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Kain v Mobbs

Kain v Mobbs

Case [2008] NSWSC 383 29 April 2008

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CITATION: Kain v Mobbs [2008] NSWSC 383

HEARING DATE(S): 3-12 March 2008

JUDGMENT DATE :
29 April 2008

JUDGMENT OF: Harrison J

DECISION: (1) Verdict for the plaintiff against the first and second defendants.
(2) Order the first and second defendants to pay the plaintiff's costs.
(3) Verdict for the third and fourth defendants.
(4) Order the plaintiff to pay the third and fourth defendants' costs of defending the plaintiff’s claim against them.
(5) Order that the first and second defendants indemnify the plaintiff in respect of such costs as may be incurred by the plaintiff in accordance with order (4).
(6) Order that the plaintiff's damages be reduced by 15 per cent as the result of his own fault and contributory negligence.

CATCHWORDS: NEGLIGENCE – collision between motor vehicle and 10 year 8 month old pedestrian who ran out from behind a stationary school bus at bus stop – when driver proceeding at speed limit of 40 km/h - whether driver failed to take steps to avoid the accident by reference to a perceivable risk - whether driver negligent for failing to keep a proper lookout or for driving at an excessive speed in the circumstances – whether pedestrian guilty of contributory negligence – whether bus driver also negligent for failing to wait until the vehicle passed the bus before permitting the plaintiff to alight – car driver at fault but bus driver not at fault – pedestrian’s contributory negligence assessed at 15 per cent

LEGISLATION CITED: Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1965
Law Reform (Miscellaneous Provisions) Amendment Act 2000
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Road Transport (Safety and Traffic Management) Act 1999

CATEGORY: Principal judgment

CASES CITED: Barisic v Devenport [1978] 2 NSWLR 111
Browne v Dunn (1893) 6 R 67
Bullock v Miller (1987) 5 MVR 55
Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874
Consolidated Broken Hill v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815
Cotton v Commissioner For Road Transport and Tramways (1942) 43 SR (NSW) 66
Daly v Liverpool Corporation [1939] 2 All ER 142
Dennis v Keep [2002] NSWCA 227
Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Doubleday & Anor v Kelly [2005] NSWCA 151
Glasgow Corporation v Muir [1943] AC 448
Gunning v Fellows (1997) 25 MVR 97
Humphrey v Hansen (1997) 25 MVR 402
Jarvis & Surfside Bus Lines Pty Ltd v Scrase [1998] QCA 441
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Knight v Maclean [2002] NSWCA 314
Mackenzie v The Nominal Defendant [2005] NSWCA 180; (2005) 43 MVR 315
McHale v Watson (1966) 115 CLR 199
Manly Council v Byrne [2004] NSWCA 123
Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369
Mye v Peters and Another (1967) 68 SR (NSW) 298
Nicholson v Nicholson (1994) 35 NSWLR 308
Payless Super Barn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551

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 Kain v Mobbs

Details

AGLC: Kain v Mobbs [2008] NSWSC 383
Case: [2008] NSWSC 383
Decision Date: 29 April 2008

CaseChat Overview and Summary

The case of Kain v Mobbs involved a dispute between the plaintiff, Kain, and the defendant, Mobbs, regarding a motor vehicle accident. The plaintiff, a child, was injured when he ran into the path of the defendant's vehicle while exiting a stationary school bus. The collision occurred when the defendant was travelling at the speed limit, and the plaintiff's case hinged on whether the defendant failed to take reasonable steps to avoid the accident by reference to the perceived risk, and whether the defendant was negligent in failing to keep a proper lookout or for driving at an excessive speed in the circumstances. The plaintiff also argued that the bus driver was negligent for permitting him to alight before the vehicle had passed the bus, and whether the plaintiff himself was guilty of contributory negligence.

The court considered whether the defendant was negligent in failing to avoid the accident, despite the plaintiff's unexpected actions. It also examined the role of the bus driver in allowing the plaintiff to alight before the vehicle had passed, and whether this constituted negligence on the part of the bus driver. Additionally, the court assessed the extent of the plaintiff's contributory negligence, if any, in running into the path of the vehicle.

The court found that the defendant was at fault for the accident, as he should have taken reasonable steps to avoid the plaintiff who was exiting the bus. However, the court found that the bus driver was not at fault for allowing the plaintiff to alight before the vehicle had passed, as this did not contribute to the accident. The court also determined that the plaintiff was 15% contributory negligent for running into the path of the vehicle. As a result, the court apportioned liability between the parties accordingly. The final orders of the court reflected this apportionment of liability and damages.

Orders