(1) Appeal allowed in part. (2) The amounts set out in the order below bearing date 16 October 2008 and 22 October 2008, in respect of the judgment for the respondents and the payment of money to or for the benefit of the various respondents, all to be reduced by one-half, the judgment to bear interest from 16 October 2008. (3) Respondents to pay the appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible.
CATCHWORDS:
TORTS – Negligence – Motor vehicle accident – Vehicle strikes pedestrian crossing at an intersection against “don’t walk” sign – Whether primary judge’s finding that driver liable was in error – Whether primary judge’s assessment of contributory negligence at sixty per cent was in error.
Ahmad TURKMANI (appellant) Marie Pryanthi VISVALINGAM (first respondent) Stephen VISVALINGAM by his next friend Marie Visvalingham (second respondent) Shanara VISVALINGAM by her next friend Marie Visvalingham (third respondent) Anika VISVALINGAM by her next friend Marie Visvalingham (fourth respondent)
FILE NUMBER(S):
CA 40382/08
COUNSEL:
S G CAMPBELL SC (appellant) P G MAHONY SC/ S E McCARTHY (respondents)
Ahmad TURKMANI v Marie Priyanthi VISVALINGAM and Ors
Judgment
1 BEAZLEY JA: I have had the advantage of reading in draft the reasons of Hodgson JA in this matter. I agree with his Honour that the death of the deceased was caused by the appellant’s negligence and have no additional comments to make in that regard. However, I differ from his Honour with respect to contributory negligence.
“A finding on a question of apportionment is a finding…
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
AGLC
Turkmani v Visvalingam [2009] NSWCA 211
Case
[2009] NSWCA 211
Decision Date
CaseChat Overview and Summary
In *Turkmani v Visvalingam*, the New South Wales Court of Appeal considered an appeal from a judgment of the primary judge concerning a motor vehicle accident. The accident involved the appellant's vehicle striking the respondent pedestrian as the pedestrian crossed an intersection against a "don't walk" signal. The primary judge had found the driver liable and assessed the pedestrian's contributory negligence at sixty per cent.
The Court of Appeal was required to determine two principal legal issues: first, whether the primary judge erred in finding the driver liable in negligence for the accident; and second, whether the primary judge erred in assessing the pedestrian's contributory negligence at sixty per cent.
The Court of Appeal allowed the appeal in part. While not overturning the finding of liability against the driver, the Court reduced the assessment of contributory negligence from sixty per cent to fifty per cent. This adjustment meant that the amounts awarded to the respondents were reduced by one-half, and the judgment was to bear interest from the date of the original order. The respondents were ordered to pay the appellant's costs of the appeal, with a provision for a certificate under the *Suitors' Fund Act 1951* if they met the eligibility criteria.
Orders
Orders of the court
(1) Appeal allowed in part. (2) The amounts set out in the order below bearing date 16 October 2008 and 22 October 2008, in respect of the judgment for the respondents and the payment of money to or for the benefit of the various respondents, all to be reduced by one-half, the judgment to bear interest from 16 October 2008. (3) Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible.