Two people in a motor vehicle. Both say the other was the driver. The Primary Judge made an impermissible determination on liability after analysing issues separately and before reviewing the evidence as a whole. But did it have a material effect on the outcome?

Author: Daniel Nastevski

Judgment Date: 21 March 2019

Citation: Bezer v Bassan [2019] NSWCA 50

Jurisdiction: NSW Court of Appeal

Principle Issue

A tribunal of fact must weigh the whole of the evidence relevant to an issue before determining whether the party bearing the legal onus has succeeded on that issue. A segmented approach to finding the facts is impermissible.


Christopher Bezer (the Plaintiff in the primary proceedings) and Troy Bassan (the Defendant in the primary proceedings) were involved in single vehicle motor accident on 6 September 2012. The Plaintiff commenced proceedings in the District Court of NSW against the Defendant for damages, alleging the Defendant was negligent.

The principal issue in the proceeding was which party was the driver of the vehicle in circumstances where each asserted the other was the driver. Following a 25 day hearing and review of extensive objective and expert evidence, Gibbs DCJ (the primary judge), found the Plaintiff was the driver and therefore the Defendant was entitled to judgment in his favour.

The Plaintiff appealed the decision of the District Court.

Primary question on appeal

The question on appeal was whether the Plaintiff had proved, on the balance of probabilities, that the Defendant was driving the vehicle at the time of the accident. It was observed that the evidence before the trial judge supported the following preliminary conclusions:

  1. Either the Plaintiff or the Defendant was wearing the front passenger seatbelt. No-one was wearing the driver’s seatbelt.
  2. The vehicle’s trajectory after it left the road resulted in it suffering a substantial impact with the side of the nearby gully, resulting in the passenger making contact with and being bruised by his seatbelt.
  3. The Defendant was bruised in the accident in a manner consistent with him having been wearing the front passenger seatbelt.
  4. At the time of the accident, the front passenger seatbelt was not extended sufficiently to encompass the Plaintiff's girth, whereas it could have encompassed the Defendant's body.
  5. The Plaintiff's injuries were consistent with him being unrestrained by a seatbelt, whereas the Defendant's were not.
  6. The Plaintiff was found in a position in the vehicle not inconsistent with him being the driver of the vehicle.


The principal issue on appeal was whether the fact finding approach undertaken by the primary judge involving a segmentation of the decision making process was impermissible and if so whether it gave rise to a material error.

Justice Macfarlan found that, read as a whole, the judgment did not give the impression that the evidence was not properly considered. However the majority disagreed and were critical of the primary judge's approach in invariably finding "the Plaintiff's claim fails at this point" on separate occasions throughout the judgement. The primary judge should have weighed up the whole of the evidence before reaching a finding on the relevant issue. Payne J explained, at paragraph 82:

"These principles do not mean that the evidence on a particular issue or sub-issue cannot be examined separately, with preliminary views being expressed as to its effect. What must not occur however is the formation of ultimate conclusions before the whole of the evidence relevant to particular issues is taken into account."

The Court concluded however that to the extent the primary judge erred on this issue, it was not material. The strength of the objective and expert evidence, coupled with the credit findings meant that the outcome was sound.

The appeal was dismissed with costs.

Why this case is important

When reviewing decisions of tribunals of fact, parties should enquire whether a segmented approach to decision making was utilised. Were ultimate conclusions reached in isolation of the whole of the evidence being weighed up? If so, the prospects of a successful challenge may be enhanced.