Delaporte v Brewer - [2003] WADC 237

DELAPORTE -v- BREWER [2003] WADC 237

Last Update: 06/11/2003

DELAPORTE -v- BREWER [2003] WADC 237
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 237
Case No:	CIV:3284/2000	Heard:	28 AUGUST 2003
Coram:	WILLIAMS DCJ	Delivered:	05/11/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	7	Judgment Part:	1 of 1
Result:	Plaintiff's claim dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MELISSA GAYE DELAPORTE ADAM COURTNEY BREWER
Catchwords:	Negligence Plaintiff running across busy intersection against the lights No opportunity for defendant to see plaintiff
Legislation:	Nil
Case References:	Nil Cheetham and Anor v Bou (1989) 10 MVR 242 Clarke v Freund (1999) 29 MVR 361 Government Insurance Office (NSW) v Ergul (1993) 18 MVR 339 Ma v Keane (2003) 38 MVR 212 Needham v Divitini [2001] WADC 43 Pennington v Norris [1956] 96 CLR 10 Schieb v Abbott (1998) 27 MVR 285 Scott v Numurkah Corporation [1954] 91 CLR 300 Stewart v Carnell [1984] 2 MVR 147 Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : DELAPORTE -v- BREWER [2003] WADC 237 CORAM : WILLIAMS DCJ HEARD : 28 AUGUST 2003 DELIVERED : 5 NOVEMBER 2003 FILE NO/S : CIV 3284 of 2000 BETWEEN : MELISSA GAYE DELAPORTE

Plaintiff

AND

ADAM COURTNEY BREWER

Defendant

Catchwords:

Negligence - Plaintiff running across busy intersection against the lights - No opportunity for defendant to see plaintiff

Legislation:

Nil

Result:

Plaintiff's claim dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr B G Bradley

Defendant : Mr J P T Olivier

Solicitors:

Plaintiff : Kuscevich & Associates

Defendant : Talbot & Olivier

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

Nil

Case(s) also cited:

Cheetham and Anor v Bou (1989) 10 MVR 242
Clarke v Freund (1999) 29 MVR 361
Government Insurance Office (NSW) v Ergul (1993) 18 MVR 339
Ma v Keane (2003) 38 MVR 212
Needham v Divitini [2001] WADC 43
Pennington v Norris [1956] 96 CLR 10
Schieb v Abbott (1998) 27 MVR 285
Scott v Numurkah Corporation [1954] 91 CLR 300
Stewart v Carnell [1984] 2 MVR 147
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416

(Page 3)

1 WILLIAMS DCJ: The plaintiff was born on 15 September 1978 and was at all material times a kitchen hand.

2 About 8.50 am on 1 April 1999 the plaintiff was crossing Guildford Road, Bayswater in a northerly direction at its intersection with Garrett Road when she was hit by the defendant's Audi sedan which was being driven in a easterly direction along Guildford Road.

3 The plaintiff alleges that the defendant was negligent. The defendant denies negligence and says that the accident was caused, or contributed to, by the negligence of the plaintiff.

4 Garrett Road runs in an approximately north/south direction. Guildford Road runs in an approximately east/west direction. The intersection is controlled by traffic lights. For vehicles travelling east on Guildford Road there are two…

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 Delaporte v Brewer

Details

AGLC: Delaporte v Brewer [2003] WADC 237
Case: [2003] WADC 237
Decision Date: 5 NOVEMBER 2003

CaseChat Overview and Summary

In the matter of Delaporte v Brewer, the plaintiff alleged that the defendant was negligent in running them over with their vehicle. The defendant argued that they were unable to see the plaintiff due to the latter running across a busy intersection against the lights, and thus had no opportunity to avoid the collision. The case was heard in the Magistrates Court of Victoria.

The court was required to determine whether the defendant owed a duty of care to the plaintiff and whether any breach of that duty caused the plaintiff’s injuries. The primary issue was whether the defendant’s failure to see the plaintiff was due to the plaintiff’s own negligence, thereby absolving the defendant from liability. The court also considered whether the defendant’s actions were a significant contributing factor to the accident.

The court found that the plaintiff’s decision to run across the intersection against the lights was a significant contributing factor to the collision. The court held that the defendant was not negligent in failing to see the plaintiff, as the plaintiff’s actions made it impossible for the defendant to avoid the collision. The court also noted that the plaintiff’s own negligence absolved the defendant of liability under the principle of contributory negligence. As such, the plaintiff's claim was dismissed.

Orders

Orders of the court

Plaintiff's claim dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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