Petracho v Daniel John Griffiths by his tutor Barbara Griffiths

The appeal concerned a claim for damages arising from a motor vehicle accident. The plaintiff, Mr. Petracho, had sued the defendant, Mr. Griffiths, for injuries sustained in the collision. The primary judge had found the defendant liable for the accident but had also considered whether the plaintiff had been contributorily negligent by failing to wear a seatbelt. The defendant appealed the primary judge's decision, arguing that the plaintiff had indeed failed to wear a seatbelt and that this failure constituted contributory negligence.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the defendant had not discharged the onus of proving the plaintiff's failure to wear a seatbelt, and whether the primary judge was obliged to accept the defendant's expert opinion evidence on this matter in the absence of contrary expert evidence from the plaintiff. The court also considered whether the expert evidence presented by the defendant incontrovertibly established that the plaintiff was not wearing a seatbelt.

The Court of Appeal affirmed the primary judge's findings. It held that the onus rested on the defendant to prove that the plaintiff was not wearing a seatbelt, as required by section 138 of the *Motor Accidents Compensation Act 1999* (NSW). The court found that the defendant's expert evidence, while presented, did not discharge this onus to the requisite standard. The weight to be given to expert evidence, and indeed all evidence, was a matter for the primary judge's assessment, and the absence of expert evidence from the plaintiff did not compel the primary judge to accept the defendant's expert opinion. The expert evidence did not establish incontrovertibly that the plaintiff was not wearing a seatbelt.

Consequently, the appeal was dismissed with costs.