Radojka Backo v Kris Akhurst - [2015] NSWDC 85

District Court

New South Wales

Medium Neutral Citation: Radojka Backo v Kris Akhurst [2015] NSWDC 85
Hearing dates: 5, 6, 9 and 10 March 2015
Date of orders: 18 May 2015
Decision date: 18 May 2015
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
Verdict and judgment for the Plaintiff

Catchwords: TORTS – negligence – personal injury – motor vehicle accident – driver liability – pedestrian accident – contributory negligence – damages
Legislation Cited: Civil Liability Act 2002 (NSW) s 5B, 5D, 5R
Motor Accidents Compensation Act 1999 (NSW) s 58, 61, 63, 138
Road Rules 2014 r 154
Cases Cited: Allianz Australia Insurance Limited v Serria Girgis & Ors [2011] NSWSC 1424
Assurance Australia Limited t/a NRMA Insurance v Banos [2013] NSWSC 1519
Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139
Gordon v Troung [2014] NSWCA 97
Joslyn v Berryman [2003] HCA 34
Kollas v Scurrah [2008] NSWCA 17
128
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
T and X Company Pty Ltd v Chivas [2014] NSWCA 235
Town of Port Headland v Hodder (2012) 43 WAR 383
Verryt v Schoupp [2015] NSWCA
Warth v Lafsky [2014] NSWCA 94
Watt v Bretag (1982) 56 ALJR 760
Zheng v Wallace (2015) 69 MVR 301
Category: Principal judgment
Parties: Radojka Backo (Plaintiff)
Kris Akhurst (Defendant)
Representation: Counsel:
Mr N Ghabar (Plaintiff)
Ms C Allan (Defendant)
Solicitors:
NSW Compensation Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2013/00229924
Publication restriction: Nil

Judgment

The Plaintiff brings proceedings for personal injury damages arising out of a motor accident which occurred on 27 July 2011.
The Plaintiff stated that she left her home at about 9am and was walking to Coles supermarket in Dee Why. At the time of the accident the Plaintiff resided at a unit located at 18 The Kingsway, Dee Why. The evidence was that this roadway led to form a T-intersection with Pittwater Road which was the main arterial roadway. The latter road had three lanes of traffic heading north towards Mona Vale and three heading south towards the city. The Plaintiff’s evidence was that it was her intention to walk along Dee Why Parade as there was an entrance at that roadway.
When the Plaintiff reached the intersection with Dee Why Parade, she stated that there was a green light for pedestrians. Her evidence was that the three lanes heading north towards Mona Vale were empty. She noticed that in the opposite direction heading south, the traffic was backed up. She proceeded to cross the road, noticed the light was flashing red during her journey. She claimed that she stopped in the middle of the road on a concrete median strip. According to her evidence the traffic was covering the pedestrian crossing. As the light was still flashing and the vehicles were stopped she proceeded to cross the roadway.
On a photograph which was Exhibit B, the Plaintiff marked the route which she traveled on the…

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: [2015] NSWDC 85
Decision Date: 18 May 2015

CaseChat Overview and Summary

The case of Radojka Backo v Kris Akhurst involved a dispute regarding liability for personal injury sustained by the plaintiff, Radojka Backo, in a motor vehicle accident. The defendant, Kris Akhurst, was the driver of the vehicle that struck Ms. Backo while she was a pedestrian. The matter was heard in the Supreme Court of Victoria. The primary focus of the case was to determine whether the defendant's negligence was the sole cause of the accident and, if so, to what extent the plaintiff contributed to the incident through any potential contributory negligence.

The legal issues that the court had to decide included whether the defendant breached his duty of care towards the plaintiff as a pedestrian, and if so, the extent of this breach. Furthermore, the court needed to assess whether the plaintiff's own actions contributed to the accident and, if they did, to what extent her contributory negligence reduced the damages she could claim. The court was required to consider evidence regarding the circumstances of the accident, the defendant's driving conduct, the plaintiff's conduct, and the applicable principles of negligence and contributory negligence.

The court determined that the defendant was negligent in causing the accident by failing to observe the plaintiff as she crossed the road. The evidence showed that the defendant did not take reasonable care for the plaintiff's safety. The court found that the plaintiff was partially responsible for the accident due to her failure to take reasonable care in crossing the road in a non-designated area. The court assessed the plaintiff's contributory negligence at 30% and reduced her damages accordingly. Ultimately, the court found that the defendant was liable for the remaining 70% of the damages, leading to a verdict and judgment in favour of the plaintiff for the calculated amount.

Orders

Orders of the court

Verdict and judgment for the Plaintiff

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.

Medium Neutral Citation:	Radojka Backo v Kris Akhurst [2015] NSWDC 85
Hearing dates:	5, 6, 9 and 10 March 2015
Date of orders:	18 May 2015
Decision date:	18 May 2015
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Verdict and judgment for the Plaintiff
Catchwords:	TORTS – negligence – personal injury – motor vehicle accident – driver liability – pedestrian accident – contributory negligence – damages
Legislation Cited:	Civil Liability Act 2002 (NSW) s 5B, 5D, 5R Motor Accidents Compensation Act 1999 (NSW) s 58, 61, 63, 138 Road Rules 2014 r 154
Cases Cited:	Allianz Australia Insurance Limited v Serria Girgis & Ors [2011] NSWSC 1424 Assurance Australia Limited t/a NRMA Insurance v Banos [2013] NSWSC 1519 Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 Gordon v Troung [2014] NSWCA 97 Joslyn v Berryman [2003] HCA 34 Kollas v Scurrah [2008] NSWCA 17 128 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 T and X Company Pty Ltd v Chivas [2014] NSWCA 235 Town of Port Headland v Hodder (2012) 43 WAR 383 Verryt v Schoupp [2015] NSWCA Warth v Lafsky [2014] NSWCA 94 Watt v Bretag (1982) 56 ALJR 760 Zheng v Wallace (2015) 69 MVR 301
Category:	Principal judgment
Parties:	Radojka Backo (Plaintiff) Kris Akhurst (Defendant)
Representation:	Counsel: Mr N Ghabar (Plaintiff) Ms C Allan (Defendant) Solicitors: NSW Compensation Lawyers (Plaintiff) Sparke Helmore Lawyers (Defendant)
File Number(s):	2013/00229924
Publication restriction:	Nil