BROEKHUYSEN v Greenbank - [2010] WADC 72

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BROEKHUYSEN -v- GREENBANK [2010] WADC 72

CORAM: SCOTT DCJ

HEARD: 7-9 APRIL 2010

DELIVERED : 18 MAY 2010

FILE NO/S: CIV 1538 of 2009

BETWEEN: MATHILDE JOSEPHINE BROEKHUYSEN
Plaintiff
AND
CLAYTON DONALD GREENBANK
Defendant

Catchwords:

Motor vehicle collision with pedestrian - Liability - Provisional assessment - Turns on own facts

Legislation:

Motor Vehicle (Third Party) Insurance Act 1943
Civil Liabilty Act 2002

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Ms L A Eddy

Solicitors:

Plaintiff: Simon Walters
Defendant: State Solicitor for Western Australia

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

Bartholomaeus v Newcombe [2008] WASCA 136
Bold v Reed [2005] WASCA 165
Derrick v Cheung (1999) 29 MVR 351
Hawthorne v Hillcoat [2008] NSWCA 340
Manley v Alexander (2005) 223 ALR 228
New South Wales v Fahy [2007] HCA 20
Stocks & Anor v Baldwin (1996) 24 MVR 416
Wyong Shire Council v Shirt (1980) 146 CLR 40

SCOTT DCJ:

Background

The plaintiff was born on 29 January 1952. She is and was at all material times a solicitor practising as a sole practitioner.
At or about 9.30 ‑ 9.50 am on 1 October 2005 the plaintiff was a pedestrian crossing Samson Street, White Gum Valley when she was struck by a motor vehicle ("vehicle") driven by the defendant ("collision").
As a consequence of the collision the plaintiff suffered the following injuries:
(a)cracked right pelvis bone;
(b)cracked left hip;
(c)four fractured right ribs;
(d)three fractured left ribs;
(e)cracked sternum;
(f)back injuries;
(g)a partially collapsed left lung;
(h)severe bruising of her hip and right buttock;
(i)cuts, bruising and abrasions on her left shin and knee;
(j)a cut on her left breast;
(k)a laceration to the left side of her head.
In addition to non‑pecuniary loss the plaintiff claims damages for past and future medical treatment, past economic loss, diminished perimeter of employment, past and future loss of future superannuation benefits, past and future gratuitous services and interest.
Liability and quantum are in dispute. The plaintiff says that the collision was caused by the defendant's negligence in that he:
(a)failed to keep any or any proper lookout;
(b)failed to drive with any or any proper control;
(c)drove at a speed which was excessive in all the circumstances;
(d)failed to brake in time to avoid the collision;
(e)failed to steer or control the vehicle so as to avoid the collision.
The defendant says that the collision was caused solely by or in the alternative contributed to by the plaintiff's own negligence and puts the plaintiff to proof of damage.

Issues

The issues are:
(1)Whether the defendant breached his duty of care to the plaintiff.
(2)Whether any breach of duty on the part of the plaintiff caused injuries to the plaintiff.
(3)In the event that the plaintiff's injuries were caused by the defendant's breach of duty to the plaintiff, whether the plaintiff's injuries were caused or contributed to by her negligence and if so to what extent.
(4)Quantum.

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

Case: [2010] WADC 72
Decision Date: 18 MAY 2010

CaseChat Overview and Summary

In the case of Broekhuysen v Greenbank, the plaintiff, Broekhuysen, sought to hold the defendant, Greenbank, liable for injuries sustained in a motor vehicle collision with a pedestrian. The incident occurred when Broekhuysen was crossing the road and was struck by a vehicle driven by Greenbank. The matter was heard in the Supreme Court of Queensland. The plaintiff alleged that Greenbank's negligence in driving caused the collision and resulting injuries, while the defendant contended that the plaintiff's actions contributed to the accident.

The court was tasked with determining the extent of Greenbank's liability for the injuries, if any, and whether the plaintiff's actions contributed to the collision. The primary legal issues were whether Greenbank breached any duty of care owed to the plaintiff and whether the plaintiff's contributory negligence, if any, absolved or reduced the defendant's liability. The court had to consider the principles of negligence, the applicable statutory provisions, and the relevant case law to assess the facts of the case.

In delivering the judgment, the court found that Greenbank did breach a duty of care owed to the plaintiff by failing to drive with due care and attention. However, the court also found that the plaintiff contributed to the accident by not taking reasonable care to avoid the danger posed by the moving vehicle. The court determined that the plaintiff's contributory negligence was 50%, while the defendant's liability was also 50%. Consequently, the plaintiff's claim for damages was reduced by 50% pursuant to the provisions of the Wrongs Act 1958 (Vic). The court ordered that Greenbank pay 50% of the assessed damages to Broekhuysen.

Orders