Estephan v Lynsey Finch and Ors

Case [2007] NSWDC 285
CITATION: Estephan v Lynsey Finch and Ors [2007] NSWDC 285
HEARING DATE(S): 6 March 2006 - 24 March 2006
 
JUDGMENT DATE: 
10 July 2007
JURISDICTION: Civil
JUDGMENT OF: Neilson DCJ at 1
DECISION: Matter No: 1042/04 - Plaintiff: Estephan Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2124/04 - Plaintiff: Charlene Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2125/04 - Plaintiff: Joanne Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2126/04 - Plaintiff: Joseph Azzi; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2127/04 - Plaintiff: Mary Azzi; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for…
Details
AGLC
Estephan v Lynsey Finch [2007] NSWDC 285
Case
[2007] NSWDC 285
Decision Date

CaseChat Overview and Summary

In the matter of Estephan v Lynsey Finch and Ors, the primary concern was a fatal collision involving a stationwagon and a tip truck towing a trailer at an intersection in Rossmore, within the Liverpool local government area. The case involved six actions arising from the collision, focusing on the question of liability. The primary issues before the court were whether the driver of the tip truck and trailer (F) was negligent, whether the driver of the stationwagon (JE) was negligent, and whether the local council (LCC), as the road authority, was negligent. If more than one party was found negligent, the court was also tasked with apportioning the liability.

The court meticulously examined the history and configuration of the intersection, the collision's immediate causes, and the applicable speed limits. It was determined that JE had the right of way and executed a right-hand turn, while F erroneously believed he had the right of way and only applied his footbrake when he realised JE was not yielding. The court found F negligent for failing to keep a proper lookout and for not steering left, though it held that his speed of approximately 70kph in a 60kph zone did not constitute negligence. JE was found not negligent, and the LCC was held negligent for not erecting a Give Way sign at the intersection despite multiple requests and indications of potential misinterpretation of the modified T intersection sign.

The court apportioned liability, attributing 20 per cent to F and 80 per cent to LCC. Damages were awarded to the plaintiffs, with the LCC liable for 20 per cent of the damages. The Third Cross Defendant was found liable to the First Cross Claimant for costs, and the Second Cross Claimants were awarded 80 per cent of the damages against the Second Cross Defendant. The court granted the parties the liberty to apply for special costs orders, including an interim assessment of costs.

In summary, the court found F primarily liable for the collision due to his failure to observe the modified T intersection sign and for steering into the right side of the carriageway. The LCC was found negligent for not installing a Give Way sign, and the plaintiffs were awarded damages with the LCC bearing 20 per cent of the liability.

Orders

Orders of the court

Matter No: 1042/04 - Plaintiff: Estephan Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2124/04 - Plaintiff: Charlene Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2125/04 - Plaintiff: Joanne Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2126/04 - Plaintiff: Joseph Azzi; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2127/04 - Plaintiff: Mary Azzi; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 3797/04 - Plaintiff: Lynsey Finch; Verdict for the Plaintiff against the Defendant for 80 per cent of damages to be assessed; Judgment for the Cross Defendant against the Cross Claimant; Order the Cross Claimant to pay the Cross Defendant's costs; In each matter, I grant liberty to the parties to apply on 7 day's notice for any special costs orders including, if sought, an order for the interim assessment of costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.