Sykora v Hammer - [2010] QSC 356

SUPREME COURT OF QUEENSLAND

CITATION:

Sykora v Hammer & Anor [2010] QSC 356

PARTIES:

PAUL SYKORA
by his litigation guardian JANET SYKORA
(plaintiff)
v
HEATHER ROSANN HAMMER
(first defendant)
and
SUNCORP METWAY INSURANCE LIMITED
ABN 83 075 695 966
(second defendant)

FILE NO/S:

BS 1400 of 2008

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15-16 February 2010

JUDGE:

Daubney J

ORDER:

1. Subject to sanction of the quantum of the claim, there will be judgment for the plaintiff.

2. I will hear the parties further.

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOK-OUT – PEDESTRIAN ACCIDENTS – where the plaintiff claims damages for personal injuries sustained in a motor vehicle accident – where the plaintiff was aged 2 years 8 months at the time of the accident – where children were playing handball on the side of the road – where a tennis ball bounced onto the road and was chased by the plaintiff – where the plaintiff was struck by the car – where the driver did not see the children near the road or the tennis ball – where the driver did not brake on seeing the child – where the driver put the car into a “defensive slide” when she saw the child on the road – whether the driver was negligent in failing to keep a proper lookout – whether the driver was negligent in failing to take appropriate evasive action

Antypas v McKeon [2001] NSWCA 417, distinguished
Derrick v Cheung [2001] HCA 48, distinguished
Hobbelen v Nunn [1965] Qd R 105, cited
Latham v Fergusson [2006] NSWCA 288, distinguished
Lolomanaia v Rush (1996) 24 MVR 128, cited
Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79, cited
Mitchell v Government Insurance Office (NSW) [1992] 15 MVR 369, cited
Mobbs v Kain [2009] NSWCA 301, cited
Vairy v Wyong Shire Council (2005) 223 CLR 422, applied

COUNSEL:

SC Williams, QC with EJ Williams for the plaintiff
RJ Douglas, SC with R Green for the defendants

SOLICITORS:

DLA Phillips Fox for the plaintiff
Jensen McConaghy Solicitors for the defendants

The
plaintiff, Paul Sykora (“Paul”) sues by his litigation guardian, Janet Sykora (“Janet”) for damages for personal injuries suffered by him at about 7.30 pm on

7 November 1989. Paul was struck by a vehicle driven by the first defendant, Heather Rosann Hammer (“Ms Hammer”) when he ran out onto the road. At the time of the accident, Paul was aged 2 years and 8 months.

On the day of the accident, Paul’s family was attending a Melbourne Cup Day party at the Stastny family home at unit 2, 140 Kumbari Avenue, Southport. Kumbari Avenue is a wide, two-lane suburban street with ample width to allow cars to park on each side of the street without obstructing traffic. Two house lots south of the Stastny’s home, Kumbari…

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 Sykora v Hammer

Details

AGLC: Sykora v Hammer [2010] QSC 356
Case: [2010] QSC 356
Decision Date: 22 September 2010

CaseChat Overview and Summary

The case of Sykora v Hammer involved a dispute between the plaintiff, a young child who sustained injuries in a motor vehicle accident, and the defendant, the driver of the vehicle. The plaintiff alleged that the defendant was negligent in failing to keep a proper lookout and in not taking appropriate evasive action when the plaintiff was struck by the car. The matter was heard in a relevant court, where the plaintiff sought damages for personal injuries sustained in the accident.

The legal issues before the court included whether the defendant driver was negligent in failing to keep a proper lookout for the plaintiff and other children playing handball on the side of the road, and whether the defendant was negligent in failing to take appropriate evasive action upon seeing the plaintiff on the road. The court had to consider the circumstances surrounding the accident, including the actions of the defendant driver and the plaintiff, as well as the nature of the roadway and the visibility of the children and tennis ball at the time of the incident.

The court found that the defendant driver was indeed negligent in failing to keep a proper lookout and in not taking appropriate evasive action when the plaintiff was struck by the car. The court held that the driver should have been aware of the children playing handball near the road and the potential for a tennis ball to bounce onto the road, which could have resulted in a child running onto the road. The court also found that the driver's decision to put the car into a "defensive slide" upon seeing the child was not an appropriate response to the situation. As a result, the court ruled that the driver was liable for the plaintiff's injuries and that there would be judgment for the plaintiff, subject to the sanction of the quantum of the claim.

In its orders, the court determined that judgment would be entered for the plaintiff, subject to the sanction of the quantum of the claim. The court also indicated that it would hear the parties further to determine the appropriate amount of damages to be awarded to the plaintiff for their injuries.

Orders

Orders of the court

1. Subject to sanction of the quantum of the claim, there will be judgment for the plaintiff.

2. I will hear the parties further.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Sykora v Hammer & Anor [2010] QSC 356
PARTIES:	PAUL SYKORA by his litigation guardian JANET SYKORA (plaintiff) v HEATHER ROSANN HAMMER (first defendant) and SUNCORP METWAY INSURANCE LIMITED ABN 83 075 695 966 (second defendant)
FILE NO/S:	BS 1400 of 2008
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	22 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	15-16 February 2010
JUDGE:	Daubney J
ORDER:	1. Subject to sanction of the quantum of the claim, there will be judgment for the plaintiff. 2. I will hear the parties further.
CATCHWORDS:	TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOK-OUT – PEDESTRIAN ACCIDENTS – where the plaintiff claims damages for personal injuries sustained in a motor vehicle accident – where the plaintiff was aged 2 years 8 months at the time of the accident – where children were playing handball on the side of the road – where a tennis ball bounced onto the road and was chased by the plaintiff – where the plaintiff was struck by the car – where the driver did not see the children near the road or the tennis ball – where the driver did not brake on seeing the child – where the driver put the car into a “defensive slide” when she saw the child on the road – whether the driver was negligent in failing to keep a proper lookout – whether the driver was negligent in failing to take appropriate evasive action Antypas v McKeon [2001] NSWCA 417, distinguished Derrick v Cheung [2001] HCA 48, distinguished Hobbelen v Nunn [1965] Qd R 105, cited Latham v Fergusson [2006] NSWCA 288, distinguished Lolomanaia v Rush (1996) 24 MVR 128, cited Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79, cited Mitchell v Government Insurance Office (NSW) [1992] 15 MVR 369, cited Mobbs v Kain [2009] NSWCA 301, cited Vairy v Wyong Shire Council (2005) 223 CLR 422, applied
COUNSEL:	SC Williams, QC with EJ Williams for the plaintiff RJ Douglas, SC with R Green for the defendants
SOLICITORS:	DLA Phillips Fox for the plaintiff Jensen McConaghy Solicitors for the defendants