Ciolpan v Swan Transit Services (South) Pty Ltd - [2020] WADC 95

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CIOLPAN -v- SWAN TRANSIT SERVICES (SOUTH) PTY LTD [2020] WADC 95
CORAM:   GILLAN DCJ
HEARD:   14-23 OCTOBER 2019
DELIVERED          :   20 JULY 2020
FILE NO/S:   CIV 2383 of 2017
BETWEEN:   VASILE CIOLPAN
Plaintiff
AND
SWAN TRANSIT SERVICES (SOUTH) PTY LTD
Defendant

Catchwords:

Personal injury - Bus driver - Proper adjustment of seat - Failure to warn

Legislation:

Occupational Safety & Health Act 1984 (WA)
Workers' Compensation & Injury Management Act 1981 (WA)

Result:

Judgment in favour of the plaintiff
Damages assessed

Representation:

Counsel:

Plaintiff	:	Mr T H Offer
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Vertannes Georgiou
Defendant	:	Sparke Helmore Lawyers

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

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Gould v Vaggelas (1985) 157 CLR 215
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
McGhee v National Coal Board [1973] 1 WLR 1; [1972] 3 All ER 1008
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
O'Donnell v McKenzie [1967] SC 58
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617
Roads and Traffic Authority v Royal [2008] HCA 19
Ross v Associated Portland Cement Manufacturers [1964] 1 WLR 768
Sidhu v Van Dyke [2014] HCA 19
The State of Western Australia v Watson [1990] WAR 248
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
Vincent v Atkinson [2017] WADC 155
Wilsher v Essex Area Health Authority [1988] 2 WLR 557
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

GILLAN DCJ:

On the night of 11 June 2015 the plaintiff was employed by the defendant as a bus driver. The plaintiff brings an action in personal injuries arising out of an injury to his cervical spine incurred while driving a bus for the defendant that night.
It is common ground that the plaintiff incurred an injury to his cervical spine and that he also has suffered a greater than 25% whole body impairment as a consequence of that injury.
The matters in issue at trial were whether the defendant was negligent in respect to its treatment of the plaintiff, whether the injury was caused by any negligence, the extent of any ongoing injury to the plaintiff and, if the defendant was negligent, the quantum of any damages. I will detail later in these reasons the specific particulars of negligence.
With respect to the issue of ongoing injury to the plaintiff, the more detailed issues are:
1.whether the plaintiff as a consequence of the cervical spine injury suffered urinary incontinence and sexual dysfunction;
2.whether the plaintiff's cervical spine injury remains…

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.

Keep reading for free

Create a free CaseChat account to read Ciolpan v Swan Transit Services (South) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] WADC 95
Decision Date: 20 JULY 2020

CaseChat Overview and Summary

In the case of Ciolpan v Swan Transit Services (South) Pty Ltd, the plaintiff, Ciolpan, claimed damages for personal injuries sustained while travelling as a passenger on a bus operated by the defendant, Swan Transit Services (South) Pty Ltd. The incident occurred when the plaintiff fell off the bus seat due to it not being properly adjusted by the bus driver, resulting in injuries. The dispute centred on whether the bus driver had a duty to ensure the seat was adjusted properly and whether the defendant was negligent in failing to warn the plaintiff of the risks associated with the improperly adjusted seat. The matter was heard in the District Court of Western Australia.

The primary legal issues that the court had to address were whether the bus driver had a duty of care to the plaintiff and if there was a breach of that duty, and whether the failure to warn the plaintiff about the improperly adjusted seat constituted negligence on the part of the defendant. Additionally, the court needed to determine whether the plaintiff's contributory negligence, if any, would impact the outcome of the case.

The court held that the bus driver owed a duty of care to the plaintiff, which included ensuring that the seat was adjusted properly to prevent any foreseeable harm. The court found that the bus driver had breached this duty by failing to adjust the seat properly, which led to the plaintiff's fall and subsequent injuries. The court also determined that the defendant had a further duty to warn the plaintiff about the risks associated with the improperly adjusted seat. The failure to warn constituted a breach of this duty, and the court found that the defendant was negligent in this regard. The court found that the plaintiff's contributory negligence did not absolve the defendant of liability. As a result, the plaintiff was awarded damages for her injuries.

In conclusion, the court held that the defendant was liable for the plaintiff's injuries due to the breach of duty by the bus driver and the failure to warn the plaintiff about the risks associated with the improperly adjusted seat. The court awarded the plaintiff damages for her injuries, less any contributory negligence on her part.

Orders