Latham v Fergusson

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.