ECCLESTON v SMITH [2007] NSWCA 22

ECCLESTON v SMITH [2007] NSWCA 22

The factual errors regarding the position and visibility of the appellant and the point of impact, when corrected, provided sufficient evidence that the respondent failed to exercise reasonable care by not covering the brakes or taking precautions upon seeing the child waiting to cross; the respondent had adequate opportunity to brake, swerve, slow down, and thereby avoid the collision or mitigate injury, establishing negligence.

Parties
Appellant: Amy Eccleston (by her tutor Ian Eccleston); Respondent: May Smith
Jurisdiction
Australia
Judgment Date
23 February 2007
Procedural Posture
Appeal / Determination of Appeal
Outcome
appeal allowed; verdict entered for the appellant
Legal Topics
Motor Vehicle Accident, Breach of Duty of Care, Failure to Keep Proper Lookout, Failure to Stop or Swerve
Negligence Personal Injury Motor Vehicle Accident Breach of Duty of Care Failure to Keep Proper Lookout Failure to Stop or Swerve

Case Brief

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Parties

Amy Eccleston (by her tutor Ian Eccleston)

Appellant

May Smith

Respondent

Procedural Posture

Appeal / Determination of Appeal

Legal Issues

  1. 1 Whether the respondent was negligent in failing to keep a proper lookout and/or respond reasonably to the appellant's presence on or near the roadway
  2. 2 Whether causative negligence was established, including failure to brake, swerve, or slow to avoid collision or lessen injury
  3. 3 Whether factual findings of the District Court justified the verdict for the defendant

Ratio Decidendi

The factual errors regarding the position and visibility of the appellant and the point of impact, when corrected, provided sufficient evidence that the respondent failed to exercise reasonable care by not covering the brakes or taking precautions upon seeing the child waiting to cross; the respondent had adequate opportunity to brake, swerve, slow down, and thereby avoid the collision or mitigate injury, establishing negligence.

Court Disposition

appeal allowed; verdict entered for the appellant

Orders

  • Appeal allowed.
  • Set aside verdict for the defendant.