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Joel Roche v Bill Kigetzis

Joel Roche v Bill Kigetzis

Case [2015] VSCA 207 6 August 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0011

JOEL ROCHE	Applicant
v
BILL KIGETZIS	Respondent

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JUDGES:	OSBORN and KYROU JJA and GARDE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2015
DATE OF JUDGMENT:	6 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 207
JUDGMENT APPEALED FROM:	Kitgetzis v Roche [2014] VSC 657 (Rush J)

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NEGLIGENCE – Application for leave to appeal – Duty of care – Breach – Causation – Whether proper findings of fact of trial judge on the evidence – Inferences available and correct – No error shown – Leave refused.

CONTRIBUTORY NEGLIGENCE – Application for leave to appeal – Role of trial judge – When Court of Appeal may intervene on rehearing on apportionment – Decision of trial judge reasonably open on the evidence – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Ruskin QC with Mr D C Oldfield	Transport Accident Commission
For the Respondent	Mr A J Keogh SC with Mr J P Brett	Arnold Thomas & Becker

OSBORN JA:

At about 9:30 pm on 6 August 2002 the respondent walked out of the Birmingham Hotel and across Johnston Street, Fitzroy, in a northerly direction, at the intersection with Smith Street. Having traversed two lanes intended for west-bound traffic, a right-hand turn lane for traffic turning south and the first of two lanes for east-bound traffic, he was struck as he crossed the northern most of the east-bound lanes by a motor vehicle driven by the applicant.

At the time of the incident, the traffic lights facing the applicant were green and there was a bus stationary in the right-hand (southern most) of the two through lanes for east-bound traffic. The respondent was walking against a ‘red man’ pedestrian traffic signal.

The respondent suffered serious injury and sued the applicant in negligence. The applicant denied negligence and in the alternative alleged contributory negligence on the part of the respondent.

After a three-day trial in December 2014 Rush J gave judgment for the respondent, finding the applicant was negligent and that the respondent was contributorily negligent to the extent of 60 per cent.

The applicant now seeks leave to appeal against these decisions. The Court has treated the application for leave as the hearing of the appeal.

The applicant submits:

(a) the judge erred in his approach to the questions of duty and breach;

(b) the judge erred in holding that the applicant’s negligence was the cause of the incident;

(c) the judge erred in failing to provide any or any sufficient path of reasoning; and

(d) the judge’s finding that the respondent’s damages be reduced by 60 per cent was not reasonably open (if negligence and causation were made out).

It is necessary to say something more about the evidence as to the facts of the case before returning to the judge’s reasons and the grounds of appeal.

The evidence as to the facts

The trial judge summarised the evidence as to the critical facts as…

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 Joel Roche v Bill Kigetzis

Details

AGLC: Joel Roche v Bill Kigetzis [2015] VSCA 207
Case: [2015] VSCA 207
Decision Date: 6 August 2015

CaseChat Overview and Summary

Joel Roche brought a claim against Bill Kigetzis, asserting negligence on the part of the defendant. The matter was heard in the Supreme Court of Queensland, and Roche sought leave to appeal the decision made by the trial judge. The central dispute centred on the establishment of a duty of care, whether there was a breach of that duty, and if such breach led to the plaintiff’s injuries. Furthermore, the issue of contributory negligence was also pivotal, focusing on the role of the trial judge in apportioning liability and whether the apportionment was reasonable based on the evidence presented.

The court was tasked with determining whether the trial judge correctly assessed the evidence to establish a duty of care and whether there was a breach of that duty. Additionally, the court examined whether the trial judge correctly inferred causation from the evidence and if the trial judge’s findings on these matters were appropriate. The court also had to consider the trial judge’s role in apportioning liability for contributory negligence and whether the trial judge's decision was reasonably open on the evidence presented. The central legal question was whether the trial judge made any errors in fact or law that warranted an appeal.

The court concluded that the trial judge's findings of fact were proper and that no errors were evident in the inferences drawn from the evidence. The court held that the trial judge’s assessment of duty, breach, and causation was correct and that the trial judge’s role in apportioning liability for contributory negligence was within the bounds of what was reasonably open on the evidence. Consequently, the court refused leave to appeal, finding no basis for the appellate court to intervene in the trial judge's decisions.

Orders