Frances v Tsirigotis
[2011] WASCA 98
•19 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FRANCES -v- TSIRIGOTIS [2011] WASCA 98
CORAM: NEWNES JA
MURPHY JA
MAZZA J
HEARD: 1 SEPTEMBER 2010
DELIVERED : 19 APRIL 2011
FILE NO/S: CACV 157 of 2009
BETWEEN: SHANE MICHAEL FRANCES by his next friend PENNY FRANCES
Appellant
AND
NIKOLAOS TSIRIGOTIS
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
Citation :WINIARCZYK -v- TSIRIGOTIS [2009] WADC 188
File No :CIV 1184 of 2007
Catchwords:
Negligence - Highway - Collision of taxi with pedestrian moving into its pathway - Negligence of driver and duty of care to passenger - Appeal by third party pedestrian
Legislation:
Rules of the Supreme Court 1971 (WA), O 19 r 4
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr K S Pratt
Respondent: Ms B A Mangan
Solicitors:
Appellant: Trewin Norman & Co
Respondent: Tottle Partners
Case(s) referred to in judgment(s):
Winiarczyk v Tsirigotis [2011] WASCA 97
REASONS OF THE COURT: These reasons should be read with the court's reasons in Winiarczyk v Tsirigotis [2011] WASCA 97. As in those reasons, we will refer to Ms Winiarczyk as the appellant, Mr Tsirigotis as the respondent and Mr Frances as the third party.
The third party has appealed against his Honour's decision dismissing the appellant's action against the respondent. His Honour made no order in respect of the third party proceedings.
The respondent's third party notice was filed on 14 August 2007. Despite the requirements of O 19 r 4 of the Rules of the Supreme Court 1971 (WA), no third party directions were sought or ordered before trial.
Nevertheless, the respondent and the third party filed pleadings in the third party proceedings. The respondent's amended statement of claim against the third party alleged that any loss suffered by the appellant was caused by the third party's 'deliberate or negligent actions and breach of his duty of care to the [appellant]'. In his amended defence in the third party proceedings, the third party denied these allegations and claimed that the accident was caused by the negligent driving of the respondent. The particulars of that negligence are in very similar terms to that alleged by the appellant against the respondent.
His Honour, early in the trial, raised with counsel the absence of third party directions. On the afternoon of the first day of the trial, his Honour made an order that:
[T]he third party issue be tried on the trial of the action and that the third party will have liberty to participate fully: ts 58.
No order was made that the third party would be bound by the principal judgment. The third party did participate fully in the trial.
The grounds of appeal relied upon by the third party are in the same terms as grounds 1 and 2 in the appellant's appeal. In other words, the third party contends, in effect, that the judge erred in finding that the respondent did not breach a duty of care which the respondent owed to the appellant, and seeks to attach some degree of responsibility for the appellant's injuries to the respondent. The third party's appeal, therefore, seeks to raise issues between the appellant and the respondent which appear to be contrary to the third party's interests.
The matter was raised by the court at the outset of the hearing of this appeal. Mr Pratt, on behalf of the third party, explained that the third party had initiated separate proceedings against the respondent in the District Court with respect to a claim for personal injuries arising out of the accident: CIV 579 of 2007. These proceedings remain on foot and have not been resolved. It appears that his Honour was unaware of them. Mr Pratt drew attention to the last sentence in [54] of his Honour's reasons, 'The calamity was entirely the responsibility of the third party'. Mr Pratt submitted that if that sentence is a finding in the third party proceedings, and if it meant that the third party was 100% responsible for his injuries, it was likely to be used by the respondent to raise an issue estoppel in the third party's claim against the respondent. Despite this, the grounds of appeal by the third party do not appear, at least in terms, to attack the finding in the last sentence of [54] of the judge's reasons.
It should be noted that there has been no proper debate on the meaning and effect of the last sentence in [54] of the judge's reasons. Nor has there been any debate on whether it would give rise to an issue estoppel in the third party's, as yet, unresolved action in the District Court. No point was taken by the respondent as to whether there was any procedural irregularity in the third party's appeal (see Seaman P L, Civil Procedure Western Australia [19.4.8] ‑ [19.4.10], [4301.15], generally in relation to some of the issues that would likely arise for consideration). It is unnecessary to consider the matter further because the reasoning in Winiarczyk v Tsirigotis applies with equal force to the third party's grounds. Accordingly, the third party's appeal must be dismissed.
Orders
The third party appeal is dismissed.
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