Tracey Kathleen Fraser v Burswood Resort (Management) Ltd

[2014] HCASL 250

TRACEY KATHLEEN FRASER

v

BURSWOOD RESORT (MANAGEMENT) LTD

[2014] HCASL 250
P29/2014

1. On 10 December 2001, at about 4.40 am, the applicant was injured in a single vehicle accident while driving home after finishing nightshift work for the respondent.

2. On 18 December 2012, the District Court of Western Australia (Stevenson DCJ) dismissed the applicant's claim against the respondent in negligence.  Stevenson DCJ found that the respondent had breached its duty of care to warn the applicant of the increased risk of having an accident while driving home from her nightshift work.  However, his Honour was not persuaded on the balance of probabilities that the applicant fell asleep and that this was a cause of her driving off the road.  His Honour concluded that the respondent's breach of duty did not cause the applicant's accident.

3. On 15 July 2014, the Court of Appeal of the Supreme Court of Western Australia (Martin CJ, McLure P and Newnes JA) dismissed the applicant's appeal from the decision of Stevenson DCJ.  The Court of Appeal held that no error had been established in the findings of fact by the primary judge.  The Court of Appeal found that, on the evidence, it was more likely than not that the cause of the applicant's vehicle leaving the road was something other than her falling asleep, such as inattention.

4. The applicant now seeks special leave to appeal to this Court.  The application for special leave does not identify sufficient grounds for challenging the concurrent findings of the courts below that, on the balance of probabilities, the applicant drove off the road for some reason other than her falling asleep.  Without successfully challenging that finding, the applicant's claim against the respondent must fail.  An appeal to this Court would therefore enjoy insufficient prospects of success to warrant the grant of special leave and would be an inappropriate vehicle to consider other issues that are said to arise.  Special leave is refused.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
11 December 2014 P.A. Keane