Daniel Robert Lambert bhnf Nicole Lucas v Zammit [2005] NSWSC 161

New South Wales Supreme Court

CITATION : Daniel Robert Lambert bhnf Nicole Lucas v Zammit [2005] NSWSC 161

HEARING DATE(S) : 04/03/05

JUDGMENT DATE : 10 March 2005

JUDGMENT OF : Hoeben J at 1

DECISION : Separate trials in respect of the issues of liability and quantum. Trial as to liability be given expedition. Costs of this application be costs in the cause.

CATCHWORDS : Application for separate trial as to liability granted. - PRACTICE - action for personal injuries - separate trial as to liability - hardship of plaintiff and his mother - competing considerations - applicable principles.

Motor Accidents Compensation Act 1999 LEGISLATION CITED : Supreme Court Rules

CASES CITED : Idoport Pty Limited & Anor v National Australia Bank Limited & Ors [2000] NSWSC 1215

Daniel Robert Lambert by his next friend Nicole Lucas - Plaintiff PARTIES : Sandra Zammit - Defendant

FILE NUMBER(S) : SC 202503/04

Mr P Frame - Plaintiff COUNSEL : Mr R Stitt QC - Defendant

Matthews Folbigg Pty Ltd - Plaintiff SOLICITORS : Abbott Tout - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Thursday, 10 March, 2005

20253/04 – Daniel Robert LAMBERT by his next friend Nicole LUCAS v Sandra ZAMMIT

JUDGMENT 1 HIS HONOUR: Nature of application On 22 November 2002 the plaintiff, Daniel Robert Lambert then aged seven, was attempting to cross Fitzwilliam Road Toongabbie on his way to school when he was struck by a motor vehicle driven by the defendant. As a result of the collision, the plaintiff suffered traumatic brain injury, a fractured skull, fractures to the face and a fractured left femur. He has been left with extensive cognitive, motor and behavioural deficits, ie incomplete quadriplegia complicated by brain damage. The medical reports to which I have been referred indicate that the plaintiff has required twenty-four hour care. 2 The COPS summary prepared by the Police Service summarised the incident as follows: "The child pedestrian was attempting to cross Fitzwilliam Street from south to north. It is apparent that the child waited for the west boundary traffic on Fitzwilliam to pass and then ran out from behind the last vehicle, which was a truck. As the child came out from behind the truck into the east bound lane he was hit by a vehicle travelling east." 3 Liability has not been admitted. 4 The plaintiff by motion dated 18 October 2004 seeks an order that there be a separate trial in relation to liability. This is opposed by the defendant. The motion came on for hearing before me on Friday 4 March 2005.