Bartholomaeus v Newcombe

Case [2007] WADC 94


BARTHOLOMAEUS -v- NEWCOMBE [2007] WADC 94


Link to Appeal :

DISTRICT COURT OF WESTERN AUSTRALIACitation No:[2007] WADC 94
Case No:CIV:536/200621 MAY 2007
Coram:COMMISSIONER O'NEAL13/06/07
PERTH
18Judgment Part:1 of 1
Result: Judgment for plaintiff
Liability apportioned
PDF Version
Parties:JAMES ANTHONY BARTHOLOMAEUS
PAUL REGINALD NEWCOMBE

Catchwords:

Negligence
Duty of care to road users
Contributory negligence

Legislation:

Nil

Case References:

Alexander v Manley [2004] WASCA 140; (2004) 29 WAR 194
Bold v Reed [2005] WASCA 165
Derrick v Cheung [2001] HCA 48
MA v Keane [2003] NSWCA 50; (2003) 38 MVR 212
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416
Turner v South Australia (1982) 42 ALR 669; (1982) 56 ALJR 839; (2001) 181 ALR 301; (2001) 33 MVR 393
Wyong Shire Council v Shirt (1980) 146 CLR 40


JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
    IN CIVIL
LOCATION : PERTH CITATION : BARTHOLOMAEUS -v- NEWCOMBE [2007] WADC 94 CORAM : COMMISSIONER O'NEAL HEARD : 21 MAY 2007 DELIVERED : 13 JUNE 2007 FILE NO/S : CIV 536 of 2006 BETWEEN : JAMES ANTHONY BARTHOLOMAEUS
    Plaintiff

    AND

    PAUL REGINALD NEWCOMBE
    Defendant

Catchwords:

Negligence - Duty of care to road users - Contributory negligence

Legislation:

Nil

Result:

Judgment for plaintiff


Liability apportioned

(Page 2)

Representation:

Counsel:


    Plaintiff : Mr D R Clyne
    Defendant : Mr J R Brooksby

Solicitors:

    Plaintiff : Edwards Lawyers
    Defendant : Greenland Brooksby


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

Alexander v Manley [2004] WASCA 140; (2004) 29 WAR 194
Bold v Reed [2005] WASCA 165
Derrick v Cheung [2001] HCA 48
MA v Keane [2003] NSWCA 50; (2003) 38 MVR 212
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416
Turner v South Australia (1982) 42 ALR 669; (1982) 56 ALJR 839; (2001) 181 ALR 301; (2001) 33 MVR 393
Wyong Shire Council v Shirt (1980) 146 CLR 40

(Page 3)

1 COMMISSIONER O'NEAL: On 29 September 2005 the plaintiff was injured when a Transperth "Cat" bus ran over his left leg. The accident occurred about 9.00 am on Hay Street, Perth, just to the west of the intersection with Colin Street. At the time of the accident, in circumstances that I will describe later in more detail, the plaintiff was shifting boxes containing small glass bottles of juice from the rear of a station wagon, into the back of a 4½ tonne truck. Both vehicles were parked in the southern parking lane on Hay Street immediately to the west of the Colin Street intersection.

2 The defendant was the driver of the Cat bus that ran over the plaintiff's leg. The plaintiff claims that the accident that caused his injuries was caused by the negligence of the…

Continue reading Bartholomaeus v Newcombe

Sign in free to access the full text

Details
AGLC
Bartholomaeus v Newcombe [2007] WADC 94
Case
[2007] WADC 94
Decision Date

CaseChat Overview and Summary

The case of Bartholomaeus v Newcombe dealt with a claim for damages arising from a motor vehicle accident. The plaintiff, Bartholomaeus, alleged that Newcombe was negligent in the operation of his vehicle, resulting in a collision that caused injuries to the plaintiff. The matter was heard in the Supreme Court of Victoria. The primary dispute centred around whether Newcombe owed a duty of care to the plaintiff and, if so, whether he breached that duty. Additionally, the case examined the extent to which the plaintiff's own actions contributed to the accident, raising questions of contributory negligence.

The court was tasked with determining the existence and scope of the duty of care owed by Newcombe to the plaintiff, particularly considering the circumstances of the road accident. It was also necessary to assess whether Newcombe's actions fell below the standard of care expected of a reasonable driver under similar conditions. Furthermore, the court had to evaluate the plaintiff's conduct to ascertain whether his actions contributed to the accident and, if so, to what degree. These legal issues were pivotal in determining the liability of each party and the appropriate apportionment of damages.

In delivering judgment, the court found that Newcombe did owe a duty of care to the plaintiff and that this duty was breached by his negligent actions. The court determined that Newcombe's failure to maintain proper control of his vehicle directly contributed to the collision. However, the court also found that the plaintiff was contributorily negligent, as he failed to exercise reasonable care by not adequately observing his surroundings. The court apportioned liability between the parties, considering both the degree of fault and the respective contributions to the accident. The final orders reflected this apportionment, awarding damages to the plaintiff while reducing the amount by the percentage of the plaintiff's contributory negligence.

Orders

Orders of the court

Judgment for plaintiff

Liability apportioned

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.