Which case won?

The case for the driver
  • An unidentified black car pulled out in front of me, cutting me off, and I acted entirely reasonably by taking evasive action to avoid colliding with it.
  • In my accounts to police and others since the accident I’ve been consistent about the existence of this unidentified black car and so has my passenger. My passenger has corroborated my version of events in his police statement, his personal injury claim form, in the NSW ambulance report and in the histories he’s given to his doctors.
  • My passenger has no reason to lie about the existence of the black car, as he was injured in his journey home from work which is compensable under the Workers Compensation Act.
  • The evidence of the driver of the four wheel drive vehicle did not establish that there was no black car. Indeed her statement to NRMA stated: “The police never asked me about any other vehicle.” Her attention was focused solely on my vehicle, the Skyline.
  • The Nominal Defendant should be found liable by reason of the negligent driving of the unidentified black vehicle.
The case for the Nominal Defendant
  • The driver of the oncoming four wheel drive vehicle did not see a black vehicle and, to the contrary, gave evidence that she had seen the Skyline fishtailing along the road. She is a credible witness and had a clear view of the oncoming Skyline.
  • The court has reasons to doubt the passenger’s credibility as a witness, including the circumstances of termination of his employment, his post-accident treatment and surveillance evidence which appeared to contradict his claim that he walked with a limp.
  • The driver of the Skyline has a very poor driving history. He had lost his driving licence prior to the accident and had been convicted of negligent driving causing grievous bodily harm. He was also sacked from his job following complaints from the public that he was driving erratically and at dangerous speeds on a freeway, tailgating and swerving, while driving his company’s truck.
  • Faced with the prospect of explaining to police how he came to be stationary on the wrong side of a busy road, with two people injured and no driving licence, the driver had a powerful motive for fabricating a story about avoiding an unidentified black car.
  • The court cannot be satisfied that there was a black vehicle that caused the driver to take evasive action and lose control of his vehicle, so the driver of the Skyline should be found liable in negligence for the accident and the passenger’s injuries.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a24%
case b76%

Expert commentary on the court's decision

Sophie Lee
Sophie LeeLawyer
“The passenger bore the onus of proof of establishing that either the driver, or the Nominal Defendant, or both, were negligent.”
Legal principles – determination on liability

The passenger bore the onus of proof of establishing that either the driver, or the Nominal Defendant, or both, were negligent.

To prove negligence, it is necessary to prove that a defendant owed the plaintiff (passenger) a duty of care, that the defendant breached that duty and that the defendant caused the alleged damage.

The Civil Liability Act 2002 sets out definitions of harm and personal injury, duty of care, causation, assumption of risk and contributory negligence. These are the tests which need to be applied to establish negligence in law.

District Court finds that both driver and Nominal Defendant were negligent

In the case Jereme Smith v Ryan Harris & The Nominal Defendant [2014] NSWDC 254, the court found that the driver, Mr Harris, was negligent in the manner of driving and control of his motor vehicle by failing to take precautions against a risk of harm to the passenger, Mr Smith. The risk was foreseeable and not insignificant.

The driver drove at a speed at which he could not manoeuvre his car to avoid a collision with the unidentified black vehicle, while still maintaining control of his car.

The court further found that the driver of the unidentified black vehicle similarly breached its duty of care to the passenger by veering suddenly into the path of the Nissan Skyline.

As to apportionment of liability between the defendants, the court found that it was the actions of the driver of the unidentified black vehicle, which merged from the kerbside lane, which were substantially liable for the passenger’s injuries. The appropriate apportionment was 40% to the driver of the Skyline and 60% to the Nominal Defendant.

Nominal Defendant appeals decision to Supreme Court

The Nominal Defendant appealed the District Court’s decision to the Supreme Court of NSW, in the case Nominal Defendant v Smith [2015] NSWCA 339.

The Supreme Court found that the District Court judge did not pay sufficient regard to the objective facts, witnesses’ motives and overall probabilities. Specifically, the primary judge was found to have failed to weigh the competing testimonial evidence of the passenger in the Nissan Skyline, and the driver of the oncoming four wheel drive vehicle, on the balance of probabilities.

The Supreme Court found that the primary judge failed to consider the objective likelihood of the driver of the Skyline losing control of his car without the involvement of any other vehicle, given the evidence that was presented about his driving history.

The Supreme Court allowed the appeal and set aside the judgment against the Nominal Defendant, finding that the driver of the Skyline was solely liable in negligence for his passenger’s injuries.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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