Smith by this tutor Coles v McFarland - [2012] NSWSC 945

Supreme Court

New South Wales

Case Title: Smith by this tutor Coles v McFarland

Medium Neutral Citation: [2012] NSWSC 945

Hearing Date(s): 25 November 2011

Decision Date: 20 August 2012

Jurisdiction:

Before: Simpson J

Decision:
Verdict for the defendant

Catchwords: CIVIL LAW - negligence - personal injury - liability - motor vehicle collision with cyclist - no acceptable evidence of negligence

Legislation Cited:

Cases Cited:

Texts Cited:

Category: Principal judgment

Parties: Oliver Thomas Smith by his tutor Cathryn Coles (Plaintiff)
Graham McFarland (Defendant)

Representation

- Counsel: Counsel
K P Rewell SC (Plaintiff)
R A O'Keefe (Defendant)

- Solicitors: Solicitors
Stacks/Goudkamp (Plaintiff)
Curwoods Lawyers (Defendant)

File number(s): 2010/356970

Publication Restriction:

JUDGMENT

This is a claim for damages for personal injury arising out of a collision between a motor vehicle driven by the defendant (Graham McFarland) and a bicycle ridden by the plaintiff (Oliver Smith). The collision occurred at about 8.20am on 3 December 2008 (a Wednesday), on George Street, North Strathfield. The plaintiff was thrown from his bicycle, his helmet unfastened and flew from his head, and the plaintiff suffered injury, including brain injury. The extent of the injury does not call for present determination: by reason of the plaintiff's age at the time of the injury (14) it has been agreed that it is premature to attempt to assess the quantum of damages, if any, to which he will be entitled. Accordingly, it has been determined that there be a separate trial on the issue of liability; damages, if the plaintiff is successful in establishing liability, will follow.
The plaintiff alleges that the collision was caused by the negligence of the defendant. The defendant denies any negligence, alleging that the plaintiff rode into his vehicle, or into the path of his vehicle.
There are real difficulties in determining the precise circumstances of the collision. That is because of significant divergences in the evidence of the principal witnesses. There is little area of common ground. The plaintiff himself has no recollection of the events immediately before being thrown from his bicycle.
What is common ground is the following. The plaintiff lived in George Street, North Strathfield, on the eastern side. That is the street on which the accident occurred. The relevant section of George Street is shown, in a series of four Google photographs that were in evidence by consent, to be a long and straight stretch of road, running north-south, intersected by a number of east-west running cross streets. Relevantly, these included, from north to south, Brussels Street, Lorraine Street, Warsaw Street (which formed a T-intersection with George Street from the west) and Pomeroy Street. Brussels Street is the closest to the plaintiff's home. The general location can be seen to be suburban/residential, with, on the west side, predominantly domestic bungalows, and, on the eastern side, apartment blocks. There appears to be only one set of traffic lights in the immediate vicinity, at Pomeroy Street. George Street is comprised of two lanes in each direction. Parking was permitted on 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.

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Details

Case: [2012] NSWSC 945
Decision Date: 20 August 2012

CaseChat Overview and Summary

In the matter of Smith by his tutor Coles v McFarland, the parties involved were the plaintiff, Smith, represented by his tutor Coles, and the defendant, McFarland. The dispute arose from a motor vehicle collision involving Smith, who was riding a bicycle, and McFarland, who was operating a motor vehicle. The case was heard by the Supreme Court of Victoria, where the primary focus was on determining the liability of McFarland for Smith's personal injuries.

The central legal issue before the court was whether McFarland was negligent in causing the collision. The plaintiff contended that McFarland's actions or inactions led to the accident, resulting in Smith's injuries. Conversely, McFarland argued that there was insufficient evidence to establish negligence on their part. The court had to weigh the evidence presented and assess whether McFarland's actions fell below the standard of care expected of a reasonable person in the circumstances, thereby establishing liability for the injuries sustained by Smith.

In delivering the judgment, the court meticulously reviewed the evidence provided by both parties. The court found that the plaintiff had not presented any acceptable evidence that demonstrated McFarland's negligence. The court concluded that without clear and convincing evidence of fault, the plaintiff could not establish McFarland's liability for the collision. As a result, the court dismissed the plaintiff's claim, ruling in favor of the defendant. The plaintiff's action for damages was therefore unsuccessful, and no liability was found against McFarland.

Orders