Liability only - Plaintiff crossing road at junction of Phillimore and Market Streets in Fremantle - Presence of pedestrian/traffic barrier running around corner - What path plaintiff intended to take - Plaintiff returned to Market Street to avoid being struck by a bus driven by the defendant - To what position did plaintiff return - Plaintiff on road side of barrier and climbs over barrier - Plaintiff's right leg sustains an injury when it comes into contact with left rear portion of bus as it turns corner into Market Street - Was defendant keeping a proper lookout and in proper control of bus - Was defendant's or plaintiff's behaviour sole cause of accident - If defendant negligent was there contributory negligence on part of plaintiff

Legislation:

Civil Liability Act 2002
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Result:

Liability of defendant established
Defendant 80% liable
Contributory negligence on part of plaintiff 20%

Representation:

Counsel:

Plaintiff: Mr J R Brooksby
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Julian Johnson Lawyers
Defendant: Brian C Sierakowski

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

Bartholomaeus v Newcombe [2008] WASCA 136
Cook v Cook (1986) 162 CLR 376
Imbree v McNeilly (2008) 236 CLR 510
Knight v Maclean [2002] NSWCA 314
Manley v Alexander [2005] 80 ALJR 414
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492
Serafini v D'Rozario [2012] WADC 135
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416
Wensick v Marshall [2010] WASCA 117
Wyong Shire Council v Shirt (1980) 146 CLR 40

DEANE DCJ: This trial concerns the issue of liability only and arises out of an accident that occurred at about 1.25 pm on Saturday, 13 September 2008 in Fremantle. The plaintiff, in company with his wife, Ms Holtring, was walking on the northern side of Market Street in a westerly direction towards Phillimore Street. According to the amended statement of claim the plaintiff was intending to cross Market Street at its junction with Phillimore Street. It is common ground that a barrier was erected at the south‑east corner of the junction at the point where the plaintiff intended to cross. That barrier in fact, when one views the numerous still photographs taken from video footage which in turn was taken from a number of cameras fixed to the bus driven by the defendant, commences in Phillimore Street and then continues unbroken around the corner into Market Street where the barrier ends in a loop fashion at the point where it meets a pedestrian ramp leading onto Market Street.
Again, it is common ground and confirmed by evidence at…

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 Malliate v Rosier

Details

AGLC: Malliate v Rosier [2013] WADC 152
Case: [2013] WADC 152
Decision Date: 27 SEPTEMBER 2013

CaseChat Overview and Summary

In Malliate v Rosier, the plaintiff, Malliate, sued Rosier, a bus driver, for injuries sustained in an accident that occurred when Malliate was crossing the road at the junction of Phillimore and Market Streets in Fremantle. Malliate claimed that as she was crossing the road, she encountered a pedestrian/traffic barrier that prevented her from continuing in her intended path. To avoid being struck by a bus driven by Rosier, she returned to Market Street but found herself on the roadside of the barrier and was forced to climb over it. As Malliate was doing so, her right leg came into contact with the left rear portion of the bus as it turned the corner into Market Street, causing her injury.

The legal issues before the court were whether Malliate's return to the road and her decision to climb over the barrier contributed to her injuries and whether Rosier was negligent in failing to keep a proper lookout and maintain control of the bus. The court also had to determine whether Malliate's actions constituted contributory negligence, and if so, whether this would bar her from recovering damages from Rosier.

The court found that Malliate had intended to cross the road at the junction but had been obstructed by the barrier. Malliate's return to the road and her decision to climb over the barrier were reasonable actions taken to avoid being struck by the bus. The court found that Rosier was negligent in failing to keep a proper lookout and maintain control of the bus, which contributed to Malliate's injuries. However, the court found that Malliate's contributory negligence did not bar her from recovering damages from Rosier as Rosier's negligence was the sole cause of the accident.

The court ordered Rosier to pay Malliate damages for her injuries.

Orders