Waterfall v Antony - [2012] VSC 458

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WARRNAMBOOL

COMMON LAW DIVISION

No. S CI 2011 05777

JOHN RONALD WATERFALL	Plaintiff
v
STUART ROSS ANTONY	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Warrnambool
DATE OF HEARING:	1-3 October 2012
DATE OF JUDGMENT:	4 October 2012
CASE MAY BE CITED AS:	Waterfall v Antony
MEDIUM NEUTRAL CITATION:	[2012] VSC 458

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ACCIDENT COMPENSATION – Transport accident – Motor vehicle accident in Western Australia – Law of Western Australia to be applied – Breach of duty – Negligence – Contributory negligence – Civil Liability Act 2002 (WA), ss 3A, 5A(1), 5B, 5C, 5D and 5K.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C.W.R. Harrison SC with Mr I.R. Fehring	Stringer Clark
For the Defendant	Mr P.B. Jens	Hunt & Hunt

HIS HONOUR:

Introduction

On 14 November 2008, on the Eyre Highway, Madura Pass, Western Australia, a motorcycle then being ridden by the plaintiff, John Ronald Waterfall, collided with a motor vehicle then being driven by the defendant, Stuart Ross Antony. At the time of the collision, the defendant was towing a caravan and attempting to make a right hand turn off the Eyre Highway, while the plaintiff (who was travelling in the same direction as the defendant) was attempting to overtake the defendant’s vehicle.

As a result of the collision, the plaintiff suffered serious injuries, including a fracture dislocation of his left hip.

In this proceeding, the plaintiff claims damages from the defendant, alleging that his injuries were caused by the negligence of the defendant. The defendant denies that he was negligent. In the alternative, the defendant alleges that if he was negligent, then there was contributory negligence on the part of the plaintiff.

As the accident happened in Western Australia, the law to be applied is the law of Western Australia. That is, questions of liability and the assessment of any damages in this case fall to be determined by the application of Western Australian law.[1]
[1]John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503.

At the commencement of the trial, both liability and quantum were in issue. However, on day two of the trial, counsel for the parties informed the Court that, in the event that the plaintiff established an entitlement to damages, the quantum of the plaintiff’s damages were agreed.[2] During final addresses, I was told that the agreed figure is $774,980 – and that no question of interest arises.
[2]As to the principles by which such damages would have fallen to be assessed, see s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. See further, Insurance Commission of Western Australia v Weatherall [2007] WASCA 264, [2], [40] and [260]-[261]; s 3A of the Motor Vehicle (Third Party Insurance) Act; ss 3A, 6(1) and 10A of the Civil Liability Act 2002; and s 42 of the Transport Accident Act 1986.

The accident

Following the resolution of quantum issues, only four witnesses were called to give evidence about the accident: first,…

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 Waterfall v Antony

Details

AGLC: Waterfall v Antony [2012] VSC 458
Case: [2012] VSC 458
Decision Date: 4 October 2012

CaseChat Overview and Summary

The plaintiff, Waterfall, sought compensation for injuries sustained in a motor vehicle accident in Western Australia. The defendant, Antony, argued that Waterfall's own negligence contributed to the accident, thereby reducing the damages recoverable under the Civil Liability Act 2002 (WA). The dispute was heard and determined by the Supreme Court of Western Australia.

The court was required to decide whether Antony breached a duty of care owed to Waterfall, and if so, whether Waterfall's contributory negligence should reduce the damages. The court also needed to determine the applicable law and the extent to which the statutory provisions of the Civil Liability Act 2002 (WA) applied to the case. In particular, the court had to consider sections 3A, 5A(1), 5B, 5C, 5D, and 5K of the Act.

The court held that Antony breached a duty of care owed to Waterfall by failing to maintain a proper lookout while driving. The court found that Waterfall's contributory negligence did not entirely absolve Antony of liability but rather reduced the damages recoverable by Waterfall. The court applied the provisions of the Civil Liability Act 2002 (WA) to determine the extent of the reduction. Ultimately, the court found that Antony was liable for 75% of the damages suffered by Waterfall.

The court ordered that Antony pay Waterfall 75% of the total damages, reflecting the application of the contributory negligence provisions under the Civil Liability Act 2002 (WA).

Orders