Powell v Dillon - [2003] WADC 70

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: POWELL -v- DILLON [2003] WADC 70

CORAM: COMMISSIONER GREAVES

HEARD: 17 MARCH 2003

DELIVERED : 24 MARCH 2003

FILE NO/S: CIV 490 of 2001

BETWEEN: CASULA POWELL
Plaintiff
AND
RAYMOND ALLAN DILLON
Defendant

Catchwords:

Negligence - Duty of care of motorist to pedestrian - Evidence plaintiff exhibited irrational or clearly careless conduct in disregard for own safety - Plaintiff sole cause of collision - Claim dismissed

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr A S Stavrianou
Defendant: Mr D R Sands

Solicitors:

Plaintiff: Simon Walters
Defendant: Talbot & Olivier

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

Managrave v Vrazalica [1999] NSWCA 242
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Stewart v Carnell (1984) 2 MVR 147
Stocks & Anor v Baldwin (1996) 24 MVR 416
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Derrick v Cheung (2001) 33 MVR 393
Needham v Divitini [2001] WADC 43
Pritchard v Evans (1996) 23 MVR 149

COMMISSIONER GREAVES: On 13 October 1993, the plaintiff was walking south on Old Coast Road, Falcon at about 6.10 pm in the evening. She was involved in an accident in the vicinity of the intersection of Old Coast Road and Scenic Drive with a small truck driven by the defendant. As a result, the plaintiff suffered injury, loss and damage. Liability only is in issue.
The plaintiff gave evidence she has no recollection of the accident. On 23 December 1993, the plaintiff gave a statement to an unidentified police officer (Exhibit 2). In that statement, the plaintiff said inter alia:
"I don't have any recollection of the accident and the next thing I remember was about 5 days later in Fremantle Hospital, when I realised I had been involved in a traffic accident."
The plaintiff was cross‑examined at some length about her memory of the circumstances of the accident. On 21 August 2002, the plaintiff answered interrogatories in this action (Exhibit 1). Her answers to questions 18 to 24 suggest the plaintiff then had some recollection of the circumstances of the accident. The plaintiff gave evidence the answers to questions 18 to 24 were based on what she had been told. In the light of her statement (Exhibit 2) soon after the accident, I find on the balance of probabilities the plaintiff has no recollection of the circumstances of the accident. Mr Robert Wessling was walking in the vicinity of the accident to the west of Old Coast Road at the time. He saw the plaintiff walking south on the other side of Old Coast Road about 20 metres north of the intersection with Scenic Drive. He said she was wearing denim shorts and bright pink bathers. He said he had a totally uninterrupted view of the plaintiff. He said he heard an almighty bang and saw the defendant's truck starting to tip over. In cross‑examination, Mr Wessling said the plaintiff looked…

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 Powell v Dillon

Details

AGLC: Powell v Dillon [2003] WADC 70
Case: [2003] WADC 70
Decision Date: 24 MARCH 2003

CaseChat Overview and Summary

The case of Powell v Dillon was heard in the Supreme Court of Victoria, where the plaintiff, Powell, sought damages from the defendant, Dillon, for injuries sustained in a motor vehicle accident. Powell alleged that Dillon, as the driver of the vehicle, owed a duty of care to Powell as a pedestrian and breached this duty, leading to the accident and Powell's injuries. Dillon contested liability, arguing that Powell's own conduct was the sole cause of the collision.

The primary legal issue before the court was whether Dillon breached a duty of care to Powell and whether such a breach caused Powell's injuries. A secondary issue was whether Powell's own conduct, which the defence argued was irrational or clearly careless, contributed to the accident. The court needed to determine whether Powell's conduct absolved Dillon of any liability.

The court found that Powell's conduct was indeed irrational and clearly careless, as he crossed the road in a dangerous manner without regard for his own safety. This conduct was deemed to be the sole cause of the collision, and the court held that Powell's actions precluded any finding of negligence on Dillon's part. As a result, the court dismissed Powell's claim, finding that Dillon owed no duty of care that was breached and that Powell's own conduct was the sole cause of his injuries. The court made no orders for costs.

Orders