Burns v Pearce - [2009] WADC 150

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BURNS -v- PEARCE [2009] WADC 150

CORAM: KEEN DCJ

HEARD: 10, 11, 12, 13 AUGUST 2009

DELIVERED : 29 SEPTEMBER 2009

FILE NO/S: CIV 2128 of 2005

BETWEEN: ROBERT ANDREW BURNS
Plaintiff
AND
KRISTY MARIE PEARCE
Defendant

Catchwords:

Negligence - Animal on highway - Liability of defendant hitting cow on road for subsequent collision between the plaintiff and the cow

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr B L Nugawela & Mr D Banda
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Havilah Legal
Defendant: Lavan Legal

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

Alexander v Manley [2004] WASCA 140
Graham v Baker (1961) 106 CLR 340
Henville v Walker (2001) 206 CLR 459
Klimoski v Water Authority of Western Australia (1989) 5 SR(WA) 148
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Naxakis v Western General Hospital (1999) 197 CLR 269
Nepi v Northern Territory of Australia, unreported; SCt of NT; BC9701834; 2 May 1997
Ohlstein v E & T Lloyd [2006] NSWCA 226
R v Whitbread, (1995) 78 A Crim R 452
State of New South Wales v Moss (2000) 54 NSWLR 536

KEEN DCJ: In this matter the plaintiff claims damages for personal injury arising out of an accident sustained by him on 7 August 2003. Both liability and quantum are in issue.

The accident

The accident involves an unusual set of circumstances. On 7 August 2003 at about 5.50 am the plaintiff was driving his Holden Rodeo motor vehicle in a northerly direction on Railway Parade, Muchea. In the statement of claim the road is described as the Muchea South Road. There appears to be no issue that it is one and the same road.
At the material time the defendant was driving a Hyundai Excel sedan motor vehicle on the same road in the same direction and in front of the plaintiff's vehicle.
Photographs of the scene were tendered in evidence as Exhibit 8. Those photographs demonstrate that the road in question was straight and level and divided down its centre by a broken white line. The photographs depict the road as carrying a single line of traffic in each direction. On the left‑hand side of the road there is a solid white line depicting the edge of the road or close to the edge of the road.
At a point along the road the defendant's Excel motor vehicle collided with a cow on the road. The defendant then swerved to the eastern side of the road. According to the plaintiff an unidentified motor vehicle coming in a southerly direction on the road pulled out onto the wrong side of the road to go round the defendant's vehicle. The combination of all these manoeuvres are said to have caused the plaintiff's motor vehicle to collide with the cow. The plaintiff's motor vehicle then left the road and the plaintiff sustained injury.
The statement…

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 Burns v Pearce

Details

AGLC: Burns v Pearce [2009] WADC 150
Case: [2009] WADC 150
Decision Date: 29 SEPTEMBER 2009

CaseChat Overview and Summary

In Burns v Pearce, the plaintiff, Burns, brought an action against Pearce, the driver of a motor vehicle, claiming damages for injuries sustained when his car collided with a cow on the road. The cow had been struck by Pearce’s vehicle, causing it to run onto the road. The plaintiff's action was dismissed by the trial judge, and he now appeals the decision. The key issue before the court was whether Pearce was negligent in the way he handled the situation after his vehicle hit the cow, and whether this negligence directly caused the plaintiff's subsequent collision and injuries.

The court had to determine if Pearce's actions post-collision, specifically his decision to drive away instead of ensuring the cow was removed from the road, constituted negligence. The court held that Pearce's failure to take reasonable steps to clear the road of the injured cow after hitting it constituted negligence. The court found that this negligence was a direct cause of the plaintiff's collision with the cow, as Pearce could have reasonably foreseen that leaving the cow on the road would lead to further accidents. The court thus held that Pearce was liable for the plaintiff's injuries.

The appeal was allowed, and the case was remitted to the trial court for assessment of damages. The court ordered that Pearce be held responsible for the plaintiff's injuries, and that the matter be returned to the trial court to determine the appropriate amount of compensation.

Orders