THE NOMINAL DEFENDANT v NEAL [1995] NSWCA 325

THE NOMINAL DEFENDANT v NEAL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 10 March 1995, 11 May 1995 [1995] NSWCA 325

ASSESSMENT OF DAMAGES — MOTOR ACCIDENTS ACT — CONTRIBUTORY NEGLIGENCE — ONUS — TACTICAL BURDEN PAST ECONOMIC LOSS — INTEREST IMPAIRMENT OF FUTURE EARNING CAPACITY

FACTS

The respondent, Neal was travelling as a passenger in a Holden sedan which was allegedly forced from the road by an unidentified vehicle and struck a tree. Neal suffered serious injuries and sought to recover damages in respect of his injuries and losses. It was inexplicable how Neal had ended up lying parallel to the driver's door.

Held (per Clarke JA; Handley and Sheller agreed)

CONTRIBUTORY NEGLIGENCE

The appellant, The Nominal Defendant, submitted that Neal had not been wearing a properly adjusted seat belt and was thereby guilty of contributory negligence pursuant to the s74(2)(c) of the Motor Accidents Act 1987.

The appellant bore the legal onus of proving, on the balance of probabilities that Neal had not been wearing a seat belt at the relevant time. In Cross on Evidence (4th Australian Edition) at para[7165], the authors said:

"Where one party bears the burden of proving a negative but the other has greater means to produce evidence to contradict the negative proposition, then provided the party bearing the burden of proof has tendered some evidence from which the negative proposition may be inferred, the other party carries a tactical burden to advance in evidence any matters with which (if relevant) the first party would have to deal in the discharge of its legal burden of proof."

I will assume in favour of the appellant that the tactical burden passed in the way described in Cross. Upon this assumption, the court was entitled to draw the inference that Neal was not wearing a seat belt more readily than would be the case if the defendant had been in possession of knowledge of all the relevant facts.