Scrase v Jarvis - [1998] QSC 49

IN THE SUPREME COURT

OF QUEENSLAND

ACTION NO. 6450 of 1997
-and-
ACTION NO. 359 of 1998

Brisbane

Before Mr Justice Ambrose

[Scrase v Jarvis & Ors]

BETWEEN:
JEFFREY LAURENCE SCRASE

(Plaintiff) (Action 6450 of 1997)

AND:
CAROL ANNE SCRASE

(Plaintiff) (Action 359 of 1998)

AND:
HENRY JAMES JARVIS

(First Defendant)

AND:
SURFSIDE BUS LINES PTY. LTD.

(Second Defendant)

AND:
KEVIN JOHN LYNCH

(Third Defendant)

AND:
NZI INSURANCE AUSTRALIAN LTD

(Third Party)

AND:
ZURICH AUSTRALIAN INSURANCE LTD

(Second Third Party)

AND:
MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD

(Third Third Party)

REASONS FOR JUDGMENT - B.W. AMBROSE J.
Judgment delivered 3 April 1998

CATCHWORDS: NEGLIGENCE - duty of care - children in care of bus driver - reasonable foreseeability - proximity - causation - injury to passenger - transport company policy - nervous shock - statutory duty - The Passenger Transport Act 1990 (NSW) - damages - insurance - liability to indemnify

Counsel: Mr D.A. Wheelahan QC and Mr J. Bryson for the plaintiffs

Mr R. Dickson for the first and second defendants
Mr J.M. Gleeson Q.C. for the third defendant
Mr P. Garling S.C. for the first third party
Mr W.A. Martin for the second third party
Mr G. Miller Q.C. for the third third party

Solicitors: Attwood Marshall for the plaintiffs

Dunhill Madden Butler for the first and second defendants
Moray Agnew for the third defendant
Phillips Fox for the first third party
Gadens for the second third party

Corrs Chambers Westgarth for the third third party

Hearing Date: 9 March 1998

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 3 April 1998

These two actions were commenced in the District Court at Southport in 1995. Each was transferred to this Court in 1997. It was ordered that they be heard together on 28 November 1997.
The plaintiff in each action is a parent of a daughter Kerryn who died as the result of injuries she received when struck by a motor vehicle driven by the third defendant as she crossed a road, having alighted from a stationary school bus owned by the second defendant and driven by the first defendant.
The plaintiffs had three young daughters, Kerryn Scrase, aged about 10 years, Laura aged 8 years and Michelle aged 6 years. The three children habitually travelled together to and from school by bus and Kerryn as the eldest seems to have exercised at least some influence, if not control, over her younger sisters in their travel to and from school. All the children had been given road safety instructions by their parents and indeed had received such instruction at school. They had used that bus service during the whole of the school year preceding the accident which occurred on 17 November 1993. They knew the first defendant, the bus driver who regularly drove them to and from school by the name “Henry”. It is clear from the whole of the material that he also knew them, and I infer, that they lived…

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 Scrase v Jarvis

Details

AGLC: Scrase v Jarvis [1998] QSC 49
Case: [1998] QSC 49
Decision Date: 3 April 1998

CaseChat Overview and Summary

The case of Scrase v Jarvis involved a tragic incident where Kerryn Scrase, a 10-year-old girl, was struck and killed by a car while crossing a road after alighting from a school bus. The plaintiffs, Jeffrey and Carol Anne Scrase, parents of Kerryn, initiated proceedings against the driver of the car, the bus driver, the bus company, and various insurers. The legal issues included determining whether the defendants were negligent, establishing causation, and identifying the insurer responsible for indemnifying the defendants. The court found that the car driver was negligent for speeding and failing to keep a proper lookout, while the bus driver was also negligent for not warning Kerryn about the approaching car and for enforcing a policy that caused a delay in the bus leaving the stop. The court apportioned liability, attributing 60% to the car driver and 40% to the bus driver and company. The court also held that the primary insurer was responsible for indemnifying the defendants for the damages awarded to the plaintiffs, as the incident occurred during the use or operation of the school bus. The final orders included damages for the plaintiffs and directed the primary insurer to cover the defendants' costs.

Orders