Tran v Nominal Defendant

[2011] NSWCA 220

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appellate review of findings of fact
3. › Whether errors in process of fact-finding
4. › Where primary judge rejected plaintiff's version and accepted independent witnesses' account
5. › Whether findings glaringly improbable or contrary to compelling inference
6. › Fox v Percy standard
1. Torts
2. › Negligence
3. › Motor vehicle accident
4. › Unidentified vehicle
5. › Whether unidentified vehicle caused plaintiff's accident
6. › Burden of proof on plaintiff
7. › Motor Accidents Compensation Act 1999 (NSW), s 34
1. Evidence
2. › Business records exception to hearsay rule
3. › Police officer's diagram drawn from information obtained at scene
4. › Whether diagram a 'business record'
5. › Whether admissible to prove existence of a fact
6. › Evidence Act 1995 (NSW), ss 59(1), 69
1. Evidence
2. › Use of diagrams and photographs
3. › Whether diagram used impermissibly as direct evidence
4. › Diagram as aid to evaluating testimonial evidence

Quick Take

A police officer's diagram drawn from information obtained at the scene of an accident is a business record under s 69 of the Evidence Act 1995 and is admissible to prove the existence of facts the informants intended to assert. Such a diagram may be used by the tribunal of fact as an aid to evaluating testimonial evidence but not as direct evidence to override that testimony. An appellant challenging a trial judge's preference for independent witnesses over the plaintiff's account must show the findings were glaringly improbable or contrary to compelling inference; the mere existence of inconsistencies between independent witnesses on peripheral matters does not establish such error where they are consistent on key aspects.