Anikin v Sierra

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Gummow,Kirby,Hayne,Callinan J.
• Judgment Date: 09 December 2004
• Neutral Citation: 2004-1209 HCA B,[2004] HCA 64
• Docket Number: S631/2003
• Date: 09 December 2004

[2004] HCA 64

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ

S631/2003

Serge Anikin

Appellant

and

Alfonso Sierra & Anor

Respondent

Representation:

B M Toomey QC with I S McLachlan for the appellant (instructed by Warren & Warren)

K P Rewell SC with A R Beardow for the respondents (instructed by Keddies Litigation Lawyers)

Judiciary Act 1903 (Cth), s 37.

Supreme Court Act 1970 (NSW), s 75A.

Anikin v Sierra

Negligence — Duty of care — Motor vehicle accident — Pedestrian struck by motor omnibus — No eyewitnesses — Pedestrian visible to driver of motor omnibus well before collision — No other vehicles on road impeding driver's capacity to avoid impact — Driver's failure to brake or swerve to avoid pedestrian — Whether open to primary judge to find driver negligent upon the evidence.

Negligence — Contributory negligence — Pedestrian walking on road at night in dark clothing — No footpath visible to pedestrian — Driver's superior capacity to control outcome — Whether pedestrian contributorily negligent — Apportionment of liability.

Appeal — Appellate review of fact-finding at trial before judge alone — Reversal by appellate court of findings of fact at trial — Limitations on appellate review of findings at trial.

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 February 2003 and, in their place, order that the appeal to that Court be dismissed with costs.

1 Gleeson CJ, Gummow, AND Kirby, Hayne This is an appeal from the Court of Appeal of the Supreme Court of New South Wales 1. That Court was divided on the issues in the appeal. Its orders followed the conclusions of the majority (Beazley JA with whom Heydon JA agreed). The dissenting judge (Santow JA) favoured dismissing the appeal on the issue of negligence, although he would have substantially increased the provision for contributory negligence 2.

2 In this Court, the party successful at trial sought restoration of the judgment in his favour on the ground that the majority of the Court of Appeal had erred in disturbing that judgment. The parties disputed the issue of contributory negligence. In our view, the appeal succeeds. The analysis of the dissenting judge on the issue of negligence is to be preferred. The judgment at trial, including on the issue of contributory negligence, should be restored.

The uncontested facts

3 Mr Serge Anikin, the appellant, is a young man who was seriously injured on 29 March 1997 on the Epping Road near Epping, a suburb of Sydney. His injuries were the result of being struck by a motor omnibus whilst he was a pedestrian. The bus was owned and operated by the State Transit Authority of New South Wales, the second respondent. At the relevant time, it was driven by Mr Alfonso Sierra, the first respondent (‘the bus driver’).

4 Most of the background facts relevant to the happening of the accident, and many of the inferences to be drawn from those facts, are uncontested. The appellant was walking on the outside lane of the road when the respondents' bus hit him. The bus struck him head-on on the front corner of its left-hand side, catapulting him back against the doorwell on the side of the bus where blood stains were found 3. From there the appellant was thrown against a nearby rockface sustaining such serious injuries to his left shoulder and arm that he later required amputation of the arm. The appellant was unconscious for nine days following the impact 4. He had no recollection of the events immediately

preceding it 5, and thus could give no evidence to elucidate how the accident had occurred.

5 The appellant sued the respondents for negligence. His action was heard in the District Court of New South Wales by Sidis DCJ, sitting without a jury. The quantification of damages was agreed between the parties at $1 million. Sidis DCJ entered judgment for the appellant. However, she reduced that judgment by 25 per cent for contributory negligence by the appellant, producing an adjusted judgment in the sum of $750,000. It was this judgment that was set aside by the Court of Appeal.

6 At trial, it was common ground that there were no eye witnesses to the way in which the accident had occurred, except the appellant, who could remember nothing, and the bus driver. In material respects, however, the bus driver's evidence was revealed at the trial to be inconsistent and unreliable. The primary judge regarded the inconsistencies as significant. To the extent that there was a difference between the evidence of the bus driver and that of a witness proceeding as a passenger in a vehicle travelling on the other side of the road towards the bus (Mr Fatches), the primary judge preferred the evidence of that witness 6.

7 It was common ground that, on the day of the accident, the appellant, with friends who included his then girlfriend, attended a rock concert held on the grounds of Macquarie University 7. The appellant drove his friends to that place in his vehicle. However, he was unfamiliar with that area of Sydney and had to be directed to the University 8. He parked his car in the University grounds; attended the concert; and drank a cup or two of beer with his friends. There was no suggestion in the trial that the appellant was affected by alcohol or other drugs 9.

8 Some time prior to 8.00 pm, the appellant quarrelled with his girlfriend. He left the concert; and moved the position of his car in the University grounds,

locking it after doing so. The friends subsequently looked for him but, on not finding him or his car, left the University by taxi for Epping Railway Station. At 8.00 pm the appellant telephoned his father stating that he was lost. The father instructed the appellant to return to the University offices to wait there until he could arrive 10. When the father arrived at about 8.30 pm he could not find the appellant. The appellant had set out on foot along Epping Road. Why the appellant had not driven his car to a point of familiarity or waited for his father is unexplained.

9 The appellant proceeded on foot along the northern side of Epping Road, which is a major arterial road serving that part of suburban Sydney 11. He was proceeding in a westerly direction in the direction of the Epping Railway Station 12. There was evidence from a witness at the accident scene suggesting that the appellant was wearing a dark coloured shirt and light coloured trousers. However, it was common ground in the briefs to the experts later retained for the litigation that the clothing was dark in colour, save for a one-inch white stripe on the appellant's shoes which were tied with white shoelaces. There were no bus stops in the vicinity of the accident scene. Although there were street lights on each side of Epping Road, near the point of impact, neither was functioning on the evening of the accident 13. It was a clear night 14. There was no rain 15. It was a Saturday evening towards the end of the period of daylight saving. At 9.00 pm, the approximate time of the accident, it was dark. However, the police witness who was quickly on the scene resisted the suggestion that it was ‘very dark indeed’. When the police officer first drove through the area it was ‘twilight to dark’. He was there for four to five hours. Neither in driving there nor when on the spot did he ‘observe any strong deficiencies in lighting’ 16.

10 The bus driver had completed a shift of about nine hours. He was driving the bus with no passengers on board, and with the internal lights off, in the direction of the depot. He was travelling at between 70 and 80 kilometres per hour 17. The speed limit on this portion of the Epping Road was 80 kilometres per hour. Immediately before the impact, the bus was proceeding down a seven degree gradient and it may have picked up a little speed. The appellant was proceeding on foot in a direction facing oncoming traffic, such as the bus. It was agreed that the bus would have been visible to a pedestrian such as the appellant over about 108 metres 18. The bus had its front lights illuminated on low beam. Such lights threw a range of illumination downwards and to the left of the bus 19. That is, the lights of the bus were cast in the direction of the road ahead and towards the edge of the road to the left of the bus driver. The maximum range of illumination of such lights, according to an expert witness called for the respondents (Mr Joy), was approximately 50 to 60 metres. However, what the actual illumination of people and objects would be depended on the range of colours they presented and any contrast with the background that was also illuminated 20.

11 Just prior to the place of impact between the bus and the appellant, the footpath which ran along the side of Epping Road ran out. Steps led upwards over an interval of rockface. Inferentially, the rock had been carved out when Epping Road was built or widened. There was no sign indicating continuing pedestrian access by way of the steps and by resumption of a safe footpath 21. On the opposite side of the road there was bushland and no footpath. In front of the appellant on the northern side of the road lay the rockface and a narrow shoulder of between one and two metres wide, without a footpath. Given the circumstances of darkness, and the absence of a sign, the respondents did not suggest that it was unreasonable for the appellant to press on beside the rockface, without ascending the steps.

12 The conditions on the verge of the road near the rockface were also largely undisputed. They are illustrated in photographs that were taken

immediately after the accident and received into evidence. These show a quantity of rubbish, involving plastic bags, newspapers and other debris scattered over the shoulder near the rockface together with a...