O'Brien v NM Rothschild Aust Ltd

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CITATION: O'Brien v NM Rothschild Aust Ltd & Anor [1999] NSWCA 211
FILE NUMBER(S): CA 40084/98
HEARING DATE(S): 17 June 1999
JUDGMENT DATE:
17 June 1999

PARTIES :
Daniel Francis O'Brien
v
NM Rothschild Aust Ltd
Sarah Elizabeth Hill
JUDGMENT OF: Fitzgerald JA; Cole AJA; Wood CJatCL
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) : CLD 20217/95
LOWER COURT JUDICIAL OFFICER: Simpson J
COUNSEL: A - B Toomey QC, D Conti
R - C Hoeben SC, R Cheney
SOLICITORS: A - McClellands, Sydney
R - Connery & Partners, Sydney
CATCHWORDS: Absence negligence in driver - Pedestrian seated on median strip on Pacific Highway at midnight.
CASES CITED:
 Stocks v Baldwin (1926) 24 MVR 416
DECISION: Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

                                CA 40084/98
                                CLD 20217/95

                                FITZGERALD JA
                                COLE AJA
                                WOOD AJA

                                Thursday, 17 June 1999

Daniel Francis O'BRIEN v NM ROTHSCHILD AUST Limited & Anor
JUDGMENT
1    FITZGERALD JA: The Court is grateful to counsel for careful and helpful submissions. Cole AJA will deliver the first judgment. 2    COLE AJA: The appellant was eighteen years of age when, in the early hours of 7 May 1994, he was struck by a motor vehicle whilst a pedestrian on the Pacific Highway, Chatswood. He sued the owner and the driver. 3    Simpson J, in a judgment of great clarity, entered a verdict for the defendant finding that the appellant's own actions "were the sole cause of his injuries". From that decision on liability the appellant has appealed. 4    Mr Toomey QC has persuasively put all that can be put on behalf of the appellant and has referred us to all the relevant authorities, including Stocks v Baldwin (1926) 24 MVR 416. However, in my view nothing has been raised by the appellant to cast any doubt upon the correctness of Simpson J's decision. 5 The various grounds of appeal can briefly be dealt with. 6 Ground 1: The trial judge held that, "There was at the time little traffic". The appellant argues there was no evidence of any other traffic, the driver having given evidence that there were no other vehicles travelling around her in the same direction, nor approaching from the opposite direction. There is no difference in substance between that evidence and the Judge's finding. 7 Ground 2: This ground challenges the finding that there was "no evidence of the speed with which the appellant moved". There was no such evidence. 8 Grounds 3, 4, 5 and 6: These grounds challenge the findings that the driver would not have seen the appellant in time to take evasive action, could not have been expected to see the appellant, and could not anticipate the appellant's movement before he stood up. 9 The driver, who was accepted by the trial judge, said she was driving north along the Pacific Highway keeping a proper lookout; she saw some pedestrians on the left-hand footpath and had a clear view ahead…
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Details
Case
[1999] NSWCA 211
Decision Date

CaseChat Overview and Summary

The case of *O'Brien v NM Rothschild Aust Ltd* concerned an appeal to the Supreme Court of New South Wales, Court of Appeal, arising from a personal injury claim. The appellant, O'Brien, had suffered injuries when he was struck by a vehicle driven by an employee of the respondent, NM Rothschild Aust Ltd. At the time of the incident, O'Brien was seated on a median strip on the Pacific Highway at midnight.

The central legal issue before the Court of Appeal was whether the driver of the respondent's vehicle had been negligent in failing to avoid striking the appellant. This required the court to consider the duty of care owed by a driver to a pedestrian, particularly in circumstances where the pedestrian was in an unusual and potentially hazardous position on a roadway at night. The court also had to assess whether the driver's actions, or inactions, constituted a breach of that duty.

The Court of Appeal ultimately dismissed the appeal, upholding the decision of the lower court. The reasoning focused on the absence of negligence on the part of the driver. The court found that the driver had acted reasonably in the circumstances, implying that the appellant's presence on the median strip was unexpected and that the driver could not have reasonably foreseen or avoided the collision. The principles applied centred on the standard of care expected of a reasonable driver and the concept of foreseeability in establishing negligence. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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