Bradley v Matloob [2015] NSWCA 239

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bradley v Matloob [2015] NSWCA 239 Hearing dates: 20 July 2015 Date of orders: 20 August 2015 Decision date: 20 August 2015 Before: McColl JA at [1] Leeming JA at [10] Beech-Jones J at [24] Decision: (1) Appeal allowed.

(2) Set aside the orders made by the District Court on 9 October 2014 in matter no 158029 of 2012.

(3) In lieu of those orders, judgment for the plaintiff against the second defendant in the sum approved by the Court on 8 August 2014 being the sum of $1,400,000.

(4) Within 14 days parties to file any agreed or otherwise competing short minutes of order together with any submissions in respect of the orders that are not agreed, such submissions not to exceed five pages. Catchwords: MOTOR VEHICLE ACCIDENT – sole question was whether at fault vehicle driven by appellant or unknown driver – eye witness to accident identified appellant's vehicle – appellant denied involvement – trial judge accepted eye witness – trial judge did not address appellant's denials – whether eye witness' evidence unreliable – discrepancies in eye witness recollection of at fault vehicle – whether driver at fault must have known caused or almost caused accident – whether finding could be made against appellant without it being put to appellant that he lied in evidence. Held that primary judge erred in failing to address appellant's denials – finding adverse to appellant could not be made without concluding he falsely denied knowledge of traffic incident – not put to him in cross examination that he lied – no such case run against appellant at trial – finding of liability of appellant set aside – no new trial – judgment entered against Nominal Defendant. Legislation Cited: - Motor Accidents Compensation Act 1999 (NSW) – s 34 Cases Cited: - Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 - Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Reports 81-636 - Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498 - Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 - Brown v Dunn (1893) 6 R 67 - Coote v Kelly [2013] NSWCA 357 - Coulton v Holcombe [1986] HCA 33; 162 CLR 1 - Fox v Percy [2003] HCA 22; 214 CLR 118 - Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 - Jovic v Lamont [2007] NSWCA 47 - Keith v Gal [2013] NSWCA 339 - Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 - Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 - Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 - RCR Tomlinson Ltd v Russell [2015] WASCA 154 - Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 - Saffron v Societe Miniere Cafrika [1958] HCA 50; 100 CLR 231 - Tory v Megna [2007] NSWCA 13 - Whalan v Kogarah Municipal Council [2007] NSWCA 5 - Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 Category: Principal judgment Parties: Steven Paul Bradley – Appellant Katreen Matloob by her tutor Ashour Chamoun – First Respondent The Nominal Defendant – Second Respondent Representation: Counsel: D.M. Wilson – Appellant P. Mooney SC, Matthew Eirth – First Respondent K. Rewell SC, J. Guihot – Second Respondent