ALGERI V PENNINGTON  WA DISTRICT COURT – JUDGMENT
DELIVERED 6 APRIL 2016
This matter was heard by His Honour District Court Judge
Gething. It involves unusual circumstances, in that two motorcycles
collided and both riders were seriously injured.
On Sunday 18 August 2013 the plaintiff and the defendant were
both riding licensed motorcycles when they collided and both
suffered significant injuries. Each motorcyclist alleged the
accident occurred as a result of the negligence of the other so the
action was listed for trial on the issue of liability and a
counterclaim by the defendant.
The collision took place on Jarrahdale Road approximately 50
metres west of a turnoff to the north into the Jarrahdale Sports
Shooters Club. The plaintiff was travelling west along Jarrahdale
Road and said that immediately prior to the collision the defendant
was almost stationary and riding on the very edge of the bitumen on
the left-hand side of the road. The plaintiff also said that as he
moved to overtake the defendant without warning or indication the
defendant turned right into the path of the plaintiff and as a
result the crash occurred.
The judgment is very usefully structured in 5 parts entitled as
Part 1: Facts that are not in dispute
Part 2: Expert evidence
Part 3: Eye witness accounts of the collision
Part 4: Findings as to how the accident occurred
Part 5: Determination of liability
The plaintiff adduced evidence from two experts, Mr Martin Simms
and Mr Robert Davey. The defendant did not adduce any expert
evidence. His Honour stated in Part 2 of his reasons "This
does not mean that I am permitted to simply accept the expert
opinions of Messrs Simms and Davey; rather I must make an
independent evaluation of their opinions, and make any findings of
fact on the evidence as a whole, on the balance of probabilities:
Automasters Australia Pty Ltd v Bruness Pty Ltd 
WASCA 229  – ."
Under a heading "Does the subject matter warrant expert
evidence?" His Honour explored the case law applicable to such
a determination and the facts and circumstances of the case and
stated – "Having now had the opportunity to review the
issue in detail, I remain of the view that I expressed at the
conclusion of the voir dire that motor vehicle accident
reconstruction may be the subject of expert evidence. More
specifically, using the language of the Court of Appeal in Silich,
I am of the view that motor vehicle accident reconstruction:
is a matter about which ordinary persons are unable to form a
sound judgment without the assistance of those possessing special
knowledge or experience or expertise in the area; and
is an area in which there is a body of knowledge which is
recognised as a reliable body of knowledge or expertise."
His Honour found both expert witnesses possessed the requisite
knowledge and expertise to be accepted as expert witnesses in the
His Honour stated that "The principles governing a claim in
negligence between two motorcyclists are governed by a combination
of common law and the Civil Liability Act 2002 (WA) (CLA)."
And also stated "It is well established that one motorist owes
another a duty to take reasonable care to avoid reasonably
After carefully considering the matter and weighing the evidence
His Honour outlined a very exhaustive list of the facts as he found
them based on his findings in relation to the lay and expert
evidence. This very interesting assessment of the evidence is too
long to reproduce in this short summary but an excellent summary of
His Honour's findings.
At the conclusion of the judgment his Honour found for the
plaintiff with a 20% reduction for contributory negligence and
found for the defendant on his counter claim but reduced his
damages to be awarded by 80% "...on account of his
His Honour stated "The net result is that:
Mr Alegri succeeds on his claim, though his damages are to be
reduced by 20% on account of his contributory negligence; and
Mr Pennington succeeds on his counterclaim, with his damages
being reduced by 80% on account of his contributory
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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