Kain v Mobbs [2008] NSWSC 383

New South Wales Supreme Court

CITATION : Kain v Mobbs [2008] NSWSC 383

HEARING DATE(S) : 3-12 March 2008

JUDGMENT DATE : 29 April 2008

JUDGMENT OF : Harrison J

(1) Verdict for the plaintiff against the first and second defendants. (2) Order the first and second defendants to pay the plaintiff's costs. DECISION : (3) Verdict for the third and fourth defendants. (4) Order the plaintiff to pay the third and fourth defendants' costs of defending the plaintiff's claim against them. (5) Order that the first and second defendants indemnify the plaintiff in respect of such costs as may be incurred by the plaintiff in accordance with order (4). (6) Order that the plaintiff's damages be reduced by 15 per cent as the result of his own fault and contributory negligence.

CATCHWORDS : NEGLIGENCE – collision between motor vehicle and 10 year 8 month old pedestrian who ran out from behind a stationary school bus at bus stop – when driver proceeding at speed limit of 40 km/h - whether driver failed to take steps to avoid the accident by reference to a perceivable risk - whether driver negligent for failing to keep a proper lookout or for driving at an excessive speed in the circumstances – whether pedestrian guilty of contributory negligence – whether bus driver also negligent for failing to wait until the vehicle passed the bus before permitting the plaintiff to alight – car driver at fault but bus driver not at fault – pedestrian's contributory negligence assessed at 15 per cent

Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1965 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Amendment Act 2000 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Road Transport (Safety and Traffic Management) Act 1999