Yedelian v McKune

[2005] NSWDC 8

CITATION:	Yedelian v McKune [2005] NSWDC 8
HEARING DATE(S):	29 August to 1 September, 6 September 2005
JUDGMENT DATE:	12 October 2005
JURISDICTION:	Civil
JUDGMENT OF:	Rein SC DCJ
DECISION:	See [47].
CATCHWORDS:	Plaintiff a child pedestrian injured by motor vehicle - Contribution sought by defendant motorist from child’s father - Whether father owed a duty of care to child - Level of apportionment
LEGISLATION CITED:	Civil Procedure Act 2005, s 76 Law Reform (Miscellaneous Provisions) Act 1946, s 5 Motor Traffic Regulations 1935, reg 84
CASES CITED:	AMP General Insurance v Brett (1998) 27 MVR 492 Betts v Whittingslowe (1945) 71 CLR 637 Bullock v London General Omnibus Co [1907] 1 KB 264 Commonwealth v Clark [1994] 2 VR 333 Commonwealth v Introvigne (1982) 150 CLR 258 Dare v Dobson [1960] SR(NSW) 474 Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 Doubleday v Kelly [2005] NSWCA 151 Federation Insurance Ltd v Wasson (1987) 163 CLR 303 Hahn v Conley (1971) 126 CLR 276 Ireland v Brown (DCt NSW, Garling DCJ, 28 July 2000) Lolomanaia v Rush (1996) 24 MVR 128 McCallion v Dodd [1966] NZLR 710 McHale v Watson (1966) 115 CLR 199 Phillips v Britannia Hygienic Laundry [1923] 2 KB 832 Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 Posthuma v Campbell (1984) 37 SASR 321 QBE Insurance (Australia) Ltd v Smith [2005] NSWCA 130 Ramsay v Larsen (1964) 111 CLR 16 Richards v State of Victoria [1969] VR 136 Robertson v Swincer (1989) 52 SASR 356 Scrase v Jarvis (1998) 27 MVR 85 Mye v Peters (1967) 68 SR(NSW) 298 Towart v Adler (1989) 52 SASR 373 Watt v Bretag (1982) 56 ALJR 760 Worland v Tobin [2004] NSWSC 113
PARTIES:	Sevag Yedelian (by tutor Mary Yedelian) (Plaintiff/Cross Defendant) Scott McKune (First Defendant/Cross Claimant)
FILE NUMBER(S):	2038/98
COUNSEL:	Mr Stitt QC; J Morris (Plaintiff/Cross Defendant) Mr King SC; Mr D Ronzani (First Defendant/Cross Claimant)
SOLICITORS:	Marsdens (Plaintiff/Cross Defendant) Henry Davis York (First Defendant/Cross Claimant)

JUDGMENT

1 On 3 April 1995 the Plaintiff was struck by a vehicle driven by the First Defendant whilst he was crossing Kent Road, Ryde. The Second Defendant is the Plaintiff’s father, who had stopped his car on the other side of the road and dropped off the Plaintiff and his sister.

2 In the accident, the Plaintiff suffered a fractured leg. He also claimed that following the accident he suffered behavioural difficulties and that these behavioural difficulties were either a result of frontal lobe injury or post traumatic stress.

3 The Defendants disputed any liability to the Plaintiff and contested the causal connection between any condition from which the Plaintiff suffers or may suffer and the accident.

4 The Plaintiff and First Defendant resolved the dispute as between themselves subject to approval of the Court pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

5 The First Defendant had joined the Second Defendant…