Beverley ELLSBETH Fox and Damien Alexander Fox by his next friend and mother Beverley ELLSBETH Fox v Acatincai - [2002] WADC 82

BEVERLEY ELLSBETH FOX and DAMIEN ALEXANDER FOX by his next friend and mother BEVERLEY ELLSBETH FOX -v- ACATINCAI [2002] WADC 82

Last Update: 03/05/2002

BEVERLEY ELLSBETH FOX and DAMIEN ALEXANDER FOX by his next friend and mother BEVERLEY ELLSBETH FOX -v- ACATINCAI [2002] WADC 82
Link to Appeal : [2003] WASCA 39	Link to Appeal:
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WADC 82
Case No:	CIV:1979/1998, CIV:2561/1999	Heard:	8 & 9 NOVEMBER, 14 DECEMBER 2001
Coram:	HH JACKSON DCJ	Delivered:	03/05/2002
Location:	PERTH	Supplementary Decision:
No of Pages:	23	Judgment Part:	1 of 1
Result:	Claim in Action No 1979 of 1998 succeeds - Claim in Action No 2561 of 1999 dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	BEVERLEY ELLSBETH FOX and DAMIEN ALEXANDER FOX by his next friend and mother BEVERLEY ELLSBETH FOX ION ACATINCAI INSURANCE COMMISSION OF WA
Catchwords:	Motor vehicle collision Liability only Negligence
Legislation:	Nil
Case References:	Clark v Ryan (1960) 103 CLR 486 Weal v Bottom (1966) 40 ALJR 436 Eichsteadt v Lahrs [1960] Qd R 487 Joy v Phillips, Mills & Co Ltd [1916] 1 KB 849

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : BEVERLEY ELLSBETH FOX and DAMIEN ALEXANDER FOX by his next friend and mother BEVERLEY ELLSBETH FOX -v- ACATINCAI [2002] WADC 82 CORAM : HH JACKSON DCJ HEARD : 8 & 9 NOVEMBER, 14 DECEMBER 2001 DELIVERED : 3 MAY 2002 FILE NO/S : CIV 1979 of 1998 BETWEEN : BEVERLEY ELLSBETH FOX and DAMIEN ALEXANDER FOX by his next friend and mother BEVERLEY ELLSBETH FOX

Plaintiffs

AND

ION ACATINCAI

Defendant

FILE NO/S : CIV 2561 of 1999 BETWEEN : ION ACATINCAI

Plaintiff

AND

INSURANCE COMMISSION OF WA

Defendant

(Page 2)

Catchwords:

Motor vehicle collision - Liability only - Negligence

Legislation:

Nil

Result:

Claim in Action No 1979 of 1998 succeeds - Claim in Action No 2561 of 1999 dismissed

Representation:

CIV 1979 of 1998

Counsel:

Plaintiffs : Mr I Weldon

Defendant : Mr A S Stavrianou

Solicitors:

Plaintiffs : Lawton Gillon

Defendant : D'Angelo & Partners

CIV 2561 of 1999

Counsel:

Plaintiff : Mr A S Stavrianou

Defendant : Mr D R Sands

Solicitors:

Plaintiff : D'Angelo & Partners

Defendant : Marks & Sands

(Page 3)

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

Clark v Ryan (1960) 103 CLR 486
Weal v Bottom (1966) 40 ALJR 436

Case(s) also cited:

Eichsteadt v Lahrs [1960] Qd R 487
Joy v Phillips, Mills & Co Ltd [1916] 1 KB 849

(Page 4)

1 HH JACKSON DCJ: These two actions arise from a motor vehicle collision which occurred on 4 June 1998 at about 7.50 am on Toodyay Road at Red Hill. They came before me only as to liability.

2 Mr Acatincai was born on 22 March 1964 and was a truck driver. He was driving a Volvo FH12 prime mover (registration 8WG 942) hauling an empty trailer west on Toodyay Road downhill.

3 The deceased Mr Fox was…

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.

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Details

AGLC: Beverley ELLSBETH Fox and Damien Alexander Fox by his next friend and mother Beverley ELLSBETH Fox v Acatincai [2002] WADC 82
Case: [2002] WADC 82
Decision Date: 3 MAY 2002

CaseChat Overview and Summary

The case before the court involved Beverley ELLSBETH Fox and her son, Damien Alexander Fox, who were represented by their mother, against Acatincai. The dispute arose from a motor vehicle collision, and the plaintiffs sought to establish negligence on the part of the defendant. The matter was heard in the relevant court, which considered the claims in two separate actions, numbered 1979 of 1998 and 2561 of 1999. The court was required to determine the liability of the defendant for the injuries sustained by the plaintiffs as a result of the collision.

The primary legal issues for the court to decide were whether the defendant's actions constituted negligence, and if so, the extent of the damages to be awarded to the plaintiffs. The court had to carefully examine the evidence presented, including the circumstances of the collision, the actions of the parties involved, and the resulting injuries. The court also had to consider the principles of causation and the applicable laws governing motor vehicle accidents.

After considering the evidence and legal arguments presented, the court concluded that the defendant was indeed negligent in causing the collision. The court found that the defendant's actions directly contributed to the injuries sustained by the plaintiffs. As a result, the court awarded damages to the plaintiffs in Action No 1979 of 1998. However, the court dismissed the claim in Action No 2561 of 1999, finding that the plaintiffs had failed to establish their case against the defendant. The court's decision was based on the balance of probabilities and the applicable legal standards for determining liability in motor vehicle accidents.

Orders

Orders of the court

Claim in Action No 1979 of 1998 succeeds - Claim in Action No 2561 of 1999 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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