Lambert v Zammit [2005] NSWSC 1135

New South Wales Supreme Court

CITATION : Lambert v Zammit [2005] NSWSC 1135

HEARING DATE(S) : 24/10/05, 25/10/05, 26/10/05, 27/10/05, 28/10/05, 31/10/05

JUDGMENT DATE : 10 November 2005

JUDGMENT OF : Cooper AJ at 1

DECISION : Judgment for the plaintiff.

CATCHWORDS : Contributory negligence (child age 7) - Motor accident - Standard of care owed by driver to a child running across the road

Lolomanaia v Rush 1996 24 MVR 128 Sevic v Roarty NSWCA 14 August 1998 Knight v Maclean 2002 NSWCA 314 Tobin v Worland 2005 NSWCA 188 CASES CITED : Chotiputhsilpa v Waterhouse 2005 NSWCA 295 Derrick v Cheung 2001 HCA 48 reported in 181 ALR 301 Cettree v Roberts [1982] 1 NSWLR 649 Mitchell v Government Insurance Office [1992] 15 MVR 369 McHale v Watson [1966] 115 CLR 199 Mye v Peters [1967] 87 WN (Part 2) NSW 26

Daniel Robert Lambert By His Next Friend Nicole Lucas PARTIES : Sandra Zammit

FILE NUMBER(S) : SC 20253/04

Plaintiff: B Toomey QC/P Frame/ L Csillag COUNSEL : Defendant: P Garling SC/J Morris

Plaintiff: Matthews Folbigg Pty Ltd SOLICITORS : Defendant: Abbot Tout Lawyers

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ACTING JUSTICE COOPER

THURSDAY 10 NOVEMBER 2005

20253/04 DANIEL ROBERT LAMBERT BY HIS NEXT FRIEND NICOLE LUCAS v SANDRA ZAMMIT

JUDGMENT

INTRODUCTION 1 HIS HONOUR: In this case the plaintiff sues the defendant by his next friend to recover damages for serious injuries which he sustained when he, as a pedestrian, was struck by the car driven by the defendant in Fitzwilliam Road Toongabbie at about 8:30 am on 22 November, 2002. 2 An order has been made severing the issues of liability and damages. The task which I have to determine is the issue of liability. 3 It is not in issue that the plaintiff was a pedestrian proceeding from the southern to the northern kerb of Fitzwilliam Road whilst the defendant was driving easterly along that same road. It is also not in dispute that the car driven by the defendant collided with the plaintiff causing the plaintiff to be thrown over the top of the car and to land behind it head first. 4 He is left with spastic quadriplegia and brain damage. 5 On behalf of the plaintiff it is argued that the defendant was travelling at a speed which in all of the circumstances was excessive and also that in the particular circumstances existing at the time she had failed to keep a proper lookout. 6 On behalf of the defendant it is argued that the plaintiff ran across the road immediately in front of her and that she had no opportunity to avoid colliding with him. On her behalf it is also argued that her speed was moderate and appropriate in the circumstances, that she was keeping a proper lookout and that her failure to see the plaintiff at an earlier stage was due to her vision being obstructed by other vehicles on the roadway.