WILLIAMS v MITCHELL [1991] NSWCA 286

WILLIAMS v MITCHELL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and MEAGHER JJA 20 February 1991, 23 May 1991 [1991] NSWCA 286

CONTRIBUTORY NEGLIGENCE — children — expected to display regard for own safety to be expected of ordinary child of same age: McHale v Watson (1966) 115 CLR 119 applied. DAMAGES — allowance for possible loss of earning capacity commencing in twenty years' time — need to discount for deferment.

Samuels JA This is an appeal from Shadbolt DCJ from whose judgment I take the facts.

The plaintiff was born on 13 November 1971. On 5 April 1983, when he was eleven years old, he went with his mother and his two younger sisters and a young male friend to visit his maternal grandfather's house. The house was a fibro structure with a garage separated from it by perhaps twelve feet; the front alignment of the garage was approximately one metre (so the measurements were given) back from the alignment of the rear of the house. The garage was reached from the house by a concrete path which ran from the back door parallel to the back of the house and straight to the front of the garage, connecting with the nearest of two straight parallel paths of concrete which gave access to the garage from the road.

The defendant, the grandfather, arrived home and saw two cars in the driveway, that is parked on these concrete paths. One he recognised as his wife's and the other as his daughter's. He agreed that he assumed that his grandchildren were there because he saw his daughter's car and was aware that it was the children's practice to play in the large garden at the back of the house. He drive along the side of the house, that is between the concrete paths leading to the garage and the side of the house nearest to them, because he did not wish to block the exit of his daughter's car. He drove very slowly at about two to three miles per hour; he did not sound his horn or go inside the house and announce his arrival. He knew, of course, that the corner of the house was blind, that is to say, until the driver's seat had passed beyond the rear alignment of the house he was unable to see to his right towards the back door; similarly, anyone proceeding from the back door past the corner towards the garage would have been unable to see him until he or she had passed the corner.