Gui v Weston - [2013] VSCA 364

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0233

Jiang Hong Gui
	Appellant
v
David Glyn Weston	Respondent

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JUDGES:	TATE, WHELAN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2013
DATE OF JUDGMENT:	13 December 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 364
JUDGMENT APPEALED FROM:	Gui v Weston (Unreported, County Court of Victoria, Judge Morrish, 5–7 November 2012)

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PERSONAL INJURY – Transport accident – Collision between motor vehicle and pedestrian crossing a road at night against red pedestrian light – Negligence – Contributory negligence – Apportionment – Contest between witnesses about the state of the traffic lights – Whether direct or inferential evidence – Whether trial judge misdirected the jury about inferences – Whether examples of reasoning given to the jury properly distinguished between direct evidence, inferential reasoning and speculation – Failure to take exception to direction at trial – Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, Morawski v State RailAuthority (1988) 14 NSWLR 374 and Brotherhood of St Laurence v McCabe [2013] VSCA 257 referred to – Use of humorous example – Whether trial judge erred in redirection about alleged momentary inattention by driver – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R W McGarvie SC with Mr S R McCredie	Henry Carus & Associates
For the Respondent	Mr J Ruskin QC with Ms M Norton	Solicitors for the Transport Accident Commission

tate JA:

Following an 11 day jury trial of a common law claim for damages for personal injury arising out of a motor vehicle accident, the jury delivered its verdict that the defendant, Mr Weston, was negligent and his negligence was a cause of the injuries, loss and damage suffered by the plaintiff, Mr Gui. The jury also found that there was contributory negligence on the part of Mr Gui. It apportioned responsibility on the basis that Mr Gui’s share of the responsibility was 85 per cent and Mr Weston’s was 15 per cent. The appeal brought by Mr Gui concerns only that part of the jury verdict relating to apportionment.

Collision between motor vehicle and pedestrian

On the night of Thursday 11 November 2004, Mr Gui was driving back to his home from a friend’s house when the car he was driving collided with the rear of a taxi in Springvale Road, to the north of the intersection with Waverley Road.

After the accident with the taxi, Mr Gui crossed Springvale Road north of the Waverley Road intersection, parked his car, and went to ring for a tow truck at a pizza shop on the western side of the road. He was unable to use a phone at the pizza shop and went to cross the road using the pedestrian crossing at the north side of the Springvale and Waverley Road intersection, crossing from west to east. Mr Gui was wearing a dark grey jacket and black trousers.

Mr Weston…

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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Details

Case: [2013] VSCA 364
Decision Date: 13 December 2013

CaseChat Overview and Summary

In the case of Gui v Weston, the plaintiff, Ms. Gui, sought compensation for injuries sustained after being struck by the defendant's vehicle, Mr. Weston. The incident occurred when Ms. Gui, while crossing a road at night, was hit by the defendant's car despite the pedestrian light being red. Ms. Gui alleged that Mr. Weston was negligent in failing to yield to pedestrians and in his momentary inattention while driving. Mr. Weston, on the other hand, argued that Ms. Gui was contributorily negligent for crossing against the red light and that any injuries she sustained were partly due to her own actions.

The legal issues before the court included whether the trial judge had correctly directed the jury regarding the inferences to be drawn from the evidence, particularly concerning the state of the traffic lights at the time of the accident. The court also had to consider whether the trial judge had adequately distinguished between direct evidence, inferential reasoning, and mere speculation in his examples to the jury. Additionally, the court assessed whether the trial judge's use of a humorous example in his redirection to the jury about Mr. Weston's alleged momentary inattention was appropriate and whether it might have misled the jury.

The court found that the trial judge had not erred in his directions to the jury and that the examples provided were sufficient to distinguish between direct evidence, inferential reasoning, and speculation. The court held that the failure to object to the directions during the trial meant that any errors were waived under Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598. The use of a humorous example in the redirection was deemed acceptable, as it did not prejudice the defendant or mislead the jury. The court concluded that the trial judge's handling of the case was within the acceptable bounds of judicial discretion.

The appeal was dismissed, and the original decision of the trial judge was upheld. The court found that the jury had been properly guided and that the evidence supported the conclusion that the defendant was negligent but that the plaintiff was also contributorily negligent. The apportionment of damages was maintained as decided at first instance.

Orders