BARTHOLOMAEUS -v- NEWCOMBE [2008] WASCA 136
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 136 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:106/2007 | 16 JUNE 2008 | |
| Coram: | PULLIN JA BUSS JA MURRAY AJA | 3/07/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| 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
- 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…
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CaseChat Overview and Summary
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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