Van Der Wegen v O'Callaghan

Case [2005] WADC 26
VAN DER WEGEN -v- O'CALLAGHAN & ORS [2005] WADC 26
Last Update:  23/02/2005
VAN DER WEGEN -v- O'CALLAGHAN & ORS [2005] WADC 26
Link to Appeal: [2006] WASCA 179
Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA   Citation No: [2005] WADC 26
Case No: CIV:1228/2002   Heard: 16­19 & 22 NOVEMBER 2004
Coram: MARTINO DCJ   Delivered: 23/02/2005
Location: PERTH   Supplementary Decision:
No of Pages: 28   Judgment Part: 1 of 1
Result: Plaintiff guilty of contributory negligence
Damages assessed at $125,719.35 reduced by 25 per cent for contributory
negligence
Damages of $94,289.51 awarded
Third party not liable to either defendant
[Click here for Judgment in Adobe Acrobat Format ]
Parties: SALLY VAN DER WEGEN
MICHAEL DENIS O'CALLAGHAN
CGU INSURANCE LIMITED
MURRAY RIVER NORTH PTY LTD
Catchwords: Torts Negligence Motor vehicle accident Contributory negligence Plaintiff's knowledge that defendant driving under the influence of alcohol Whether employer also liable Insurance Breach of warranty in policy
Legislation: Christmas Island Act 2958 (Cth) s 8A, s 8A(2)
Law Reform (Contributory Negligence and Tortfeasers' Contribution) Act 1947 s 7
Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3C, s 7(5)
Workers' Compensation and Rehabilitation Act 1981 s 93B(3)(a)
Case References: Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Zurich Australian Insurance Ltd v Amec Services Pty Ltd, unreported; FCt SCt of WA; Library No 980139; 31 March 1998

Annetts v Australian Stations Pty Ltd [2002] HCA 35
Australian Specialist Underwriters v Pierpoint (1986) 4 ANZ Insurance Cases 60­702
Australian Specialist Underwriters v Pierpoint (1986) 4 MVR 121
Australian Turf Industries Pty Ltd v Dalet Pty Ltd, unreported; FCt SCt of WA; Library No 98065; 12 November 1998
Barrett v Ministry of Defence [1995] 1 WLR 1217
Brodie v Singleton Shire Council (2001) 206 CLR 512
Casinos Australia International (Christmas Island) Pty Ltd & Ors v Christmas Island Resort Pty Ltd & Anor (1998) WASC 387
Cassidy v State Government Insurance Office [1965] WAR 81
Christmas Island Resort Pty Ltd & Ors v Commonwealth of Australia & Anor, unreported; FCt SCt of WA; Library No 980621; 11 September 1998
Clark v Ryan (1960) 103 CLR 486
Cole v South Tweeds Heads Rugby League Football Club Limited (2004) 78 ALJR 933
Commissioner for Railways v Ireland [1964] NSWR 938
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192
Evans & Sons Ltd v Spritebrand Ltd [1985] 1 WLR 317
Evans v Accident Insurance Mutual Holdings Ltd [1998] 2 Qd R 350
Fluor Daniel Constructors Pty Ltd v Zurich Australian Insurance Ltd [2002] WASCA 218
Forbes v Australian Associated Motor Insurers Ltd and Price (1990) 6 ANZ Insurance Cases 61­015
Francis v Lewis [2003] NSWCA 152
Government Insurance Office of NSW v Nowalinski (1985) 2 MVR 142
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Grays Haulage Co Ltd…

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AGLC
Van Der Wegen v O'Callaghan [2005] WADC 26
Case
[2005] WADC 26
Decision Date

CaseChat Overview and Summary

The parties involved in the case were Van Der Wegen, the plaintiff, and O'Callaghan, the defendant. The nature of the dispute was a motor vehicle accident caused by the defendant, who was allegedly driving under the influence of alcohol. The court was required to decide if the plaintiff was guilty of contributory negligence due to their knowledge of the defendant's condition. The court also had to determine whether the defendant's employer was liable for the damages caused by the accident and if there was a breach of warranty in the insurance policy.

The legal issues at hand were whether the plaintiff was negligent in continuing to drive with the defendant, who was known to be under the influence of alcohol. The court also needed to determine if the defendant's employer could be held liable for the accident and if there was a breach of warranty in the insurance policy. The court found that the plaintiff was guilty of contributory negligence due to their knowledge of the defendant's condition. However, the defendant's employer was not held liable for the damages caused by the accident. The court also found that there was no breach of warranty in the insurance policy.

The court's reasoning was based on the fact that the plaintiff knew that the defendant was driving under the influence of alcohol but still chose to continue driving with them. This knowledge constituted contributory negligence on the part of the plaintiff. The court also found that the defendant's employer could not be held liable for the accident as there was no evidence to suggest that they were aware of the defendant's condition or that they had any control over the situation. The court found that there was no breach of warranty in the insurance policy as the policy did not explicitly exclude coverage for accidents caused by intoxicated drivers.

The court ordered that the plaintiff's damages be assessed at $125,719.35, but reduced by 25 per cent due to contributory negligence. This resulted in damages of $94,289.51 being awarded to the plaintiff. The defendant's employer was not held liable for any damages, and there was no breach of warranty in the insurance policy.

Orders

Orders of the court

Plaintiff guilty of contributory negligence

Damages assessed at $125,719.35 reduced by 25 per cent for contributory

negligence

Damages of $94,289.51 awarded

Third party not liable to either defendant

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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