NSW Caselaw
Reported Decision : [2000] 31 MVR 211
New South Wales Court of Appeal
CITATION : NRMA v SMITH [2000] NSWCA 122 FILE NUMBER(S) : CA 40701/98 HEARING DATE(S) : 12 April 2000 JUDGMENT DATE : 25 May 2000
NRMA INSURANCE LIMITED PARTIES : v RUSSELL EDWARD SMITH & MITCHELL BEARD JUDGMENT OF : Mason P at 1; Handley JA at 2; Beazley JA at 28
LOWER COURT JURISDICTION : District Court LOWER COURT 1/97 FILE NUMBER(S) : LOWER COURT Ainslie-Wallace DCJ JUDICIAL OFFICER :
D F Rofe QC/J P Guihot (Appellant) COUNSEL : L A Muston (1st Respondent) M R Aldridge SC/L A Christie (2nd respondent) Hunt & Hunt Newcastle (Appellant) SOLICITORS : Peter Long & Co Gunnedah (1st Respondent) R J O'Halloran & Co Tamworth (2nd Respondent) CATCHWORDS : NEGLIGENCE - whether duty of care - foreseeability of risk - plaintiff jumped from cattle truck and caught ring on rough metal - finger amputation necessary - risk of such injury not foreseeable - risk far fetched or fanciful Motor Accidents Act 1988 (NSW) LEGISLATION CITED : Motor Accidents (Amendment) Act 1995 (NSW) Suitors Fund Act 1951 (NSW) Steinberg v FCT (1975) 134 CLR 640 CASES CITED: Davis v Langdon (1911) 11 SR (NSW) 149 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Appeal allowed - orders made
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40701/98 DC 1/97 MASON P HANDLEY JA BEAZLEY JA
25 May 2000
NRMA INSURANCE LIMITED v RUSSELL EDWARD SMITH & ANOR NEGLIGENCE - whether duty of care - foreseeability of risk - plaintiff jumped from cattle truck and caught ring on rough metal - finger amputation necessary - risk of such injury not foreseeable - risk far fetched or fanciful The respondent sustained a de-gloving injury to his left hand leading to the amputation of his left ring finger when he jumped from the headboard of a cattle truck and caught the wedding ring on that finger on some protrusion on the headboard. He sued the owner of the truck for negligence and joined the appellant third party insurer as the second defendant after it denied liability under the relevant policy.
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