Exercise Of Apportionment Between Tortfeasors And Determination Of Contributory Negligence When There Is A Failure To Slow Down.

Liverpool City Council v Estephan Estephan (Executor and

Administrator of the late Joscelyn Estephan & Ors) [2009] NSWCA

161

Giles JA, McColl JA and Basten JA.

In Brief

The Court of Appeal upheld the principle in Tarabay v

Leite [2008] NSWCA 259, namely that questions of apportionment

give rise to findings which cannot easily be characterized as right

or wrong.

Where the level of apportionment is challenged and a finding as

to fact or law is not, the appellate court will be reluctant to

disturb the findings of the court below.

The failure of a driver to slow down their vehicle at an

intersection is not in itself negligence.

The issue is whether there is a reasonable expectation that a

collision will occur if the defendant does not slow his or her

vehicle.

Background

The NSW Court of Appeal handed down its decision in

Liverpool City Council v Estephan Estephan on 3 July

2009.

On 25 May 2001, Mrs. Estephan and her son Steven were killed in

a motor vehicle accident at the intersection of King Street and

Devonshire Road, Rossmore. Mrs. Estephan was driving a Ford Falcon

station wagon which collided with a truck and trailer combination

driven by Mr. Finch and owned by Rock Excavations and Plant Hire

Pty Ltd. Mrs. Estephan's two daughters who were also in the car

survived, however they were critically injured.

The road where the accident occurred was in the local government

area of Liverpool City Council, (the "Council").

At the trial, five sets of proceedings were brought against Mr.

Finch, Rock Excavations and the Council, by members of the Estephan

family alleging nervous shock. Rock Excavations were vicariously

liable for any negligence of Mr. Finch.

In each set of proceedings, there were cross claims for

contribution between Mr. Finch and the Council. The Council also

cross claimed against Mr. Estephan as executor of Mrs.

Estephan's estate, in that Mrs. Estephan had been

contributorily negligent.

The matter came before the trial judge to be heard on liability

only. The trial judge held that Mr. Finch had been negligent in

driving the truck and the Council, as the responsible road

authority, had been negligent in failing to have appropriate

warning signs and markings at the intersection. His Honour

apportioned liability 20:80 against Mr. Finch and the Council. Mrs.

Estephan was found not to be negligent.

In relation to costs, the trial judge ordered that the Council

pay Mr. Finch and the plaintiff's costs on an indemnity basis

and Mr. Finch to pay the plaintiff's costs on an ordinary

basis.

The Council appealed the following decisions of the trial

judge;

That the trial judge's finding that Mrs. Estephan was not

guilty of contributory negligence was erroneous;

In the event that Mrs. Estephan was negligent, the trial

judge's apportionment of negligence between the Council and Mr.

Finch was erroneous; and

Court of Appeal

Mrs. Estephan's negligence. In relation to the...