| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA -v- ANDABAKA [2013] WADC 114 CORAM : STONE DCJ HEARD : 14 JUNE 2013 DELIVERED : 19 JULY 2013 FILE NO/S : CIV 3598 of 2011 BETWEEN : PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA Plaintiff
AND
ZDRAVKO ANDABAKA
Defendant
Catchwords: Negligence - Damages - The defendant's nonattendance at trial Legislation: Rules of the Supreme Court 1971 (WA) O 34 r 2, O 34 r 4 Result: Judgment for the plaintiff
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Representation: Counsel:
Plaintiff : Mr J P Wilson
Defendant : No appearance
Solicitors:
Plaintiff : WHL Legal Pty Ltd
Defendant : Not applicable
Case(s) referred to in judgment(s):
Broadway Pty Ltd v Lewis [2012] WASC 373
Stone v Smith (1885) 35 Ch D 188
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Introduction 1 This action arises out of an accident between a Mercedes Volgren 500 bus owned by the plaintiff, the Public Transport Authority of Western Australia and a Toyota HiLux motor vehicle driven by the defendant, Mr Zdravko Andabaka. The plaintiff claims damages for the cost of the repairs to the bus as a result of the motor vehicle accident.
The defendant's non-attendance at the trial 2 Mr Andabaka did not appear at the trial and he was not represented by counsel. The plaintiff's counsel sought to continue with the trial in Mr Andabaka's absence. I permitted the trial to proceed and I indicated reasons for doing so at the commencement of the trial. 3 Order 34 r 2 and O 34 r 4 of the Rules of the Supreme Court 1971 (WA) provide that if, when a trial is called on, one party does not appear the judge may proceed with the trial of the action in the absence of that party. The court had a discretion as to whether to proceed with or adjourn the trial. Two fundamental considerations govern the exercise of the court's discretion. The first was that natural justice must be afforded to a party to litigation. The second, and related, consideration was that the paramount objective of litigation was the just resolution of disputes: Broadway Pty Ltd v Lewis [2012] WASC 373 [43] (Pritchard J). 4 In reaching the view that I should permit the trial to proceed, I was satisfied that Mr Andabaka had been provided with adequate notice of the date of the trial and the evidence upon which the plaintiff relied to establish its case and he was aware of the implications for his case if he failed to attend. I also took into account case management objectives and the plaintiff's position. All of these matters militated against adjourning the trial for a second time. The Writ of Summons was filed on 11 November 2011 and concerned an event that occurred on 23 September 2009. Mr Andabaka had been represented by solicitors and he had filed a defence. In November 2012, Mr Andabaka's solicitors ceased acting after Mr Andabaka left Australia around July 2012 to live in Croatia permanently. By airmail dated 15 May 2013 to Mr Andabaka's current known address in Croatia and being the last known address filed at the court, the plaintiff's solicitors advised Mr Andabaka of the trial date and court orders concerning the filing and service upon him of evidence upon which the plaintiff will rely at trial and the notice in writing to the plaintiff that Mr Andabaka must give if he required the attendance of any (Page 4)
of the plaintiff's witnesses for cross-examination at trial. Mr Andabaka made no application or request to adjourn the trial and there was no notification that he was unable to attend the trial for any reason.
Issues 5 If the defendant does not appear at the trial the plaintiff must prove his or her claim so far as the burden of proof rests upon him or her and the claim is confined to relief clearly pleaded: Stone v Smith (1885) 35 Ch D 188, 190. 6 On the pleadings the plaintiff claimed the collision was caused by the negligence of Mr Andabaka and by reason of his negligence it had suffered loss and damage. 7 On the pleadings Mr Andabaka put liability and quantum in issue but he admitted that: (a) the plaintiff was a body corporate capable of bringing proceedings; (b) he was the driver of the Toyota HiLux (the HiLux); (c) the HiLux collided with the bus, registration number TP 1728 (Bus 1728).
Liability 8 On the evidence contained in the affidavit of Rudolph Zomer sworn on 7 March 2013 which I accepted, I was satisfied that on 23 September 2009 an accident occurred at a bus stop on Whitfords Avenue after Mr Andabaka, who was driving the HiLux collided with the rear of Bus 1728 driven by Mr Zomer while Bus 1728 was stationary at the bus stop. Whitfords Avenue is a dual carriageway (ie, four lanes in total, two on each side). 9 On that day Mr Zomer was driving Bus 1728 on Route 469 to Wangara from Whitfords Avenue. Bus 1184 driven by a Mr Matthew Shepherd followed Bus 1728. The two buses were travelling east in the left hand lane. On Whitfords Avenue, just after Timbercrest Rise Mr Zomer saw a passenger signal at a bus stop, namely 'Transperth Stop No 18464' which had no embayment. Mr Zomer indicated, checked his mirror and pulled Bus 1728 off to the left at the bus stop. Bus 1728 was pulled off to the utmost left hand side adjacent to the kerbing and next to the bus stop. Half of Bus 1728 remained in the left hand lane of (Page 5)
Whitfords Avenue. As the passenger was tagging on, Mr Zomer was preparing to move Bus 1728 completely back into the left lane. Mr Zomer saw Bus 1184 move into the right hand lane. Whilst Bus 1728 was still stationary at the bus stop the HiLux collided with the right hand rear section of the bus. On impact half the HiLux bonnet went under the right hand rear section of Bus 1728. The HiLux was positioned facing towards the right hand lane as if to pass Bus 1728. After Mr Zomer ascertained that none of his passengers were injured, he radioed for assistance and climbed out of Bus 1728 to speak to the driver of the HiLux. Mr Zomer and Mr Andabaka were together for approximately 20 to 30 minutes whilst Mr Zomer waited for a change of bus. Mr Andabaka did not blame the driver of Bus 1184 for the accident. Mr Andabaka said words to the effect that he did not have enough time to manoeuvre after Bus 1184 moved to the second lane. Mr Andabaka appeared distraught. Mr Andabaka said he only had the HiLux for a few days and it was not insured. 10 In the circumstances the inevitable inferences to be drawn from the evidence were that the accident occurred because Mr Andabaka failed to keep any, or any proper, lookout; he failed to have due regard to the presence of Bus 1728 ahead of him; he failed to apply the Hilux's brakes timeously or at all; he failed to stop, slow down or keep clear of Bus 1728 and/or he drove the HiLux at an excessive speed. 11 I am satisfied the accident was caused by Mr Andabaka and it occurred as a result of his negligence.
Quantum 12 On the evidence contained in the affidavit of Steve Marshall sworn on 6 March 2013 which I accepted, I was satisfied that Mr Marshall was a qualified and experienced motor vehicle assessor; Bus 1728 sustained the damage in the accident on 23 September 2009 that he assessed as major impact body damage to the right hand rear corner, together with significant mechanical and structural damage; and the cost of repairs and towing was reasonable. Following a quotation process, Bus 1728 was repaired with the oversight of Mr Marshall at a cost of $98,413.28 inclusive of GST which he considered reasonable. The quotation process also involved towing Bus 1728 at a cost of $495 inclusive of GST. 13 The amount claimed by the plaintiff was $89,916.62 being the total of the cost of repairs and the towing cost, less GST. (Page 6)
14 I am satisfied that by reason of Mr Andabaka's negligence the plaintiff suffered loss and damage.
Conclusion 15 Mr Andabaka was liable for the plaintiff's loss and damage in the sum of $89,916.62.
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