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Analysing what can sometimes be a great deal of conflicting evidence is no easy feat. However, in its recent decision of Nguyen v Tran [2018] NSWCA 215, the NSW Court of Appeal has set out the “lay of the land” for Courts when analysing evidence, within the context of an allegedly fraudulent CTP claim. 

In this case note, we discuss the principles expounded by the Court of Appeal with respect to the fact finding tasks often required by the Courts.


On 20 November 2012, a driver (the Defendant) collided with another vehicle being driven by Mr Kian. There was no dispute that the Defendant and two female passengers were in the vehicle. However, the Plaintiff asserted he was also in the Defendant’s vehicle at the time of the accident. He alleged he was injured in the collision and brought a claim for damages against the Defendant.

The Defendant admitted she had breached the duty of care she owed to the occupants in her vehicle, but asserted that the Plaintiff was not in the vehicle at the time of the accident, and that the Plaintiff had brought a false or misleading claim.

The primary issue was whether the Plaintiff was in the Defendant’s vehicle at the time of the accident.

First instance decision

Her Honour Judge Norton heard the Plaintiff’s case at first instance in the District Court of NSW, finding in favour of the Plaintiff.

Her Honour first considered the evidence in support of the Plaintiff’s case. The two female passengers in her vehicle attested that the Plaintiff was also a passenger. Her Honour commented that “standing by itself”, the evidence in support of the Plaintiff established he was also a passenger in the vehicle.

Her Honour then considered the standard and burden of proof—given the serious allegation of fraud, the degree to which the Court had to be satisfied that the Defendant’s assertions were made out was not a low one. Her Honour remarked that there was a “tactical burden” on the Defendant to dispute the Plaintiff’s evidence.

Judge Norton then evaluated the evidence in support of the Defendant’s position. Mr Kian and one of his passengers gave unequivocal evidence that there were only three passengers in the Defendant’s vehicle. However, due to a number of issues, her Honour reached the view that there may be a degree of doubt with respect to the Defendant’s evidence.

As her Honour considered that the evidence in support of the Plaintiff’s case was generally consistent—and where there were some doubts with the Defendant’s evidence, she found the Defendant had not established to the requisite level of proof that the Plaintiff was not in the vehicle.

The NSW Court of Appeal’s decision

The Defendant appealed the decision, which was heard by President Beazley and Justices Emmett and Bellew.

A key issue on appeal was the manner in which to approach the assessment of witnesses’ evidence. The Court of Appeal found that the “segmented” approach summarised above, was incorrect. Rather, the Court of Appeal held that:

“The fact finding exercise which is required to be undertaken by the tribunal of fact, whether that be judge or jury, is not properly approached in that segmented way. The tribunal of fact, after hearing the witnesses, making assessments as to the credit and reliability of their evidence and examining the documentary evidence, if any, must weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case.”

That is, a Court is required to assess the whole of the evidence. It is not sufficient to assess each party’s evidence in isolation and come to a conclusion as to which party’s collective evidence is preferred.

Another issue on appeal was the applicable standard and onus of proof. The Court of Appeal confirmed it was incumbent on the Plaintiff to establish he was a passenger in the vehicle.

Her Honour considered that since the serious allegation of fraud was made, pursuant to s 140(2)(c) of the Evidence Act 1995, there was a stricter standard of proof imposed upon the Defendant to make out that allegation. However, the Court was of the view that the trial judge misconstrued the standard of proof required.

Regardless of the seriousness of the allegation, the Court confirmed that the standard of proof in civil proceedings remains on the balance of probabilities. What is required is that the gravity or seriousness of an allegation be considered by the Court in reaching its decision. Such consideration may warrant a higher degree of the strength attached to the evidence, so as to establish certain findings. However, the standard of proof remains the same—on the balance of probabilities. 

The result

Given the miscarriage in the trial judge’s fact finding task, the Court of Appeal was required to determine what ought to be done in the circumstances.

It is a well-accepted principle that a trial judge has the advantage of being able to better assess evidence, as they are able to see and hear witnesses as they give their evidence. However, an appellate court may substitute its own conclusions, where a trial judge’s findings were glaringly improbable, or there was evidence contrary to the findings of the judge.

In these circumstances, the Court of Appeal overturned Judge Norton’s decision and allowed the Defendant’s appeal. The Court considered that Mr Kian and his passenger’s evidence was wholly consistent. The Court noted that the trial judge had accepted the two to be “witnesses of integrity and credit”, and was unable to find any basis upon which to reject their account of events.  Accordingly, the Court of Appeal entered judgment in favour of the Defendant.

Lessons learnt

The decision is a timely reminder that it is incumbent upon a Plaintiff to prove the circumstances of their case, on the balance of probabilities. The Court of Appeals’ comments, while directed at the issue of liability, may also be extrapolated to apply to the issue of quantum, including what injuries were sustained as a result of the accident as well as the extent of those injuries.

Otherwise, the approach the NSW Court of Appeal adopted with respect to assessing evidence also applies with respect to assessing and determining claims. It is not sufficient to simply prefer one party’s evidence over another. What is required, however, is an assessment all of the evidence as a whole, in considering whether a party has proved their allegations.

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