Bezer v Bassan [2019] NSWCA 50

Bezer v Bassan [2019] NSWCA 50

The appeal was dismissed because, although Leeming JA and Payne JA considered that the primary judge's fact-finding process miscarried by treating separate findings as fatal before considering all relevant evidence, all members of the Court concluded that any such error caused no substantial wrong or miscarriage. The contemporaneous, objective and expert evidence overwhelmingly indicated that the respondent was the seatbelt-restrained passenger and the appellant was the unrestrained driver, so the issue of who was driving could not rationally be determined in the appellant's favour. The challenge to admission of the joint expert report also failed because the relevant opinions were...

Jurisdiction
Australia
Judgment Date
21 March 2019
Procedural Posture
Appeal in Civil Negligence Proceedings Arising From a Motor Vehicle Accident / Court of Appeal Appeal From District Court Judgment of Gibb DCJ Dated 31 May 2018
Outcome
Appeal dismissed with costs.
Legal Topics
['motor Vehicle Accident' 'fact Finding' 'segmented Decision Making' 'credit Findings' 'joint Expert Report' 'seatbelt and Accident Reconstruction Evidence' 'substantial Wrong or Miscarriage']
['torts' 'negligence' 'evidence' 'civil Procedure' 'appellate Procedure'] ['motor Vehicle Accident' 'fact Finding' 'segmented Decision Making' 'credit Findings' 'joint Expert Report' 'seatbelt and Accident Reconstruction Evidence' 'substantial Wrong or Miscarriage']

Case Brief

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Procedural Posture

Appeal in Civil Negligence Proceedings Arising From a Motor Vehicle Accident / Court of Appeal Appeal From District Court Judgment of Gibb DCJ Dated 31 May 2018

Legal Issues

  1. 1 ["Whether the primary judge's approach to determining who was the driver involved impermissible segmentation of the decision-making process." 'Whether the primary judge erred in admitting parts of a joint expert report that did not record agreement between the experts.' "Whether the primary judge's findings concerning the credit of the appellant and respondent should be set aside." 'Whether the primary judgment could be sustained on the alternative ground that the expert evidence established that the passenger seat belt could only have been worn by the respondent and that the appellant must therefore have been the driver.']

Ratio Decidendi

The appeal was dismissed because, although Leeming JA and Payne JA considered that the primary judge's fact-finding process miscarried by treating separate findings as fatal before considering all relevant evidence, all members of the Court concluded that any such error caused no substantial wrong or miscarriage. The contemporaneous, objective and expert evidence overwhelmingly indicated that the respondent was the seatbelt-restrained passenger and the appellant was the unrestrained driver, so the issue of who was driving could not rationally be determined in the appellant's favour. The challenge to admission of the joint expert report also failed because the relevant opinions were...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']