Citation: Mouzakzak v The Nominal Defendant (No. 3) [2020] NSWDC 423
Court: District Court of New South Wales
Date: 6 August 2020
Judge: Abadee DCJ
Background
On 17 May 2016, the plaintiff was a front-seat passenger in a Mercedes Benz travelling south along Henry Lawson Drive, Milperra. At around 8:15 pm, the vehicle veered left off the road and struck a tree, causing the plaintiff substantial personal injuries. The plaintiff alleged that an unidentified vehicle travelling in the opposite direction had crossed into the southbound lane and either struck the Mercedes or caused its driver to take evasive action, resulting in the crash.
The plaintiff brought a claim for damages against the Nominal Defendant under the Motor Accidents Compensation Act 1999 (NSW). The Nominal Defendant is the statutory insurer that stands in place of an unidentified driver where a valid claim is established. The plaintiff also sued the driver of the Mercedes, who ultimately consented to judgment of $50,000 against her without admission of liability.
By the time of hearing, the parties had agreed on quantum of $450,000. The sole question before the court was whether the Nominal Defendant was liable, which turned entirely on whether an unidentified vehicle had in fact been involved in causing the accident.
Legal Issues
- Whether an unidentified vehicle was present and crossed into the path of the Mercedes, or otherwise drove in a manner that caused its driver to take evasive action.
- Whether the unidentified vehicle physically struck the Mercedes, or whether the accident was caused solely by the conduct of the driver.
- The applicable civil standard of proof, including the effect of the Nominal Defendant's suggestion that the driver may have acted dishonestly or fraudulently, and whether that elevated the standard under s 140 of the Evidence Act 1995 (NSW).
- Whether the physical and expert evidence corroborated the plaintiff's account of a collision with an unidentified vehicle.
Decision
The court found that the plaintiff had not established on the balance of probabilities that an unidentified vehicle caused the accident. The lay evidence supporting the plaintiff's version was unpersuasive, and the physical evidence did not remedy that deficiency.
The plaintiff's own recollection was acknowledged to be limited. She accepted that her memory of events in the seconds before impact was "blurry," that she had lost consciousness shortly after the collision, and that much of the information in her claim form had been provided by the driver. The court found that the plaintiff's evidence fell short of being sufficiently reliable to establish the involvement of an unidentified vehicle.
The driver's evidence was also assessed carefully. A certificate under s 128 of the Evidence Act had been granted to her in relation to questions touching on a prior insurance payout and accidents involving relatives. The court's assessment of her credibility, in the context of this history and other matters raised in cross-examination, informed its conclusions about the reliability of the account supporting the plaintiff's claim.
Four liability experts, two retained by each party, gave evidence and produced multiple reports on the physical question of whether an unidentified vehicle could have side-swiped the Mercedes. The court found that the physical evidence did not supply what the lay evidence lacked. The absence of persuasive corroborative physical evidence, combined with weaknesses in the lay evidence, meant the plaintiff's case was not made out. Judgment was entered for the Nominal Defendant.
Orders Made
- Verdict and judgment for the first defendant (the Nominal Defendant).
- The plaintiff is to pay the first defendant's costs.
- Liberty to apply on 14 days' notice for any application to vary the costs order.
- Exhibits to be returned within 28 days.
Key Takeaways
- The District Court confirmed that a plaintiff claiming against the Nominal Defendant under the Motor Accidents Compensation Act 1999 (NSW) must establish on the balance of probabilities that an unidentified vehicle was relevantly involved; the statutory right to claim does not lower or reverse the onus.
- Where a defendant raises the possibility of fraud or dishonesty as an alternative explanation for an accident, that does not alter the ultimate onus of proof, though it may be relevant to how the court weighs the evidence under s 140 of the Evidence Act 1995 (NSW) as applied in Briginshaw v Briginshaw principles.
- Lay evidence that is heavily dependent on information supplied by a witness whose credibility is in question may be found insufficient to establish the key factual premise of a claim, even where the plaintiff's injuries themselves are not in dispute.
- Expert physical evidence, where it does not positively corroborate the plaintiff's account, cannot be used to cure deficiencies in the lay evidence; the court assessed the two bodies of evidence together rather than treating expert evidence as independently sufficient.
- Agreed quantum does not affect the court's liability analysis; the District Court determined liability entirely on its independent assessment of the evidence, notwithstanding that damages had been agreed at $450,000.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 128, s 140
- Motor Accidents Compensation Act 1999 (NSW), s 118
Cases:
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Jones v Dunkel (1959) 101 CLR 298
- Luxton v Vines (1952) 85 CLR 352
- McLennan v Nominal Defendant [2014] NSWCA 332
- New South Wales v Fuller-Lyons [2014] NSWCA 424
- Nguyen v Tran [2018] NSWCA 215
- Telfer v Telfer (2014) 87 NSWLR 176
- The Nominal Defendant v Cordin [2019] NSWCA 85