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Wensink v Marshall

Wensink v Marshall

Case [2010] WASCA 117 28 June 2010

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WENSINK -v- MARSHALL [2010] WASCA 117

CORAM: McLURE P
NEWNES JA
KENNETH MARTIN J

HEARD: 10 MARCH 2010

DELIVERED : 28 JUNE 2010

FILE NO/S: CACV 40 of 2009

BETWEEN: NICO ALEXANDER FREDERICK WENSINK
Appellant
AND
TRISTAN JAMES MARSHALL by next friend SIAN RHONDA ROBERTS
First Respondent
SIAN RHONDA ROBERTS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCOTT DCJ
Citation  :MARSHALL by his next friend SIAN RHONDA ROBERTS & ANOR -v- WENSINK [2009] WADC 34
File No  :CIV 889 of 2006

Catchwords:

Negligence - Motor vehicle accident - Appellant (driver) travelling below speed limit on continuing road - Respondent emerged suddenly from side street on bicycle and collided with side of appellant's vehicle - Appellant's view up side street as he approached it obscured by shrubbery and fence - Whether appellant negligent by travelling at excessive speed and failing to keep proper lookout ‑ Whether causation established - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant:     Ms G A Archer SC & Mr D M G Burton
First Respondent           :     Mr C L Zelestis QC & Mr D J Bayly
Second Respondent      :     Mr C L Zelestis QC & Mr D J Bayly

Solicitors:

Appellant:     SRB Legal
First Respondent           :     Bradley Bayly Legal
Second Respondent      :     Bradley Bayly Legal

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

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Gunning v Fellows (1997) 25 MVR 97
Knight v Maclean [2002] NSWCA 314
Manley v Alexander (2005) 223 ALR 228
Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Purcell v Watson (1979) 26 ALR 235
South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113
Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

McLURE P: I agree with Newnes JA that the appeal should be allowed, the decision of the primary judge set aside and the claim of the respondent (plaintiff) dismissed. These are my reasons for that conclusion.
The respondent was successful in his claim for damages for personal injury suffered when the bicycle he was riding collided with the appellant's Toyota land cruiser in Brand Avenue, Bunbury in the early afternoon of 22 July 2000.

Background and findings

The respondent, who was then aged 6, his older brother Corey and older sister Michaela were riding down Monger Court which runs from west to east and intersects at a T-junction with Brand Avenue, which runs north‑south. The respondent and Corey travelled from Monger Court through the intersection at around 30 km per hour.
The appellant…

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 Wensink v Marshall

Details

AGLC: Wensink v Marshall [2010] WASCA 117
Case: [2010] WASCA 117
Decision Date: 28 JUNE 2010

CaseChat Overview and Summary

The appellant, Wensink, appealed a decision of the District Court of New South Wales that found him liable for a motor vehicle accident. The accident occurred when the respondent, Marshall, riding his bicycle, emerged suddenly from a side street and collided with the side of the appellant's vehicle. The crux of the dispute was whether the appellant was negligent by travelling at an excessive speed and failing to keep a proper lookout, and whether causation was established. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court had to decide were whether the appellant was negligent in the circumstances and whether the appellant's negligence caused the collision. The court had to consider the evidence of the appellant, who claimed that his view up the side street was obscured by shrubbery and a fence, and that he was travelling at a reasonable speed. The court also had to consider the evidence of the respondent, who claimed that the appellant was negligent in failing to keep a proper lookout and in travelling at an excessive speed.

The court held that the appellant was not negligent in the circumstances. The court found that the appellant's view up the side street was obscured by shrubbery and a fence, and that he was travelling at a reasonable speed. The court also found that the respondent's sudden emergence from the side street was a significant contributing factor to the collision. The court held that the appellant's negligence, if any, was not a cause of the collision. The court allowed the appeal and set aside the decision of the District Court.

Orders