Nominal Defendant v Ismail

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).