Smith by his tutor Coles v McFarland [2012] NSWSC 945

Supreme Court New South Wales

Medium Neutral Citation: Smith by his tutor Coles v McFarland [2012] NSWSC 945 Hearing dates: 25 November 2011 Decision date: 20 August 2012 Before: Simpson J Decision: Verdict for the defendant Catchwords: CIVIL LAW - negligence - personal injury - liability - motor vehicle collision with cyclist - no acceptable evidence of negligence Category: Principal judgment Parties: Oliver Thomas Smith by his tutor Cathryn Coles (Plaintiff) Graham McFarland (Defendant) Representation: Counsel K P Rewell SC (Plaintiff) R A O'Keefe (Defendant) Solicitors Stacks/Goudkamp (Plaintiff) Curwoods Lawyers (Defendant) File Number(s): 2010/356970

Judgment 1This is a claim for damages for personal injury arising out of a collision between a motor vehicle driven by the defendant (Graham McFarland) and a bicycle ridden by the plaintiff (Oliver Smith). The collision occurred at about 8.20am on 3 December 2008 (a Wednesday), on George Street, North Strathfield. The plaintiff was thrown from his bicycle, his helmet unfastened and flew from his head, and the plaintiff suffered injury, including brain injury. The extent of the injury does not call for present determination: by reason of the plaintiff's age at the time of the injury (14) it has been agreed that it is premature to attempt to assess the quantum of damages, if any, to which he will be entitled. Accordingly, it has been determined that there be a separate trial on the issue of liability; damages, if the plaintiff is successful in establishing liability, will follow. 2The plaintiff alleges that the collision was caused by the negligence of the defendant. The defendant denies any negligence, alleging that the plaintiff rode into his vehicle, or into the path of his vehicle. 3There are real difficulties in determining the precise circumstances of the collision. That is because of significant divergences in the evidence of the principal witnesses. There is little area of common ground. The plaintiff himself has no recollection of the events immediately before being thrown from his bicycle. 4What is common ground is the following. The plaintiff lived in George Street, North Strathfield, on the eastern side. That is the street on which the accident occurred. The relevant section of George Street is shown, in a series of four Google photographs that were in evidence by consent, to be a long and straight stretch of road, running north-south, intersected by a number of east-west running cross streets. Relevantly, these included, from north to south, Brussels Street, Lorraine Street, Warsaw Street (which formed a T-intersection with George Street from the west) and Pomeroy Street. Brussels Street is the closest to the plaintiff's home. The general location can be seen to be suburban/residential, with, on the west side, predominantly domestic bungalows, and, on the eastern side, apartment blocks. There appears to be only one set of traffic lights in the immediate vicinity, at Pomeroy Street. George Street is comprised of two lanes in each direction. Parking was permitted on the left hand lane in each direction, and these lanes were ordinarily fully occupied with parked cars, leaving only one lane in each direction for moving traffic. On weekday mornings, traffic on these lanes was usually heavy. 5The plaintiff attended Homebush Boys High School, which is south-west of the plaintiff's home and on the opposite side of George Street. In 2008, the plaintiff was in Year 8. In that year he had his 14th birthday. 6Since he began attending high school in Year 7 - that is, for about two years before the accident - it had been the plaintiff's practice to ride a mountain bike to school. His usual route took him south in George Street; it was necessary at some point to cross from the eastern side of George Street to the western side. 7The plaintiff's evidence was that his practice was to ride some part of the way from his home on the eastern footpath, before crossing to the western side of George Street. Most commonly, he made this crossing from a driveway on the eastern footpath just north of Warsaw Street (Warsaw Street, unlike the other cross streets, terminated at George Street, creating a T-intersection). 8From Warsaw Street, it was the plaintiff's practice to ride on the western footpath of George Street for one more block, to Pomeroy Street, where he turned right, and left the vicinity of George Street and rode to the school.