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Cook v Hawes

Cook v Hawes

Case [2002] NSWCA 79 22 March 2002

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CITATION: Cook v. Hawes [2002] NSWCA 79

FILE NUMBER(S): CA 40629/01

HEARING DATE(S): 18 March 2002

JUDGMENT DATE:
22 March 2002

PARTIES :

Brian James Cook - appellant
Alan Leslie Hawes - respondent

JUDGMENT OF: Stein JA at 1; Hodgson JA at 2; Ipp AJA at 34

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 7701/99

LOWER COURT
JUDICIAL OFFICER : Goldring DCJ

COUNSEL: Mr. J.D. Hislop QC with Mr. D. Ronzani for appellant
Ms. S. Norton SC with Mr. R.A. Smith for respondent

SOLICITORS: Blake Dawson Waldron, Sydney for appellant
Andrew Fegent & Co., Sydney for respondent

CATCHWORDS: TORTS - Negligence - Contributory negligence - Apportionment of responsibility - Van hitting pedestrian crossing against traffic lights - Whether 50/50 apportionment reasonable. D.

CASES CITED:
Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 429 at 493-4
Liftronic Pty. Limited v. Unver [2001] HCA 24
Government Insurance Office of NSW v. Ergul, NSW Court of Appeal, 17/12/93
Stocks v. Baldwin, NSW Court of Appeal, 20/9/96
Tsuji v. Metromix Pty. Limited, NSW Court of Appeal, 17/12/98.

DECISION: 1.Appeal allowed ; 2.Judgment for the respondent for $93,205.18 to be substituted for the judgment below for $229,532.41; 3.Respondent to pay one-half of the appellant's costs of the appeal, and to have a suitor's fund certificate if otherwise entitled, unless within 14 days either party provides the Court with written submissions on costs, in which case the Court will re-consider the question of costs on the basis of those submissions and any written submissions from the other side received within a further 7 days.

CA 40629/01
DC 7701/99

STEIN JA
HODGSON JA
IPP AJA
Friday 22 March 2002

COOK V. HAWES

Judgment

1 STEIN JA: I agree with the reasons of Hodgson JA as set out below.

2 HODGSON JA: On 31st July 2001, Goldring DCJ gave judgment for the respondent Alan Hawes in the sum of $229,532.41 in proceedings for negligence brought by him against the appellant Brian Cook. The appellant has appealed to this Court from that decision, on both liability and quantum of damages.

3 The accident by which the respondent was injured occurred in the following circumstances found by the primary judge, and not challenged on appeal by either party.

4 The accident occurred shortly after 9am on 14th October 1996 in George Street, Sydney. The appellant was hit whilst crossing George Street from the Queen Victoria Building towards Hilton Hotel, in or very near a pedestrian crossing controlled by traffic lights. The weather conditions were good, and there was no problem with visibility. There were three traffic lanes in each direction. In the kerb lane, there was a bus stopped just to the south of this crossing, and another bus stopped just to the north of it.

5 The appellant, a self-employed courier, was driving his van north along George Street in the lane nearest the centre, at approximately 50 kilometres per hour. The lights were green in his favour.…

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 Cook v Hawes

Details

AGLC: Cook v Hawes [2002] NSWCA 79
Case: [2002] NSWCA 79
Decision Date: 22 March 2002

CaseChat Overview and Summary

The appeal in *Cook v Hawes* concerned the apportionment of responsibility in a negligence claim arising from a collision between a van driven by the appellant, Mr. Cook, and the respondent, Ms. Hawes, who was crossing the road. The primary dispute revolved around the extent to which each party's conduct contributed to the accident. The matter was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the trial judge's finding of a 50/50 apportionment of liability between the driver and the pedestrian was reasonable, given the circumstances of the collision. Specifically, the court had to consider whether the pedestrian's act of crossing the road against a red traffic light, and the driver's failure to see her, warranted an equal division of responsibility for the resulting injuries.

The Court of Appeal found that the trial judge's 50/50 apportionment was not justified. While acknowledging the pedestrian's negligence in crossing against the lights, the court determined that the driver bore a greater degree of responsibility for the accident. The driver's failure to maintain a proper lookout and to take reasonable steps to avoid the collision was considered a more significant factor than the pedestrian's breach of duty. The court applied the principles of contributory negligence, emphasizing that apportionment requires a consideration of the relative causative potency of each party's actions.

Consequently, the appeal was allowed, and the judgment in favour of the respondent was significantly reduced. The respondent was awarded $93,205.18, a reduction from the original judgment of $229,532.41. The respondent was also ordered to pay one-half of the appellant's costs of the appeal, with provisions for further submissions on costs.

Orders

Orders of the court

1.Appeal allowed ; 2.Judgment for the respondent for $93,205.18 to be substituted for the judgment below for $229,532.41; 3.Respondent to pay one-half of the appellant's costs of the appeal, and to have a suitor's fund certificate if otherwise entitled, unless within 14 days either party provides the Court with written submissions on costs, in which case the Court will re-consider the question of costs on the basis of those submissions and any written submissions from the other side received within a further 7 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Cook v Hawes [2002] NSWCA 79

Most Recent Citation

Martin v Reda [2004] QCA 268

Cases citing this decision · 7 of 7 shown

Muscat v Allianz Australia Insurance Limited
[2022] NSWPIC 337

…n a 70kph zone when unsafe to do so. (c) The claimant attempted to cross between vehicles exposing herself to a greater risk of harm. In Cook v Hawes [2002] NSWCA 79, the plaintiff crossed against traffic lights in the Sydney CBD and in between two buses. As the defendant was travelling in lane 3 when he first saw…
Turkmani v Visvalingam
[2009] NSWCA 211

…o Relatives Act 1897 CATEGORY: Principal judgment CASES CITED: Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 Cook v Hawes [2002] NSWCA 79 Jarzebski v Jiminez [2006] NSWCA 104 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Liftronic Pty Limited v Unver [2001] HCA 24; (2001) 179 ALR 321 Manley v Alexander […
Scheldrick v Beveridge
[2006] NSWDC 189 Para 14

…Council v Ballerini (No 2) [2006] VCSA 65 Chotiputhsilpa v Waterhouse [2005] NSWCA 342 at [13] - [15] Clarke v Friend 29 MVR 361 at [14] Cook v Hawes [2002] NSWCA 79 at [15] Derek v Cheung (2001) 81 ALR 301 at [10] Furber v Stacey (2005) NSWCA 242 at [116] Gunning v Fellows (1997) MVR 97 at p 100 Knight v McLean […
Martin v Reda
[2004] QCA 268 Para 1

…onsideration to the views of that majority, and specifically quoted from the reasoning of Meagher JA. The judge distinguished that case, Cook v Hawes [2002] NSWCA 79, and Stocks v Baldwin (1996) 24 MVR 416 , as all being ones where a defendant found guilty of negligence had the opportunity to see the plaintiff at…
Crisp v Burridge
[2004] NSWCA 245

…of fact - Whether findings vitiated by errors - TORT - Negligence - Motor accident - Standard of care required of drivers. CASES CITED: Cook v. Hawes [2002] NSWCA 79 Fox v. Percy (2003) 197 ALR 201 Mifsud v. Campbell (1991) 21 NSWLR 725 Pledge v. Roads & Traffic Authority (2004) 78 ALJR 572 PARTIES : Cheree-Ann Cr…
Martin v Reda
[2003] QDC 434 Para 1

…) v Ergul (1993) Aust Torts Reports 62633, Stocks and McDonald Hamilton Co. Pty Ltd v Baldwin (unreported, NSWCA No. 40434 of 1996), Cook v Hawes [2002] NSWCA 79 and the line of authority establishing that a driver of a motor vehicle approaching an intersection cannot safely ignore traffic entering the intersectio…
Spencer v Balranald Shire Council
[2002] NSWCA 102

…v Macgregor [1943] AC 197 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Chambers v Jobling (1986) 7 NSWLR 1 Cook v Hawes [2002] NSWCA 79 Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1 Leishman v Thomas (1957) 75 WN (NSW) 173 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 Podreberse…

View all 7 citing cases →

Cases cited in this decision · 5 of 5 shown

Liftronic Pty Ltd v Unver
[2001] HCA 24

…rtionment reasonable. D. CASES CITED: Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 429 at 493-4 Liftronic Pty. Limited v. Unver [2001] HCA 24 Government Insurance Office of NSW v. Ergul, NSW Court of Appeal, 17/12/93 Stocks v. Baldwin, NSW Court of Appeal, 20/9/96 Tsuji v. Metromix Pty. Lim…
Podbrebersek v Australian Iron & Steel Pty Ltd
[1985] HCA 34

…f the defendant, and the relative causal contribution of the parties’ negligence to the damage: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529; Pennington v Norris (1956) 96 CLR 10.…
Gosper v Sawyer
[1985] HCA 19

…estrian crossing against traffic lights - Whether 50/50 apportionment reasonable. D. CASES CITED: Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 429 at 493-4 Liftronic Pty. Limited v. Unver [2001] HCA 24 Government Insurance Office of NSW v. Ergul, NSW Court of Appeal, 17/12/93 Stocks v. Baldwin,…
Pennington v Norris
[1956] HCA 26

…l contribution of the parties’ negligence to the damage: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529; Pennington v Norris (1956) 96 CLR 10.…
Podrebersek v Australian Iron & Steel Pty Ltd
(1985) 59 ALR 529

…COUNSEL: Mr. J.D. Hislop QC with Mr. D. Ronzani for appellant Ms. S. Norton SC with Mr. R.A. Smith for respondent SOLICITORS: Blake Dawson Waldron, Sydney for appellant Andrew Fegent & Co., Sydney for respondent CATCHWORDS: TORTS - Negligence - Contributory negligence - Apportionment of responsibili…

Legislation cited in this decision · 1

Motor Accidents Act 1988 (NSW)
1 mention

CITATION:	Cook v. Hawes [2002] NSWCA 79
FILE NUMBER(S):	CA 40629/01
HEARING DATE(S):	18 March 2002
JUDGMENT DATE:	22 March 2002
PARTIES :	Brian James Cook - appellant Alan Leslie Hawes - respondent
JUDGMENT OF:	Stein JA at 1; Hodgson JA at 2; Ipp AJA at 34

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7701/99
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL:	Mr. J.D. Hislop QC with Mr. D. Ronzani for appellant Ms. S. Norton SC with Mr. R.A. Smith for respondent
SOLICITORS:	Blake Dawson Waldron, Sydney for appellant Andrew Fegent & Co., Sydney for respondent
CATCHWORDS:	TORTS - Negligence - Contributory negligence - Apportionment of responsibility - Van hitting pedestrian crossing against traffic lights - Whether 50/50 apportionment reasonable. D.
CASES CITED:	Podrebersek v. Australian Iron & Steel Pty. Limited (1985) 59 ALJR 429 at 493-4 Liftronic Pty. Limited v. Unver [2001] HCA 24 Government Insurance Office of NSW v. Ergul, NSW Court of Appeal, 17/12/93 Stocks v. Baldwin, NSW Court of Appeal, 20/9/96 Tsuji v. Metromix Pty. Limited, NSW Court of Appeal, 17/12/98.
DECISION:	1.Appeal allowed ; 2.Judgment for the respondent for $93,205.18 to be substituted for the judgment below for $229,532.41; 3.Respondent to pay one-half of the appellant's costs of the appeal, and to have a suitor's fund certificate if otherwise entitled, unless within 14 days either party provides the Court with written submissions on costs, in which case the Court will re-consider the question of costs on the basis of those submissions and any written submissions from the other side received within a further 7 days.