Davidson v Insurance Commission of WA

[2000] WADC 231

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   DAVIDSON -v- INSURANCE COMMISSION OF WA [2000] WADC 231

CORAM:   COMMISSIONER GREAVES

HEARD:   15 SEPTEMBER 2000

DELIVERED          :   Delivered Extemporaneously on 15 SEPTEMBER 2000 typed from tape and edited by Trial Judge.

FILE NO/S:   CIV 2823 of 1999

BETWEEN:   ALAN DAVIDSON

Plaintiff

AND

INSURANCE COMMISSION OF WA
Defendant

Catchwords:

Negligence - Motor vehicle liability - Unidentified driver - Plaintiff wholly responsible for manner in which he fell from his bicycle - Claim dismissed

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr P J Griffin

Defendant:     Mr C R D Mason

Solicitors:

Plaintiff:     Peter J Griffin & Co

Defendant:     Jackson McDonald

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

Nil

Case(s) also cited:

Hofer v Miller (1957) SASR 41

Holloway v McFeeters (1956) 94 CLR 470

Livingstone v Halvorsen (1978) 53 ALJR 50

Nominal Defendant v Puglisi (1984) Aust Torts Reports 80-305

Watts & Turpin & Ors (1999) 21 WAR 402

1. GREAVES J:  This is a claim in negligence against the Insurance Commission alleging that the plaintiff suffered injury as a consequence of the negligence of an unidentified driver on 19 January 1999.

2. The evidence is that the plaintiff was riding his bicycle along the pathway in Lockyer Avenue, Albany on that day when he first saw the vehicle driven by the unidentified driver, some 30 feet ahead of him.  At that time the plaintiff said that the vehicle was completely blocking the driveway, completely parked across the footpath.

3. The evidence of the plaintiff is that at this time it was stationary and that it remained stationary at all material times.  Later he said he had seen it come out of what he described as an eating house and stop across the footpath.  His evidence, however, was clear that for a distance of 30 feet it was completely stationary.  His evidence is that he tried to ride around the vehicle and as a consequence of that attempt, fell off and suffered injury.  He said that at the time he was approaching the vehicle he was travelling at some eight kilometres per hour.

4. In my opinion, he was not able to explain why he did not stop his bicycle before reaching the unidentified vehicle or why he did not ride his bicycle out onto the road or take his bicycle out onto the road and travel along the roadway which, according to his evidence, was then completely clear.

5. Given this evidence, I do not accept his explanation in re-examination that he would have had to stop suddenly or did not have time to ride out onto the roadway.  In my opinion, on this evidence it is not established on the balance of probabilities that the plaintiff fell from his bicycle as a result of the negligence of the unidentified driver.

6. On the evidence of the plaintiff himself, I find that he was wholly responsible for the manner in which he came to fall from his bicycle and was injured.  In my opinion, the plaintiff has not discharged the onus of proof upon him to establish negligence on the part of the unidentified driver.  I do not accept the submission from Mr Griffin that, on his evidence an inference arises that the unidentified driver was to some extent negligent because she drove away after he fell from the bicycle.  It seems to me that the facts established by the evidence of this plaintiff in this case do not give rise to any such inference.  That is sufficient to dispose of the plaintiff's claim and for those reasons I will direct that the claim be dismissed.  I would only say that it is apparent on the evidence of the plaintiff that he believes that someone should compensate him for his injuries.  On the evidence and according to law, it is plainly not the Insurance Commission.  For those reasons, the claim will be dismissed.