Frances v Tsirigotis - [2011] WASCA 98

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…

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 Frances v Tsirigotis

Details

AGLC: Frances v Tsirigotis [2011] WASCA 98
Case: [2011] WASCA 98
Decision Date: 19 APRIL 2011

CaseChat Overview and Summary

In the case of Frances v Tsirigotis, the plaintiff, Frances, brought an action against Tsirigotis, the driver of a taxi, and his employer, alleging that Tsirigotis negligently drove into the plaintiff, a pedestrian, resulting in personal injury. The plaintiff also claimed that the taxi's employer was vicariously liable for the negligence of its employee. Both defendants appealed against the decision of the trial judge, which found that Tsirigotis was negligent and that his employer was vicariously liable for his actions. The court was required to determine whether Tsirigotis breached a duty of care owed to the plaintiff and whether the employer was vicariously liable for Tsirigotis's actions.

The court held that Tsirigotis breached a duty of care owed to the plaintiff by driving into her. The court found that a reasonable person in Tsirigotis's position would have foreseen that a pedestrian might move into the pathway of his taxi and taken steps to avoid the risk of injury. The court also held that the employer was vicariously liable for Tsirigotis's actions, as he was acting within the scope of his employment at the time of the incident. The court found that the employer had entrusted the taxi to Tsirigotis and that he was acting as the employer's agent when the incident occurred. The appeal was dismissed.

The court ordered that the plaintiff recover her costs of the appeal from the defendants. The court also ordered that the defendants pay the plaintiff's costs of the proceeding in the trial court. The court held that the defendants were jointly and severally liable for the plaintiff's damages.

Orders