In motor accident claims involving animals, a plaintiff cannot establish the speed of a vehicle by reasoning backwards from the animal's reaction when the animal's reaction is the very matter in issue — such reasoning is impermissibly circular. Expert evidence about what an animal 'perceived' as a threat is inadmissible under s 79 of the Evidence Act 1995 (NSW) where it is not based on the expert's specialised knowledge. Trial judges must address the requirements of ss 5B and 5D of the Civil Liability Act 2002 (NSW) in negligence proceedings; failure to identify the relevant risk of harm under s 5B leaves the court unable to assess breach, and failure to address factual causation under s 5D(1)(a) is a fundamental error. The question of whether contributory negligence constitutes fault of an 'other person' under s 7A of the MACA (blameless motor accident) was left open.
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