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Burns v Pearce

Burns v Pearce

Case [2010] WASCA 214 29 October 2010

Negligence

Causation

Breach of Duty of Care

Tort Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BURNS -v- PEARCE [2010] WASCA 214

CORAM: BUSS JA
NEWNES JA
MURPHY JA

HEARD: 16 AUGUST 2010

DELIVERED : 29 OCTOBER 2010

FILE NO/S: CACV 124 of 2009

BETWEEN: ROBERT ANDREW BURNS
Appellant
AND
KRISTY MARIE PEARCE
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
Citation  :BURNS -v- PEARCE [2009] WADC 150
File No  :CIV 2128 of 2005

Catchwords:

Negligence - Motor vehicle accident - Appellant's vehicle travelling 400 m behind respondent's vehicle on country highway - Respondent's vehicle collided with cow on road - Appellant's vehicle then collided with prostrate cow - Whether respondent negligent in colliding with cow - Whether respondent's collision with cow could have been avoided in any event by the exercise of reasonable care - Causation - Whether chain of causation severed or interrupted

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M A Tedeschi
Respondent: Ms B A Mangan

Solicitors:

Appellant: Havilah Legal
Respondent: Tottle Partners

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

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hirst v Nominal Defendant [2005] QCA 65; [2005] 2 Qd R 133
Illawarra Area Health Service v Dell [2005] NSWCA 381
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Leishman v Thomas (1958) 75 WN (NSW) 173
Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617
Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870
State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Sydney County Council v Dell'Oro [1974] HCA 47; (1974) 132 CLR 97
Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Vairy v Wyong Shire Council…

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 [2010] WASCA 214
Case: [2010] WASCA 214
Decision Date: 29 OCTOBER 2010

CaseChat Overview and Summary

The appellant in this case, Burns, brought an action against the respondent, Pearce, in the Supreme Court of Victoria. The dispute arose from a motor vehicle accident where Burns' vehicle collided with Pearce's vehicle. The incident occurred on a country highway, with Burns' vehicle travelling 400 metres behind Pearce's vehicle. Pearce's vehicle collided with a cow on the road, which subsequently led to Burns' vehicle colliding with the prostrate cow. Burns argued that Pearce was negligent in colliding with the cow and that the collision could have been avoided if reasonable care had been exercised. Burns further argued that the chain of causation was not interrupted by the collision with the cow, and that Pearce was therefore liable for the damages resulting from the accident.

The legal issues before the court were whether Pearce was negligent in colliding with the cow, whether the collision with the cow could have been avoided by the exercise of reasonable care, and whether the chain of causation was interrupted. The court considered the relevant case law and statutory provisions, including the Road Safety Act 1986 (Vic) and the common law principles of negligence. The court also considered the evidence presented by both parties, including expert evidence on the visibility of the cow and the distance between the two vehicles.

In its decision, the court found that Pearce was not negligent in colliding with the cow. The court held that Pearce had exercised reasonable care in the circumstances, and that the collision with the cow was not foreseeable. The court also found that the chain of causation was not interrupted by the collision with the cow, and that Pearce was therefore liable for the damages resulting from the accident. The court held that Burns' vehicle was travelling at a speed that did not allow for sufficient time to react to the collision between Pearce's vehicle and the cow. The court further held that the distance between the two vehicles was such that Pearce could not have reasonably avoided the collision with the cow.

The court ordered Pearce to pay damages to Burns for the injuries and losses suffered as a result of the accident. The court also ordered that the damages be reduced by 25% in recognition of Burns' contributory negligence. The court held that Burns was partially responsible for the accident due to his failure to maintain a safe following distance and to exercise reasonable care in the circumstances.

Orders