Sheldrick v State of New South Wales [2007] NSWCA 105

New South Wales Court of Appeal

CITATION: Sheldrick v State of New South Wales [2007] NSWCA 105 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24/4/07

JUDGMENT DATE: 7 May 2007

JUDGMENT OF: McColl JA at 1; Bell J at 2; Hoeben J at 56

DECISION: 1. Dismiss the appeal; 2. The appellant is to pay the respondent's costs.

CATCHWORDS: Child plaintiff - contributory negligence

Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 McLean v Tedman (1984) 56 ALR 359 CASES CITED: Podrebersek -v- Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Sungravure Pty Ltd v Meani (1964) 110 CLR 24

PARTIES: Neil Sheldrick (Appellant) State of New South Wales (Respondent)

FILE NUMBER(S): CA 40329/06

COUNSEL: Mr D Kennedy SC / Mr C Evans (Appellant) Mr M Lynch (Respondent)

SOLICITORS: Lyons & Lyons (Appellant) Hicksons (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 4606/04

LOWER COURT JUDICIAL OFFICER: Johnstone DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40329/06 DC 4606/04

McCOLL JA BELL J HOEBEN J

Monday 7 May 2007 Neil Sheldrick v State of New South Wales Judgment 1 McCOLL JA: I agree with Bell J. 2 BELL J: The appellant suffered severe injury when the pushbike that he was riding was struck by a car. He was a 14 year-old schoolboy participating in a school recreational cycling excursion at the time. He brought proceedings in negligence against the driver of the car and the respondent, the State of New South Wales, as being vicariously liable for the conduct of the teachers who were responsible for the excursion. 3 The trial Judge found that the appellant had cycled through a give-way sign without pausing and into the path of the oncoming vehicle. His Honour found that the driver of the car was not negligent and entered a verdict in her favour. There is no appeal from the judgment in this respect. His Honour found that the teachers responsible for the excursion were negligent in their failure to supervise the excursion and that this failure was a direct cause of the appellant's injuries. A verdict was entered in favour of the appellant. Damages were agreed in an amount of $600,000. His Honour found the appellant was guilty of contributory negligence, which he apportioned at 40 per cent. Judgment was entered for the appellant against the respondent in the amount of $360,000. 4 The appellant appeals against the finding of contributory negligence and the apportionment.