BARTHOLOMAEUS -v- NEWCOMBE [2007] WADC 94
| Link to Appeal : |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 94 | |
| Case No: | CIV:536/2006 | 21 MAY 2007 | |
| Coram: | COMMISSIONER O'NEAL | 13/06/07 | |
| PERTH | |||
| 18 | Judgment 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
- 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…
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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.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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