Cody Lee Baker bht Marguerite May Morrison v The Nominal Defendant [2012] NSWDC 40

District Court New South Wales

Medium Neutral Citation: Cody Lee Baker bht Marguerite May Morrison v The Nominal Defendant [2012] NSWDC 40 Hearing dates: 12 - 16 March 2012 Decision date: 04 April 2012 Before: Judge M Sidis Decision: 1.Verdict for the defendant. 2.The plaintiff is to pay the defendant's costs of the proceedings. 3.The exhibits are returned. 4.My reasons are published. Catchwords: MOTOR VEHICLE ACCIDENT: Liability issue only - 11 year old riding on open tray of uninsured unregistered utility - whether owner aware or ought to have been aware of his presence - conflicting evidence of witnesses - contributory negligence Legislation Cited: Civil Liability Act 2002 Category: Principal judgment Parties: Cody Lee Baker bht Marguerite May Morrison (Plaintiff) The Nominal Defendant (Defendant) Representation: Mr M Windsor SC with Mr Davis (For the Plaintiff) Mr P Cummings (For the Defendant) Crown Solicitors (For the Plaintiff) Moray & Agnew (For the Defendant) File Number(s): 2009/00339403

Judgment 1The plaintiff was an 11 year old minor, for whom the Minister for Community Services held parental responsibility, when he was a passenger on the open rear tray of a Ford Courier utility on 8 July 2006. The utility was not registered or insured. Mr Darren Williams, the owner of the utility was driving. 2The plaintiff came off the tray as Mr Williams drove the utility west on Deakin Street, Kurri Kurri. He suffered significant injury. 3This judgment deals with the issue of liability only and whether Mr Williams was negligent in: 1failing to keep a look out for children riding on the tray of the utility; 2travelling at an excessive speed in the circumstances; 3disregarding the warnings of other children in the area concerning the presence of the plaintiff on the tray of the utility; 4failing to look out for the actions of children on the nature strip before driving off in the utility; 5permitting the plaintiff to form the habit of riding on the tray of the utility when he was aware or should have been aware that it created an unreasonable risk of injury; 6failing to check in his rear vision mirror in circumstances where, if not already aware, he should have been alerted to the presence of the plaintiff on the tray of the utility. 4The defendant denied any liability to the plaintiff and alleged in the alternative that there was contributory negligence on the part of the plaintiff in climbing onto the tray of the utility without the permission of Mr Williams and failing to make his presence known to Mr Williams.