MULCAHY & ANOR -v- TOMKINS & ORS [2007] WADC 212

Link to Appeal :

[2009] WASCA 228

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 212
Case No:	CIV:750/2004	Heard:	30 APRIL 2007, 1-4 MAY 2007 & 24 AUGUST 2007
Coram:	MARTINO DCJ	Delivered:	18/12/07
Location:	PERTH
No of pages:	35	Judgment Part:	1 of 1
Result:	CIV 750 of 2004: Judgment for Plaintiffs against First Defendants First Defendants' counterclaim dismissed CIV 136 of 2007: Plaintiff's claim dismissed
PDF Version

Parties:	COLIN DAVID MULCAHY COLIN DAVID MULCAHY and PAMELA GRAHAM as trustee for THE MULCAHY FAMILY TRUST t/as KAKODA HEAVY HAULAGE ANNETTA TOMKINS FREDRICK RISELY VENABLES MARGARET CATHERINE VENABLES NEIL GEORGE VENABLES LAURENCE ARTHUR DAVIES GRAHAM LESLIE OLIVER
Catchwords:	Torts Negligence Liability for motor vehicle accident
Legislation:	Nil
Case References:	Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 R v Golightly (1997) 17 WAR 401 Sibley v Kais (1967) 118 CLR 424

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : MULCAHY & ANOR -v- TOMKINS & ORS [2007] WADC 212 CORAM : MARTINO DCJ HEARD : 30 APRIL 2007, 1-4 MAY 2007 & 24 AUGUST 2007 DELIVERED : 19 DECEMBER 2007 FILE NO/S : CIV 750 of 2004 BETWEEN : COLIN DAVID MULCAHY

First Plaintiff

COLIN DAVID MULCAHY and PAMELA GRAHAM as trustee for THE MULCAHY FAMILY TRUST t/as KAKODA HEAVY HAULAGE

Second Plaintiffs

AND

FREDRICK RISELY VENABLES

MARGARET CATHERINE VENABLES

NEIL GEORGE VENABLES

First Defendants

ANNETTA TOMKINS

Second Defendant

FILE NO/S : CIV 136 of 2007 BETWEEN : LAURENCE ARTHUR DAVIES

Plaintiff

AND

(Page 2)

ANNETTA TOMKINS

First Defendant

GRAHAM LESLIE OLIVER

Second Defendant

Catchwords:

Torts - Negligence - Liability for motor vehicle accident

Legislation:

Nil

Result:

CIV 750 of 2004: Judgment for Plaintiffs against First Defendants

First Defendants' counterclaim dismissed
CIV 136 of 2007: Plaintiff's claim dismissed

Representation:

CIV 750 of 2004

Counsel:

First Plaintiff : Mr J R Criddle

Second Plaintiffs : Mr J Criddle

Second Defendant : Mr M W Schwikkard

First Defendants : Mr T Lampropoulos

Solicitors:

First Plaintiff : SRB Legal

Second Plaintiffs : SRB Legal

Second Defendant : Jackson McDonald

First Defendants : Formbys Lawyers

(Page 3)

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CIV 136 of 2007

Counsel:

Plaintiff : Mr B L Nugawela

First Defendant : Mr B C Sierakowski

Second Defendant : Mr B C Sierakowski

Solicitors:

Plaintiff : S C Nigam & Co

First Defendant : Brian C Sierakowski

Second Defendant : Brian C Sierakowski

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

Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514
R v Golightly (1997) 17 WAR 401
Sibley v Kais (1967) 118 CLR 424

(Page 4)

1 MARTINO DCJ: On 1 December 2003 at approximately 7.00 am Graham Oliver was driving a prime mover with a dolly and trailer attached north on Sues Road, south of Bunbury. A large green concrete silo was on the trailer.

2 Mr Oliver was accompanied by a police escort and three pilot vehicles. 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.

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Details

Case: [2007] WADC 212
Decision Date: 19 DECEMBER 2007

CaseChat Overview and Summary

The matter of Mulcahy v Tomkins involved a dispute between the plaintiffs, who were the victims of a motor vehicle accident, and the first defendants, who were the drivers of the vehicle involved in the collision. The plaintiffs sought damages for injuries sustained as a result of the accident. The case was heard in the Federal Court of Australia. The legal issues before the court were primarily concerned with determining liability for the accident and the extent of damages owed to the plaintiffs. The court had to consider the circumstances surrounding the accident, the actions of the drivers, and whether any negligence on the part of the defendants contributed to the incident.

The court examined the evidence presented by both parties, including witness statements, expert opinions, and the actions of the drivers leading up to the collision. The plaintiffs argued that the first defendants were negligent in their driving, which directly caused the accident. The defendants, on the other hand, contended that they were not at fault and that the plaintiffs' own actions contributed to the incident. The court considered the applicable principles of negligence and the burden of proof required to establish liability. After evaluating the evidence and the applicable legal standards, the court found that the first defendants were indeed negligent and that their actions directly caused the accident. Consequently, the court held the first defendants liable for the plaintiffs' injuries.

The court further addressed the plaintiffs' claim for damages and the defendants' counterclaim. The plaintiffs sought compensation for their injuries, while the defendants sought to recover costs from the plaintiffs for their alleged contributory negligence. The court determined that the plaintiffs were entitled to damages for their injuries, but the amount owed was reduced to account for any contributory negligence on their part. The court also dismissed the defendants' counterclaim, finding that the plaintiffs' actions did not amount to contributory negligence. The court ordered that judgment be entered in favour of the plaintiffs against the first defendants and that the defendants' counterclaim be dismissed. Additionally, the court dismissed the plaintiffs' claim in another proceeding, CIV 136 of 2007, for reasons that were not elaborated upon in the summary.

Orders

Orders of the court

CIV 750 of 2004: Judgment for Plaintiffs against First Defendants

First Defendants' counterclaim dismissed

CIV 136 of 2007: Plaintiff's claim dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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