John Ronald Waterfall v Stuart Ross Antony

[2014] VSCA 44

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2012 0207

JOHN RONALD WATERFALL	Appellant
v
STUART ROSS ANTONY	Respondent

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JUDGES	REDLICH, WHELAN and SANTAMARIA JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 October 2013
DATE OF JUDGMENT	19 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 44
JUDGMENT APPEALED FROM	[2012] VSC 458 (Beach J)

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ACCIDENT COMPENSATION ­– Accident between a motor vehicle towing a caravan and a motorcycle – Accident occurred in Western Australia – Application of the law of Western Australia – Claim in negligence – Duty of care – Breach of duty – Contributory negligence – Civil Liability Act 2002 (WA).

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C W R Harrison SC with Mr I R Fehring	Stringer Clark
For the Respondent	Mr A N Murdoch SC with Mr S E Gladman	Hunt & Hunt

REDLICH JA:

1. I agree with Santamaria JA for the reasons he gives that the appeal should be allowed and the appellant’s contributory negligence assessed at 50 per cent.

1. I add only this observation.  The respondent’s evidence that he had been travelling in the centre lane travelling west for some distance before the collision cannot be accepted.  The independent witness, Le Serf, who the trial judge appears to have accepted as a credible witness, observed that 20 per cent of the respondent’s caravan at the point of collision was still occupying the left-hand lane at an angle of 45 degrees to 60 degrees pointing towards the turn-off road.  The inference is inescapable that the respondent’s vehicle and caravan had not completed moving into the centre lane at the time that it commenced its turn into the turn off road. 

WHELAN JA:

1. I agree with Santamaria JA.

SANTAMARIA JA:

Introduction

1. On 4 October 2012, judgment was given in the Trial Division at Warrnambool in a trial arising out of injuries suffered by the appellant, John Ronald Waterfall, when his motorcycle collided with the motor vehicle driven by the respondent, Stuart Ross Antony.[1]  The collision occurred on 14 November 2008, on the Eyre Highway, Madura Pass, Western Australia.  At the time of the collision, both the appellant and the respondent were travelling in a westerly direction.  The collision occurred when the respondent was towing a caravan and attempting to make a right hand turn off the highway into an intersecting road to a lookout to the north of the highway while the appellant was attempting to overtake the respondent’s vehicle.

[1]Waterfall v Antony [2012] VSC 458 (‘Reasons’).

1. In the proceeding, the appellant claimed damages from the respondent, alleging that his injuries were caused by the negligence of the respondent.  The respondent denied negligence; alternatively, he alleged that, if he was negligent, there was contributory negligence on the part of the appellant.

1. As the accident occurred in Western Australia, the law to be applied was that of Western Australia.[2]  The claim in negligence was subject to the Civil Liability Act 2002 (WA).[3]

   [2]John Pfeiffer Pty Limited v Rogerson (2000) 203…