October 26, 2022

Can a motor accident injury claim against the owner of the vehicle suspected to be at fault for an accident also include a side claim against the nominal defendant in case of vehicle misidentification?

Consider the case of motorcyclist Armin Damirdjian who braked heavily to avoid a parked van that pulled out from a parked position into his path in Fairfield Heights in Sydney’s west.

Nominal DefendantDamirdjian’s wheels locked, causing him to lose control of the motorcycle and be thrown on to the road and seriously injured.

That was in October 2011.

In defence of a negligent driving charge brought by police, the rider’s denial that he had been speeding was not accepted.

He filed injury compensation proceedings against the Nominal Defendant in 2014 after having been unable to identify the owner of the white van that he claimed was at fault.

His daughter – who was told of the accident by her father’s friend when she was at home alone and went immediately into shock – also sued for nervous shock.

During the trial which began over 6 days in August 2017, evidence emerged which suggested the possible identity of the white van and its owner.

The proceedings were adjourned until Sam Zaya – who resided at 17A Nile Street near the spot where the accident occurred – was joined as the second defendant.

That was on the strength of information from Pauline Douglas – who resided at No 17 – about a van meeting the at-fault vehicle’s description having often been parked in the street and who claimed to have been an eye-witness and saw the van perform the U-turn that was alleged to have caused the calamity.

Zaya had indeed lived at No 17A and had owned a white Toyota Hi Ace 100 Series van at the time of the accident. He and his employees used the van in the conduct of his cleaning business and he admitted he frequently conducted a U-turn in the street when departing his residence.

He denied though that he had been the driver and asserted that both of his neighbours owned vans, one of which – as verified by motor vehicle registry records he produced – was white in colour.

He did not deny that it might have been one of his employees who had driven the van on the relevant day.

The District Court trial resumed in April 2018 but evidence was not concluded until March 2021, a total of a further 22 days.

Judge Leonard Levy – in reliance upon Mrs Douglas’ evidence – found on the balance of probabilities that the white van involved in the accident belonged to Zaya and was being driven by an employee.

He ordered his CTP insurer to pay compensation of $375k to the motorcycle rider and $468k to his daughter.

Their claims against the Nominal Defendant were therefore dismissed.

The CTP insurer appealed. The Nominal Defendant filed a notice of contention alleging that the accident had been caused by the motorcycle – because Damirdjian was riding at an excessive speed – rather than the van.

On appeal, Justice John Griffiths in delivering the lead judgment of the court observed that Pauline Douglas’s evidence was “both internally inconsistent and inconsistent with other evidence”.

She had given differing accounts as to where she was when the accident had occurred and whether or not she had in fact seen the van execute the U-turn.

He concluded that the finding that Zaya was liable as the owner of the white van was erroneous because the primary judge failed to give “cumulative effect” to the several evidentiary matters which cast strong doubt on the reliability of Mrs Douglas’ evidence.

Critically, her evidence that the van was still present and inferentially in use by Mr Zaya in 2017 conflicted with him having ceased to live there in 2013.

The primary judge’s disregard of that mistake as merely “involving a conflation in the time” was flawed – so ruled Justice Griffiths – and contrary to a more compelling inference namely that the van she observed in October 2011 and still parked there in August 2017, was in fact an altogether different van.

In his view, the evidence that purported to identify the at-fault vehicle was insufficient to absolve the Nominal Defendant of its statutory liability.

The appeal court upheld the finding that the accident had been caused by an unidentified white van – ie not that of Mr Zaya – and that Damirdjian should not be attributed any contributory negligence because he had been – as he claimed – travelling at, if not slightly under, 50 kph at the time of the accident.

The Nominal Defendant now must pay the damages assessed by Judge Levy, in lieu of the CTP insurer of Mr Zaya’s vehicle.

Zaya v Damirdjian [2022] NSWCA 203 Bell CJ Gleeson JA Griffiths AJA, 11 October 2022 Read case

Categories: nervous shock , Unidentified vehicle , Motor Cycle Accident

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