Zaya v Damirdjian [2022] NSWCA 203

Zaya v Damirdjian [2022] NSWCA 203

The Court of Appeal held the primary judge erred in finding, principally on Mrs Douglas’ evidence, that Mr Zaya’s van was the vehicle involved in the accident. This was because Mrs Douglas’ evidence was internally inconsistent, contradicted by contemporaneous documentation and RMS records showing other white vans existed in the area, and failed to negate alternative inferences. As such, liability was not established against Mr Zaya for the purposes of the Motor Accidents Compensation Act 1999 (NSW), and the appeal was upheld. The finding of no contributory negligence against the plaintiff was maintained due to lack of reliable evidence to the contrary.

Jurisdiction
Australia
Judgment Date
11 October 2022
Procedural Posture
Civil Appeal / Appeal After Trial Judgment
Outcome
Appeal upheld (on liability); primary judge's orders set aside; liability not established against Mr Zaya; further orders to be made subject to parties' submissions/agreement.
Legal Topics
['negligence' 'motor Vehicle Accidents' 'contributory Negligence' 'appellate Review']
['tort Law'] ['negligence' 'motor Vehicle Accidents' 'contributory Negligence' 'appellate Review']

Case Brief

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Procedural Posture

Civil Appeal / Appeal After Trial Judgment

Legal Issues

  1. 1 ['Whether primary judge erred in preferring evidence to identify van owner' 'Whether contributory negligence by plaintiff established' 'Whether primary judge failed to consider contrary evidence and proper inferences' 'Appropriate application of Fox v Percy appellate review principles']

Ratio Decidendi

The Court of Appeal held the primary judge erred in finding, principally on Mrs Douglas’ evidence, that Mr Zaya’s van was the vehicle involved in the accident. This was because Mrs Douglas’ evidence was internally inconsistent, contradicted by contemporaneous documentation and RMS records showing other white vans existed in the area, and failed to negate alternative inferences. As such, liability was not established against Mr Zaya for the purposes of the Motor Accidents Compensation Act 1999 (NSW), and the appeal was upheld. The finding of no contributory negligence against the plaintiff was maintained due to lack of reliable evidence to the contrary.

Court Disposition

Appeal upheld (on liability); primary judge's orders set aside; liability not established against Mr Zaya; further orders to be made subject to parties' submissions/agreement.

Orders

  • ['The parties should seek to agree orders which give effect to these reasons for judgment, including in relation to costs of both the proceedings below and the appellate proceedings.' 'If the parties are unable to reach agreement within 28 days hereof, each should file and serve an outline of written submissions,...