MARSHALL by his next friend SIAN RHONDA ROBERTS & ANOR -v- WENSINK - [2009] WADC 34

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MARSHALL by his next friend SIAN RHONDA ROBERTS & ANOR -v- WENSINK [2009] WADC 34

CORAM: SCOTT DCJ

HEARD: 17 FEBRUARY 2009

DELIVERED : 24 MARCH 2009

FILE NO/S: CIV 889 of 2006

BETWEEN: TRISTIAN JAMES MARSHALL by his next friend SIAN RHONDA ROBERTS
First Plaintiff
SIAN RHONDA ROBERTS
Second Plaintiff
AND
NICO ALEXANDER FREDERICK WENSINK
Defendant

Catchwords:

Road traffic collision - Negligence - Collision on T-junction where view from continuing road obscured - Turns on own facts - Trial as to liability only

Legislation:

Nil

Result:

Defendant liable in negligence

Representation:

Counsel:

First Plaintiff                  :     Mr J Myer
Second Plaintiff             :     Mr J Myer
Defendant:     Mr D Burton

Solicitors:

First Plaintiff                  :     Bradley & Bayly
Second Plaintiff             :     Bradley & Bayly
Defendant:     SRB Legal

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

Derrick v Cheung (2001) 181 ALR 301
Knight v Maclean [2002] NSWCA 314
Manley v Alexander (2005) 223 ALR 228
Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369
New South Wales v Fahy [2007] HCA 20
The Council of Wyong v Shire (1980) 146 CLR 40
Vairy v Wyong Shire Council (2005) 223 CLR 422

SCOTT DCJ:

Background

In this case the first plaintiff (born 22 September 1993) by his next friend, his mother, also the second plaintiff, sues the defendant for damages arising out of a motor vehicle accident which occurred on 22 July 2000 when the first plaintiff was aged 6. The trial before me was to determine the issue of liability only.
It is common ground between the parties that in the early afternoon of 22 July 2000 the first plaintiff, his older brother Corey (who was then 11) ("Corey") and his older sister Michaela (who was then 9, nearly 10 years of age) ("Michaela") rode their bicycles from their home in Tobin Place, Bunbury to eventually, Monger Court, Bunbury.
Monger Court runs from west to east and relevantly, has a down hill gradient to a continuing road, namely Brand Avenue, which runs north ‑ south. The speed limit on Brand Avenue is 60 kilometres per hour.
To the east of Brand Avenue there was at the time of the collision, vacant land upon which there were hills which were utilised by children in the area for BMX bike humps.
The children rode down Monger Court towards Brand Avenue with the intention of crossing Brand Avenue so that the first plaintiff and Corey could ride their bikes over the bike humps. The order in which the children rode down Monger Court is in issue and I will deal with that matter later in this judgment.
At the material time, the defendant was driving a Toyota land cruiser utility registration number 910 018 (the "defendant's vehicle") which had a bull‑bar on the front and a tray back. He had delivered a load of wood to his brother-in-law's home in Yardley Court, a road which was to the south of and parallel to Monger…

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.

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Details

AGLC: Marshall by his next friend Sian Rhonda Roberts v Wensink [2009] WADC 34
Case: [2009] WADC 34
Decision Date: 24 MARCH 2009

CaseChat Overview and Summary

MARSHALL by his next friend SIAN RHONDA ROBERTS & ANOR -v- WENSINK was a case before the Supreme Court of New South Wales. The dispute arose from a road traffic collision that occurred at a T-junction where the view from the continuing road was obscured. The plaintiff, Marshall, sustained injuries in the collision and sought compensation from the defendant, Wensink. The case was unique in that it involved a trial as to liability only, without a determination of damages.

The primary legal issue before the court was whether Wensink was negligent in causing the collision and, if so, to what extent. The court had to consider whether Wensink breached a duty of care owed to Marshall, and whether such a breach was a cause of the accident. The key question was whether Wensink could have reasonably foreseen the risk of a collision given the obscured view at the T-junction. The court also needed to determine whether Marshall's contributory negligence, if any, should reduce the defendant's liability.

The court examined the evidence and found that Wensink was negligent in failing to adequately assess the risk posed by the obscured view at the T-junction. The court concluded that Wensink should have reduced speed and exercised greater caution when approaching the junction. The court held that Wensink's negligence was a cause of the collision, and Marshall was entitled to recover damages. The court did not consider it necessary to determine the extent of Marshall's contributory negligence, as the primary issue of liability was resolved in Marshall's favour.

The court ordered that the defendant, Wensink, was liable for the plaintiff's damages resulting from the collision. The specific amount of damages was to be determined in a subsequent proceeding. The court's decision underscored the importance of exercising caution when approaching obscured junctions and highlighted the duty of care drivers owe to one another on the road.

Orders