Worland v Tobin - [2004] NSWSC 113

CITATION: Worland v Tobin [2004] NSWSC 113

HEARING DATE(S): 24/03/2004 - 26/03/2004

JUDGMENT DATE:
7 May 2004

JUDGMENT OF: Hislop J

DECISION: Defendant negligent.

CATCHWORDS: Torts - Negligence - Motor vehicle accident - Child pedestrian running from behind parked vehicle - Reasonable response to risk - Opportunity to avoid collision.

CASES CITED: Derrick v Cheung (2001) 181 ALR 301
Lolomanaia v Rush (Court of Appeal, 15 July 1996, unreported)
Ma v Keane (2003) 38 MVR 212
Mitchell v Government insurance Office (NSW) (1992) 15 MVR 369
Tsuji v Metromix Pty Ltd (Court of Appeal, 20 November 1998, unreported).

PARTIES :
Zachary Lucas Worland by his tutor John Worland - Plaintiff
Teresa Mary Tobin - Defendant

FILE NUMBER(S): SC 20224/00

COUNSEL: Mr RJ Burbidge QC with Mr DJ Price - Plaintiff
Mr CRR Hoeben SC - Defendant

SOLICITORS: Stacks - The Law Firm - Plaintiff
Carroll & O'Dea Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Hislop J

7 May 2004

20224/00 Zachary Lucas Worland by his tutor John Worland v Teresa Mary Tobin
JUDGMENT

1 On 1 December 1991 the plaintiff sustained personal injuries when, whilst crossing Adjin Street Wagga Wagga, he was struck by a car driven by the defendant. The plaintiff was then aged two years and two months (date of birth: 1 October 1989).

2 The plaintiff has brought these proceedings by his tutor to recover damages for such injuries. On 22 September 2003 an order was made pursuant to the Supreme Court Rules 1970, Pt 31 r2 that liability be determined as a separate issue. The order was made with the consent of the parties. This is the determination of that issue.

3 Adjin Street is a residential street in Wagga Wagga. At the time of the accident the relevant section of the street was straight and level and ran north/south, it had a bitumen surface and was kerbed and guttered with the distance from kerb to kerb measuring 8.95 metres. There were no lane markings. The speed limit was 60 kilometres per hour.

4 The plaintiff and his sister, Courtney, who was then approximately four and a half years old (date of birth: 10 May 1987) had stayed overnight at number 36 Adjin Street which was situated on the western side of the street. On the morning of 1 December 1991 the plaintiff’s parents came to pick up the children from that address. They parked their vehicle, a 1983 Holden Commodore sedan, some metres south of the driveway of number 31 on the eastern side of Adjin Street, facing south. A utility was parked on the western side of the street. The vehicles were parked virtually opposite each other, the front of the utility being a little north of the rear of the Holden.

5 The parents entered the house and remained there for some time. At about 12.45 pm the plaintiff and Courtney left number 36 and crossed Adjin Street to the Holden. The weather conditions were…

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 Worland v Tobin

Details

AGLC: Worland v Tobin [2004] NSWSC 113
Case: [2004] NSWSC 113
Decision Date: 7 May 2004

CaseChat Overview and Summary

The parties involved in this case were Worland, the plaintiff, and Tobin, the defendant. The dispute arose from a motor vehicle accident where Worland was injured after being struck by a vehicle driven by Tobin. Worland was a child pedestrian who had been running from behind a parked vehicle when the accident occurred. The case was heard by the court of appeal in the Supreme Court of New South Wales.

The primary legal issue the court had to address was whether Tobin, the driver of the vehicle, had acted negligently in causing the accident. Specifically, the court needed to determine if Tobin's response to the perceived risk of a child running from behind a parked vehicle was reasonable. The court also had to consider whether Tobin had an opportunity to avoid the collision and if he failed to do so.

The court found that Tobin was negligent in his response to the risk posed by the child running from behind the parked vehicle. It was determined that Tobin did not take reasonable steps to avoid the collision, which included not braking or swerving to prevent the accident. The court held that Tobin's actions fell below the standard of care expected of a reasonable driver in similar circumstances. As a result, Tobin was found liable for the injuries sustained by Worland. The court's decision was based on the premise that a driver must be vigilant and take appropriate action to avoid harm to pedestrians, particularly children, who may not always act predictably.

The court ordered Tobin to pay damages to Worland for the injuries suffered as a result of the accident. The amount of damages was determined based on the severity of Worland's injuries, the impact on his future quality of life, and other relevant factors. The court's ruling emphasised the importance of driver vigilance and the duty of care owed to pedestrians, particularly children, in preventing accidents and ensuring public safety on the roads.

Orders