Mobbs v Kain [2009] NSWCA 301

New South Wales Court of Appeal

CITATION: Mobbs v Kain [2009] NSWCA 301

HEARING DATE(S): 29 July 2009

JUDGMENT DATE: 16 October 2009

JUDGMENT OF: Giles JA at 1; McColl JA at 23; Macfarlan JA at 119

1. Grant leave to appeal. 2. Notice of Appeal in the Red Book to stand as the Notice of Appeal. 3. Appeal allowed. DECISION: 4. Set aside order 5 made by Harrison J on 29 April 2008. 5. Set aside the verdicts, judgments and orders made by Harrison J on 29 April 2008 against the appellants. 6. Enter judgment in favour of the appellants. 7. Respondent to pay the costs of appeal and the appellants' costs of the hearing at first instance.

CATCHWORDS: TORTS – negligence – motor vehicle accident – collision between child pedestrian and motor vehicle in front of school bus – driver driving at statutory speed limit – whether driver negligent - TORTS – negligence – motor vehicle accident – causation – whether speed at which motor vehicle travelling necessary condition of occurrence of the harm – s 5D, Civil Liability Act 2002 (NSW) - TORTS – negligence – motor vehicle accident – contributory negligence – appellate review

Civil Liability Act 2002 (NSW) Civil Liability Amendment (personal Responsibility) Act 2002 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Amendment Act 2000 (NSW) Motor Accidents Act 1988 (NSW) Motor Accidents Compensation Act 1999 (NSW) Motor Traffic Regulations 1935 (NSW) Uniform Civil Procedure Rules 2005 (NSW)