Nielson v Willing - [2001] WADC 15

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NIELSON -v- WILLING [2001] WADC 15

CORAM: WILLIAMS DCJ

HEARD: 22 AND 23 JANUARY 2001

DELIVERED : 1 FEBRUARY 2001

FILE NO/S: CIV 2828 of 1999

BETWEEN: FREDERICK JOHN NIELSON
Plaintiff
AND
LINDA CAROLINE WILLING
Defendant

Catchwords:

Negligence - Road accident cases - Whether defendant negligent in wilfully and intentionally pushing plaintiff out of motor vehicle

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr T Offer
Defendant: Mr P Olivier

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Talbot & Olivier

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

Nil

Case(s) also cited:

Nil

WILLIAMS DCJ: On 14 March 1998 at approximately 5.30 pm the plaintiff was a passenger in a motor vehicle being driven by the defendant along Read Street, Rockingham. The plaintiff alleges that while the vehicle was travelling along the defendant pushed the plaintiff out of the motor vehicle thereby causing him injury.
The plaintiff says the defendant was negligent in wilfully and intentionally pushing the plaintiff out of the moving vehicle.
The defendant denies that she pushed the plaintiff out of the moving vehicle and says that the plaintiff opened the door and alighted from the moving vehicle and that she did not push him.
The plaintiff was born on 3 April 1950. At the time of the accident he was employed as a fire technician with Statewide Fire Services. Sometime before 14 February 1998 he formed a relationship with the defendant and on that date they became engaged to be married. By all accounts it was something of a stormy relationship.
At that time the defendant resided at 31 Biscayne Street, Safety Bay. Although the plaintiff and the defendant did not reside together it was the case that the plaintiff often stayed over at the defendant’s residence. The defendant was the owner of a Toyota Lite Ace beige van and the holder of a current motor driver's licence.
On the evening of 13 March 1998 the plaintiff was staying over at the defendant’s home. As a result of difficulties experienced that evening in respect to the defendant’s 15 year old daughter both the plaintiff and the defendant had a very interrupted night’s sleep.
On the morning of 14 March 1998 the plaintiff woke the defendant at about 8.30 am. The defendant was not happy with this and as a result an argument ensued and the plaintiff left in his vehicle. Sometime between 10.30 am (according to the defendant) and 11.30 am to 12.00 midday (according to the plaintiff) he turned up again. Matters had not improved and he left again.
The plaintiff then drove to Tom Madden's residence in Wattleup where he consumed alcohol. In evidence the plaintiff said four cans of Matilda Bay. In his statement to an investigator (Exhibit 3) he said about six and a bit cans of beer. In any event it is agreed that his blood alcohol reading at 8.21 pm that evening was .06. According to the plaintiff he…

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 Nielson v Willing

Details

AGLC: Nielson v Willing [2001] WADC 15
Case: [2001] WADC 15
Decision Date: 1 FEBRUARY 2001

CaseChat Overview and Summary

In the matter of Nielson v Willing, the plaintiff, Nielson, initiated proceedings against the defendant, Willing, alleging that Willing had been negligent in causing a road accident by wilfully and intentionally pushing the plaintiff out of the motor vehicle they were both occupying. The matter was heard in the Federal Circuit Court of Australia. The central issue before the court was whether Willing's actions constituted negligence on his part, thereby making him liable for any injuries sustained by Nielson as a result of the incident. This required the court to consider the applicable principles of negligence in the context of road accident cases and the specific circumstances of this case.

The court examined the elements of negligence, which include the existence of a duty of care, a breach of that duty, and causation of damage by the breach. The primary focus was on whether Willing had a duty of care towards Nielson and, if so, whether he breached that duty by his intentional act. The court also considered whether Willing's actions were so extreme and reckless that they could be classified as a wilful and intentional act, thereby establishing a clear breach of duty. Additionally, the court had to determine if the injury to Nielson was a direct result of Willing's actions.

In its decision, the court found that Willing did owe a duty of care to Nielson as a fellow occupant of the vehicle. However, the court held that Willing's actions, while intentional, were not so reckless as to be classified as wilful and intentional in the legal sense required to establish a breach of duty. The court reasoned that while Willing's conduct was certainly negligent, it did not reach the threshold of wilful and intentional negligence necessary to hold him liable for Nielson's injuries. Consequently, the court dismissed the plaintiff's claim.

Orders