Who bears the onus to establish whether the plaintiff was a phantom passenger?

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Last updated: 02 Jul, 2021
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Originally Published by Peter Hunt and Helen Huang on Monday, October 8, 2018 11:38:01 AM

When alleging a false and misleading statement within the meaning of section 117 and 118 of the Motor Accidents Compensation Act 1999 (NSW), does the onus lie with the defendant or the plaintiff to establish that he or she was a passenger travelling in the vehicle at the time of the accident?



Judgment date: 28 September 2018
Citation: Nguyen v Tran [2018] NSWCA 215
Jurisdiction: NSW Court of Appeal

Principles


  • The onus is on the claimant to prove that they were present in the vehicle when the accident occurred.

Background


Ms Nguyen, the insured driver, was involved in a motor vehicle accident on 20 November 2012, when she negligently turned her vehicle into the path of oncoming traffic and collided with another vehicle. Ms Nguyen was clearly negligent.

The claimant alleged he was a rear seat passenger in Ms Nguyen's vehicle and that he was injured in the accident.

The insurer alleged that Mr Tran was not in the vehicle at the time of the accident and he had brought a false and misleading claim within the meaning of sections 117 and 118 of the Motor Accidents Compensation Act 1999.

The matter was heard at first instance before her Honour Judge Norton.

The insurer called two independent witness; being the driver and the passenger of the other vehicle in the accident. Both witnesses said that there were three occupants in Ms Nguyen's vehicle not four.

Judge Norton accepted that the insurer's witnesses were "witnesses of integrity who gave their evidence in a straightforward manner to the best of their ability." Her Honour observed, however, that the number of passengers in Ms Nguyen's vehicle would not have been an important issue to them at the time of the accident. Judge Norton was also concerned that they gave their statements three years after the accident and had discussed the event between themselves.

The claimant called evidence from the two other passengers in Ms Nguyen's vehicle, who both confirmed his presence in the vehicle.

Judge Norton found there were "obvious" credit issues with the claimant and the two witnesses. Her Honour also found Mr Tran was "very vague" both in his evidence and in the history he gave medico-legal doctors. Even giving his residential addressed troubled him.

Ultimately, Judge Norton determined the claimant had established on the balance of probabilities that he was in the vehicle at the time of the accident. Her Honour made a finding that the claimant's evidence stood by itself and there was a "tactical burden" on the insurer to demonstrate the claimant was not in the vehicle. Her Honour came to this determination notwithstanding the inconsistencies in the evidence and the credibility issues afflicting the claimant and the two witnesses.

Importantly, Norton DCJ accepted that there was suspicion that Mr Tran was not in the vehicle at the time of the accident but that the insurer had not established the "requisite level of proof" to demonstrate he was not in the vehicle

The insurer appealed.

Decision


The essential issue on appeal was whether the primary judge erred in in the evaluation of the evidence of the witnesses causing her Honour to wrongly conclude Mr Tran was a passenger in Ms Nguyen's vehicle at the time of the accident and thus erred in awarding him damages.

President Beazley (with AJA and Bellew J agreeing) determined the trial judge erred.

48.The difficulty that I have perceived with her Honour’s approach is underscored by the manner in which she applied the Evidence Act, s 140. Her Honour observed, at [124], that if the appellant’s denial was made out, it would mean that the respondent and his two witnesses had committed perjury, had engaged in a conspiracy and that the MACA, ss 117 and 118 would be brought into play. Her Honour then referred to the Evidence Act, s 140 and to FTZK v Minister for Immigration and Border Protection and, in particular, to the observation of French CJ and Gageler J, at [12], that when considering the standard of proof, the “requisite degree of satisfaction is informed by the seriousness of the allegation”. This was a reference to the principle in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, which, it is accepted is now encompassed in s 140(2)(c).
49.Her Honour, at [125], then dealt directly with the defence, noting that its effect was an allegation that the respondent’s claim was fraudulent. This, she said, was a “grave allegation”, such that it had to be proved by “‘clear or cogent or strict proof’ in order to make out on the balance of probabilities [that] allegation”, citing New South Wales v Hathaway at [263]….
74.There are two problems with her Honour’s conclusion. First, the various matters to which her Honour had regard in the preceding paragraphs, which she considered reduced the weight of the evidence of the appellant’s witnesses, were matters which, in the main, were not raised in the course of the hearing, were not the subject of evidence and, in most respects, were matters of speculation. There were matters that might have had some impact on the weight of the evidence of Mr Kian and Ms D’Albora, including that they had discussed the event between themselves and that prior to giving their statements to the investigator, there had been numerous calls from the insurer. However, it was not put to Mr Kian at any stage in the proceedings that he may have been influenced by the questions asked.
75.Secondly, her Honour’s observation that it had not been established to the requisite level that the respondent was not in the vehicle, reiterated the error that I consider she made at [125] as to the question of onus. As I have said, the appellant did not have to establish that the respondent was not in the vehicle. It was for the respondent to establish that he was. That question had to be determined on the whole of the evidence.

In summary, the Court of Appeal determined:

  1. The trial judge had approached the task of fact finding in a 'segmented' approach, which is incorrect. The question had to be determined on the whole of the evidence.

  2. The onus is on the plaintiff to establish he was a passenger in the vehicle on the balance of probabilities, rather than for the insurer to prove he was not present in the vehicle.


The Court of Appeal granted leave to appeal and allowed the appeal.

Why this case is important


The Court of Appeal has provided useful guidance on the onus of proof in cases involving potentially phantom passengers.

The Court of Appeal has confirmed that the onus is on the claimant to prove all elements of the claim, including that they were present in the vehicle when the accident occurred.

The onus is not on the insurer to prove that the claimant was not in the vehicle.

The standard of proof remains the balance of probabilities.