Yakmor v Hamdoush - [2009] NSWCA 137

New South Wales

Court of Appeal

CITATION: Yakmor v Hamdoush [2009] NSWCA 137

HEARING DATE(S): 1 June 2009

JUDGMENT DATE:
9 June 2009

JUDGMENT OF: Giles JA at 1; Ipp JA at 28; Tobias JA at 29

DECISION: Appeal dismissed with costs.

CATCHWORDS: TORTS - negligence - motor vehicle accident - whether defendant drove so as to allow plaintiff's vehicle to come up on his passenger's side - evidence insufficient for that to be found - negligence not made out - no question of principle.

CASES CITED: Jackson v Lithgow City Council [2008] NSWCA 312

PARTIES: Shady Yakmor (by his tutor Nadine Yakmor) - Appellant
Mohamad Hamdoush - Respondent

FILE NUMBER(S): CA 40151/08

COUNSEL: B Dooley SC & R Harrington - Appellant
J Poulos QC & V Heath - Rspondent

SOLICITORS: Carroll & O'Dea - Appellant
Moray & Agnew - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1577/06

LOWER COURT JUDICIAL OFFICER: A Balla DCJ

LOWER COURT DATE OF DECISION: 1 May 2008

CA 40151/08
DC 1577/06

GILES JA
IPP JA
TOBIAS JA
Tuesday 9 June 2009

YAKMOR v HAMDOUSH

Judgment

1 GILES JA: The appellant was injured in a motor vehicle accident on 2 June 2004. In proceedings in the District Court he alleged that the accident was caused by the negligent driving of the respondent. Damages were agreed, subject to approval, but liability was in issue. Balla DCJ was not satisfied that the appellant had shown a breach of duty of care on the part of the respondent.

2 The appellant was driving a Honda Civic, with passengers Mohamad Obeid in the front passenger seat and Hussain Alamaddeine in the driver’s side rear seat. The respondent was driving a Holden Commodore, with passengers Tofic Alamaddeine in the front passenger seat and Ramy Abdelhalim in the passenger’s side rear seat. The drivers and passengers were friends, 17 or 18 years of age save that Tofic Alamaddeine was 21 years old. They were returning from an evening of fishing in the Watsons Bay area.

3 The accident occurred in Homer Street, Kingsgrove at about midnight. Both vehicles turned right into Homer Street from Bexley Road. From there the roadway was initially straight with an uphill grade. It then took a gentle right hand curve. Part way though the curve the roadway crested and dropped into a dip, following which was another straight section with an uphill grade. Homer Street was marked for its length relevant to the accident with a double unbroken centre line and allowed for a single lane of traffic in each direction; however, it was quite wide, with room for parked vehicles and the passage of traffic in each lane.

4 About 680 metres from Bexley Road, and some way up the second uphill grade, Arinya Street joined Homer Street to the left of the driver of a vehicle travelling as these vehicles were. Where Arinya Street entered Homer Street a “crown” was formed intruding into Homer Street, so that a vehicle…

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 Yakmor v Hamdoush

Details

AGLC: Yakmor v Hamdoush [2009] NSWCA 137
Case: [2009] NSWCA 137
Decision Date: 9 June 2009

CaseChat Overview and Summary

Yakmor v Hamdoush concerned a claim for damages arising from a motor vehicle accident. The plaintiff, Yakmor, alleged that the defendant, Hamdoush, drove his vehicle in a manner that allowed the plaintiff's vehicle to come up on the passenger's side of the defendant's vehicle, thereby causing the collision. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the court was whether the evidence presented was sufficient to establish that the defendant drove his vehicle in such a way as to permit the plaintiff's vehicle to draw alongside on the passenger's side. This question was central to determining whether the defendant was negligent and therefore liable for the plaintiff's injuries.

The court found that the evidence did not support the plaintiff's assertion regarding the defendant's driving. Specifically, the judges concluded that there was insufficient evidence to establish that the defendant had driven in a manner that allowed the plaintiff's vehicle to come up on his passenger's side. Consequently, the plaintiff's claim of negligence against the defendant could not be made out. The court noted that no question of principle arose from the determination.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Yakmor v Hamdoush [2009] NSWCA 137
HEARING DATE(S):	1 June 2009
JUDGMENT DATE:	9 June 2009
JUDGMENT OF:	Giles JA at 1; Ipp JA at 28; Tobias JA at 29
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	TORTS - negligence - motor vehicle accident - whether defendant drove so as to allow plaintiff's vehicle to come up on his passenger's side - evidence insufficient for that to be found - negligence not made out - no question of principle.
CASES CITED:	Jackson v Lithgow City Council [2008] NSWCA 312
PARTIES:	Shady Yakmor (by his tutor Nadine Yakmor) - Appellant Mohamad Hamdoush - Respondent
FILE NUMBER(S):	CA 40151/08
COUNSEL:	B Dooley SC & R Harrington - Appellant J Poulos QC & V Heath - Rspondent
SOLICITORS:	Carroll & O'Dea - Appellant Moray & Agnew - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1577/06
LOWER COURT JUDICIAL OFFICER:	A Balla DCJ
LOWER COURT DATE OF DECISION:	1 May 2008