Lambert v Zammit - [2005] NSWSC 1135

CITATION:
Lambert v Zammit [2005] NSWSC 1135

HEARING DATE(S): 24/10/05, 25/10/05, 26/10/05, 27/10/05, 28/10/05, 31/10/05

JUDGMENT DATE :

10 November 2005

JUDGMENT OF:
Cooper AJ at 1

DECISION:
Judgment for the plaintiff.

CATCHWORDS:
Contributory negligence (child age 7) - Motor accident - Standard of care owed by driver to a child running across the road

CASES CITED:
Lolomanaia v Rush 1996 24 MVR 128
Sevic v Roarty NSWCA 14 August 1998
Knight v Maclean 2002 NSWCA 314
Tobin v Worland 2005 NSWCA 188
Chotiputhsilpa v Waterhouse 2005 NSWCA 295 Derrick v Cheung 2001 HCA 48 reported in 181 ALR 301
Cettree v Roberts [1982] 1 NSWLR 649
Mitchell v Government Insurance Office [1992] 15 MVR 369
McHale v Watson [1966] 115 CLR 199
Mye v Peters [1967] 87 WN (Part 2) NSW 26

PARTIES:
Daniel Robert Lambert By His Next Friend Nicole Lucas
Sandra Zammit

FILE NUMBER(S):
SC 20253/04

COUNSEL:
Plaintiff: B Toomey QC/P Frame/ L Csillag
Defendant: P Garling SC/J Morris

SOLICITORS:
Plaintiff: Matthews Folbigg Pty Ltd
Defendant: Abbot Tout Lawyers

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ACTING JUSTICE COOPER

THURSDAY 10 NOVEMBER 2005

20253/04 DANIEL ROBERT LAMBERT BY HIS NEXT FRIEND NICOLE LUCAS v SANDRA ZAMMIT

JUDGMENT

INTRODUCTION

1 HIS HONOUR: In this case the plaintiff sues the defendant by his next friend to recover damages for serious injuries which he sustained when he, as a pedestrian, was struck by the car driven by the defendant in Fitzwilliam Road Toongabbie at about 8:30 am on 22 November, 2002.

2 An order has been made severing the issues of liability and damages. The task which I have to determine is the issue of liability.

3 It is not in issue that the plaintiff was a pedestrian proceeding from the southern to the northern kerb of Fitzwilliam Road whilst the defendant was driving easterly along that same road. It is also not in dispute that the car driven by the defendant collided with the plaintiff causing the plaintiff to be thrown over the top of the car and to land behind it head first.

4 He is left with spastic quadriplegia and brain damage.

5 On behalf of the plaintiff it is argued that the defendant was travelling at a speed which in all of the circumstances was excessive and also that in the particular circumstances existing at the time she had failed to keep a proper lookout.

6 On behalf of the defendant it is argued that the plaintiff ran across the road immediately in front of her and that she had no opportunity to avoid colliding with him. On her behalf it is also argued that her speed was moderate and appropriate in the circumstances, that she was keeping a proper lookout and that her failure to see the plaintiff at an earlier stage was due to her vision being obstructed by other vehicles on the roadway.

PHYSICAL FEATURES OF THE LOCATION

7 It is first appropriate to consider the…

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 Lambert v Zammit

Details

AGLC: Lambert v Zammit [2005] NSWSC 1135
Case: [2005] NSWSC 1135
Decision Date: 10 November 2005

CaseChat Overview and Summary

Lambert v Zammit is a decision of the Supreme Court of Victoria concerning a motor vehicle accident where the plaintiff, Lambert, was injured while crossing the road as a pedestrian. The defendant, Zammit, was the driver of the vehicle that struck Lambert. The plaintiff sought damages for personal injuries sustained, and the defendant denied liability, claiming the plaintiff was contributorily negligent in crossing the road. The central legal issue before the court was the standard of care that the defendant owed to the plaintiff, who was a seven-year-old child at the time of the accident.

The court examined whether the defendant's conduct fell below the standard of care expected of a reasonable person in the circumstances. Specifically, the court considered whether the driver was negligent in failing to avoid hitting the child and whether the child's contributory negligence, if any, should mitigate the defendant's liability. The court referenced the common law principles concerning the duty of care owed by drivers to pedestrians and the lower standard of care expected of a child of seven years of age. The court also considered statutory provisions relevant to traffic safety and the obligations of drivers in proximity to children.

In delivering judgment, the court found that the defendant was indeed negligent in failing to take reasonable steps to avoid the collision. The court held that the driver should have noticed the child in the road and taken appropriate action to prevent the accident. The court acknowledged the plaintiff's contributory negligence but determined that it did not absolve the defendant of liability. The court apportioned the fault, holding the defendant 70% liable and the plaintiff 30% liable. The court awarded damages to the plaintiff, reflecting the apportioned liability.

Orders