Sierra v Anikin

[2003] NSWCA 11

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Negligence
2. › Motor vehicle accidents
3. › Pedestrian struck by bus
4. › Whether driver liable for injuries
5. › Whether evidential basis to support finding of negligence
6. › Inference from circumstantial evidence
7. › Equally available possibilities insufficient to found inference
1. Negligence
2. › Contributory negligence
3. › Assessment of apportionment
4. › Pedestrian walking on carriageway at night
5. › Whether apportionment manifestly erroneous
6. › Whether appealable error in principle or misapprehension of facts
1. Appeal
2. › Standard of appellate review
3. › Findings of fact by trial judge
4. › Distinction between primary findings and inferences
5. › Warren v Coombes principle
6. › Constraint on appellate intervention where inference bound up with credibility findings

Quick Take

Where there is no evidence as to when a pedestrian stepped onto a carriageway, and the pedestrian may have done so at any point over a range of distances, the existence of equally available possibilities is insufficient to found an inference that the pedestrian was on the roadway at a point where the driver could have seen, reacted, and avoided the collision. The trial judge's apportionment of 25% contributory negligence against a pedestrian walking on a carriageway at night in dark clothing, visible to the bus from 108 metres, was manifestly erroneous.