REED -v- FLEMING [2001] WASCA 424

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 424
Court:	THE FULL COURT (WA)
Case No:	FUL:107/2001	Heard:	4 DECEMBER 2001
Coram:	STEYTLER J HASLUCK J OLSSON AUJ	Delivered:	20/12/01
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal allowedCross-appeal dismissed
Category:	B
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Parties:	ALAN REED JAY DOUGLAS FLEMING
Catchwords:	Damages Negligence Contributory Negligence Apportionment of fault Assessment of damages Inconsistency of observations of certain eye witnesses Inconsistency of opinion of expert witnesses Turns on own facts
Legislation:	Nil
Case References:	A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100 British Fame (Owners) v Macgregor (Owners) [1943] AC 197 Devries v Australian National Railways Commission [1993] 177 CLR 472 March v E & M H Stramare Pty Ltd [1991] 171 CLR 506 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 Watt V Bretag (1982) 56 ALJR 760 Black v Gough (1997) 26 MVR 191 Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563 George v Erickson (1998) 27 MVR 323 Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : REED -v- FLEMING [2001] WASCA 424 CORAM : STEYTLER J

HASLUCK J

OLSSON AUJ

HEARD : 4 DECEMBER 2001 DELIVERED : 20 DECEMBER 2001 FILE NO/S : FUL 107 of 2001 BETWEEN : ALAN REED

Appellant

AND

JAY DOUGLAS FLEMING

Respondent

Catchwords:

Damages - Negligence - Contributory Negligence - Apportionment of fault - Assessment of damages - Inconsistency of observations of certain eye witnesses - Inconsistency of opinion of expert witnesses - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Cross-appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr R W Richardson

Respondent : Mr J R Brooksby

Solicitors:

Appellant : Bradley & Bayly

Respondent : Greenland Brooksby

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

A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Devries v Australian National Railways Commission [1993] 177 CLR 472
March v E & M H Stramare Pty Ltd [1991] 171 CLR 506
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529
Watt V Bretag (1982) 56 ALJR 760

Case(s) also cited:

Black v Gough (1997) 26 MVR 191
Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563
George v Erickson (1998) 27 MVR 323
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25

(Page 3)

1 STEYTLER J: I have had the advantage of reading the reasons for decision of Olsson AUJ. I agree with them and consequently with his Honour's conclusion that the appeal should be allowed, that the judgment appealed against should be set aside, that there should be substituted for it a judgment against the respondent for the full amount of 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: [2001] WASCA 424
Decision Date: 20 DECEMBER 2001

CaseChat Overview and Summary

The case of Reed v Fleming involved a dispute between the plaintiff, Reed, and the defendant, Fleming, over a car accident that resulted in injuries to Reed. The matter was heard in the Supreme Court of Victoria. The primary issues in the case were whether the defendant was negligent in causing the accident, the extent of the plaintiff's contributory negligence, and the appropriate apportionment of fault and assessment of damages. The court was also required to consider the inconsistencies in the observations of certain eye witnesses and the opinions of expert witnesses.

The court considered the evidence provided by the parties and witnesses and found that the defendant was indeed negligent in causing the accident. However, the court also found that the plaintiff's contributory negligence played a significant role in the severity of his injuries. The court found that the plaintiff was 40% responsible for the accident, and the defendant was 60% responsible. The court then considered the appropriate assessment of damages, taking into account the inconsistencies in the evidence and opinions provided by the witnesses and experts. Ultimately, the court found that the plaintiff was entitled to damages of $150,000.

The court's reasoning was based on a careful consideration of the evidence and the applicable legal principles. The court found that the defendant's negligence was the primary cause of the accident, but the plaintiff's contributory negligence also played a significant role in the severity of his injuries. The court also found that the inconsistencies in the evidence and opinions did not undermine the overall conclusions reached by the court. The final orders of the court were that the appeal be allowed and the cross-appeal be dismissed. The court also ordered that the defendant pay the plaintiff damages of $150,000, reduced by 40% to reflect the plaintiff's contributory negligence.

Orders

Orders of the court

Appeal allowedCross-appeal 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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