Zaya v Damirdjian

In *Zaya v Damirdjian*, the New South Wales Court of Appeal considered an appeal from a decision of the primary judge who had found the Nominal Defendant liable for damages arising from a motor vehicle accident. The central dispute concerned the identity of the vehicle involved in the accident, with the primary judge having preferred the evidence of a particular witness on this crucial point. The appeal also addressed whether the primary judge had erred in failing to find contributory negligence on the part of the plaintiff, despite evidence suggestive of speeding.

The Court of Appeal was required to determine two principal legal issues. Firstly, whether the primary judge had erred in preferring the evidence of a particular witness regarding the identity of the vehicle involved in the accident, and whether the principles established in *Fox v Percy* were applicable and correctly applied. Secondly, the Court had to consider whether the primary judge had erred in not accepting evidence that suggested the plaintiff was speeding, and therefore whether contributory negligence should have been found.

In its reasoning, the Court of Appeal affirmed the primary judge's findings. It held that the primary judge had not erred in preferring the evidence of the witness in question, finding that the judge had properly assessed the credibility and reliability of the evidence presented. The Court confirmed that the principles in *Fox v Percy* were relevant and had been correctly applied by the primary judge in assessing the evidence. Furthermore, the Court found no error in the primary judge's conclusion that there was insufficient evidence to establish contributory negligence on the part of the plaintiff, including the evidence relating to speeding.

The Court of Appeal ordered that the parties should seek to agree on orders giving effect to the judgment, including costs for both the original proceedings and the appeal. If agreement could not be reached within 28 days, further written submissions were to be filed regarding proposed orders, with a further opportunity for responsive submissions. The Court indicated it would determine the final orders on the papers unless a further hearing was demonstrated to be necessary.