Aukuso v Tahan - [2018] NSWCA 117

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Aukuso v Tahan [2018] NSWCA 117
Hearing dates: 26 April 2018
Decision date: 01 June 2018
Before: Macfarlan JA at [1]; Meagher JA at [2]; Simpson AJA at [3]
Decision:
1. Appeal allowed in part.

2. The judgment of 19 October 2017 is set aside.

3. In lieu thereof, judgment for the respondent (Ms Hana Tahan) in the sum of $350,000.
4. Each party to pay his or her own costs of the appeal.
Catchwords:
TORTS – negligence – motor vehicle accident – fatal collision – where multiple conflicting witness accounts – whether appellant or respondent at fault – Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 – whether primary judge erred in analysis of witness accounts
TORTS – negligence – contributory negligence – motor vehicle accident – collision of two vehicles – where both vehicles exceeding speed limit – apportionment of liability
Legislation Cited: Supreme Court Act 1970 s 75A(5)
Cases Cited: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Tahan v Aukuso, unreported, District Court of NSW, 19 October 2017
Warren v Coombes (1979) 142 CLR 531; [1997] HCA 9
Category: Principal judgment
Parties: Taelese Aukuso (Appellant)
Hana Tahan (Respondent)
Representation:
Counsel:
K P Rewell SC (Appellant)
B J Gross QC/F D Curran (Respondent)
Solicitors:
McInnes Wilson Lawyers NSW (Appellant)
Carters Law Firm (Respondent)

File Number(s): 2017/336371
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Date of Decision:

19 October 2017

Before:

Ashford ADCJ

File Number(s):

2014/252868

HEADNOTE

[This headnote is not to be read as part of the judgment]

At about 9.10pm on 21 December 2011 the appellant and the respondent were travelling south on Wallgrove Road at Eastern Creek. The appellant was alone, driving a red Ford Falcon; the respondent, accompanied by her mother and her three daughters, was driving a black Toyota Prado 4WD. A street sweeper was operating just north of where Wallgrove Road intersects with Wonderland Drive. An accompanying escort vehicle blocked the left lane (lane 1) and directed traffic to merge into the right lane (lane 2). At the time Wallgrove Road consisted of two lanes in each direction with a right turning lane commencing 200 metres north of the intersection with Wonderland Drive.

Notwithstanding the speed limit of 70kph each vehicle was travelling at approximately 90kph. Having passed the escort vehicle the vehicles collided in the centre of lane 2. The steering assembly of the Falcon collapsed, making it unmanageable. The Falcon continued for some distance before coming to a halt beyond the intersection. The Toyota Prado veered to the left and struck the back of the street sweeper. The respondent’s mother and two year old daughter were killed. Her six year old daughter suffered spinal injuries and her three year old daughter suffered catastrophic brain damage. The respondent was injured and was hospitalised for two weeks.

A number of witnesses were identified at the scene or…

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 Aukuso v Tahan

Details

AGLC: Aukuso v Tahan [2018] NSWCA 117
Case: [2018] NSWCA 117
Decision Date: 01 June 2018

CaseChat Overview and Summary

This matter concerned an appeal from a judgment of the Supreme Court of New South Wales following a fatal motor vehicle collision. The appellant, Mr Aukuso, and the respondent, Ms Tahan, were the drivers involved in the collision, and the dispute centred on determining which party was at fault for the accident.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in their analysis of the conflicting witness accounts to determine liability, and if so, how liability should be apportioned between the parties, particularly in light of evidence that both vehicles were exceeding the speed limit at the time of the collision.

The Court of Appeal found that the primary judge had erred in their assessment of the evidence and the application of legal principles, particularly in relation to the credibility and weight afforded to certain witness statements. Applying the principles established in cases such as *Fox v Percy*, the Court re-evaluated the evidence and concluded that both parties bore some responsibility for the collision.

Consequently, the appeal was allowed in part, and the original judgment was set aside. Judgment was entered for the respondent, Ms Tahan, in the sum of $350,000, and each party was ordered to bear their own costs of the appeal.

Orders

Orders of the court

1. Appeal allowed in part.

2. The judgment of 19 October 2017 is set aside.

3. In lieu thereof, judgment for the respondent (Ms Hana Tahan) in the sum of $350,000.

4. Each party to pay his or her own costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Aukuso v Tahan [2018] NSWCA 117
Hearing dates:	26 April 2018
Decision date:	01 June 2018
Before:	Macfarlan JA at [1]; Meagher JA at [2]; Simpson AJA at [3]
Decision:	1. Appeal allowed in part. 2. The judgment of 19 October 2017 is set aside. 3. In lieu thereof, judgment for the respondent (Ms Hana Tahan) in the sum of $350,000. 4. Each party to pay his or her own costs of the appeal.
Catchwords:	TORTS – negligence – motor vehicle accident – fatal collision – where multiple conflicting witness accounts – whether appellant or respondent at fault – Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 – whether primary judge erred in analysis of witness accounts TORTS – negligence – contributory negligence – motor vehicle accident – collision of two vehicles – where both vehicles exceeding speed limit – apportionment of liability
Legislation Cited:	Supreme Court Act 1970 s 75A(5)
Cases Cited:	Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Tahan v Aukuso, unreported, District Court of NSW, 19 October 2017 Warren v Coombes (1979) 142 CLR 531; [1997] HCA 9
Category:	Principal judgment
Parties:	Taelese Aukuso (Appellant) Hana Tahan (Respondent)
Representation:	Counsel: K P Rewell SC (Appellant) B J Gross QC/F D Curran (Respondent) Solicitors: McInnes Wilson Lawyers NSW (Appellant) Carters Law Firm (Respondent)
File Number(s):	2017/336371
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 19 October 2017 Before: Ashford ADCJ File Number(s): 2014/252868