A trial judge's finding of breach of duty may be overturned where the judge fails to address an alternative innocent explanation for the defendant's conduct, particularly where the conduct (marginal departure from the road surface) is not unlawful and there is uncontradicted expert evidence supporting the innocent explanation. A causation finding that depends entirely on a factual finding not supported by the evidence cannot stand. The onus under s 5E of the Civil Liability Act 2002 (NSW) requires the plaintiff to prove on the balance of probabilities any fact relevant to causation.
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