Taylor v Scriven

[2007] WASCA 208

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   TAYLOR -v- SCRIVEN [2007] WASCA 208

CORAM:   WHEELER JA

PULLIN JA
BUSS JA

HEARD:   5 JUNE 2007

DELIVERED          :   10 OCTOBER 2007

FILE NO/S:   CACV 47 of 2006

BETWEEN:   TAYLOR (an infant) as the son of the late BARRY JAMES TAYLOR by his next friend ANITA WEINBRECHT

Appellant

AND

RYAN BARRY JONATHON SCRIVEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MARTINO DCJ

Citation  :TAYLOR (an infant) as the son of the late BARRY JAMES TAYLOR by his next friend ANITA WEINBRECHT -v- SCRIBEN [2006] WADC 54

File No  :CIV 2639 of 2004

Catchwords:

Appeal - Negligence - Motor vehicle accident - Claim for damages under Fatal Accidents Act 1959 (WA) - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr D I Connor

Respondent:     Mr M A G Jenkin

Solicitors:

Appellant:     Hoffmans

Respondent:     State Solicitor for Western Australia

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

Taylor v Scriben [sic Scriven] [2006] WADC 54

WHEELER JA: 

The appeal

1. This is an appeal by an infant in relation to findings made by the learned trial Judge that the negligence of the infant's father contributed to that father's death, and that therefore the damages to be awarded to the infant under the Fatal Accidents Act1959 (WA) should be reduced to reflect an apportionment of liability between the deceased father and the respondent. There is also a question concerning the quantum of damages.

2. The appeal is concerned purely with questions of fact; there does not appear to be any dispute between the parties concerning the relevant legal principles.  Given that the respondent recognised that the appellant's careful submissions, criticising aspects of his Honour's findings, had considerable force, it is unfortunate and perhaps a little surprising that the matter was not able to be settled.  It is difficult to see how the interests of the respondent were advanced by its formal opposition to all of the appellant's grounds of appeal. 

Findings at trial

1. The background to the matter is briefly as follows.  At approximately 8 pm on Tuesday, 2 January 2003 (that is, about half an hour or so after dark), the late Mr Barry Taylor was riding his motorcycle on Roe Highway in Forrestfield.  He had been travelling north when he turned left into Berkshire Road.  On Berkshire Road, his motorcycle collided with a parked Mitsubishi Sigma sedan, which had been left there by the respondent.  It had been necessary for the respondent to leave his car where he did because his left front tyre had become flat while he was driving along the road at roughly 5 pm in the afternoon.  The respondent did not realise at the time that there was no street lighting provided for in the area where he had parked his car.  The learned trial Judge's conclusion that the respondent was negligent is not challenged. 

2. The finding that…