ALGERI V PENNINGTON [2016] 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 below –
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 [2004] WASCA 229 [28] – [29]."
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 case.
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 foreseeable risks."
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 contributory negligence."
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 negligence."
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.
Kott Gunning is a proud member of 
