JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 – 23 July 2019, 24 September 2019 – 4 October 2019, 21 October 2019
DATE OF JUDGMENT:	14 November 2019
CASE MAY BE CITED AS:	Anedda v Horsey
MEDIUM NEUTRAL CITATION:	[2019] VSC 729

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NEGLIGENCE – Transport accident – Collision between street sweeping truck and car – Whether defendant’s vehicle crossed the continuous double dividing lines – Reliability of witnesses – Expert Evidence – Evidence Act 2008 s 140 – Briginshaw v Briginshaw (1938) 60 CLR 336 – NOM v DPP (2012) 38 VR 618.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with Mr J Fitzpatrick	Slater and Gordon
For the Defendant	Ms M Britbart QC with Ms A Wood	Transport Accident Commission

TABLE OF CONTENTS

Introduction.......................................................................................................................... 1
The claim............................................................................................................................... 2
The pleadings.......................................................................................................... 2
The plaintiff’s alternative claim of negligence................................................... 2
The case at trial....................................................................................................... 3

Applicable principles.......................................................................................................... 3
Duty of care............................................................................................................. 3
Standard of proof................................................................................................... 4

The evidence....................................................................................................................... 12
For the plaintiff..................................................................................................... 12
For the defendant................................................................................................. 12

Plaintiff’s evidence............................................................................................................ 12
Defendant’s evidence........................................................................................................ 23
Submissions relating to the plaintiff and defendant’s evidence................................. 31
Plaintiff’s submissions......................................................................................... 31
Defendant’s submissions..................................................................................... 32

Findings in relation to the plaintiff and defendant’s evidence................................... 33
Expert evidence.................................................................................................................. 40
Physical evidence at the collision site................................................................ 41
Animation and simulations based on physical evidence............................... 43

Submissions relating to the expert evidence................................................................. 52
Plaintiff’s submissions......................................................................................... 52
Defendant’s submissions..................................................................................... 53

Findings in relation to the expert evidence................................................................... 54
Conclusion.......................................................................................................................... 60

Introduction

On 21 February 2013 the plaintiff, Kyle Anedda, was driving a black BMW sedan (the ‘BMW’) in a southerly direction along the South Gippsland Highway (‘SGH’) in Foster North, when his vehicle collided with a Hino truck (the ‘Hino’) being driven in a northerly direction by the defendant, Denise Horsey (‘the collision’).

Immediately prior to the collision, the plaintiff’s BMW was travelling downhill and the defendant’s Hino was travelling uphill. The Hino was not an ordinary truck; it was a street sweeping truck, fitted with left and right side controls and cleaning apparatus which were suspended beneath the truck.

As a result of the collision, the Hino rolled over and landed on top of a third vehicle, a Toyota, leading to the death of the driver of that vehicle. An investigation was carried out by the Victoria Police Major Collision Investigation Unit (‘MCIU’), leading to a criminal prosecution of the plaintiff and his subsequent acquittal by a jury.

On the first day of trial, senior counsel for the plaintiff indicated that should liability be established, parties had reached an agreement as to quantum of damages. Liability was therefore the only issue in this case.

The plaintiff claims the collision was caused by the negligence of the defendant, who veered into his lane on the roadway. The defendant denies she was negligent. She says the collision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anedda v Horsey

Details

AGLC: Anedda v Horsey [2019] VSC 729
Case: [2019] VSC 729
Decision Date: 14 November 2019

CaseChat Overview and Summary

Anedda v Horsey is a case concerning a road traffic accident between a street sweeping truck and a car, where the plaintiff, Anedda, sued the defendant, Horsey, for damages resulting from the collision. The dispute hinged on whether Horsey’s vehicle had crossed the continuous double dividing lines, leading to the accident. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was to determine whether Horsey’s vehicle had indeed crossed the continuous double dividing lines, and if so, whether this action constituted negligence on Horsey’s part. Additionally, the court needed to assess the reliability of the various witnesses and expert evidence presented, particularly considering the provisions of the Evidence Act 2008 and the standard of proof articulated in Briginshaw v Briginshaw and NOM v DPP.

The court examined the testimonies and expert opinions provided by both sides, applying the Briginshaw standard of proof. It concluded that the evidence did not meet the required standard of proof on the balance of probabilities that Horsey’s vehicle had crossed the dividing lines. Consequently, the court found that the plaintiff had failed to establish that Horsey’s negligence caused the accident. The court's reasoning was rooted in the unreliability of the witnesses and the lack of compelling expert evidence supporting the plaintiff’s case. The court held that the plaintiff did not discharge the onus of proving negligence on the balance of probabilities.

The court ultimately dismissed the plaintiff's claim, ordering Anedda to pay Horsey's costs of the proceeding.

Orders