Latham v Fergusson [2006] NSWCA 288

Latham v Fergusson [2006] NSWCA 288

Although the claimant may have failed to keep a proper lookout, the child would not have been visible within a distance (25 metres or more) sufficient for the claimant—travelling at 40kph—to avoid the accident by braking or other reasonable evasive action. Any breach identified was not causative of the injuries sustained by the opponent; thus, the appeal should be allowed and judgment entered for the claimant.

Parties
Claimant: Kim Latham; Opponent: Olivia Floyd Fergusson by her next friend Lara Floyd
Jurisdiction
Australia
Judgment Date
03 November 2006
Procedural Posture
Civil / Appeal (leave to Appeal and Merits Decided)
Outcome
Leave to appeal granted; appeal allowed; judgment for the claimant; costs reserved.
Legal Topics
Motor Vehicle Accidents, Negligence, Causation, Breach of Duty, Pedestrian Accidents, Standard of Care
Torts Motor Vehicle Accidents Negligence Causation Breach of Duty Pedestrian Accidents Standard of Care

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Parties

Kim Latham

Claimant

Olivia Floyd Fergusson by her next friend Lara Floyd

Opponent

Procedural Posture

Civil / Appeal (leave to Appeal and Merits Decided)

Legal Issues

  1. 1 Whether the claimant (driver) breached her duty of care to the opponent (child pedestrian)
  2. 2 Whether any breach by the claimant was causative of the opponent’s injuries
  3. 3 Whether the dangers of ‘hindsight reasoning’ affected the determination of breach and causation

Ratio Decidendi

Although the claimant may have failed to keep a proper lookout, the child would not have been visible within a distance (25 metres or more) sufficient for the claimant—travelling at 40kph—to avoid the accident by braking or other reasonable evasive action. Any breach identified was not causative of the injuries sustained by the opponent; thus, the appeal should be allowed and judgment entered for the claimant.

Court Disposition

Leave to appeal granted; appeal allowed; judgment for the claimant; costs reserved.

Orders

  • Leave to appeal be granted.
  • The appeal is allowed.