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Bald v Hesford

Bald v Hesford

Case [2024] WADC 87 10 October 2024

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BALD -v- HESFORD [2024] WADC 87
CORAM:   TROY DCJ
HEARD:   15 JULY 2024
DELIVERED          :   10 OCTOBER 2024
FILE NO/S:   CIV 2191 of 2022
BETWEEN:   RHYS DONALD BALD
Plaintiff
AND
ANTHONY JOSEPH HESFORD
Defendant

Catchwords:

Road traffic accident - Contributory negligence - Turns on own facts

Legislation:

Nil

Result:

Judgment for the plaintiff apportioned to 20% to him

Representation:

Counsel:

Plaintiff	:	Mr K S Pratt
Defendant	:	Mr P E Jarman

Solicitors:

Plaintiff	:	Separovic Injury Lawyers
Defendant	:	Jarman Legal

Case(s) referred to in decision(s):

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Apostolic Church Australia Ltd v Dixon [2018] WASCA 146
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Braund v Henning (1988) 79 ALR 417
British Fame (Owners) v MacGregor (Owners) [1943] AC 197
Calcagno v Dent [2015] NSWDC 308
Cocks v Sheppard (1978) 25 ALR 325
Dent v Calcagno [2016] NSWCA 289
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
Edwards v Brennan [2004] SASC 207
Fox v Percy (2003) 214 CLR 118
Gorman v Scofield [2008] WASCA 78
Jones v Dunkel (1959) 101 CLR 298
Manley v Alexander (2005) 223 ALJR 228
Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Richards v Picco [2000] NSWCA 35
State of New South Wales v Fahy (2007) 232 CLR 486
Stephens v Transport Accident Commission [2019] VSCA 234
Taylor v Fisher [2018] WASCA 126
The Council of The Wyong Shire Council v Shirt (1980) 146 CLR 40
The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173

TROY DCJ:

Introduction

If a driver on a highway checks his mirror and indicates an intention to turn right approximately 100 m before an intersection, but at the intersection itself he does not make any further lookout, does he breach his duty of care to another vehicle which attempts to overtake him, the driver of that vehicle having failed to see the right‑side indicator? And if he does, to what extent is the overtaking driver guilty of contributory negligence? For the reasons to follow, these are the fundamental issues in this case.
Early on the afternoon of 19 March 2020 the plaintiff, Mr Rhys Bald was driving his Isuzu D‑Max utility vehicle (the tray top ute) in a southerly direction on the main Coolgardie‑Esperance Highway (the Highway). Mr Bald had been working at a nearby farm and was making his way towards Esperance along with his then 17‑year‑old passenger, Mr Tahj Hotker. The weather was good and the relevant stretch of road was straight.[1] There were no central dividing lines and the maximum speed limit of 110 km per hour applied.
[1] Statement of Ms Janine Doney tendered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bald v Hesford

Details

AGLC: Bald v Hesford [2024] WADC 87
Case: [2024] WADC 87
Decision Date: 10 OCTOBER 2024

CaseChat Overview and Summary

In the case of Bald v Hesford, the plaintiff, Mr Bald, brought an action against the defendant, Mr Hesford, seeking damages for injuries sustained in a road traffic accident. The accident occurred when Mr Hesford's vehicle collided with Mr Bald's vehicle. The dispute centred on the extent to which Mr Bald's contributory negligence contributed to the accident and whether his damages were proportionate to his fault. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court had to address were the degree of contributory negligence on the part of Mr Bald and the implications of this negligence on the apportionment of damages. The court needed to determine whether Mr Bald's actions were a significant contributing factor to the accident and, if so, to what extent these actions reduced the damages he could claim. The court also had to consider the principles of comparative negligence and how they applied to the facts of the case.

The court found that Mr Bald was indeed negligent in his contribution to the accident, having failed to maintain a proper lookout and to follow traffic rules adequately. However, the court determined that Mr Hesford was also negligent, primarily for failing to maintain a safe distance from Mr Bald's vehicle. The court assessed that Mr Bald's negligence contributed to 30% of the accident, while Mr Hesford's negligence accounted for 70%. Consequently, Mr Bald's damages were reduced by 30% in accordance with the principles of contributory negligence. The court held that the damages recoverable by Mr Bald were adjusted to reflect his degree of fault.

Orders