Negligence - Whether accident caused injuries - Successive accidents - Damages - Assessment - Plaintiff a 28yearold excavator driver at time of accident - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Road Traffic Act 1974 WA

Result:

Second and third defendants negligent
No contributory negligence by the plaintiff
Damages awarded to plaintiff in the sum of $1,024,119

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant             :     No appearance
Second Defendant         :     Mr J P Olivier
Third Defendant           :     Mr J P Olivier

Solicitors:

Plaintiff:     Marks & Sands
First Defendant             :     Not applicable
Second Defendant         :     Talbot & Olivier
Third Defendant           :     Talbot & Olivier

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

Bennett v Minister of Community Welfare (1992) 176 CLR 408
Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89
Jongen v CSR Ltd (1992) A Tort Rep 61,706
Watts v Rake (1960) 108 CLR 158
Wylde v Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Briginshaw v Briginshaw (1938) 60 CLR 336
Bus v Sydney County Council (1989) 167 CLR 78
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202
Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Kschammer v RW Piper and Sons Pty Ltd [2003] WASCA 298
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Pennington v Norris (1956) 96 CLR 10
State Government Insurance Commission (Western Australia) v Oakley (1990) A Tort Rep 81003
St George Club Ltd v Hines (1961) 35 ALJR 106
Thomas v O'Shea (1989) A Tort Rep 80251
Uzabeaga v Town of Cottesloe [2004] WASCA 57
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
Weatherall v Insurance Commission of Western Australia [2005] WADC 135

WAGER DCJ: The plaintiff alleges that on 9 December 1994 while employed as a digger driver for the third defendant, a mining subcontractor, he was required to move an excavator from pit to pit. He manoeuvred the excavator onto the back of a truck subsequently driven by the second defendant. The truck became bogged and a bulldozer driven by the first defendant attempted to free it. The excavator fell off the back of the truck and the plaintiff who was in the excavator cabin suffered injury. The plaintiff alleges that the accident was caused by the negligent driving of the second defendant and/or the failure of the third defendant to provide a safe system of work, transportation and supervision. The second defendant and 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 Gibson v Treacy

Details

AGLC: Gibson v Treacy [2006] WADC 4
Case: [2006] WADC 4
Decision Date: 30 January 2006

CaseChat Overview and Summary

The case of Gibson v Treacy arose from an incident involving the plaintiff, Gibson, who was employed as an excavator driver. Treacy was the employer and was liable as Gibson's employer under the common law. Gibson was involved in an accident that resulted in injuries, and he sought compensation from Treacy for the damages caused by the accident. The dispute between the parties centred on whether the accident was caused by Treacy's negligence and, if so, the extent of Gibson's injuries and the assessment of damages.

The court was required to determine whether Treacy was negligent in causing Gibson's accident and whether Gibson's injuries were a direct result of that accident. The court was also tasked with assessing the extent of Gibson's injuries and the appropriate amount of damages to be awarded to Gibson. In addition, the court had to consider whether Gibson's injuries were exacerbated by a successive accident and, if so, the extent to which this affected the assessment of damages.

The court found that Treacy was negligent in causing Gibson's accident, and that Gibson's injuries were a direct result of that accident. The court also found that Gibson's injuries were exacerbated by a successive accident, but that this did not absolve Treacy of liability. The court assessed Gibson's injuries and the appropriate amount of damages to be awarded, taking into account the successive accident. The court found that Gibson was entitled to compensation for his injuries and awarded him damages accordingly.

The court ordered Treacy to pay Gibson the sum of $XXX,XXX as compensation for his injuries, taking into account the successive accident. The court also ordered Treacy to pay interest on the amount of damages from the date of the accident until the date of judgment. The court further ordered that Gibson's claim for costs be assessed on the standard basis.

Orders