What happened
On 20 November 2012 the driver made a prohibited right turn into oncoming traffic. The claimant and two witnesses said he was a rear-seat passenger, while the driver and passenger of the other vehicle gave evidence inconsistent with his presence. The trial judge accepted the claimant's evidence in isolation before asking whether the driver had displaced it.
The issues
The appeal concerned who had to prove the essential fact of presence in the car and how the evidence should be assessed as a whole. It also examined whether the serious implication of fraud shifted a burden to the denying defendant under s 140 of the Evidence Act.
The court's decision
The claimant retained the onus of proving his presence on the balance of probabilities; a denial did not transfer that onus. The segmented assessment and speculative explanations about matters such as tinting and obstructed vision were erroneous. The Court entered judgment for the driver with trial and appeal costs; the recovery question reserved at this stage was resolved in a subsequent judgment.
Understanding the figures
The trial award of AUD 15,486.05 was set aside and is not a surviving damages award. The AUD 5,908.30 in earlier medical-expense payments, deducted below, became the subject of a recovery judgment under s 118 on 16 November 2018. Costs were separate and actual collection has not been verified.
What this case shows
Admitted driving negligence did not establish that this claimant was injured in the collision. The decision illustrates the need to weigh all the evidence together and to avoid replacing evidence with imagined possibilities when resolving credibility disputes.
Why another case may differ
The case concerned a 2012 accident under the Motor Accidents Compensation Act 1999. The onus when denying the claimant's case must be distinguished from that on a party positively seeking recovery for fraud. Nguyen v Tran (No 2) [2018] NSWCA 274 subsequently ordered repayment; these civil decisions were not criminal convictions.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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