Territory and Ors

[2007] ACTSC 38

MATTHEW JAMES TRAYNOR (by his next friend PETER TRAYNOR) v
AUSTRALIAN CAPITAL TERRITORY and OTHERS

LINDA TRAYNOR and OTHERS v AUSTRALIAN CAPITAL
TERRITORY and OTHERS
[2007] ACTSC 38 (18 June 2007)

NEGLIGENCE – motor accident – cyclist collides with car – tree planted by public authority obscures view of bike path – motorist has no opportunity to avoid accident.

Civil Law (Wrongs)Act 2002

Australian Capital Territory (Self-Government) Act 1989 (Cth)

Fox v Percy (2003) 214 CLR 118

Vairy v Wyong ShireCouncil [2005] HCA 62, (2005) 223 CLR 422

New South Wales v Fahy [2007] HCA 20

The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40

Brodie v Singleton ShireCouncil [2001] HCA 29, (2001) 206 CLR 512

Jones v Dunkel (1959) 101 CLR 298

Latham v Ferguson [2006] NSWCA 288

McHale v Watson (1966) 115 CLR 199

No. SC 307 of 1999
No. SC 418 of 2002

Judge:     Connolly J
Supreme Court of the ACT

Date:      18 June 2007

IN THE SUPREME COURT OF THE  )
  )  No. SC 307 of 1999
AUSTRALIAN CAPITAL TERRITORY  )  

BETWEEN:MATTHEW JAMES TRAYNOR (by

his next friend PETER TRAYNOR)

Plaintiff

AND:AUSTRALIAN CAPITAL TERRITORY

First Defendant

AND:JOSE ALFREDO GUEVARA

Second Defendant

AND:COMMONWEALTH OF AUSTRALIA

Third Defendant

ORDER

Judge:  Connolly J
Date:  18 June 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff against the first defendant in the sum of $1,748,706.83 plus costs.

1. There be judgment for the second and third defendants.

1. The parties be heard on the costs of the second and third defendants.

IN THE SUPREME COURT OF THE  )
  )  No. SC 418 of 2002
AUSTRALIAN CAPITAL TERRITORY  )  

BETWEEN:LINDA TRAYNOR

First Plaintiff

AND:PETER TRAYNOR

Second Plaintiff

AND:SHAUN TRAYNOR

Third Plaintiff

AND:AUSTRALIAN CAPITAY TERRITORY

First Defendant

AND:JOSE ALFREDO GUEVARA

Second Defendant

AND:COMMONWEALTH OF AUSTRALIA

Third Party

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff against the first defendant in the sum of $237,514.99 inclusive of costs.

1. There be judgment for the second defendant.

2. The parties be heard on the costs of the second defendant and third party.

1. These actions arise from a tragic motor vehicle accident that occurred late on a Saturday afternoon on 24 August 1996 in Bonython in the Australian Capital Territory.  Matthew Traynor, then an 11 year old boy, had been out with his friend, Aaron Oakman, riding their mountain bikes around a hill in a nearby reserve.  As they were returning to their homes, they followed a path that lead downhill and in a generally easterly direction from the hill reserve to a children’s play area, and then down to a point where the path intersected with a road, Bardolph Street.  Throughout these reasons I will refer to this as the bike path, because that is how it was subsequently shown in an ACT Government publication “Canberra Cycleways”.  Strictly, it is a shared use path, available to pedestrians, cyclists, and persons using wheelchairs or…