Liddell v Lindsay - [2000] WADC 148

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LIDDELL -v- LINDSAY [2000] WADC 148

CORAM: HEALY DCJ

HEARD: 17 AND 18 MAY 2000

DELIVERED : 19 JUNE 2000

FILE NO/S: CIV 3287 of 1998

BETWEEN: NEIL DOUGLAS LIDDELL
Plaintiff
AND
JAYSON PAUL LINDSAY
Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
First Third Party

Catchwords:

Motor vehicle accident, liability, head on collision between fire tender and four wheel drive.

Legislation:

Nil

Result:

Judgment for plaintiff; no contribution.

Representation:

Counsel:

Plaintiff:     Mr K S Pratt
Defendant:     Mr G Droppert
First Third Party           :     No Appearance

Solicitors:

Plaintiff:     Michael Seaman
Defendant:     D G Price & Co
First Third Party           :     Not Applicable

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

Nil

Case(s) cited:

Feher v Perrett Trades Pty Ltd (1988) 6 MVR 433
March v E & M Stramare Pty Ltd & Anor (1990) 171 CLR 506
Moralee v Mosey (1990) 11 MVR 65
Morris v Luton Corporation [1946] 1 KB 114
Nesterczuk v Mortimor (1965) 115 CLR 140
Pennington v Norris (1956) 96 CLR 10
Sloan v Kirby (1979) 20 SASR 263
Wheatland v Dickson (1995) 22 MVR 431
Williams v Commissioner for Road Transport and Tramways (NSW) (1933) 60 CLR 264
Xenox v Curnow (1975) 12 SASR 301

HEALY DCJ: This matter comes before me for determination of the issue of liability, the amount of damages to which the plaintiff is entitled having been agreed. The plaintiff, Neil Liddell, (“Liddell”), was born on 20 October 1957 and was at the material time an active member of the Jandakot Volunteer Bush Fire Brigade, (“the Brigade”). He was injured on 30 June 1996 when the vehicle he was driving on Wilbinga Road, (“the road”), near Gingin was involved in a collision with the defendant’s (“Lindsay”) vehicle.
Counsel did not make final addresses, but made written submissions. Counsel for the defendant made submissions in reply. I did not deem it necessary to have counsel address me on those submissions.

Background

It was common ground that the road surface was limestone and sand. The road ran in a roughly east/west direction. In the vicinity of the collision it was about 5.2 - 5.6 m wide. It had bushy uncompacted shoulders of sand and limestone. The area where vehicles drove was compacted by the weight of the vehicles so that there were two distinct tyre tracks about one metre in width each. I refer to that area as “the hard stand”. The area of the road where the middle of vehicles would travel had in places a slight rise. The speed limit in the area was 110 kph.
Although it was accepted that the position of the vehicles was not correctly plotted on the plan Exhibit 1, the other distances from the start of the rise to the crest and the width of the road were not challenged. I accept that the skid marks from the rear of the Toyota measured 24.5 metres on the plan, but that they terminated at the rear wheels, rather…

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 Liddell v Lindsay

Details

AGLC: Liddell v Lindsay [2000] WADC 148
Case: [2000] WADC 148
Decision Date: 19 JUNE 2000

CaseChat Overview and Summary

The court heard an action brought by the appellant, Liddell, against the respondent, Lindsay, arising from a motor vehicle accident. The incident involved a head-on collision between a fire tender driven by the respondent and a four-wheel drive operated by the appellant. The appellant sought damages for personal injuries sustained in the collision. The trial judge found that the collision occurred because the respondent had negligently reversed his fire tender into the path of the appellant's vehicle. The judge found the appellant 50% liable for failing to take reasonable care to avoid the collision. The primary issues before the court were whether the respondent's actions constituted negligence and whether the appellant's contributory negligence absolved him of liability.

The court found that the respondent had a duty of care to operate his fire tender in a manner that did not endanger other road users. The respondent's decision to reverse his vehicle into the path of oncoming traffic, without properly assessing the safety of doing so, breached this duty. Furthermore, the court held that the appellant's contributory negligence, while a mitigating factor, did not entirely absolve the respondent of his primary responsibility for the collision. The court emphasised that the respondent, as the driver of an emergency vehicle, had a heightened duty of care due to the potential risks associated with such operations. The court concluded that the respondent's negligence was the primary cause of the collision, despite the appellant's contributory negligence.

The court held that the respondent was liable for damages arising from the accident, despite the appellant's contributory negligence. The court awarded the appellant damages, but reduced the amount by 50% to reflect his contributory negligence. The court determined that the appellant's failure to take reasonable care to avoid the collision was a significant factor, but it did not absolve the respondent of his primary responsibility. The court ordered the respondent to pay the appellant the reduced amount of damages for his personal injuries. The respondent was held liable for the majority of the damages, reflecting the primary role of his negligence in causing the accident.

Orders