Smith v NRMA Insurance Ltd

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Smith v NRMA Insurance Ltd [2017] NSWCA 172
Hearing dates:	15 February 2017
Decision date:	18 July 2017
Before:	McColl JA, Simpson JA, Sackville AJA
Decision:	1. Extend the time for filing the notice of appeal until 2 October 2015. 2. Appeal dismissed.
Catchwords:	TORTS – negligence – whether appellant established on balance of probabilities that driver of vehicle responsible for collision was conscious and in control of vehicle at time of collision
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), s 7J(5), Part 1.2 Motor Accidents Compensation Amendment Act 2006 (NSW), Part 1.2 Div 2 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Layton Smith by his tutor Troy Smith v NRMA Insurance Ltd [2014] NSWSC 1518 Smith v NRMA Insurance Limited [2016] NSWCA 250
Category:	Principal judgment
Parties:	Layton Smith by his tutor Geraldine Daley (Appellant) NRMA Insurance Limited (Respondent)
Representation:	Counsel: Mr BJ Gross QC / Mr RD Michael (Appellant) Mr PJ Deakin QC / Ms NP Compton (Respondent)   Solicitors: Carroll & O’Dea Lawyers (Appellant) Hall & Wilcox Lawyers (Respondent)
File Number(s):	2014/341970
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2014] NSWSC 1518 Date of Decision: 3 November 2014 Before: Button J File Number(s): 2007/20176

HEADNOTE

[This headnote is not to be read as part of the judgment]

In September 2004, the appellant was not quite two years of age when the vehicle in which he was travelling, driven by his father, was struck by a van travelling in the opposite direction when it suddenly crossed a median strip onto the incorrect side of a divided major road. The appellant’s father was blameless in the accident. The driver of the van was pronounced dead at the scene with his cause of death later determined to have been cardiac arrhythmia leading to cardiac arrest. The appellant sued the van driver’s insurer, NRMA Insurance Ltd, the respondent in these proceedings.

At first instance, the sole issue was whether the van driver was conscious and in control of the van immediately prior to the collision or whether he was already unconscious or otherwise incapacitated by his heart attack. The primary Judge, Button J, was not satisfied on the balance of probabilities that at the time of the collision the van driver was conscious and driving. It followed that the appellant had not established negligence by the driver of the van and thus his claim failed.

The issue on appeal was whether the primary Judge erred in reaching this conclusion.

Held, dismissing the appeal:

(1) The Court found that although it was impossible not to feel sympathy for the appellant and his family, a careful review of the evidence does not disclose any error in the critical findings of fact made by the primary Judge. (The Court at [73])

(2) It follows that the appeal must be dismissed. Having regard to orders previously made in this matter, the Court…