McColl JA at [1], Preston CJ of LEC at [146], Tobias AJA at [147]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed with costs.
(3) Remit the proceedings to the District Court to assess the damages to which the respondent is entitled.
(4) Any application to vary the costs order to be filed and served within 7 days supported by written submissions not to exceed 5 pages.
(5) Any written submissions in response to the application to be filed and served within 7 days of receipt of the application supported by written submissions not to exceed 5 pages.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
TORTS - negligence - motor vehicle accident - collision between motor vehicle and child on scooter - where driver driving at excessive speed - whether driver failed to keep proper lookout
TORTS - negligence - motor vehicle accident - causation - whether driver could have stopped vehicle before impact if driving at reasonable speed and keeping proper lookout - whether any negligence on driver's part a necessary condition of occurrence of harm - S 5D Civil Liability Act 2002 (NSW) - whether accident inevitable
PRACTICE - amendment - where appellant sought leave at hearing to amend notice of appeal - whether leave to amend should be granted
[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
AGLC
Warth v Lafsky [2014] NSWCA 94
Case
[2014] NSWCA 94
Decision Date
CaseChat Overview and Summary
The appeal concerned a motor vehicle accident where the appellant, the driver, collided with the respondent, a child on a scooter. The primary dispute revolved around whether the appellant's driving conduct constituted negligence that caused the respondent's injuries. The matter came before the Court of Appeal of New South Wales.
The legal issues before the court included whether the appellant failed to keep a proper lookout and drove at an excessive speed, thereby breaching their duty of care to the respondent. Crucially, the court was required to determine the issue of causation, specifically whether the appellant's alleged negligence was a necessary condition for the occurrence of the harm suffered by the respondent, in accordance with section 5D of the *Civil Liability Act 2002* (NSW). This involved considering whether the accident was inevitable, irrespective of the appellant's speed or attention. The court also considered an application for leave to amend the notice of appeal made during the hearing.
The Court of Appeal granted leave to appeal but ultimately dismissed the appeal. The court found that the appellant's driving at an excessive speed and failure to keep a proper lookout constituted negligence. Applying section 5D of the *Civil Liability Act 2002* (NSW), the court determined that the appellant's negligence was a factual cause of the respondent's injuries, as the accident would not have occurred had the appellant been driving at a reasonable speed and keeping a proper lookout. The court therefore remitted the proceedings to the District Court for the assessment of damages.
Orders
Orders of the court
(1) Grant leave to appeal.
(2) Appeal dismissed with costs.
(3) Remit the proceedings to the District Court to assess the damages to which the respondent is entitled.
(4) Any application to vary the costs order to be filed and served within 7 days supported by written submissions not to exceed 5 pages.
(5) Any written submissions in response to the application to be filed and served within 7 days of receipt of the application supported by written submissions not to exceed 5 pages.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]