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Tran v Nominal Defendant

Tran v Nominal Defendant

Case [2011] NSWCA 220 29 July 2011

Statutory Construction

Negligence & Tort

Evidence

Civil Procedure

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tran v Nominal Defendant [2011] NSWCA 220
Hearing dates: 18 August 2010
Decision date: 29 July 2011
Before: McColl JA at [1]; Campbell JA at [202]; Sackville AJA at [203]
Decision:
Appeal dismissed with costs.
[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:
TORTS - negligence - motorcycle accident - whether unidentified vehicle caused plaintiff's accident

APPEAL - appellate review of findings of fact - whether errors in process of fact-finding - where primary judge rejected plaintiff's version of accident and accepted independent witness' account -whether primary judge's findings glaringly improbable or contrary to compelling inference

EVIDENCE - use of police diagram - whether used impermissibly as direct evidence
EVIDENCE - business record - whether diagram drawn by police officer a "business record" - whether admissible to prove the existence of a fact - ss 59(1) and 68, Evidence Act 1995
Legislation Cited: Evidence Act 1995
Motor Accidents Compensation Act 1999
Police Act 1990
Cases Cited: Angel v Hawkesbury City Council [2008] NSWCA 130
Blacktown City Council v Hocking [2008] NSWCA 144
C Van der Lely NV v Bamfords Ltd [1963] RPC 61
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jackson v Lithgow City Council [2010] NSWCA 136
Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Category: Principal judgment
Parties: An Phan Tran - appellant
Nominal Defendant - defendant
Representation: S Campbell SC with M Maxwell for the appellant
R R Bartlett SC for the respondent
Brydens Law Office - appellant
Lee & Lyons - respondent

File Number(s): CA 2009/298576
Publication restriction: No
Decision under appeal

Citation:

Tran v Nominal Defendant [2009] NSWDC 281

Date of Decision:

2009-09-02 00:00:00

Before:

Johnstone DCJ

File Number(s):

DC 779 of 2008

JUDGMENT

BACKGROUND

Statement of the case

[6]

The primary judgement

[11]

Notice of appeal

[15]

THE TRIAL

[17]

The appellant's version of the accident

[18]

The appellant's accounts to medical practitioners

[31]

Mr Reyes

[45]

Mr Swan

[62]

Constable Attard

[80]

SUBMISSIONS

GROUND 1

A. Appellant's overarching submission: error in the process of fact finding

[94]

B. Constable Attard's evidence

[99]

C. The defendant's witnesses had a clear, uninterrupted view of…

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 Tran v Nominal Defendant

Details

AGLC: Tran v Nominal Defendant [2011] NSWCA 220
Case: [2011] NSWCA 220
Decision Date: 29 July 2011

CaseChat Overview and Summary

The appeal in *Tran v Nominal Defendant* concerned a plaintiff injured in a motorcycle accident who alleged the accident was caused by an unidentified vehicle. The primary judge had rejected the plaintiff's account of the accident and instead accepted the evidence of an independent witness. The plaintiff appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in their findings of fact, specifically in rejecting the plaintiff's version of events and accepting the independent witness's account. The court also considered whether a police diagram, relied upon by the primary judge, had been improperly used as direct evidence and whether it constituted an admissible business record under the *Evidence Act 1995* (NSW).

The Court of Appeal found no error in the primary judge's fact-finding process. It held that the primary judge was entitled to prefer the independent witness's evidence over the plaintiff's, and that the findings were not glaringly improbable or contrary to any compelling inference. The court also determined that the police diagram was not used impermissibly as direct evidence and that, even if it were considered a business record, its admission did not lead to an error of law. Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed with costs.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Tran v Nominal Defendant [2011] NSWCA 220

Most Recent Citation

Hassan v Noa (No 2) [2021] VSC 339

Cases citing this decision · 6 of 6 shown

Hassan v Noa (No 2)
[2021] VSC 339

…think, an artificial distinction not covered by the wording of the section.[4] [4]Ibid [463] (citation omitted). See also Tran v Nominal Defendant (2011) 58 MVR 462 where a diagram drawn by a constable investigating a motor vehicle accident was held to be a business record.…
Holland v City of Botany Bay Council
[2017] NSWSC 1120 Para 85

…There are well known difficulties in the use of photographs to determine issues such as those which arose in this case: Tran v Nominal Defendant [2011] NSWCA 220 at [172].…
Townsend v O'Donnell
[2016] NSWCA 288 Para 52

…at [16]-[18] per curiam; Warren v Gittoes [2009] NSWCA 24 at [54]-[55] (Tobias JA, Hodgson JA and MacFarlan JA agreeing); Tran v Nominal Defendant [2011] NSWCA 220; 58 MVR 462 at [172] (McColl JA, Campbell JA and Sackville AJA agreeing).…
Lord v McMahon
[2015] NSWSC 1619 Para 81

…explicate the evidence or to determine which of the explanations given by witnesses appears to be most worthy of acceptance: Tran v Nominal Defendant [2011] NSWCA 220; 58 MVR 462 at [172]. If it is not clear, for example from photographs what depths or distances are involved, care must be exercised in relying upon…
Port Macquarie Hastings Council v Mooney
[2014] NSWCA 156 Para 1

…It is necessary to bear in mind the warnings often given about the use of photographic evidence. As McColl JA observed in Tran v Nominal Defendant [2011] NSWCA 220; 58 MVR 462 at [172], the prevailing view appears to be that photographs cannot trump testimonial evidence, but rather can be used by the tribunal of fa…
Botany Bay City Council v Latham
[2013] NSWCA 363 Para 1

…e are well known difficulties in the use of photographs to determine such matters: see the cases referred to by McColl JA in Tran v Nominal Defendant [2011] NSWCA 220 at [172]. However, I infer that the difficulty the plaintiff encountered the following day in locating the place where she tripped was the result of…

View all 6 citing cases →

Cases cited in this decision · 11 of 11 shown

Jackson v Lithgow City Council
[2010] NSWCA 136 Para 1

…ram and the Event Report were business records within the meaning of s 69(1) of the Evidence Act 1995, as explained in Jackson v Lithgow City Council [2010] NSWCA 136, of what eyewitnesses actually said to Constable Attard as he conducted his investigation, and had to be looked at and understood in the light of wha…
Tran v Nominal Defendant
[2009] NSWDC 281 Para 1

…hnstone DCJ found that the appellant was not injured as a result of the negligence of the driver of an unidentified vehicle: Tran v Nominal Defendant [2009] NSWDC 281. In the event that he was in error in reaching this conclusion, his Honour also determined the issues of contributory negligence and quantum of damag…
Pollard v RRR Corporation Pty Ltd
[2009] NSWCA 110 Para 1

…to examine any evidence critical to an issue in a case: Waterways Authority v Fitzgibbon (at [130]); see generally Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (at [58] - [62]).…
Blacktown City Council v Hocking
[2008] NSWCA 144 Para 1

…rcumstances photographs can be used as direct evidence, as distinct from explicating the evidence otherwise given" ( Blacktown City Council v Hocking [2008] NSWCA 144 (at [7])), the prevailing view appears to be that photographs cannot trump the testimonial evidence, but, rather, can be used by the tribunal of fact…
Angel v Hawkesbury City Council
[2008] NSWCA 130 Para 1

…PC 61 (at 71) per Lord Reid cited with approval by Tobias JA in Blacktown City Council v Hocking (at [167]); see also Angel v Hawkesbury City Council [2008] NSWCA 130 (at [71] - [72]) per Beazley and Tobias JJA (Spigelman C Giles and Campbell JA agreeing).…
Waterways Authority v Fitzgibbon
[2005] HCA 57 Para 1

…he sense to which Hayne J referred in Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130]), namely "a failure to examine all of the material relevant to the particular issue".…
Jarratt v Commissioner of Police (NSW)
[2005] HCA 50 Para 1

…or carried on by the Crown": Pt 2, cl 1, Evidence Act Dictionary; see generally Police Act 1990; Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44. The diagram records a "previous representation" (s 69(1)(b)), being the representations made to Constable Attard at the scene of…
Fox v Percy
[2003] HCA 22 Para 1

…follow, the appellant has not established that the primary judge's decision was glaringly improbable or contrary to compelling inference: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [29]).…
Water Board v Moustakas
[1988] HCA 12 Para 1

…e permitted to advance on appeal a case not advanced at trial: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 (at 7 - 8); Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 (at 497).…
Coulton v Holcombe
[1986] HCA 33 Para 1

…r their evidence. The respondent contended the appellant ought not be permitted to advance on appeal a case not advanced at trial: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 (at 7 - 8); Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 (at 497).…
Dearman v Dearman
[1908] HCA 84 Para 1

…at it was more probable that the accident occurred as he alleged. Thus he was in the difficult position described by Griffith CJ in Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 (at 553) as follows:…

Legislation cited in this decision · 3

Evidence Act 1995 (Cth)
1 mention (from Para 1)
Motor Accidents Compensation Act 1999 (NSW)
1 mention (from Para 1)
Police Act 1990 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Tran v Nominal Defendant [2011] NSWCA 220
Hearing dates:	18 August 2010
Decision date:	29 July 2011
Before:	McColl JA at [1]; Campbell JA at [202]; Sackville AJA at [203]
Decision:	Appeal dismissed with costs. [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:	TORTS - negligence - motorcycle accident - whether unidentified vehicle caused plaintiff's accident APPEAL - appellate review of findings of fact - whether errors in process of fact-finding - where primary judge rejected plaintiff's version of accident and accepted independent witness' account -whether primary judge's findings glaringly improbable or contrary to compelling inference EVIDENCE - use of police diagram - whether used impermissibly as direct evidence EVIDENCE - business record - whether diagram drawn by police officer a "business record" - whether admissible to prove the existence of a fact - ss 59(1) and 68, Evidence Act 1995
Legislation Cited:	Evidence Act 1995 Motor Accidents Compensation Act 1999 Police Act 1990
Cases Cited:	Angel v Hawkesbury City Council [2008] NSWCA 130 Blacktown City Council v Hocking [2008] NSWCA 144 C Van der Lely NV v Bamfords Ltd [1963] RPC 61 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Jackson v Lithgow City Council [2010] NSWCA 136 Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Category:	Principal judgment
Parties:	An Phan Tran - appellant Nominal Defendant - defendant
Representation:	S Campbell SC with M Maxwell for the appellant R R Bartlett SC for the respondent Brydens Law Office - appellant Lee & Lyons - respondent
File Number(s):	CA 2009/298576
Publication restriction:	No
Decision under appeal	Citation: Tran v Nominal Defendant [2009] NSWDC 281 Date of Decision: 2009-09-02 00:00:00 Before: Johnstone DCJ File Number(s): DC 779 of 2008

JUDGMENT
BACKGROUND
Statement of the case	[6]
The primary judgement	[11]
Notice of appeal	[15]
THE TRIAL	[17]
The appellant's version of the accident	[18]
The appellant's accounts to medical practitioners	[31]
Mr Reyes	[45]
Mr Swan	[62]
Constable Attard	[80]
SUBMISSIONS
GROUND 1
A. Appellant's overarching submission: error in the process of fact finding	[94]
B. Constable Attard's evidence	[99]
C. The defendant's witnesses had a clear, uninterrupted view of…