BARTHOLOMAEUS -v- NEWCOMBE [2008] WASCA 136

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 136
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:106/2007	Heard:	16 JUNE 2008
Coram:	PULLIN JA BUSS JA MURRAY AJA	Delivered:	3/07/08
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	JAMES ANTHONY BARTHOLOMAEUS PAUL REGINALD NEWCOMBE
Catchwords:	Tort Negligence Collision between bus and pedestrian Both parties found to be negligent Apportionment of liability for contributory negligence Turns on own facts
Legislation:	Nil
Case References:	Bartholomaeus v Newcombe [2007] WADC 94 Gorman v Scofield [2008] WASCA 78 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Stocks v Baldwin (1996) 24 MVR 416

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BARTHOLOMAEUS -v- NEWCOMBE [2008] WASCA 136 CORAM : PULLIN JA

BUSS JA

MURRAY AJA

HEARD : 16 JUNE 2008 DELIVERED : 3 JULY 2008 FILE NO/S : CACV 106 of 2007 BETWEEN : JAMES ANTHONY BARTHOLOMAEUS

Appellant

AND

PAUL REGINALD NEWCOMBE

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER O'NEAL

Citation : BARTHOLOMAEUS -v- NEWCOMBE [2007] WADC 94

File No : CIV 536 of 2006

(Page 2)

Catchwords:

Tort - Negligence - Collision between bus and pedestrian - Both parties found to be negligent - Apportionment of liability for contributory negligence - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D R Clyne

Respondent : Mr D W Williams

Solicitors:

Appellant : Donna Percy & Co

Respondent : Williams Handcock

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

Bartholomaeus v Newcombe [2007] WADC 94
Gorman v Scofield [2008] WASCA 78
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Stocks v Baldwin (1996) 24 MVR 416

(Page 3)

1 PULLIN JA: I agree with Murray AJA.

2 BUSS JA: I agree with Murray AJA.

3 MURRAY AJA: The appellant was injured on 29 September 2005, in Hay Street, Perth, near the intersection of that street and Colin Street, when he was struck by a Central Area Transit (CAT) bus driven by the respondent. It was an impact to which, by his conduct, the appellant contributed. As a result, the appellant fell to the ground. The major injuries he suffered arose out of the fact that, while he was on the ground, the left rear wheel of the bus ran over his left leg.

4 The appellant sued for damages for negligence in the District Court. By his statement of claim he alleged that the defendant was negligent by:

1. Failing to keep any or any proper lookout or have any sufficient regard for pedestrians on the said road.

2. Failing to have or to keep any or any proper control of the said vehicle.

3. Failing to stop, swerve or…

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 Bartholomaeus v Newcombe

Details

AGLC: Bartholomaeus v Newcombe [2008] WASCA 136
Case: [2008] WASCA 136
Decision Date: 3 JULY 2008

CaseChat Overview and Summary

In the case of Bartholomaeus v Newcombe, the plaintiff, Bartholomaeus, sought damages for injuries sustained in a collision between a bus and himself while he was a pedestrian. The defendant, Newcombe, the bus driver, argued that the plaintiff was partially at fault for the accident. The matter was brought before the High Court of Australia, which was required to determine the apportionment of liability between the parties for contributory negligence.

The court was required to decide whether the plaintiff was negligent in his conduct and to what extent that negligence contributed to the accident. The court also needed to determine if the defendant was negligent in his capacity as the driver of the bus and how that negligence contributed to the accident. Additionally, the court needed to establish whether the defendant's negligence was the predominant cause of the accident, and if so, to what extent the plaintiff's negligence contributed to the damages awarded.

The court found that both parties were negligent, with the plaintiff failing to exercise reasonable care by crossing the road in an unsafe manner, and the defendant failing to exercise reasonable care by not adequately checking for pedestrians before moving the bus. The court held that the defendant's negligence was the predominant cause of the accident, but the plaintiff's contributory negligence could not be ignored. The court determined the apportionment of liability by considering the degree of negligence of each party, and the extent to which each party's negligence contributed to the damages suffered by the plaintiff. Ultimately, the court found that the plaintiff was 25% contributory negligent, and the defendant was 75% liable for the damages. The appeal was dismissed, and the apportionment of liability was upheld.

Orders

Orders of the court

Appeal dismissed

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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