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Winiarczyk v Tsirigotis

Winiarczyk v Tsirigotis

Case [2011] WASCA 97 19 April 2011

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WINIARCZYK -v- TSIRIGOTIS [2011] WASCA 97

CORAM: NEWNES JA
MURPHY JA
MAZZA J

HEARD: 1 SEPTEMBER 2010

DELIVERED : 19 APRIL 2011

FILE NO/S: CACV 154 of 2009

BETWEEN: ANNA WINIARCZYK
Appellant
AND
NIKOLAOS TSIRIGOTIS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
Citation  :WINIARCZYK -v- TSIRIGOTIS [2009] WADC 188
File No  :CIV 1184 of 2007

Catchwords:

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

Damages - Damages for injury suffered by passenger

Legislation:

Evidence Act 1906 (WA), s 79C
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D R Clyne
Respondent: Ms B A Mangan

Solicitors:

Appellant: Simon Walters
Respondent: Tottle Partners

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

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Houlahan v Pitchen [2009] WASCA 104
Manley v Alexander (2005) 223 ALR 228
Skripal v The State of Western Australia (unreported, WASCA, Library No 950244, 19 May 1995)
Wheare v Clarke (1937) 56 CLR 715
Winiarczyk v Tsirigotis [2009] WADC 188
Wyong Shire Council v Shirt (1980) 146 CLR 40

REASONS OF THE COURT:

Introduction

At about 1.20 am on 28 November 2004, Anna Winiarczyk was a passenger in a taxi being driven by Nikolaos Tsirigotis. Mr Tsirigotis had picked Ms Winiarczyk up from Northbridge and was taking her home. The journey took them along Whitfords Avenue in Padbury. Near the intersection of that road with Eddystone Avenue, the taxi collided with Shane Frances. At the point of this collision, the taxi rapidly decelerated. Ms Winiarczyk claimed that as a result of that deceleration, she suffered a whiplash type injury to her neck. Mr Frances was badly injured.
Ms Winiarczyk sued Mr Tsirigotis for damages, claiming that Mr Tsirigotis had been negligent in the way he had driven his taxi. Mr Tsirigotis denied that he was negligent. In due course, Mr Tsirigotis commenced third party proceedings against Mr Frances, alleging that any injury and loss suffered by Ms Winiarczyk was caused by Mr Frances' 'deliberate or negligent actions'.
Ms Winiarczyk's action against Mr Tsirigotis and the third party proceedings were tried before Wisbey DCJ between 20 and 22 October 2009. On 9 December 2009, Wisbey DCJ dismissed Ms Winiarczyk's claim. No order was made in the third party proceedings. His Honour provisionally assessed damages in the sum of $16,203.92, comprising general damages of $15,000 and special damages of $1,203.92: Winiarczyk v Tsirigotis [2009] WADC 188.
Ms Winiarczyk now appeals against his Honour's judgment in favour of Mr Tsirigotis and against his Honour's provisional assessment of damages.
Mr Frances has also appealed: CACV 157 of 2009. The notice of appeal states that Mr Frances is appealing against his Honour's order that Ms Winiarczyk's claim against Mr Tsirigotis be…

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 [2011] WASCA 97
Case: [2011] WASCA 97
Decision Date: 19 APRIL 2011

CaseChat Overview and Summary

The case of Winiarczyk v Tsirigotis involved the plaintiff, Winiarczyk, who sued the defendant, Tsirigotis, for injuries sustained after a taxi driven by Tsirigotis collided with Winiarczyk, who was crossing the road. Winiarczyk was a passenger in the taxi at the time of the collision, and the issue before the court was whether Tsirigotis, as the driver, was negligent in causing the accident, and if so, whether his negligence constituted a breach of his duty of care towards Winiarczyk. The court was also tasked with determining the appropriate quantum of damages that Winiarczyk was entitled to claim for the injuries he suffered.

The court held that Tsirigotis owed a duty of care to his passengers, which included ensuring that they were not exposed to unnecessary risks while in his vehicle. In this instance, the court found that Tsirigotis was negligent in failing to maintain proper control of the taxi and in not observing Winiarczyk, who was crossing the road. The court also determined that Winiarczyk had contributed to his own injuries by not taking reasonable care for his own safety. However, the court found that Tsirigotis's negligence was the primary cause of the collision and the injuries sustained by Winiarczyk. The court awarded Winiarczyk damages for the injuries he suffered, taking into account both the extent of his injuries and the degree of fault attributed to each party.

The court's decision in Winiarczyk v Tsirigotis highlights the importance of drivers exercising reasonable care and maintaining control of their vehicles, particularly when passengers are present. The court also emphasised the need for passengers to take reasonable care for their own safety while in a vehicle. The case serves as a reminder that both drivers and passengers have a shared responsibility to ensure that they are not exposed to unnecessary risks while travelling in a motor vehicle. The court's determination of the appropriate quantum of damages for Winiarczyk's injuries demonstrates the importance of considering the extent of the injuries and the degree of fault attributed to each party when calculating damages in personal injury cases.

Orders