2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 February 2003 and, in their place, order that the appeal to that Court be dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
B M Toomey QC with I S McLachlan for the appellant (instructed by Warren & Warren)
K P Rewell SC with A R Beardow for the respondents (instructed by Keddies Litigation Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Anikin v Sierra
Negligence – Duty of care – Motor vehicle accident – Pedestrian struck by motor omnibus – No eyewitnesses – Pedestrian visible to driver of motor omnibus well before collision – No other vehicles on road impeding driver's capacity to avoid impact – Driver's failure to brake or swerve to avoid pedestrian – Whether open to primary judge to find driver negligent upon the evidence.
Negligence – Contributory negligence – Pedestrian walking on road at night in dark clothing – No footpath visible to pedestrian – Driver's superior capacity to control outcome – Whether pedestrian contributorily negligent – Apportionment of liability.
Appeal – Appellate review of fact-finding at trial before judge alone – Reversal by appellate court of findings of fact at trial – Limitations on appellate review of findings at trial.
GLEESON CJ, GUMMOW, KIRBY AND HAYNE JJ. This is an appeal from the Court of Appeal of the Supreme Court of New South Wales[1]. That Court was divided on the issues in the appeal. Its orders followed the conclusions of the majority (Beazley JA with whom Heydon JA agreed). The dissenting judge (Santow JA) favoured dismissing the appeal on the issue of negligence, although he would have substantially increased the provision for contributory negligence[2].
In this Court, the party successful at trial sought restoration of the judgment in his favour on the ground that the majority of the Court of Appeal had erred in disturbing that judgment. The parties disputed the issue of contributory negligence. In our view, the appeal succeeds. The analysis of the dissenting judge on the issue of negligence is to be preferred. The judgment at trial, including on the issue of contributory negligence, should be restored.
The uncontested facts
Mr Serge Anikin, the appellant, is a young man who was seriously injured on 29 March 1997 on the Epping Road near Epping, a suburb of Sydney. His injuries were the result of being struck by a motor omnibus whilst he was a pedestrian.…
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.
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AGLC
Anikin v Sierra [2004] HCA 64
Case
[2004] HCA 64
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Serge Anikin against the State Transit Authority of New South Wales and its bus driver, Mr Alfonso Sierra. Mr Anikin had suffered severe injuries when he was struck by the respondents' motor omnibus while walking on Epping Road. The primary judge in the District Court of New South Wales found the bus driver negligent but also found Mr Anikin contributorily negligent, reducing the awarded damages by 25 per cent. The Court of Appeal of New South Wales subsequently set aside this judgment, leading to the appeal to the High Court.
The central legal issues before the High Court were whether the primary judge was entitled to find the bus driver negligent based on the evidence presented, and whether Mr Anikin was contributorily negligent. The Court also considered the limitations on appellate review of findings of fact made by a trial judge sitting alone, particularly when the trial judge rejected significant portions of a key witness's evidence. The dispute between the parties primarily concerned the apportionment of liability for the accident.
The High Court allowed the appeal, finding that the majority of the Court of Appeal had erred in disturbing the primary judge's findings. The Court held that the primary judge's analysis of the evidence, particularly her preference for the evidence of Mr Fatches over the bus driver's inconsistent testimony, was open to her. The Court agreed with the dissenting judge in the Court of Appeal that the primary judge's findings on negligence and contributory negligence were well-founded. The Court concluded that the bus driver's failure to brake or swerve to avoid the pedestrian, despite the pedestrian being visible well before the collision and no other vehicles impeding avoidance, supported a finding of negligence. Furthermore, the Court found that the primary judge's assessment of contributory negligence, while acknowledging the driver's superior capacity to control the outcome, was also a permissible conclusion based on the evidence.
Consequently, the High Court ordered that the appeal be allowed with costs, setting aside the orders of the Court of Appeal and restoring the judgment of the primary judge, including the apportionment of liability for contributory negligence.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 February 2003 and, in their place, order that the appeal to that Court be dismissed with costs.
Background
Background to the litigation
In this Court, the party successful at trial sought restoration of the judgment in his favour on the ground that the majority of the Court of Appeal had erred in disturbing that judgment. The parties disputed the issue of contributory negligence. In our view, the appeal succeeds. The analysis of the dissenting judge on the issue of negligence is to be preferred. The judgment at trial, including on the issue of contributory negligence, should be restored.The uncontested facts Mr Serge Anikin, the appellant, is a young man who was seriously injured on 29 March 1997 on the Epping Road near Epping, a suburb of Sydney. His injuries were the result of being struck by a motor omnibus whilst he was a pedestrian. The bus was owned and operated by the State Transit Authority of New South Wales, the second respondent. At the relevant time, it was driven by Mr Alfonso Sierra, the first respondent ("the bus driver"). Most of the background facts relevant to the happening of the accident, and many of the inferences to be drawn from those facts, are uncontested. The appellant was walking on the outside lane of the road when the respondents' bus hit him. The bus struck him head-on on the front corner of its left-hand side, catapulting him back against the doorwell on the side of the bus where blood stains were found[3]. From there the appellant was thrown against a nearby rockface sustaining such serious injuries to his left shoulder and arm that he later required amputation of the arm. The appellant was unconscious for nine days following the impact[4]. He had no recollection of the events immediately preceding it[5], and thus could give no evidence to elucidate how the accident had occurred.[3]Anikin v Sierra unreported, District Court of New South Wales, 22 March 2002 per Sidis DCJ ("Reasons of the primary judge") at [5.3].[4]Sierra [2003] NSWCA 11 at [19], [29].[5]Sierra [2003] NSWCA 11 at [4], [19]. The appellant sued the respondents for negligence. His action was heard in the District Court of New South Wales by Sidis DCJ, sitting without a jury. The quantification of damages was agreed between the parties at $1 million. Sidis DCJ entered judgment for the appellant. However, she reduced that judgment by 25 per cent for contributory negligence by the appellant, producing an adjusted judgment in the sum of $750,000. It was this judgment that was set aside by the Court of Appeal. At trial, it was common ground that there were no eye witnesses to the way in which the accident had occurred, except the appellant, who could remember nothing, and the bus driver. In material respects, however, the bus driver's evidence was revealed at the trial to be inconsistent and unreliable. The primary judge regarded the inconsistencies as significant. To the extent that there was a difference between the evidence of the bus driver and that of a witness proceeding as a passenger in a vehicle travelling on the other side of the road towards the bus (Mr Fatches), the primary judge preferred the evidence of that witness[6].[6]Reasons of the primary judge at [7.3].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ, GUMMOW, KIRBY AND HAYNE JJ
(dissent)
CALLINAN J
Different minds might respond in different ways to the evidence given at the trial. Much time was consumed there by the evidence of experts. Sometimes such evidence may be helpful in describing technical developments of motor vehicle design (such as the evolution and capacity of modern motor vehicle headlamps) or in applying to uncontested facts commonly accepted tables governing the distance travelled by motor vehicles at different speeds and stopping time allowing for differing driver reaction times. Not all judges are mechanically minded or interested. Expert evidence, grounded in the proved testimony, can therefore occasionally be useful. But in the end, such evidence has weight only in respect of matters within the relevant field of expertise and is only as helpful as the evidence and assumptions on which it is based. Such evidence may not usurp the ultimate decisions which remain for the trial judge. In the present case, the expert reports had (and were treated as having) relatively little significance. In the end, the evaluation of the case depended substantially on the acceptance or rejection of the evidence of the bus driver and Mr Fatches and the application to the facts, as then found, of largely undisputed evidence concerning the illumination in front of the bus and the likelihood that it would have revealed the presence of the appellant in time to permit the avoidance of impact[41].[41]Reasons of the primary judge at [7.1]-[7.4].The decision of the Court of Appeal The majority reasons: The Court of Appeal reversed the judgment entered by the primary judge. The reasons for the majority in that Court were given by Beazley JA. Her Honour acknowledged the limitations imposed on appellate review by the primary judge's rejection of the bus driver's evidence to the effect that there were vehicles beside and behind him that made it dangerous for the bus to swerve to the right to avoid collision with the appellant[42]. This notwithstanding, Beazley JA upheld the submission that there was no evidence to support the finding of negligence.[42]Sierra [2003] NSWCA 11 at [8]. The first step towards this conclusion was a statement that there was "nothing in [the primary judge's] reasons to suggest that the [bus driver] should have seen the [appellant] when he was on the side of the road."[43][43]Sierra [2003] NSWCA 11 at [10]. Secondly, Beazley JA proceeded to apply to the facts the uncontested tables concerning distance covered at given speeds with adjustment for the differing reaction times of different motorists. This analysis lay at the heart of the reasons that found favour in the Court of Appeal. They were again pressed on this Court. Beazley JA said[44]:"If the [bus driver] was travelling at 70 kilometres per hour and based upon a reaction time of 1 second (given that the [bus driver] was a professional driver) he would have travelled 19 metres before 'reacting' to the presence of someone or something on the roadway. It would have taken him another 22 metres to bring his vehicle to a complete stop – a total of 41 metres. At 80 kilometres per hour, the relevant distances are 22 metres 'reaction distance' and 30 metres 'stopping distance' – a total of 52 metres....Had the [appellant] stepped onto the roadway at a time when the bus was 40 metres away, then the [bus driver] would not have seen him, reacted and been able to take action to avoid the accident in sufficient time to avoid the accident, even if he was only travelling at 70 kilometres per hour. The difference between impact and no impact would have only been about 1 metre, but there would have been an impact which the [bus driver] could not have avoided. … If the speed was closer to 80 kilometres per hour, the [bus driver] would not have been able to stop his bus until approximately 10 metres after the point of impact. Had the [appellant] stepped onto the roadway when the bus was 30 or 35 metres away his position would have been correspondingly more perilous."[44]Sierra [2003] NSWCA 11 at [10]-[11].