Sparks v Phegan [2007] NSWSC 616

Sparks v Phegan [2007] NSWSC 616

The defendant owed the plaintiff, a child swimming 3-5 metres from the riverbank, a duty to exercise reasonable care in operating the speedboat. By turning the speedboat back to retrieve a fallen water skier and bringing it too close to the riverbank where swimmers were visible, he failed to keep a proper lookout and failed to keep the boat under proper control. That breach caused the plaintiff's serious injuries, and contributory negligence was not in issue. The plaintiff was therefore entitled to damages assessed under the Civil Liability Act 2002, with a 20% discount for adverse contingencies to allow for neurofibromatosis.

Jurisdiction
Australia
Judgment Date
18 June 2007
Procedural Posture
Negligence Claim for Damages for Personal Injuries / Judgment After Hearing
Outcome
Judgment for the plaintiff in the amount of $650,657.
Legal Topics
['speed Boat Accident' 'duty of Care to Swimmers' 'breach of Duty' 'non Economic Loss' 'future Earning Capacity' 'pre Existing Condition' 'attendant Care Services']
['torts' 'negligence' 'personal Injury' 'damages'] ['speed Boat Accident' 'duty of Care to Swimmers' 'breach of Duty' 'non Economic Loss' 'future Earning Capacity' 'pre Existing Condition' 'attendant Care Services']

Case Brief

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Procedural Posture

Negligence Claim for Damages for Personal Injuries / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant breached a duty of care owed to the plaintiff by failing to keep a proper lookout and properly control the speedboat near swimmers.' "Whether the plaintiff's injuries were caused by the defendant's breach of duty." 'How damages should be assessed under the Civil Liability Act 2002, including non-economic loss, out-of-pocket expenses, economic loss, loss of earning capacity, superannuation loss and attendant care.' "Whether the plaintiff's pre-existing neurofibromatosis justified an increased discount for adverse contingencies."]

Ratio Decidendi

The defendant owed the plaintiff, a child swimming 3-5 metres from the riverbank, a duty to exercise reasonable care in operating the speedboat. By turning the speedboat back to retrieve a fallen water skier and bringing it too close to the riverbank where swimmers were visible, he failed to keep a proper lookout and failed to keep the boat under proper control. That breach caused the plaintiff's serious injuries, and contributory negligence was not in issue. The plaintiff was therefore entitled to damages assessed under the Civil Liability Act 2002, with a 20% discount for adverse contingencies to allow for neurofibromatosis.

Court Disposition

Judgment for the plaintiff in the amount of $650,657.

Orders

  • ['I enter judgment in favour of the plaintiff in the amount of $650,657.' "I order the defendant to pay the plaintiff's costs as agreed or assessed, such costs to include costs of the plaintiff's legal advisers in arranging for witnesses or other evidence as to liability, even though that evidence may not have been...