Sierra v Anikin [2003] NSWCA 11

Sierra v Anikin [2003] NSWCA 11

By majority, there was no evidence as to when the respondent stepped onto the roadway and no basis to infer that he was on the roadway at a point where the first appellant could have seen him, reacted and taken action to avoid the collision. The trial judge's finding of negligence therefore lacked an evidential basis, so the appeal was allowed and the respondent's proceedings were dismissed.

Jurisdiction
Australia
Judgment Date
07 February 2003
Procedural Posture
Negligence Pedestrian Motor Vehicle Accident / Appeal From District Court
Outcome
Appeal allowed; orders of the Trial Judge set aside; respondent's proceedings dismissed.
Legal Topics
['pedestrian Accident' "driver's Duty of Care" 'evidential Basis for Finding Negligence' 'contributory Negligence' 'apportionment' 'appellate Review of Factual Findings']
['negligence' 'motor Vehicle Accidents' 'civil Procedure'] ['pedestrian Accident' "driver's Duty of Care" 'evidential Basis for Finding Negligence' 'contributory Negligence' 'apportionment' 'appellate Review of Factual Findings']

Case Brief

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Procedural Posture

Negligence Pedestrian Motor Vehicle Accident / Appeal From District Court

Legal Issues

  1. 1 ['Whether there was evidence to support a finding that the first appellant driver was negligent in colliding with the respondent pedestrian.' 'Whether the trial judge erred in finding that the first appellant failed to take evasive action.' "Whether the trial judge's apportionment of contributory negligence should be set aside for manifest error."]

Ratio Decidendi

By majority, there was no evidence as to when the respondent stepped onto the roadway and no basis to infer that he was on the roadway at a point where the first appellant could have seen him, reacted and taken action to avoid the collision. The trial judge's finding of negligence therefore lacked an evidential basis, so the appeal was allowed and the respondent's proceedings were dismissed.

Court Disposition

Appeal allowed; orders of the Trial Judge set aside; respondent's proceedings dismissed.

Orders

  • ['The appeal is allowed.' 'The orders of the Trial Judge are set aside.' "In lieu thereof, the Respondent's proceedings are dismissed." 'The Respondent is to pay the costs of the appellant below and in this Court.' 'The Respondent is to have a certificate under the Suitors Fund Act 1951 if qualified.']