Warth v Lafsky

Case [2014] NSWCA 94


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Warth v Lafsky [2014] NSWCA 94
Hearing dates:28 February 2013
Decision date: 01 April 2014
Before: 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
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act (NSW) 2005
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak; [2009] HCA 48; (2009) 239 CLR 420
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Blacktown City Council v Hocking [2008] NSWCA 144
Derrick v Cheung [2001] HCA 48; 181 ALR 301
Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 88 ALJR 76
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Gunning v Fellows (1997) 25 MVR 97
Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 623
Leishman v Thomas (1957) 75 WN(NSW) 173
Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413
Marien v Gardiner [2013] NSWCA 396
Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416
Strong v Woolworths…

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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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PRESTON CJ

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Ratio Decidendi

Legal Principle Established

Established by: PRESTON CJ

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