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.

Judiciary Act 1903 (Cth) – s 37.

Supreme Court Act 1970 (NSW) – s 75A.