether allowance for lost earning capacity inadequate - whether allowance for future domestic assistance inadequate - whether trial judge erred in reduction for vicissitudes

EVIDENCE - admissibility - expert opinion evidence - evidence of traffic engineer that inconsistencies between two witnesses were different perceptions of the same event - whether opinion based wholly or substantially on specialised knowledge of the expert - extent of expert's specialised knowledge - whether expert had any specialised knowledge in psychology - Evidence Act 1995 (NSW), s 79
TORTS - negligence - motor vehicle accident - unidentified vehicle(s) involved in accident - inconsistent accounts as to nature and actions of the unidentified vehicle - trial judge resolved inconsistency by finding there were two vehicles involved - whether evidence sufficient to determine what caused the accident - whether evidence sufficient to find there were two vehicles - whether evidence sufficient to determine the drivers of either of the unidentified vehicles were negligent
Legislation Cited: Civil Liability Act 2002 (NSW), s 15B
Evidence Act 1995 (NSW), ss 76, 79
Motor Accidents Compensation Act 1999 (NSW), ss 34, 126, 141B
Cases Cited: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Texts Cited: Daniel J Simons and Christopher F Chabris, "Gorillas in our midst: sustained inattentional blindness for dynamic events", Perception, 1999,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nominal Defendant v Ismail

Details

AGLC: Nominal Defendant v Ismail [2014] NSWCA 432
Case: [2014] NSWCA 432
Decision Date: 17 December 2014

CaseChat Overview and Summary

This case concerned an appeal by the Nominal Defendant against orders made in the District Court of New South Wales concerning a motor vehicle accident involving an unidentified vehicle. The respondent, Ms Ismail, had been awarded damages. The appeal raised questions about the admissibility of expert evidence, the sufficiency of evidence to establish liability, and the assessment of damages.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in admitting the evidence of a traffic engineer regarding inconsistencies in witness accounts, and whether the evidence was sufficient to establish that the unidentified vehicle(s) caused the accident and that their drivers were negligent. Further issues related to the adequacy of the damages awarded, including allowances for lost earning capacity, future domestic assistance, and the reduction for vicissitudes.

The Court of Appeal found that the trial judge had erred in admitting the expert evidence, as it was not based on specialised knowledge within the meaning of section 79 of the Evidence Act 1995 (NSW). The expert's opinion that inconsistencies between witnesses' accounts represented different perceptions of the same event, without any specialised knowledge in psychology, was not admissible. The Court also determined that the evidence was insufficient to definitively establish the nature of the unidentified vehicle(s) or the cause of the accident, particularly given the inconsistencies in witness testimony that could not be resolved by the appellate court.

Consequently, the Court of Appeal allowed the appeal, setting aside the District Court's orders regarding liability and contributory negligence. A retrial of these issues was ordered. The Nominal Defendant's motion to admit further evidence on appeal was dismissed, as was Ms Ismail's cross-appeal. The Nominal Defendant was ordered to pay Ms Ismail's costs of the appeal, with Ms Ismail granted a certificate under the Suitors' Fund Act 1951 (NSW).

Orders

Orders of the court

(1) Allow the appeal and set aside orders (1) and (2) made in the District Court on 31 March 2014.

(2) Order that there be a retrial of the questions of liability and, if liability is established, contributory negligence.

(3) Dismiss the appellant's motion to allow further evidence on appeal;

(4) Dismiss the cross-appeal.

(5) Order that the respondent and cross-appellant (Ms Ismail) pay the costs of the appellant and cross-respondent (Nominal Defendant) in this Court, including the costs of the motion.

(6) Grant the respondent (Ms Ismail) a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Nominal Defendant v Ismail [2014] NSWCA 432
Hearing dates:	13 November 2014
Decision date:	17 December 2014
Before:	Basten JA at [1]; Barrett JA at [76]; Emmett JA at [77]
Decision:	(1) Allow the appeal and set aside orders (1) and (2) made in the District Court on 31 March 2014. (2) Order that there be a retrial of the questions of liability and, if liability is established, contributory negligence. (3) Dismiss the appellant's motion to allow further evidence on appeal; (4) Dismiss the cross-appeal. (5) Order that the respondent and cross-appellant (Ms Ismail) pay the costs of the appellant and cross-respondent (Nominal Defendant) in this Court, including the costs of the motion. (6) Grant the respondent (Ms Ismail) a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL AND NEW TRIAL - order for new trial - findings based on inadmissible evidence - whether unchallenged findings sufficient to determine liability without need for a retrial - inconsistencies between witnesses' account of accident - whether inconsistencies can be resolved by appellate court - opportunity at trial to assess reliability of accounts on the basis of witnesses' oral presentation DAMAGES - assessment - whether allowance for lost earning capacity inadequate - whether allowance for future domestic assistance inadequate - whether trial judge erred in reduction for vicissitudes EVIDENCE - admissibility - expert opinion evidence - evidence of traffic engineer that inconsistencies between two witnesses were different perceptions of the same event - whether opinion based wholly or substantially on specialised knowledge of the expert - extent of expert's specialised knowledge - whether expert had any specialised knowledge in psychology - Evidence Act 1995 (NSW), s 79 TORTS - negligence - motor vehicle accident - unidentified vehicle(s) involved in accident - inconsistent accounts as to nature and actions of the unidentified vehicle - trial judge resolved inconsistency by finding there were two vehicles involved - whether evidence sufficient to determine what caused the accident - whether evidence sufficient to find there were two vehicles - whether evidence sufficient to determine the drivers of either of the unidentified vehicles were negligent
Legislation Cited:	Civil Liability Act 2002 (NSW), s 15B Evidence Act 1995 (NSW), ss 76, 79 Motor Accidents Compensation Act 1999 (NSW), ss 34, 126, 141B
Cases Cited:	Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Texts Cited:	Daniel J Simons and Christopher F Chabris, "Gorillas in our midst: sustained inattentional blindness for dynamic events", Perception, 1999,…