Nominal Defendant v Clancy

[2007] NSWCA 349

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Interference with findings of fact
3. › Whether critical findings inconsistent with incontrovertible fact or uncontested testimony
4. › Whether decision glaringly improbable or contrary to compelling inferences
5. › Credibility-based findings
6. › Constraints on appellate intervention
1. Negligence
2. › Damage
3. › Causation
4. › Shifting evidentiary burden
5. › Whether appellant demonstrated case to prima facie level requiring respondent to explain or contradict
6. › Disentangling accident from pre-existing condition
7. › Watts v Rake principle
1. Evidence
2. › Witnesses
3. › Failure to call witness
4. › Whether witness expected to be called by one party rather than the other
5. › Adverse inferences
6. › Jones v Dunkel
1. Evidence
2. › Expert evidence
3. › Function of appellate court
4. › Dispute between experts
5. › Whether trial judge entitled to reject expert witness whose qualifications not in issue
6. › Whether expert issue capable of rational resolution by examination and analysis

Quick Take

Where a plaintiff establishes that an accident had some injurious effect on a pre-existing condition, the evidentiary onus shifts to the defendant under Watts v Rake to disentangle the accident from other potential causes; if the defendant fails to establish its alternative explanations to at least a prima facie level, the trial judge's causation finding will not be disturbed on appeal. The case also illustrates that competing inferences equally plausible to those drawn by the trial judge will not suffice for appellate intervention where the evidentiary onus has not been discharged.