On 20 November 2012, Ms Nguyen was involved in a motor vehicle accident when she negligently drove her vehicle and crossed into the path of an oncoming vehicle, contrary to a “No Right Turn” sign.
Mr Tran commenced proceedings in the District Court of New South Wales against Ms Nguyen, claiming that he was a passenger in the vehicle and claimed damages for injuries he allegedly suffered as a result of the accident. There was no dispute that Ms Nguyen crossed into the path of the oncoming vehicle. The question in issue was whether Mr Tran was a passenger in the vehicle at the time of the collision. Ms Nguyen denied that Mr Tran was a passenger in her vehicle.
The primary judge found that although there was a suspicion that Mr Tran may not have been in the vehicle, Ms Nguyen had not established this to the requisite level of proof. The primary judge found in favour of Mr Tran and awarded damages in the total sum of $15,486.05.
Ms Nguyen sought leave to appeal. She argued that the primary judge erred in finding that Mr Tran was in the vehicle, in accepting the evidence of the Mr Tran’s witnesses that he was a passenger in the car at the time of the accident, and in failing to find that Mr Tran’s claim for damages was fraudulent.
The court noted that this was a classic “word on word” case and that the appeal was to be determined on the basis of the principles discussed in Fox v Percy (2003) 214 CLR 118;  HCA 22. The court also noted that Mr Tran, as the plaintiff in the proceedings, bore the legal onus to establish that he had been injured in the motor vehicle due to the negligence of Ms Nguyen and he bore an evidentiary burden to prove that he was. Otherwise, his claim would fail. 
The court found that the primary judge’s fact-finding task miscarried, with the primary judge wrongly considering that there was an onus on Ms Nguyen to establish that Mr Tran was not in the car. 
The court granted leave to appeal, set aside the orders made by the primary judge, and entered judgment for Ms Nguyen: Nguyen v Tran  NSWCA 215.
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This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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