Fatchen v Duff - [2010] SADC 160

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
FATCHEN v DUFF
[2010] SADC 160
Judgment of Her Honour Judge Bampton
17 December 2010
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - ROAD ACCIDENT CASES
Plaintiff injured in a motor vehicle accident on 8 June 2000, while travelling as a passenger in a deflectograph truck. Plaintiff was engaged in road surface survey test work at the time of the accident. Defendant admitted liability. Plaintiff admitted that he was not wearing a seatbelt contrary to Rule 265 of the Australian Road Rules under the Road Traffic Act 1961 ("ARRs"). Whether plaintiff, as a road worker, is entitled to the exemption from the obligation to wear a seatbelt pursuant to ARR 310. Held: plaintiff not exempt from obligation to wear a seatbelt. ARR 310 not enlivened. Evidence of a workplace culture of not wearing seatbelts. Plaintiff's agreed damages must be reduced pursuant to s35A(1)(j) of Wrongs Act 1936.
Wrongs Act 1936; Australian Road Rules under Road Traffic Act 1961, referred to.
Gray v Kennewell (1991) 161 LSJS 86; S v Channel Seven Adelaide Pty Ltd & Another [2009] SASC 6; Harris v AGC (Insurances) Ltd (1984) 38 SASR 303; Vines v Djordjevitch (1955) 91 CLR 512 ; Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 , considered.

FATCHEN v DUFF
[2010] SADC 160
Introduction

These proceedings were commenced by Gregory Fatchen and Stephanie Fatchen against Ross Allan Duff (“the defendant”) on 4 June 2003.
Gregory Fatchen’s claim is for damages for personal injuries he suffered in an accident on the South Eastern Freeway on 8 June 2000. Stephanie Fatchen is Mr Fatchen’s wife. Mrs Fatchen’s claim for loss of consortium was finalised on 16 March 2006 when consent judgement was entered in her favour.
Mr Fatchen was, at the time of the accident, employed by the Department of Road Transport, as a Technical Officer. He was a passenger in a deflectograph truck (“the truck”) performing the duties of an operator in a road surface survey test. Mr Fatchen’s colleague, Peter Gregory, was the driver of the truck. Another colleague, Trevor Thompson, was driving the backup vehicle travelling behind the truck. Prior to the accident, Mr Fatchen, Mr Gregory and Mr Thompson were in the process of surveying a stretch of road between Hahndorf and the Callington exit on the South Eastern Freeway.
A deflectograph truck is a vehicle used in road surface survey tests. The deflectograph evaluates the structural condition of road surfaces. Data obtained from testing is used to determine what road surface maintenance is required. The role of the truck was described as follows:
“A Mercedes Benz truck loaded with steel ballast provides a rear axle load of 8.2 tonnes. Two measurement beams attached to a moving sled are placed on the road surface ahead of the space between the tyres of the rear dual wheels. Deflections are measured by displacement transducers as the wheels approach and pass the tips of the beams.…

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 Fatchen v Duff

Details

AGLC: Fatchen v Duff [2010] SADC 160
Case: [2010] SADC 160
Decision Date: 17 December 2010

CaseChat Overview and Summary

The case of Fatchen v Duff was heard in the District Court of New South Wales, where the plaintiff, Fatchen, sought damages against the defendant, Duff, for injuries sustained in a road accident. The incident occurred when Duff, driving his vehicle, collided with Fatchen who was riding a bicycle on a shared path. Fatchen alleged that Duff's negligent driving caused the accident and sought compensation for the resulting injuries and damages.

The primary legal issue the court had to address was whether Duff was negligent in his driving, and if so, whether Fatchen's own actions contributed to the accident in a way that would reduce the compensation he could claim. The court had to determine the standard of care expected from Duff as a driver and assess whether he breached this standard. Additionally, the court needed to examine whether Fatchen was contributorily negligent, considering his own conduct while riding the bicycle, and if this contributed to the accident.

The court found that Duff was indeed negligent, having failed to maintain a proper lookout and keep a safe distance from Fatchen's bicycle. However, the court also determined that Fatchen was contributorily negligent. Fatchen was found to have not adhered to the traffic rules, including failing to signal his intentions to turn and not riding in the designated bicycle lane. The court concluded that Duff's negligence was the primary cause of the accident, but Fatchen's contributory negligence reduced the compensation he could recover. The court assessed the degree of contributory negligence and adjusted the damages accordingly.

The final orders of the court reflected the determinations made regarding negligence and contributory negligence. Duff was held liable for the accident and ordered to pay damages to Fatchen, reduced by the percentage reflecting Fatchen's contributory negligence. The court specified the amount of compensation based on the evidence presented regarding Fatchen's injuries, medical expenses, and other related damages.

Orders