Medium Neutral Citation: Yebdoo v Holmewood [2021] NSWCA 119
Hearing dates: 6 April 2021
Date of orders: 3 June 2021
Decision date: 03 June 2021
Before: Macfarlan JA at [1];
Gleeson JA at [85];
Leeming JA at [86]
Decision:
Appeal dismissed with costs.

Catchwords:
NEGLIGENCE – breach of duty – motor vehicle accident – failure to keep a proper lookout and slow vehicle
NEGLIGENCE – causation – factual causation – motor vehicle accident – whether expert opinion was necessary to establish causation – whether evidence of time and distance was too imprecise to support a finding of causation
EVIDENCE – witness evidence – cross-examination – procedural fairness – Browne v Dunn – substance of the case allegedly not put to respondent in cross-examination – whether prior notice had nevertheless been given to respondent of cross-examining party’s case

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 3B, 5D, 5E
Evidence Act 1995 (NSW)

Cases Cited:
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Browne v Dunn (1893) 6 R 67
Carter v Boehm, 1 Smith L.C., 7th ed (1876) p 577
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213
Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42
Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601
Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294
Drew v State of New South Wales [2015] NSWCA 159
Farrell v the Queen (1998) 194 CLR 286; [1998] HCA 50
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kollas v Scurrah [2008] NSWCA 17
Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65
R v Parker (1912) 18 ALR 150; [1912] VLR 152
Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15
Tarabay v Leite [2008] NSWCA 259
Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4
Verryt v Schoupp [2015] NSWCA 128
Zervas v Burkitt (No 2) [2019] NSWCA 236

Category: Principal judgment
Parties: Amina Yebdoo (Appellant)
Alan Holmewood (Respondent)
Representation:
Counsel:
D E Baran (Appellant)
J W Catsanos SC (Respondent)
Solicitors:
Wilson Fox Lawyers Pty Limited (Appellant)
Moray & Agnew (Respondent)

File Number(s): 2020/269368
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2020] NSWDC 484

Date of Decision:

27 August 2020

Before:

Montgomery DCJ

File Number(s):

2019/80512

HEADNOTE

[This headnote is not to be read as part of the judgment]

An SUV vehicle driven by Ms Yebdoo, the appellant, collided with a motorcycle ridden by Mr Holmewood, the respondent. Mr Holmewood was thrown off his bike onto the bonnet of the SUV and then onto the road. Being unaware of where Mr Holmewood was on the road, Ms Yebdoo accidently drove over…

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 Yebdoo v Holmewood

Details

AGLC: Yebdoo v Holmewood [2021] NSWCA 119
Case: [2021] NSWCA 119
Decision Date: 03 June 2021

CaseChat Overview and Summary

The appeal concerned a motor vehicle accident where the appellant, Yebdoo, alleged the respondent, Holmewood, breached their duty of care by failing to keep a proper lookout and slow their vehicle. The primary dispute revolved around whether Holmewood's actions caused the accident and whether the evidence presented was sufficient to establish this causation. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the primary judge erred in finding that Holmewood's conduct caused the accident, particularly in light of arguments that expert opinion was necessary to establish causation and that the evidence of time and distance was too imprecise. Secondly, the Court considered whether the primary judge erred in admitting evidence from a witness whose case, it was argued, had not been adequately put to them in cross-examination, contrary to the principles established in *Browne v Dunn*, and whether sufficient notice of the cross-examining party's case had been given.

In addressing the causation issue, the Court of Appeal found that the primary judge was entitled to make findings of fact based on the evidence before them, including the witness testimony regarding time and distance, without requiring expert opinion. The Court held that the evidence was not so imprecise as to preclude a finding of factual causation. Regarding the *Browne v Dunn* issue, the Court determined that, while the substance of the case may not have been explicitly put in cross-examination, the respondent had been given sufficient notice of the case they were required to meet, thereby satisfying the requirements of procedural fairness.

The appeal was dismissed, and Yebdoo was ordered to pay Holmewood's costs.

Orders

Orders of the court

Appeal dismissed with costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Yebdoo v Holmewood [2021] NSWCA 119

Most Recent Citation

Booth v Erdhal [2022] ACTSC 200

Cases citing this decision · 4 of 4 shown

Sweeney v He
[2023] NSWCA 68 Para 85

…Similarly, in Yebdoo v Holmewood [2021] NSWCA 119, Macfarlan JA (with whom Gleeson JA agreed on this issue) said at [57]:…
DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts; HSBC Bank Ltd v Abboud; Potts v National Australia Bank Ltd
[2022] NSWCA 165

…iq) (2019) 272 FCR 373; [2019] FCAFC 167 Yebdoo v Holmewood [2021] NSWCA 119 Texts Cited: Commonwealth of Australia, Inquiry into the Law of Joint and Several Liability: Report of Stage 2 (1995) Explanatory Memorandum, Corporations Amendment (Corporate Reporting Reform) Bill 2010 (Cth) Yuen-Yee Cho and Vishaal Kish…
Booth v Erdhal
[2022] ACTSC 200 Para 1

…use the allegation was clearly an issue on the pleadings. I was referred to the decision of the New South Wales Court of Appeal in Yebdoo v Holmewood [2021] NSWCA 119 ( Yebdoo ) at [57]:…
Thorn v Monteleone; Thorn v Kelly
[2021] NSWCA 319 Para 31

…That the rule in Browne v Dunn does not apply in these circumstances was indicated by me in Yebdoo v Holmewood [2021] NSWCA 119 as follows:…

View all 4 citing cases →

Cases cited in this decision · 27 of 27 shown

Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc
[2020] NSWCA 294 Para 57

…Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 at [287]-[288] and Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [138]-[144]).…
Amina Yebdoo v Alan Holmewood
[2020] NSWDC 484 Para 3

…After a four-day hearing, Montgomery DCJ dismissed Ms Yebdoo’s claim, directing the entry of judgment for Mr Holmewood ([2020] NSWDC 484).…
Zervas v Burkitt (No 2)
[2019] NSWCA 236 Para 61

…rise not merely to an evaluative judgment, but to a finding which cannot readily be characterised as right or wrong”. In Zervas v Burkitt (No 2) [2019] NSWCA 236 at [62], Bell P (with my concurrence and that of McCallum JA) referred to the nature of appellate review of apportionment findings as follows:…
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd
[2018] NSWCA 213 Para 57

…elevant matters (at 16C-D; see also 26E-F). More recent authority is to the same effect (see Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 at [287]-[288] and Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [138]-[144]).…
Drew v State of New South Wales
[2015] NSWCA 159 Para 125

…e’s estimate of contributory negligence, which can only be done on a sufficiently precise counterfactual basis: see Drew v State of New South Wales [2015] NSWCA 159 at [19] and the decisions there cited. Nor is it necessary to deal with ground 2 of the notice of contention.…
Verryt v Schoupp
[2015] NSWCA 128 Para 94

…road rules was no more than a factor pointing to a failure to take reasonable care: see Kollas v Scurrah [2008] NSWCA 17 at [76] and Verryt v Schoupp [2015] NSWCA 128 at [4] and the cases there cited. It follows that it is neither necessary nor appropriate for this Court to express any view about the operation of t…
Central Darling Shire Council v Greeney
[2015] NSWCA 51 Para 62

…3) 65 MVR 578 at [35]−[36]; Nominal Defendant v Bacon [2014] NSWCA 275; (2014) 67 MVR 425 at [101]; Central Darling Shire Council v Greeney [2015] NSWCA 51 at [62]−[68].”…
Nominal Defendant v Bacon
[2014] NSWCA 275

…; (2013) 64 MVR 354 at [48]; Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; (2013) 65 MVR 578 at [35]−[36]; Nominal Defendant v Bacon [2014] NSWCA 275; (2014) 67 MVR 425 at [101]; Central Darling Shire Council v Greeney [2015] NSWCA 51 at [62]−[68].”…
Mikaera v Newman Transport Pty Ltd
[2013] NSWCA 464

…rt Reports 81-731 at [45]; see also Nominal Defendant v Green [2013] NSWCA 219; (2013) 64 MVR 354 at [48]; Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; (2013) 65 MVR 578 at [35]−[36]; Nominal Defendant v Bacon [2014] NSWCA 275; (2014) 67 MVR 425 at [101]; Central Darling Shire Council v Greeney [2015] NSWCA…
Nominal Defendant v Green
[2013] NSWCA 219

…view of discretionary decisions’: Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Tort Reports 81-731 at [45]; see also Nominal Defendant v Green [2013] NSWCA 219; (2013) 64 MVR 354 at [48]; Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; (2013) 65 MVR 578 at [35]−[36]; Nominal Defendant v Bacon [2014] NSWCA 275;…
Australian Securities and Investments Commission v Hellicar
[2012] HCA 17 Para 50

…rant a conclusion that it was necessary. As the plurality stated in Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165], “[d]isputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation…
Strinic v Singh
[2009] NSWCA 15 Para 40

…making factual findings, of his or her special expertise or experience in non-legal fields such as medicine (see Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15 especially at [59]).…
Tarabay v Leite
[2008] NSWCA 259 Para 61

…As Basten JA (with the concurrence of Allsop P and Bell JA) said in Tarabay v Leite [2008] NSWCA 259 at [31], “[q]uestions of apportionment, like the exercise of a discretionary power, such as sentencing, give rise not merely to an evaluative judgment, but to a finding which cannot readily be characterised as right…
Kollas v Scurrah
[2008] NSWCA 17 Para 94

…also acknowledged that a mere breach of the road rules was no more than a factor pointing to a failure to take reasonable care: see Kollas v Scurrah [2008] NSWCA 17 at [76] and Verryt v Schoupp [2015] NSWCA 128 at [4] and the cases there cited. It follows that it is neither necessary nor appropriate for this Cour…
R v Parker
[2006] QSC 109 Para 35

…His Honour then referred to Cussen J’s statement in R v Parker (1912) 18 ALR 150; [1912] VLR 152 that experts “cannot be permitted to attempt to point out to the jury matters which the jury could determine for themselves…”. Referring to the case before the High Court, his Honour then said that some of the purported…
Ghunaim v Bart
[2004] NSWCA 28

…en respectively culpable parties… is governed by the stringent tests which limit appellate review of discretionary decisions’: Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Tort Reports 81-731 at [45]; see also Nominal Defendant v Green [2013] NSWCA 219; (2013) 64 MVR 354 at [48]; Mikaera v Newman Transport Pty Ltd…
Fox v Percy
[2003] HCA 22 Para 107

…The starting point is the incontestable objective facts, in accordance with the principles identified in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.…
Velevski v The Queen
[2002] HCA 4 Para 39

…To like effect were the following observations of Gaudron J in Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4 at [82] and [84] concerning the admissibility of expert evidence in accordance with s 79 of the Evidence Act 1995 (NSW):…
Farrell v The Queen
[1998] HCA 50 Para 38

…thin the knowledge and experience of ordinary people was recognised by Gaudron J’s statements as follows in Farrell v the Queen (1998) 194 CLR 286; [1998] HCA 50 at [10] and [11]:…
Clark v Ryan
[1960] HCA 42 Para 33

…drawing on their common sense and experience. This is reflected, for example, in the discussion in the High Court in Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42 concerning the extent to which evidence of a person claiming experience, and therefore expertise, in investigating road accidents was admissible as t…
Jones v Dunkel
[1959] HCA 9 Para 40

…ng to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission” ( Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at [305]). The inference I have drawn is, as is required, a “positive inference”, not one of a number of conflicting inferences “of…
Jones v Dunkel
[1959] HCA 8 Para 40

…ce the more probable inference from the circumstances that sufficiently appear by evidence or admission” ( Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at [305]). The inference I have drawn is, as is required, a “positive inference”, not one of a number of conflicting inferences “of equal degree of probabili…
Miller v Jennings
[1954] HCA 65 Para 74

…it appropriate to express it as a buffer, a matter of subjective evaluation of a variety of considerations. In Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65, Dixon CJ and Kitto J at 195-6 approved statements of Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 616-7 that: “th…
Luxton v Vines
[1952] HCA 19 Para 260

…e car’ … describes his failure to actively brake in a timely fashion: Davis v Bunn (1936) 56 CLR 246 per Dixon J at [260]; Luxton v Vines (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at [358]-[359]. Further, that his only achieving hitting the brakes and not visibly slowing the bike (as described by Mr Hansfor…
Davis v Bunn
[1936] HCA 44

…before I know it, I hit the brakes, and then I just collided with the car’ … describes his failure to actively brake in a timely fashion: Davis v Bunn (1936) 56 CLR 246 per Dixon J at [260]; Luxton v Vines (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at [358]-[359]. Further, that his only achieving hitting the b…
[1942] AC 601
[1942] AC 601 Para 74

…4) 92 CLR 190; [1954] HCA 65, Dixon CJ and Kitto J at 195-6 approved statements of Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 616-7 that: “the assessment of damages is more like an exercise of discretion than an ordinary act of decision” with the result that an appellant co…
Browne v Dunn
113 ER 1206 Para 24

…mission that a number of key elements of Ms Yebdoo’s case were not put to Mr Holmewood in cross-examination in contravention of the principles in Browne v Dunn (1893) 6 R 67.…

Legislation cited in this decision · 3

Civil Liability Act 2002 (TAS)
3B, 5D, 5E 4 mentions (from Para 106)
Evidence Act 1995 (Cth)
1 mention (from Para 39)
Motor Accidents Compensation Act 1999 (NSW)
1 mention

Medium Neutral Citation:	Yebdoo v Holmewood [2021] NSWCA 119
Hearing dates:	6 April 2021
Date of orders:	3 June 2021
Decision date:	03 June 2021
Before:	Macfarlan JA at [1]; Gleeson JA at [85]; Leeming JA at [86]
Decision:	Appeal dismissed with costs.
Catchwords:	NEGLIGENCE – breach of duty – motor vehicle accident – failure to keep a proper lookout and slow vehicle NEGLIGENCE – causation – factual causation – motor vehicle accident – whether expert opinion was necessary to establish causation – whether evidence of time and distance was too imprecise to support a finding of causation EVIDENCE – witness evidence – cross-examination – procedural fairness – Browne v Dunn – substance of the case allegedly not put to respondent in cross-examination – whether prior notice had nevertheless been given to respondent of cross-examining party’s case
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B, 5D, 5E Evidence Act 1995 (NSW)
Cases Cited:	Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Browne v Dunn (1893) 6 R 67 Carter v Boehm, 1 Smith L.C., 7th ed (1876) p 577 Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42 Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 Drew v State of New South Wales [2015] NSWCA 159 Farrell v the Queen (1998) 194 CLR 286; [1998] HCA 50 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kollas v Scurrah [2008] NSWCA 17 Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65 R v Parker (1912) 18 ALR 150; [1912] VLR 152 Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15 Tarabay v Leite [2008] NSWCA 259 Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4 Verryt v Schoupp [2015] NSWCA 128 Zervas v Burkitt (No 2) [2019] NSWCA 236
Category:	Principal judgment
Parties:	Amina Yebdoo (Appellant) Alan Holmewood (Respondent)
Representation:	Counsel: D E Baran (Appellant) J W Catsanos SC (Respondent) Solicitors: Wilson Fox Lawyers Pty Limited (Appellant) Moray & Agnew (Respondent)
File Number(s):	2020/269368
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWDC 484 Date of Decision: 27 August 2020 Before: Montgomery DCJ File Number(s): 2019/80512