What happened

On 29 February 2012, Harris’s car lost control on a wet road, crossed into oncoming traffic and collided with another car, injuring his passenger Smith. Smith described a black car cutting in, but the oncoming driver said she had seen no such vehicle. Harris did not give evidence at trial.

The issues

The issue was whether involvement of an unidentified vehicle had been proved on the balance of probabilities. The appeal examined the competing eyewitness accounts, road layout and vehicle positions, and the use of Harris’s police statement, which had been admitted for a limited purpose.

The court's decision

The majority held that the competing testimony and objective circumstances had not been adequately weighed, and that the police statement had improperly been used as corroboration of its truth. It set aside the judgment against the Nominal Defendant and remitted the remaining issues. Smith obtained judgment against Harris for the full A$425,366 and his costs of the first trial.

Understanding the figures

A$425,366 was the full historical damages assessment, ordered against Harris on appeal. It was not reduced by 40% or 60% for fault by the passenger. Responsibility and contribution issues between defendants, including related costs, remained for determination on remittal.

What this case shows

An assessment that a witness is generally honest does not resolve the accuracy of their perception and recollection of the event. The decision also distinguishes contribution between tortfeasors from dividing the injured person’s judgment into separate percentage shares.

Why another case may differ

The claim arose under s 34 of the Motor Accidents Compensation Act 1999 for a 2012 accident, rather than the later motor accident scheme. The majority did not finally find that no black car existed; it found the trial reasoning defective. The remitted contribution outcome is not established by this judgment, and Simpson JA dissented.

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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