Latham v Fergusson - [2006] NSWCA 288

Reported Decision: (2006) Aust Torts Reports 81-861

Court of Appeal

CITATION: Latham v Fergusson [2006] NSWCA 288

HEARING DATE(S): 16/10/2006

JUDGMENT DATE:
3 November 2006

JUDGMENT OF: Santow JA at 1; McClellan CJ at CL at 2; Hoeben J at 3

DECISION: Leave to appeal be granted. The appeal is allowed. The judgment of McGuire DCJ be set aside and in lieu thereof judgment entered in favour of the claimant. Costs reserved pending the outcome of the application for leave to appeal in Firth v Latham & Ors in matter CA 40085/2006.

CATCHWORDS: Motor accident - child aged 23 months - masked by metal chevron sign on pedestrian crossing - motorist moving at low speed - breach of duty - whether breach caused accident - dangers of hindsight reasoning.

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Derrick v Cheung (2001) 181 ALR 301
Knight v Maclean [2002] NSWCA 314
Tobin v Worland [2005] NSWCA 188
Vairy v Wyong Shire Council (2005) 80 ALJR 1

PARTIES: Kim Latham - Claimant
Olivia Floyd Fergusson by her next friend Lara Floyd - Opponent

FILE NUMBER(S): CA 40964/05

COUNSEL: R Leatherbarrow SC/Ms C Allan - Claimant
R Goodridge - Opponent

SOLICITORS: Abbott Tout - Claimant
Firths - Opponent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4100/2004

LOWER COURT JUDICIAL OFFICER: J C McGuire DCJ

LOWER COURT DATE OF DECISION: 18 November 2005

CA 40964/2005
DC 4100/2004

SANTOW JA
McCLELLAN CJ at CL
HOEBEN J
Friday, 3 November 2006

Kim LATHAM v Olivia Floyd FERGUSSON bhnf Lara FLOYD

JUDGMENT

1 SANTOW JA: I agree with Hoeben J.

2 McCLELLAN CJ at CL: I agree with Hoeben J.

3 HOEBEN J: The claimant seeks leave to appeal from a decision of McGuire DCJ in which his Honour determined in a separate trial of the issue of liability that the claimant had been negligent while driving her motor vehicle, which struck the opponent (then aged 23 months). The accident occurred at 11.50am on 8 April 2003 on a pedestrian crossing in Garden Street, North Narrabeen.

Factual background

4 The following facts were not in dispute.

5 On 8 April 2003 the opponent was in the company of her mother, Lara Floyd, and one month old baby sister on a walk in North Narrabeen. The baby was being pushed by Ms Floyd in a pram, which had until the baby’s birth been used to transport the opponent herself. This was the first time Ms Floyd had taken the two children on such an outing together.

6 Ms Floyd crossed the pedestrian crossing, which was near the intersection of The Crescent, from the western kerb to the eastern kerb. She did not have hold of the opponent’s hand as she crossed since she was pushing the pram with her left hand and holding a plastic ride-on toy in her right hand.

7 The pedestrian crossing was marked with metal chevron signs, placed on concrete blisters in the centre of the roadway and…

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 Latham v Fergusson

Details

AGLC: Latham v Fergusson [2006] NSWCA 288
Case: [2006] NSWCA 288
Decision Date: 3 November 2006

CaseChat Overview and Summary

The appeal concerned a motor accident where a child, aged 23 months, was struck by a motor vehicle at a pedestrian crossing. The child's vision of the approaching vehicle was obscured by a metal chevron sign. The claimant, the child's mother, alleged that the driver breached their duty of care, and that this breach caused the accident. The matter was heard by Santow JA, McClellan CJ at CL, and Hoeben J.

The central legal issues before the court were whether the driver's conduct constituted a breach of their duty of care to the child, and if so, whether that breach was causative of the accident. The court was also required to consider the potential for hindsight bias in assessing the driver's actions.

The Court of Appeal allowed the appeal, setting aside the judgment of McGuire DCJ and entering judgment in favour of the claimant. The reasoning focused on the driver's failure to exercise reasonable care in approaching a pedestrian crossing, particularly given the potential for obscured vision. The court cautioned against the dangers of hindsight reasoning, emphasizing that the assessment of breach of duty should be made from the perspective of a reasonable driver at the time of the incident, without the benefit of knowing the tragic outcome. The court found that the driver's actions fell below the standard of care expected, and that this breach caused the accident. Costs were reserved pending the outcome of a related application.

Orders

Orders of the court

Leave to appeal be granted. The appeal is allowed. The judgment of McGuire DCJ be set aside and in lieu thereof judgment entered in favour of the claimant. Costs reserved pending the outcome of the application for leave to appeal in Firth v Latham & Ors in matter CA 40085/2006.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Latham v Fergusson [2006] NSWCA 288
HEARING DATE(S):	16/10/2006
JUDGMENT DATE:	3 November 2006
JUDGMENT OF:	Santow JA at 1; McClellan CJ at CL at 2; Hoeben J at 3
DECISION:	Leave to appeal be granted. The appeal is allowed. The judgment of McGuire DCJ be set aside and in lieu thereof judgment entered in favour of the claimant. Costs reserved pending the outcome of the application for leave to appeal in Firth v Latham & Ors in matter CA 40085/2006.
CATCHWORDS:	Motor accident - child aged 23 months - masked by metal chevron sign on pedestrian crossing - motorist moving at low speed - breach of duty - whether breach caused accident - dangers of hindsight reasoning.
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Derrick v Cheung (2001) 181 ALR 301 Knight v Maclean [2002] NSWCA 314 Tobin v Worland [2005] NSWCA 188 Vairy v Wyong Shire Council (2005) 80 ALJR 1
PARTIES:	Kim Latham - Claimant Olivia Floyd Fergusson by her next friend Lara Floyd - Opponent
FILE NUMBER(S):	CA 40964/05
COUNSEL:	R Leatherbarrow SC/Ms C Allan - Claimant R Goodridge - Opponent
SOLICITORS:	Abbott Tout - Claimant Firths - Opponent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4100/2004
LOWER COURT JUDICIAL OFFICER:	J C McGuire DCJ
LOWER COURT DATE OF DECISION:	18 November 2005