Sierra v Anikin - [2003] NSWCA 11

CITATION: Sierra v Anikin [2003] NSWCA 11

HEARING DATE(S): 13/09/2002

JUDGMENT DATE:
7 February 2003

JUDGMENT OF: Beazley JA at 1; Heydon JA at 17; Santow JA at 18

DECISION: 1. The appeal is allowed; 2. The orders of the Trial Judge are set aside; 3. In lieu thereof, the Respondent's proceedings are dismissed; 4. The Respondent is to pay the costs of the appellant below and in this Court; 5. The Respondent is to have a certificate under the Suitors Fund Act 1951 if qualified.

CATCHWORDS: NEGLIGENCE - pedestrian accident - whether driver and employer liable for injuries sustained by pedestrian in motor vehicle accident - whether evidential basis to support a finding of negligence against the driver - NEGLIGENCE - assessment of contributory negligence - whether apportionment at first instance should be set aside because of manifest error

CASES CITED: Derrick v Cheung (2001) 181 ALR 301
Luxton v Vines (1952) 85 CLR 352
Nominal Defendant v Owens (1978) 22 ALR 128
Phillis v Daly (1988) 15 NSWLR 65
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Schieb v Abbott (1999) 27 MVR 285
Tabvena v Oag ([2002] NSWCA 313, 24 September 2002, unreported)
Transport Investment Insurance Co. Ltd. v. Longmuir [1997] 1 VR 125
Warren v Coombs (1979) 142 CLR 531

PARTIES :
Alfonso Sierra (First Appellant)
State Transit Authority (Second Appellant)
Serge Anikin (Respondent)

FILE NUMBER(S): CA 40271/02

COUNSEL: K P Rewell, SC/ A R Beardow (Appellants)
C C Branson, QC/ I S McLachlan (Respondent)

SOLICITORS: Keddies (Appellants)
Warren & Warren (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3919/99

LOWER COURT
JUDICIAL OFFICER : Sidis DCJ

- 27 -

CA 40271/02
DC 3919/99

BEAZLEY JA
HEYDON JA
SANTOW JA
7 FEBRUARY 2003

Alfonso SIERRA & Anor -v- Serge ANIKIN

NEGLIGENCE – pedestrian accident – whether driver and employer liable for injuries sustained by pedestrian in motor vehicle accident – whether evidential basis to support a finding of negligence against the driver

Facts
The Respondent was seriously injured after he was struck by a bus while on the first lane of Epping Road at Epping at approximately 9pm on 29 March 1997. At the time the road was dark, there was no direct street lighting and traffic conditions were light. The Respondent was dressed in dark clothing, except for a white stripe on the toe of his shoes. The Respondent had no recollection of the events of the accident.

The first Appellant gave evidence that he first saw the Respondent when he was 10 metres from the bus when the Respondent was trying to attract his attention. The first Appellant stated that he could not take any action to avoid the collision. At the time the bus’ headlights were on low beam. It was accepted that such lighting would illuminate the road ahead for 50 to 60 metres.

The Trial Judge found that the First Appellant had been negligent as well as the Respondent and apportioned liability 75%…

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 Sierra v Anikin

Details

AGLC: Sierra v Anikin [2003] NSWCA 11
Case: [2003] NSWCA 11
Decision Date: 7 February 2003

CaseChat Overview and Summary

Sierra v Anikin concerned an appeal from a decision of the Trial Judge regarding a pedestrian accident. The appellant, Sierra, was the driver and employer of the driver involved in the accident, while the respondent, Anikin, was the pedestrian who sustained injuries. The core of the dispute revolved around whether the driver and employer were liable for Anikin's injuries.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether there was a sufficient evidential basis to support a finding of negligence against the driver. Secondly, the Court had to consider the assessment of contributory negligence, specifically whether the apportionment made at first instance should be set aside due to a manifest error.

In its reasoning, the Court of Appeal found that there was no evidential basis to support a finding of negligence against the driver. Consequently, the Court concluded that the Trial Judge had erred in finding the appellant liable. The Court also determined that the apportionment of contributory negligence was flawed.

The appeal was allowed, and the orders of the Trial Judge were set aside. In lieu of those orders, the respondent's proceedings were dismissed. The respondent was ordered to pay the costs of the appellant both at first instance and in the Court of Appeal, and was granted a certificate under the Suitors Fund Act 1951, subject to qualification.

Orders

Orders of the court

1. The appeal is allowed; 2. The orders of the Trial Judge are set aside; 3. In lieu thereof, the Respondent's proceedings are dismissed; 4. The Respondent is to pay the costs of the appellant below and in this Court; 5. The Respondent is to have a certificate under the Suitors Fund Act 1951 if qualified.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sierra v Anikin [2003] NSWCA 11
HEARING DATE(S):	13/09/2002
JUDGMENT DATE:	7 February 2003
JUDGMENT OF:	Beazley JA at 1; Heydon JA at 17; Santow JA at 18
DECISION:	1. The appeal is allowed; 2. The orders of the Trial Judge are set aside; 3. In lieu thereof, the Respondent's proceedings are dismissed; 4. The Respondent is to pay the costs of the appellant below and in this Court; 5. The Respondent is to have a certificate under the Suitors Fund Act 1951 if qualified.
CATCHWORDS:	NEGLIGENCE - pedestrian accident - whether driver and employer liable for injuries sustained by pedestrian in motor vehicle accident - whether evidential basis to support a finding of negligence against the driver - NEGLIGENCE - assessment of contributory negligence - whether apportionment at first instance should be set aside because of manifest error
CASES CITED:	Derrick v Cheung (2001) 181 ALR 301 Luxton v Vines (1952) 85 CLR 352 Nominal Defendant v Owens (1978) 22 ALR 128 Phillis v Daly (1988) 15 NSWLR 65 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Schieb v Abbott (1999) 27 MVR 285 Tabvena v Oag ([2002] NSWCA 313, 24 September 2002, unreported) Transport Investment Insurance Co. Ltd. v. Longmuir [1997] 1 VR 125 Warren v Coombs (1979) 142 CLR 531
PARTIES :	Alfonso Sierra (First Appellant) State Transit Authority (Second Appellant) Serge Anikin (Respondent)
FILE NUMBER(S):	CA 40271/02
COUNSEL:	K P Rewell, SC/ A R Beardow (Appellants) C C Branson, QC/ I S McLachlan (Respondent)
SOLICITORS:	Keddies (Appellants) Warren & Warren (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3919/99
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ