Sparks v Phegan [2007] NSWSC 616

New South Wales Supreme Court

CITATION : Sparks v Phegan [2007] NSWSC 616

HEARING DATE(S) : 12/06/2007, 13/06/2007

JUDGMENT DATE : 18 June 2007

JUDGMENT OF : Hoeben J at 1

DECISION : I enter judgment in favour of the plaintiff in the amount of $650,657.

CATCHWORDS : NEGLIGENCE - speed boat accident - infant plaintiff swimming in river - damages - serious injury to right foot and ankle - pre-existing brain tumour - loss of future earning capacity.

LEGISLATION CITED : Civil Liability Act 2002

Graham v Baker (1961) 106 CLR 340 at 347 Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 at [6] CASES CITED : Penrith City Council v Parks [2004] NSWCA 201 at [56] Purkess v Crittenden (1965) 114 CLR 164 State of New South Wales v Moss (2000) 54 NSWLR 536 at [87] Watts v Rake (1960) 108 CLR 158

PARTIES : Ayeshea Maree Sparks - Plaintiff Gerard Michael Phegan - Defendant

FILE NUMBER(S) : SC 20201/2006

COUNSEL : Mr I Roberts SC/AJ Black - Plaintiff Mr P J O'Connor - Defendant

SOLICITORS : Walsh & Blair - Plaintiff McCulloch and Buggy - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Monday, 18 June 2007

20201/2006 – Ayeshea Maree SPARKS v Gerard Michael PHEGAN

JUDGMENT 1 HIS HONOUR: Nature of claim On the afternoon of 9 November 2002 the plaintiff was swimming in the Murrumbidgee River at Kohlhagen Beach. She was about 3-5 metres from shore. She was struck by a speedboat driven by the defendant. The plaintiff suffered serious injuries to her right leg. 2 The plaintiff has brought proceedings against the defendant alleging negligence on his part in failing to keep a proper lookout and in failing to properly control the speedboat. She claims damages in respect of the injuries which she suffered in the collision. The claim is governed by the Civil Liability Act 2002 (CLA).