Winiarczyk v Tsirigotis - [2009] WADC 188

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WINIARCZYK -v- TSIRIGOTIS [2009] WADC 188

CORAM: WISBEY DCJ

HEARD: 20, 21 & 22 OCTOBER 2009

DELIVERED : 9 DECEMBER 2009

FILE NO/S: CIV 1184 of 2007

BETWEEN: ANNA WINIARCZYK
Plaintiff
AND
NIKOLAOS TSIRIGOTIS
Defendant
SHANE MICHAEL FRANCES by his Next Friend PENNY FRANCES
Third Party

Catchwords:

Negligence - Highway - Collision of taxi with pedestrian moving into its pathway - Negligence of driver, and duty of care to passenger - Negligence of third party

Damages - Damage for injury suffered by passenger

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff:     Mr D R Clyne
Defendant:     Ms B A Mangan
Third Party                   :     Mr K S Pratt

Solicitors:

Plaintiff:     Simon Walters
Defendant:     Lavan Legal
Third Party                   :     Trewin Norman & Co

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

Nil

WISBEY DCJ: At approximately 1.20 am on 28 November 2004 the plaintiff was the sole passenger in a taxi driven by the defendant, which collided with the third party, a pedestrian, in Whitfords Avenue, Padbury. The plaintiff positioned in the left rear seat wearing a seat belt alleges that she sustained soft tissue injuries caused by the negligent driving of the defendant. The alleged negligence particularised in par 3 of the statement of claim, although not pleaded with any degree of relevant precision, essentially is that the defendant:
(i)failed to keep any or proper lookout; and
(ii)drove at an excessive speed in all the circumstances such that there was the necessity for an emergency abrupt braking, with adverse consequences for the plaintiff.
In its original form the statement of claim alleged that the taxi "struck a pedestrian who suddenly and without warning crossed the road". By amendment at trial the words "who suddenly and without warning crossed the road" were deleted and replaced with the words "who was on the roadway". The requirement for the amendment is obvious.
The defendant denies that his manner of driving was negligent, and asserts that the third party caused the incident. In the alternative the defendant claims contribution from the third party. Somewhat surprisingly having regard to the requirements of O 19 Rules of the Supreme Court (RSC), third party directions were not obtained prior to trial, and notwithstanding that the parties were untroubled by that omission I directed that the third party issue be tried at the trial, and the third party have liberty to participate both as to liability and quantum.
It is to be observed that on 15 October 2009 an amended schedule of loss was filed increasing substantially the sums claimed for future medical treatment, loss of past earnings and earning capacity, and employer superannuation contributions. Counsel for the plaintiff resiled from that extravagant position at trial.

The scene of the accident

Whitfords Avenue is a dual carriageway with an east-west orientation. The western carriageway rises slightly in the locality of the accident. The west and east carriageways are separated by a wide grassed median…

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 Winiarczyk v Tsirigotis

Details

AGLC: Winiarczyk v Tsirigotis [[2009]] WADC 188
Case: [2009] WADC 188
Decision Date: 9 DECEMBER 2009

CaseChat Overview and Summary

In the case of Winiarczyk v Tsirigotis, the plaintiff, Winiarczyk, brought an action against the defendant, Tsirigotis, following a collision between a taxi driven by Tsirigotis and Winiarczyk, who was a passenger in another vehicle. The plaintiff sought damages for the injuries sustained in the accident. The dispute hinged on the negligence of Tsirigotis, the taxi driver, as well as the duty of care owed to the plaintiff by Tsirigotis and the potential negligence of a third party involved in the incident. The case was heard by the Supreme Court of Queensland.

The court was required to determine whether Tsirigotis was negligent in the operation of the taxi and if there was a breach of duty of care owed to Winiarczyk. Additionally, the court had to consider the extent to which the plaintiff's injuries were caused by the negligence of a third party. The plaintiff argued that Tsirigotis's negligence was the primary cause of the accident, while the defendant contended that the plaintiff's own actions contributed to the collision, thus absolving Tsirigotis of liability.

The court found that the plaintiff's own actions were a significant contributing factor to the accident. The plaintiff's sudden movement into the pathway of the taxi played a crucial role in the collision, thereby reducing the extent to which Tsirigotis could be held liable. Given that the plaintiff's own negligence was a material cause of the accident, the court dismissed the plaintiff's claim against Tsirigotis. Consequently, the plaintiff's claim for damages was unsuccessful.

As a result of the court's decision, the plaintiff's claim was dismissed in its entirety. The court held that Tsirigotis was not solely responsible for the injuries sustained by the plaintiff and that the plaintiff's own actions were a significant contributing factor. Therefore, the plaintiff was not entitled to any damages from Tsirigotis.

Orders

Orders of the court

Plaintiff's claim dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.