Direen v Coad - [2005] TASSC 21

[2005] TASSC 21

CITATION: Direen v Coad [2005] TASSC 21

PARTIES:  DIREEN, Timothy Allan
  v
  COAD, Simon James

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  310/2002
DELIVERED ON:  5 April 2005
DELIVERED AT:  Hobart
HEARING DATE:  27 – 29 July 2004
JUDGMENT OF:  Evans J

CATCHWORDS:

Torts – Negligence – Road accident cases – Actions for negligence – Apportionment of damages – Pedestrian accidents – Pedestrian stepped into path of vehicle.

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Teubner v Humble (1961 – 1962) 108 CLR 491, referred to.
Aust Dig Torts [109]

Damages – Particular awards of general damages – Tasmania – Leg, abdominal, head and facial injuries – Aged 23 unemployed – Gross award $208,055.47 including $40,000 for general damages.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  P W Tree
             Defendant:  K E Read
Solicitors:
             Plaintiff:  Hilliard & Associates
             Defendant:  Murdoch Clarke

Judgment Number: [2005] TASSC 21
Number of paragraphs: 56

Serial No 21/2005
File No 310/2002

TIMOTHY ALLAN DIREEN v SIMON JAMES COAD

REASONS FOR JUDGMENT EVANS J

5 April 2005

The plaintiff sues the defendant for damages for injuries suffered by the plaintiff when he, a pedestrian, was struck by a motor vehicle driven by the defendant. The accident occurred at about 12.20am on Sunday, 27 January 2002, on the Channel Highway at Cygnet. At the time the defendant was driving his Toyota Hilux utility in an easterly direction from Cygnet towards Nicholls Rivulet Road; his ultimate destination was Conningham. He was following a Toyota Coaster bus driven by Hilary Direen. The plaintiff, in the company of a friend, Amanda McCaw, was walking beside the highway in the opposite direction to these vehicles. He was walking on the left hand verge of the highway viewed from the direction in which the vehicles were travelling. Ms McCaw was on the other side of the highway. The bus passed the plaintiff without apparent difficulty, but the defendant's utility did not; the front left hand corner of the utility struck the plaintiff, severely injuring him.

The plaintiff was 23 years of age at the time of the accident. On the day prior to the accident, Australia Day, the plaintiff awoke between 9am and 10am. During the day, he and a friend shared about 10 cans of draught beer which were left over from the previous night's activities and late that day they walked to the nearby home of friends. At about 9pm to 10pm, the plaintiff left that home with his cousin, Nicholas Direen, who drove the plaintiff and three others, including Amanda McCaw, to Nicholas Direen's residence on the northern side of the Channel Highway, Cygnet. At that residence, the plaintiff drank 4 to 5 stubbies of home brewed beer. Shortly after midnight, the plaintiff, having declined his cousin's offer of a bed for the night, left the residence with Ms McCaw to walk to their respective homes in Cygnet. The plaintiff was wearing dark clothing. The…

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 Direen v Coad

Details

AGLC: Direen v Coad [2005] TASSC 21
Case: [2005] TASSC 21
Decision Date: 5 April 2005

CaseChat Overview and Summary

In the matter of Direen v Coad, the plaintiff sought damages for injuries sustained in a road accident involving the defendant. The plaintiff, a pedestrian, claimed that the defendant, the driver of a vehicle, negligently struck him. The case was heard in the Supreme Court of Victoria. The plaintiff argued that the defendant was negligent in failing to take reasonable care to avoid the collision and that the plaintiff’s injuries were a direct result of this negligence. The defendant countered that the plaintiff had also contributed to the accident by stepping into the path of the vehicle. The court was required to determine the extent of the defendant’s negligence, the contributory negligence of the plaintiff, and the appropriate apportionment of damages.

The court examined the principles of negligence and contributory negligence, considering previous cases such as Podrebersek v Australian Iron and Steel Pty Ltd and Teubner v Humble. It was necessary to assess the degree of fault attributable to each party and how this should affect the distribution of liability. The court considered the circumstances leading up to the accident, including the visibility conditions, the actions of both parties, and the likelihood of the accident occurring given the circumstances. After weighing the evidence and arguments presented, the court determined the respective contributions to the accident and the appropriate reduction in damages for the plaintiff.

The court concluded that the defendant was negligent but that the plaintiff also contributed to the accident by stepping into the path of the vehicle. The court apportioned liability between the parties, awarding damages to the plaintiff but reducing the amount by the percentage of his contributory negligence. The final orders reflected this apportionment, with the plaintiff receiving a reduced sum of damages from the defendant. The court's decision highlighted the importance of both parties taking reasonable care in road accidents and the legal principles governing the apportionment of damages.

Orders