Della-Franca v Cudal
[2024] WADC 47
•7 JUNE 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DELLA-FRANCA -v- CUDAL [2024] WADC 47
CORAM: PALMER DCJ
HEARD: 6 JUNE 2024
DELIVERED : 7 JUNE 2024
FILE NO/S: CIV 2446 of 2023
BETWEEN: JON CHARLES DELLA-FRANCA
Plaintiff
AND
FERDINAND BALGOS CUDAL
Defendant
Catchwords:
Tort - Negligence - Whether defendant negligent - Turns on own facts
Legislation:
Nil
Result:
Judgment for the defendant
Representation:
Counsel:
| Plaintiff | : | Mr D R Clyne |
| Defendant | : | Mr J N Trigg |
Solicitors:
| Plaintiff | : | Simon Walters |
| Defendant | : | Jackson McDonald |
Case(s) referred to in decision(s):
Nil
PALMER DCJ:
Introduction
On 1 July 2021, the plaintiff, Mr Jon Della-Franca fell off his seat while he was riding on the 960 bus and injured his head. Mr Della‑Franca alleges that he was injured due to the negligence of the defendant, Mr Cudal, who was driving the bus at the time.
The quantum of damages was agreed at $50,000. The principal issue to be determined at trial was whether Mr Della-Franca was injured due to Mr Cudal's negligence. The issue was narrow and the trial was short.
The plaintiff's case was that Mr Cudal caused Mr Della-Franca to be forcefully ejected from his seat by the speed and manner in which he drove the vehicle.[1]
[1] Re-Amended Statement of Claim dated 6 June 2024, par 2.
Both Mr Della-Franca and Mr Cudal gave evidence of what they could recall happened on the bus. There was also video footage available from the bus's CCTV system. Mr Cudal's evidence about the circumstances in which the accident occurred was consistent with the CCTV footage. Mr Della-Franca's evidence was not. Mr Della‑Franca's evidence was so inconsistent with the footage that it seems to me that he had little genuine recollection of the events in question.
Significantly, it is evident from the CCTV footage that at the time Mr Della-Franca fell off his seat he was asleep. The footage shows Mr Della-Franca slowly leaning over and then falling off his seat as the bus cornered at a speed of between 15 km per hour and 17 km per hour.
I am not satisfied that Mr Della-Franca has established that Mr Cudal was negligent. Mr Della-Franca was not forcefully ejected from his seat because of the speed and manner in which Mr Cudal drove the vehicle as Mr Della‑Franca alleged. Mr Della-Franca fell off his seat because he was asleep.
Mr Della-Franca's evidence
Mr Della-Franca gave evidence that around midday on 1 July 2021 he boarded the 960 bus near Angove Street in North Perth. He was heading for Victoria Park and planned to change buses at the Perth Bus Station.
He said that there is a ramp off James Street that leads into the Perth Bus Station. He said that as the bus was on that ramp, he was thrown from his seat.
Mr Della-Franca was shown the CCTV footage from the bus and asked whether he accepted that he was asleep at the time he was thrown from his seat. He denied this.
Mr Cudal's evidence
Mr Cudal gave evidence that he was the driver of the 960 bus on 1 July 2021 when Mr Della-Franca fell off his seat.
Mr Cudal said that Mr Della-Franca fell off his seat in a car park that Mr Cudal described as the James Street overflow and not on the James Street ramp into Perth Bus Station, as Mr Della-Franca described.
Mr Cudal said that he did drive to the James Street ramp but when he arrived a bus had broken down at the entry to the Perth Bus Station and he was directed to turn around and drive back up Fitzgerald Street.
Mr Cudal described turning around and driving back up Fitzgerald Street and then making a left hand turn down a road that led to the car park that Mr Cudal described as the James Street overflow. Mr Cudal said that it was as he was turning the bus in the James Street overflow that Mr Della‑Franca fell off his seat. Mr Cudal said that he was looking ahead as he drove the bus but heard a thump as Mr Della‑Franca hit the floor.
Mr Cudal was asked about how fast he was driving. He said that he was driving slowly. He said the speed limit in the James Street overflow was 15 km per hour.
The CCTV footage
As I have mentioned, the CCTV footage is consistent with the account of events given by Mr Cudal.
The CCTV footage shows the bus driven by Mr Cudal being driven to the James Street ramp to the Perth Bus Station. A bus which is not moving can be seen blocking the way. Mr Cudal can be seen speaking with someone and then turning the bus around.
Mr Della-Franca is visible in this footage. He is awake and in his seat.
After the bus drives for a short while, Mr Della-Franca's head can be seen to nod. The bus enters an area that (from the view through the windows) appears to be the James Street overflow described by Mr Cudal. By this time Mr Della-Franca appears to be slumped as if he is asleep.
As the bus begins to corner, Mr Della-Franca can be seen to slowly lean to his right and then fall off his seat. He appears to be asleep. The footage shows the speed of the bus as being between 15 km per hour and 17 km per hour.
Findings about the circumstances in which Mr Della-Franca fell
It seems to me that the CCTV footage is the best evidence of how Mr Della-Franca fell off his seat. That footage is clear enough to permit the relevant events to be clearly seen. I accept Mr Cudal's evidence as it is consistent with that footage.
I do not accept Mr Della-Franca's evidence as it is inconsistent with the footage. It is plain from that footage that Mr Della-Franca was not thrown from his seat as the bus drove on the James Street ramp as he described. It is evident that the accident happened in a different location and that Mr Della-Franca was asleep at the relevant time. His evidence is so inconsistent with the footage that it seems to me that he had little genuine recollection of the events in question.
I find that at the time Mr Della-Franca fell from his seat Mr Cudal was driving at between 15 km per hour and 17 km per hour and Mr Della‑Franca was asleep. I find that because Mr Della-Franca was asleep, he lost balance as the bus cornered and fell out of his seat.
Negligence not established
As I have mentioned, Mr Della-Franca alleged that Mr Cudal caused Mr Della-Franca to be forcefully ejected from his seat by the speed and manner in which he drove the vehicle.[2] He alleged that Mr Cudal's driving was negligent in that he:[3]
(a)failed to keep any or any proper lookout;
(b)failed to drive with any or any proper control;
(c)drove at a speed which was excessive in the circumstances;
(d)failed to brake in time to avoid the collision at all; and
(e)failed to steer or control the vehicle so as to avoid the collision.
[2] Re-Amended Statement of Claim dated 6 June 2024, par 2.
[3] Statement of Claim, par 3.
There was no collision, so the allegations concerning Mr Cudal's failure to avoid a collision are irrelevant.
I am not satisfied that the evidence demonstrates that Mr Cudal failed to keep a proper lookout, failed to properly control the bus, or drove at an excessive speed. Mr Cudal appeared to be keeping a proper lookout and it was not suggested that there was any particular matter that he should have observed that he did not. Mr Cudal appeared to have the bus under control. Even if Mr Cudal drove at more than 15 km per hour, he exceeded that speed only slightly. There was no evidence that driving 1 km per hour or 2 km per hour faster made any difference. I am not satisfied that his speed was excessive.
I am also not satisfied that the speed at which Mr Cudal was driving, or his driving more generally, caused Mr Della-Franca to fall from his seat. Mr Della-Franca's case rested on the proposition that the speed and manner in which Mr Cudal drove the bus caused Mr Della‑Franca to be forcefully ejected from his seat. That proposition was not made out by the evidence. I am not satisfied that he was forcefully ejected from his seat at all. He fell from his seat because he was asleep.
For these reasons, I do not consider that Mr Della-Franca has established any negligence on the part of Mr Cudal. His claim should be dismissed.
Mr Cudal also alleged that Mr Della-Franca was contributorily negligent. Given the conclusion I have reached, it is not necessary for me to address this issue.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Associate to Judge Palmer
7 JUNE 2024
0
0
1