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Smith v Walker

Smith v Walker

Case [2023] VSCA 61 28 March 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0046

DAVID SMITH	Applicant
v
PETER WALKER	Respondent

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JUDGES:	BEACH, KENNEDY JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2023
DATE OF JUDGMENT:	28 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 61
JUDGMENT APPEALED FROM:	[2022] VSC 188 (Forbes J)

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TORTS – Negligence – Causation – Motor vehicle accident – Where pedestrian struck by driver at night – Where judge made factual findings as to the location and circumstances of the accident – Where judge found that the driver was negligent for failing to keep a proper lookout – Where judge apportioned negligence of the driver at 30 per cent and contributory negligence of the pedestrian at 70 per cent – Whether judge erred in finding the driver negligent for failing to keep a proper lookout (negligence finding) – Whether judge erred in finding that the collision could have been avoided had the driver kept a proper lookout (causation finding) – Judge’s findings as to negligence and causation findings correct – Leave to appeal refused.

Simmonds-Thatcher v Kamari [2021] VSCA 133; Dungan v Chan [2013] NSWCA 182; Amaca Pty Ltd (under NSW administered winding up) v Booth [2011] HCA 53; Wensink v Marshall [2010] WASCA 117; Mobbs v Kain [2009] NSWCA 301; Norris v Blake [1996] NSWCA 402; March v Stramare(E and MH) Pty Ltd [1991] HCA 12 considered.

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Counsel
Applicant:		Mr J Ruskin KC and Mr R Kumar
Respondent:		Mr N Murdoch KC and Ms C Spitaleri
Solicitors
Applicant:	Solicitors to the TAC
Respondent:	Slater and Gordon

TABLE OF CONTENTS

Background to the accident

The scene of the accident

The trial

The evidence of Mr Walker

The evidence of Mr Smith

The view

Other evidence

The findings of the trial judge

The proposed grounds of appeal

Consideration

The first proposed ground of appeal — the judge’s finding that Mr Smith was in the eastbound laneway and not on the edge of the laneway

The second proposed ground of appeal — that the judge erred in finding that Mr Smith was not keeping a proper lookout (breach of duty of care)

Third proposed ground of appeal — the judge erred in finding that had the applicant kept a proper lookout it was probable that the collision could have been avoided (causation)

Conclusion

BEACH JA
KENNEDY JA
J FORREST AJA:

On the evening of 14 July 2017 at about 7:30 pm on Station Street, Rushworth, the respondent, Mr Peter Walker, a pedestrian, was struck by a motor vehicle driven by Mr David Smith, the applicant.
As a result of the collision, Mr Walker sustained serious injuries.
In February 2021, Mr Walker issued a proceeding in the Trial Division of this Court against Mr Smith seeking damages for the injuries sustained in the accident which he alleged were caused by Mr Smith’s negligence. Mr Smith, in turn, argued that Mr Walker was contributorily negligent.
The trial before…

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 Smith v Walker

Details

AGLC: Smith v Walker [2023] VSCA 61
Case: [2023] VSCA 61
Decision Date: 28 March 2023

CaseChat Overview and Summary

The case of Smith v Walker was heard in the Supreme Court of Victoria. The plaintiff, Smith, alleged negligence against the defendant, Walker, following a motor vehicle accident that occurred at night. Smith, a pedestrian, was struck by Walker's car, resulting in injuries. Smith sought damages for the injuries sustained, claiming Walker was negligent for failing to keep a proper lookout and that this negligence caused the accident.

The primary legal issues before the court were whether the judge's findings of negligence and causation were correct. Specifically, the court had to determine whether Walker was negligent for failing to keep a proper lookout and whether the accident could have been avoided if Walker had done so. The court also needed to consider whether the apportionment of negligence, with Walker being found 30 per cent at fault and Smith 70 per cent at fault, was appropriate.

In examining these issues, the court found that the judge's findings were well supported by the evidence. The court concluded that Walker's failure to maintain a proper lookout constituted negligence and that this negligence was a contributing factor to the accident. The court also found that the collision could have been avoided if Walker had kept a proper lookout, thus establishing causation. The apportionment of negligence was deemed fair and supported by the evidence presented. Given these findings, the court rejected Smith's appeal, holding that the judge's determinations were correct and that no grounds for appeal existed.

The court's final orders were to dismiss the appeal and affirm the findings of the trial judge. Walker was found to be 30 per cent liable for the accident, while Smith was found to be 70 per cent liable. The trial judge's apportionment of damages was upheld, and Smith's claim for damages was assessed accordingly.

Orders