Van Der LAAN v Warchot - [2006] WASC 229

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: VAN DER LAAN -v- WARCHOT [2006] WASC 229

CORAM: HASLUCK J

HEARD: 15 SEPTEMBER 2006

DELIVERED : 4 OCTOBER 2006

FILE NO/S: SJA 1056 of 2006

BETWEEN: DESMOND VAN DER LAAN
Appellant
AND
DAVID WARCHOT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R B LAWRENCE
File No  :RO 5641 of 2005

Catchwords:

Criminal law - Driving offence - Dangerous driving causing bodily harm - Elements of offence - Nature of driver's duty upon entering intersection - Need to ensure that road is clear of oncoming traffic - Relevance of topography and visibility - Finding that appellant failed to exercise sufficient care upheld on appeal - No error in assessment of credibility of witnesses - Turns on own facts

Legislation:

Road Traffic Act 1974 (WA), s 59A(1)(b)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J G Kitto
Respondent: Ms D E Quinlan

Solicitors:

Appellant: Kitto & Kitto
Respondent: State Solicitor

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

Becker v Roberts (1997) 27 MVR 193
Carden v The Queen (1992) 8 WAR 296
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Harling v Hall (1997) 94 A Crim R 437
Kaighin v The Queen (1990) 1 WAR 390
M v The Queen (1994) 181 CLR 487
Magennis v Gault, unreported; SCt of WA; Library No 1400; 4 June 1974
Richardson v Price [1971] WAR 177
Skerritt v O'Keefe [1999] WASCA 183
Verhoeven v Ninyette (1998) 101 A Crim R 24
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Warren v Coombes (1979) 142 CLR 531

Case(s) also cited:

Hancock v Cox (1993) 19 MVR 137
Isidoro v May [2000] WASCA 152
McLuckie v Williams (1995) 82 A Crim R 118
R v Coventry (1938) 59 CLR 633
R v Gosney [1971] 2 QB 674
R v McDonald [2000] WASCA 336
Smith v The Queen [1976] WAR 97
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Turner v Hughes [2000] WASCA 276

HASLUCK J:

Introduction

The appellant, Desmond Neville Van Der Laan, obtained leave to appeal against a conviction arising under provisions of the Road Traffic Act 1974 (WA). The appeal concerns the nature of dangerous driving.
The appellant was charged pursuant to a prosecution notice that on 12 May 2005 at Kwinana Beach he drove a motor vehicle on a road, namely, Ocean Street, in a manner that was, having regard to all the circumstances, dangerous to the public or any person, and was subsequently involved in an incident occasioning bodily harm to Ronald Graeme Bryant contrary to s 59A(1)(b) of the Road Traffic Act.
Section 59A(1)(b) of the Act provides that a driver commits an offence if a motor vehicle driven by the driver is involved in an incident occasioning bodily harm to another person and the driver was, at the time of the incident, driving the motor…

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 Van Der LAAN v Warchot

Details

AGLC: Van Der LAAN v Warchot [2006] WASC 229
Case: [2006] WASC 229
Decision Date: 4 OCTOBER 2006

CaseChat Overview and Summary

Van Der LAAN v Warchot involved the appellant, Van Der LAAN, who was appealing a conviction for dangerous driving causing bodily harm. The incident occurred when Van Der LAAN collided with a motorcycle at an intersection. The appellant argued that there were no errors in the assessment of the credibility of witnesses, topography, and visibility, which played crucial roles in the trial. The appellant also contended that the trial judge misapplied the law regarding the driver's duty upon entering an intersection.

The central legal issues were whether Van Der LAAN failed to exercise sufficient care and attention to avoid the collision and whether the trial judge erred in assessing the credibility of the witnesses and the relevance of the intersection's topography and visibility. The court needed to determine if Van Der LAAN's actions constituted dangerous driving under Australian criminal law, particularly in relation to the duty of care when entering an intersection.

The court held that the appellant had indeed failed to exercise sufficient care. The court found that it was incumbent upon the driver to ensure that the road was clear of oncoming traffic before entering an intersection, particularly given the topography and visibility conditions. The court upheld the findings of the trial judge, who assessed the credibility of witnesses and considered the circumstances of the incident. The court held that the trial judge's assessment was sound and that there was no error in the decision. The appeal was dismissed, and the conviction was upheld.

Orders