Simmonds-Thatcher v Kamari - [2021] VSCA 133

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0074

BRANDON JAMES SIMMONDS-THATCHER	Applicant
v
SUDABH KAMARI	Respondent

---

JUDGES:	KYROU, EMERTON and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2021
DATE OF JUDGMENT:	14 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 133
JUDGMENT APPEALED FROM:	[2020] VCC 961 (Judge Carmody)

---

TORTS – Negligence – Motor vehicle accident – Respondent struck by applicant’s vehicle when crossing road after alighting from taxi – Respondent alighted from taxi onto nature strip – Respondent then stepped onto roadway from behind taxi without looking in direction of applicant’s approaching vehicle – Respondent took a number of steps onto roadway before being hit by applicant’s vehicle – Whether trial judge erred in finding applicant negligent by reason of not slowing down, having seen respondent alight from taxi onto nature strip – Whether open to find that applicant not keeping proper lookout – Whether causal relationship established – Leave to appeal granted – Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Ruskin QC with Ms G Cooper	Transport Accident Commission
For the Respondent	Mr A D B Ingram QC with Ms M Pilipasidis	Kenyon Legal

KYROU JA

EMERTON JA
OSBORN JA:

Introduction

The applicant seeks leave to appeal the decision of a County Court judge in an action for damages for personal injuries suffered by the respondent as a result of a road traffic accident.

In reasons for judgment given on 6 July 2020,[1] the trial judge held that the respondent had suffered injury as the result both of her own negligence as a pedestrian and the negligence of the applicant in driving his car at the time of the collision.
[1][2020] VCC 961 (‘Reasons’).

The applicant seeks leave to appeal on the grounds that:

1.The learned trial judge erred in his findings as to duty and breach by imposing on the Applicant a duty of care which was beyond a duty to take reasonable care and by holding that the duty was breached.
2.The learned trial judge’s finding that the Applicant failed to exercise reasonable care in the circumstances was not reasonably open and was against the evidence and the weight of the evidence.
3.The learned trial judge erred in finding in relation to causation, at [31] of the Judgment, that ‘At a walking pace for the plaintiff (Respondent), the defendant (Applicant), if travelling at an appropriate speed, would have had ample time to avoid the collision.’

For the reasons which follow, proposed grounds 1 and 3 must succeed. It is unnecessary to deal with ground 2.

Background facts

On 14 November 2015, the respondent attended a lunchtime social gathering in the Glenroy area with her two children and a group of friends.

At the conclusion of the gathering the respondent and three of her friends engaged a maxi taxi[2] to take them, together with their children, back to their respective homes.
[2]A taxi comprising a small van with the capacity to accommodate four adult and…

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 Simmonds-Thatcher v Kamari

Details

AGLC: Simmonds-Thatcher v Kamari [2021] VSCA 133
Case: [2021] VSCA 133
Decision Date: 14 May 2021

CaseChat Overview and Summary

Simmonds-Thatcher v Kamari is a case involving a motor vehicle accident where the respondent was struck by the applicant's vehicle after alighting from a taxi. The respondent stepped onto the road from behind the taxi, without looking in the direction of the applicant's approaching vehicle, and took several steps onto the roadway before being hit. The trial judge found the applicant negligent for not slowing down after seeing the respondent alight from the taxi onto the nature strip and for not keeping a proper lookout. The respondent sought to appeal the decision, arguing that the trial judge's findings were incorrect. The appeal was allowed, and leave to appeal was granted.

The key legal issues in this case were whether the trial judge erred in finding the applicant negligent and whether it was open to find that the applicant was not keeping a proper lookout. The respondent argued that the trial judge's findings were incorrect, and the applicant had not breached their duty of care. The court also considered whether there was a causal relationship between the applicant's actions and the accident.

The court examined the evidence and found that the trial judge's findings were based on reasonable inferences drawn from the evidence. The court held that the applicant was negligent for not slowing down and for not keeping a proper lookout after seeing the respondent alight from the taxi. The court also found that the causal relationship between the applicant's actions and the accident was established. The appeal was allowed, and the decision of the trial judge was affirmed. The court found that the applicant had breached their duty of care, which resulted in the respondent's injuries. The respondent's appeal was dismissed, and the trial judge's decision was upheld. The applicant was found liable for the respondent's injuries, and the case was remitted to the trial court for assessment of damages.

Orders