Nominal Defendant v Saleh [2011] NSWCA 87 (17 February 2011)

TORTS – negligence – motor vehicle accident – whether unidentified vehicle caused plaintiff’s accident – whether verdict in plaintiff’s favour sustainable

APPEAL – appellate review of findings – whether errors in process of fact-finding – whether denial of procedural fairness -whether defendant deprived of fair trial – whether substantial miscarriage of justice

APPEAL – appellate review – natural justice – whether denial of procedural fairness – whether case determined in plaintiff’s favour substantially on points not raised by plaintiff and not identified by primary judge at trial – whether primary judge acted of own motion absent cross-examination or submissions by plaintiff to reject evidence of defendant’s witnesses – whether failure to consider parties’ submissions – whether failure to give party opportunity to deal with potential adverse finding – whether primary judge’s conclusions favouring plaintiff’s case soundly based

APPEAL – appellate review – whether denial of procedural fairness to defendant to award plaintiff substantially more than amount sought for head of damages

EVIDENCE – expert evidence – opinion – whether factual basis for expert opinion established – whether facts expert relied on to form opinion “sufficiently like” facts established at trial

EVIDENCE – expert evidence – report admitted without objection – oral evidence adduced without objection – whether open to primary judge to reject opinion on basis factual foundation not established

EVIDENCE – cross-examination – failure to cross-examine – whether trial judge may reject evidence not challenged in cross-examination – whether rejection of evidence not challenged in cross-examination may lead to wrong finding of fact

226 The respondent was required to prove his case on the balance of probabilities: s 140, Evidence Act 1995 (NSW) – a provision which reflects the law set out in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1: see Palmer v Dolman [2005] NSWCA 361 (at [40]) per Ipp JA (Tobias and Basten JJA agreeing). In Bradshaw (at 5) the court explained that the civil standard of proof “is concerned with probabilities, not with possibilities”. The evidence has to raise a more probable inference in favour of the case of the party bearing the legal burden of proof. If circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise. The evidence may disclose a number of possibilities the weight of all of which enables the tribunal of fact to reach a conclusion in one party’s favour: Palmer v Dolman (at [41]). I do not accept, accordingly, the appellant’s submission that it was not open to the primary judge to use Mr Collin’s concession as an element to be weighed in the balance of assessing all the circumstances to determine whether the respondent had discharged the burden of proof.