Nominal Defendant v Ismail [2014] NSWCA 432

Nominal Defendant v Ismail [2014] NSWCA 432

The traffic engineer's opinion evidence concerning inattentional blindness was inadmissible because it was not wholly or substantially based on specialised knowledge qualifying under Evidence Act s 79; the trial judge's reconciliation of inconsistent accounts and findings on liability relied on this inadmissible evidence, requiring the finding on liability to be set aside and the matter to be remitted for retrial.

Parties
Appellant/cross Respondent: The Nominal Defendant; Respondent/cross Appellant: Najibah Ismail
Jurisdiction
Australia
Judgment Date
17 December 2014
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed, cross-appeal dismissed, retrial ordered
Legal Topics
Motor Vehicle Accident, Negligence, Contributory Negligence, Admissibility of Expert Evidence, Assessment of Damages
Torts Evidence Damages Civil Liability Motor Vehicle Accident Negligence Contributory Negligence Admissibility of Expert Evidence +1 more

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Parties

The Nominal Defendant

Appellant/cross Respondent

Najibah Ismail

Respondent/cross Appellant

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether expert opinion evidence was admissible under Evidence Act 1995 (NSW), s 79
  2. 2 Whether unchallenged findings were sufficient to determine liability without a retrial
  3. 3 Adequacy of findings in reconciling inconsistent witness accounts

Ratio Decidendi

The traffic engineer's opinion evidence concerning inattentional blindness was inadmissible because it was not wholly or substantially based on specialised knowledge qualifying under Evidence Act s 79; the trial judge's reconciliation of inconsistent accounts and findings on liability relied on this inadmissible evidence, requiring the finding on liability to be set aside and the matter to be remitted for retrial.

Court Disposition

Appeal allowed, cross-appeal dismissed, retrial ordered

Orders

  • Allow the appeal and set aside orders (1) and (2) made in the District Court on 31 March 2014.
  • Order that there be a retrial of the questions of liability and, if liability is established, contributory negligence.