Eccleston v Smith - [2007] NSWCA 22

NEW SOUTH WALES COURT OF APPEAL

CITATION: ECCLESTON v SMITH [2007] NSWCA 22

FILE NUMBER(S):
40191/06

HEARING DATE(S): 1 February 2007, 2 February 2007

JUDGMENT DATE: 23 February 2007

PARTIES:
Amy ECCLESTON by her tutor Ian ECCLESTON
May SMITH

JUDGMENT OF: Mason P Beazley JA Bryson JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 9211/00

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 19 December 2005

COUNSEL:
Appellant: D T Kennedy SC/ M J Walsh
Respondent: J N Gleeson QC/ B G Smith

SOLICITORS:
Appellant: Wright & Strickland
Respondent: Moray & Agnew

CATCHWORDS:
NEGLIGENCE – essentials of cause of action – breach of duty of care – Motor vehicle accident – personal injury – failure to stop – failure to swerve – failure to keep a proper lookout
JUDGMENTS AND ORDERS – statement of reasons for decision – interference with findings of fact – balance of probabilities – where evidence on balance of probabilities not supportive of findings at first instance

LEGISLATION CITED:
Motor Accidents Act 1998, s73
Civil Procedure Act, s101

CASES CITED:
Tobin v Worland [2005] NSWCA 188

DECISION:
Appeal allowed.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40191/06
DC 9211/00
MASON P
BEAZLEY JA
BRYSON JA
Friday 23 February 2007

Amy ECCLESTON (by her tutor Ian ECCLESTON)
v May SMITH

JUDGMENT

MASON P: The appellant suffered significant head injury when struck by a car driven by the respondent. Judge Garling entered a verdict for the defendant, finding that negligence had not been established.
The accident occurred at about 3.15pm on 2 July 1998 in Argyle Street Moss Vale. Weather conditions were fine.
Argyle Street is the main street of Moss Vale. There are shops in the area. The street carries a lot of traffic, described by the respondent as being at the time “continual, heavy traffic”. Cars were parked on either side of the road, leaving a generous single lane each way (the trafficable roadway). The respondent was driving southwards. Where the accident occurred the street dips slightly, curves leftwards and widens somewhat. There was over 5m between the row of parked cars and the broken centre line, given that the distance between kerb and centre line was 7.4m. The speed limit was 60 kph.
The appellant was approximately eight and half years old and 128cm tall at the time. She had been collected from school by her parents who drove along Argyle Street and stopped, facing north, opposite a pet shop located on the other/east side of the road. The appellant crossed the street and the parents remained in the car, directly opposite where the appellant passed between two parked cars to get to the footpath and the pet shop. When she returned from the shop by a similar route, she stopped on the roadway between the two parked cars near the line formed by their offsides. (The precise location is critical and is addressed below.) She waited until her father called her…

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 Eccleston v Smith

Details

AGLC: Eccleston v Smith [2007] NSWCA 22
Case: [2007] NSWCA 22
Decision Date: 23 February 2007

CaseChat Overview and Summary

The case of *Eccleston v Smith* involved an appeal to the New South Wales Court of Appeal concerning a motor vehicle accident that resulted in personal injury to the appellant. The respondent was the driver of the vehicle involved in the accident. The appeal challenged findings of fact made by the trial judge regarding the circumstances of the collision.

The central legal issues before the Court of Appeal were whether the trial judge erred in finding that the respondent driver was not negligent, and whether the evidence, when considered on the balance of probabilities, supported the trial judge's conclusions. Specifically, the court had to determine if the respondent breached her duty of care to the appellant by failing to stop, swerve, or keep a proper lookout, and whether such a breach caused the appellant's injuries. The appeal also raised questions about the trial judge's findings concerning the respondent's speed, line of sight, and the inevitability of the accident.

The Court of Appeal found that there was tension and ambiguity in the trial judge's reasons. While the trial judge appeared to conclude that the accident was inevitable and acquitted the respondent of negligence, there were also statements suggesting the respondent should have seen the appellant earlier, but that stopping would still have been impossible. The court noted that these findings were based on four primary contested findings: the respondent's speed (25-30 kph), the point of impact, the appellant's obscured position, and the respondent's limited line of sight (18 metres). The appellate court considered that the evidence, on the balance of probabilities, did not adequately support the findings made at first instance.

The appeal was allowed.

Orders

Orders of the court

Appeal allowed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Each witness called at the trial was cross-examined.The judge’s conclusions The learned trial judge acknowledged the difficulties stemming from the manner in which the evidence of the respondent and Mr Hopkins was put before the court as well as the inherent uncertainties that surround lay testimony concerning matters of speed and distance in relation to a fleeting observation of an accident. There is no statement in the reasons that his Honour was assisted by reference to favourable or unfavourable impressions regarding the demeanour of the witnesses called at the trial. Judge Garling summarised his conclusions in the following terms:So, that being so, what I am satisfied of is that the defendant vehicle was travelling at between twenty-five and thirty kilometres per hour, that the defendant driver would have had a line of sight of eighteen metres, that the defendant driver’s reaction would have been triggered had she seen the child move and, if that had occurred, if she had been paying careful attention, in my view, the accident was inevitable.It could be said that if her speed was exactly twenty-five, that there was a split second available which could have resulted in the vehicle stopping but, more likely, almost stopping before hitting the child. The defendant driver clearly did not see the child and, in my view, she should have, at some stage, before she did. But the problem that the plaintiff always had to face in this case, of course, was showing that a driver, even if they reacted immediately, could have stopped.It seems to me that this driver simply either could not or, at the very best, would have had to have reacted immediately there was a movement to allow her to stop in time and that, when you consider all that, the way she was driving she was not negligent. The margin which was being argued was so small it was a very difficult argument for the plaintiff the way evidence turned out. There is tension and ambiguity in this passage. The first sentence of the second paragraph seems to be part of the reasoning in the first paragraph. The first and third paragraphs appear to acquit the respondent of want of care, stating that the accident was inevitable. By contrast, the second paragraph states that the respondent should have seen the child before she did, but that it would still have been too late to have “stopped”. This treats causation as critical and is silent as to the possibility that the respondent could have swerved or slowed down and/or lessened the serious impact of the accident. The appellant makes separate complaint in this regard. The passage must, of course, be read in conjunction with the earlier reasons. Those reasons show that the verdict proceeds from four primary findings on contested issues, each of which is challenged in the appeal. The findings were that:(i)the respondent was travelling at between 25 and 30 kph;(ii)the respondent’s car struck the appellant on the passenger’s side of its front; (iii)the appellant was standing so that most of her body was obscured to the respondent by the bonnet of a four-wheel drive vehicle before she commenced walking out into the path of the respondent’s car; and(iv)the respondent’s maximum line of sight to the appellant as she stood between the two parked cars was eighteen metres.

Ratio Decidendi

Legal Principle Established

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