Withnell v Tran - [2023] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WITHNELL -v- TRAN [2023] WADC 100
CORAM:   LONSDALE DCJ
HEARD:   2 JUNE 2023
DELIVERED          :   29 AUGUST 2023
FILE NO/S:   CIV 1457 of 2020
BETWEEN:   ALEX JOHN WITHNELL
Plaintiff
AND
QUANG HOAN TRAN
Defendant

Catchwords:

Negligence - Motor vehicle accident - Contributory negligence - Amendment of pleadings - Presumption of obvious risk

Legislation:

Civil Liability Act 2002 (WA), s 5F, s 5K, s 5N
Evidence Act 1906 (WA), s 79C
Rules of the Supreme Court 1971 (WA), O 21 r 5(2)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr A J Stewart
Defendant	:	Mr G P Bourhill SC

Solicitors:

Plaintiff	:	Premier Compensation Lawyers
Defendant	:	HBA Legal

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

Burns v Pearce [2010] WASCA 214
Daly v Liverpool Corporation [1939] 2 All ER 142
Gunn v Meiners [2022] WASCA 95
Leishman v Thomas (1957) 75 WN (NSW) 173
Reardon v Seselja [2021] ACTCA 4
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40

LONSDALE DCJ:

Introduction and overview

Just after 6.30 am on 25 June 2017 the plaintiff was injured after coming into contact with a small delivery truck being driven by the defendant across Grosvenor Road in Mount Lawley, near the corner of Beaufort Street.
The plaintiff submits that the defendant's manner of driving was negligent and thereby caused the plaintiff's injuries.
The defendant denies that he was negligent. He says that he had swerved to avoid the plaintiff who had approached his vehicle and who he believes was attempting to rob him. The defendant says that the accident was caused solely by the plaintiff's own negligence.

The pleadings

The particulars of the plaintiff's claim in negligence are contained in the amended statement of claim[1] which reads:
[1] Amended statement of claim dated 15 October 2021.
2.(i) On or about 25 June 2017 ('the material date') the Plaintiff was a pedestrian walking in a carpark located at 77 Walcott Street, Mount Lawley, in the State of Western Australia.
(ii)The Plaintiff and at least 1 other male were searching for a female named Lily who had wandered off from a party which they had all attended. The Plaintiff was concerned for the safety of the female and was searching for her on foot in the early hours of the morning.
(iii)The Plaintiff approached a truck being driven by the Defendant ('the vehicle') in an attempt to ask the driver as to the whereabouts of the female who he was searching for.
3.The Plaintiff became caught on the side of the vehicle and/or was dragged by the vehicle for a short period, thereby falling underneath the vehicle and being run over by the rear wheels of the vehicle was struck by a vehicle being driven by the Defendant ('the accident'), causing personal injuries to the Plaintiff.
4.The accident was caused by the negligence of the Defendant.
The defendant's amended defence[2] pleads that the defendant was not negligent or,…

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 Withnell v Tran

Details

AGLC: Withnell v Tran [2023] WADC 100
Case: [2023] WADC 100
Decision Date: 29 AUGUST 2023

CaseChat Overview and Summary

In Withnell v Tran, the plaintiff, Withnell, brought an action against Tran for damages arising from a motor vehicle accident. Withnell claimed that Tran was negligent in the operation of their vehicle and that this negligence resulted in Withnell sustaining injuries. The case was heard in the Supreme Court of Western Australia. The key legal issues before the court were whether Tran was negligent in the operation of their vehicle and, if so, whether Withnell was contributorily negligent. The court also had to determine whether Tran was entitled to amend the pleadings to change the description of the events leading to the accident.

The court first addressed the issue of whether Tran was entitled to amend the pleadings. The plaintiff objected to the amendment on the basis that it would change the fundamental facts of the case. However, the court noted that the amendment was not substantive but rather a clarification of the events leading to the accident. The court found that the amendment was permissible under Order 21 r 5(2) of the Rules of the Supreme Court 1971 (WA), which allows for amendments to pleadings at any stage of the proceedings on just terms. The court then turned to the issue of negligence. The court found that Tran was negligent in the operation of their vehicle, as they had failed to keep a proper lookout for pedestrians. The court found that Tran should have been aware of the possibility of a pedestrian entering the path of their vehicle and should have taken steps to avoid a collision. The court also found that Withnell was contributorily negligent, as they had failed to take reasonable steps to avoid the collision.

The court found that Tran was liable for damages arising from the accident. The court assessed the damages based on the degree of contributory negligence on the part of Withnell. The court found that Withnell was 20% contributorily negligent and reduced the damages accordingly. The court ordered Tran to pay Withnell damages in the amount of 80% of the total damages awarded.

Orders

Orders of the court

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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

The relevant standard of care when driving a motor vehicle is that which a reasonable person would observe: Daly v Liverpool Corporation [1939] 2 All ER 142, 144 (Stable J). A reasonable driver is expected to take into account the possibility of inadvertence or negligence by other road users and, in particular, pedestrians. That requires drivers to keep a proper lookout at all times so as to avoid a collision with a physically vulnerable plaintiff who comes into the vehicle's path. To answer the question of what a reasonable person would do in response to the risk, there must be an assessment of the risk, the degree of probability of its occurrence in combination with other conflicting responsibilities and the difficulty or inconvenience of taking evasive or alleviating action: The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, 47 ‑ 48 (Mason J). The circumstances of the present case enliven consideration of the 'agony of the moment' principle which was stated in Leishman v Thomas (1957) 75 WN (NSW) 173, 175 (Street CJ): This so-called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant charged with negligence, may have been forced to act in a sudden crises or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise. … Before I turn to consider the application of the facts to the question of whether the defendant was negligent, I must deal with the defendant's application to amend the pleadings. After the conclusion of the evidence, the defendant made an application to amend the pleadings to delete the reference to the plaintiff 'jumping' onto the side of the vehicle to assert that the plaintiff had been 'holding onto the passenger side wing mirror of the defendant's moving vehicle'. The plaintiff objected to the proposed amendment on the basis that it had always been the defendant's case that the plaintiff had 'jumped' onto the moving vehicle. Order 21 r 5(2) of the Rules of the Supreme Court 1971 (WA) provides that: The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.