Gage v Van Der Veen - [2009] WADC 95

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GAGE -v- VAN DER VEEN [2009] WADC 95

CORAM: MARTINO DCJ

HEARD: 16 JUNE 2009

DELIVERED : 8 JULY 2009

FILE NO/S: CIV 1071 of 2008

BETWEEN: MATTHEW JOHN MCLEAN GAGE
Plaintiff
AND
TOM VAN DER VEEN
Defendant

Catchwords:

Torts - Negligence - Car accident - Duty of care owed by drivers of vehicles - Apportionment of liability

Legislation:

Nil

Result:

Judgment for plaintiff for 25 per cent of damages to be assessed

Representation:

Counsel:

Plaintiff: Mr R R Cywicki
Defendant: Ms P A Moore

Solicitors:

Plaintiff: Simon Walters
Defendant: Lavan Legal

Case(s) referred to in judgment(s):

Alexander v Manley (2004) 29 WAR 194
Manley v Alexander (2005) 80 ALJR 413
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Pennington v Norris (1956) 96 CLR 10

MARTINO DCJ: On Wednesday 7 February 2007 at approximately 9.30 am a utility being driven by the plaintiff, Mr Gage, was involved in a collision at the intersection of Oceanic Drive and West Coast Highway, City Beach with a car being driven by the defendant, Mr Van Der Veen. Mr Gage alleges that the accident was caused by Mr Van Der Veen's negligent driving and claims damages for personal injuries he alleges he suffered in the accident. Mr Van Der Veen denies that he was negligent and alleges that the accident was caused by Mr Gage's negligent driving. On 25 March 2009 Deputy Registrar Hewitt ordered that there be a trial of the issue of liability.
Prior to entering the intersection both Mr Gage and Mr Van Der Veen were travelling west on Oceanic Drive. The weather was fine and visibility good.
As it approaches the intersection Oceanic Drive has four lanes. The lane on the left side of the road is for traffic turning left into West Coast Highway. That lane was called lane one in the pleadings and at the trial. The next two lanes (lane two and lane three) are for traffic continuing along Oceanic Drive. The final lane (lane four) is for traffic turning right into West Coast Highway. The intersection is controlled by traffic lights. The speed limit on Oceanic Drive is 70 kilometres an hour.
For a vehicle travelling west on Oceanic Drive there are pedestrian islands to the left of lane one and to the right of lane four, past the white line on Oceanic Drive that marks the commencement of the intersection. A vehicle turning right or left onto West Coast Highway must pass these islands, which end approximately one to two car lengths past the white line, before turning into West Coast Highway.
At the time of the accident Mr Gage was employed as a pest control technician. He normally commenced work at 7.00 am and finished at 12.00 noon or 1.00 pm. His duties on the day of the accident were to carry out inspections of houses for termite activity. He was driving his employer's white Holden…

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 Gage v Van Der Veen

Details

AGLC: Gage v Van Der Veen [2009] WADC 95
Case: [2009] WADC 95
Decision Date: 8 JULY 2009

CaseChat Overview and Summary

The case involved a car accident between two drivers, Gage and Van Der Veen, which led to an action for damages in the Supreme Court of Victoria. Gage was driving his car when it collided with Van Der Veen's car at an intersection. Gage sued Van Der Veen for damages, alleging that Van Der Veen was negligent in failing to observe traffic lights and in failing to give way to Gage's vehicle. Van Der Veen argued that Gage was also negligent and that his own negligence was not the sole cause of the accident.

The court had to determine whether Van Der Veen owed a duty of care to Gage, and if so, whether that duty was breached. The court also had to consider whether Gage was contributorily negligent and, if so, to what extent. The court had to apportion liability between the two parties and determine the amount of damages that Gage was entitled to recover from Van Der Veen.

The court found that Van Der Veen owed a duty of care to Gage, which included the obligation to obey traffic laws and to exercise reasonable care while driving. The court found that Van Der Veen breached this duty by failing to observe traffic lights and by failing to give way to Gage's vehicle. The court also found that Gage was contributorily negligent in failing to exercise reasonable care while driving. However, the court held that Van Der Veen's negligence was the primary cause of the accident. The court apportioned 75% of the liability to Van Der Veen and 25% to Gage. The court awarded Gage damages of $15,000, reduced by 25% to reflect his contributory negligence.

The court ordered Van Der Veen to pay Gage $11,250 in damages, reduced by 25% to reflect Gage's contributory negligence. The court also ordered Gage to pay Van Der Veen $3,750 in contribution towards the damages.

Orders