Zurich Australian Insurance Ltd v Raman; Gyimah v Mackay

The dispute before the Court of Appeal of New South Wales involved appeals by Zurich Australian Insurance Ltd and Mr Gyimah against orders made by Nield DCJ. The underlying proceedings concerned claims brought by Mr Mackay against Mr Gyimah and by Zurich against Dr Raman, with the trial judge having resolved differences between expert witnesses by favouring the opinion that aligned with the factual account provided by lay witnesses, and by relying on the credibility and demeanour of those lay witnesses.

The central legal issues for the Court of Appeal were whether the trial judge had failed to give proper regard to certain objective evidence when making findings of fact, and whether those findings involved a failure to use, or a misuse of, the advantage of having heard and observed the witnesses. The court was required to determine whether the trial judge had properly discharged their duty to resolve disputes between expert witnesses and make appropriate findings.

The Court of Appeal reasoned that the trial judge had erred in their approach to fact-finding. While acknowledging the trial judge's advantage in assessing witness credibility, the court held that this advantage did not permit the wholesale disregard of objective evidence. The judge's preference for one expert's opinion solely because it accorded with the lay witnesses' account, without a thorough analysis of the objective evidence and its implications for the expert opinions, constituted a failure to properly exercise the judicial function. The court found that the trial judge had not adequately grappled with the objective evidence, particularly in relation to the expert opinions.

Consequently, the Court of Appeal upheld both Mr Gyimah's and Zurich's appeals, setting aside the orders made by Nield DCJ. The claims by Mr Mackay against Mr Gyimah and by Zurich against Dr Raman were remitted to the Common Law Division of the Supreme Court for retrial. Costs of the appeal were awarded to Mr Gyimah and Zurich respectively, with certificates under the Suitors' Fund Act 1951 granted to Mr Mackay and Dr Raman. The costs of the original trial were to be determined by the judge presiding over the retrial.