ASSESSMENT TASK 1

(CASE NOTE) COVER SHEET

I. Case note details:

1. Course Code: LAW2447 (Commercial Law)

2. Name: Tran Vu Phuong Uyen

3. ID: s3748018

4. Group:

5. Lecturer’s name: Mr Son NT

Teresa M. Tobin, RESPONDENT, v. Zachary L. Worland, APPELLANT

Supreme Court of New South Wales

May 7, 2014, Decided by Hislop J

Facts of the case

The appellant was a 2 years old boy name Zachary Worland. He was hit while came
across the Adjin Street Wagga Wagga with his sister Courtney without any adult
accompanied by the Magna sedan, which was driven by Teresa Tobin on 1 December
1991. The appellant has brought these proceeding by his tutor to recover damage
for such injuries .

Legal Issue
(1) Whether the respondent was inattentive not falling to observe the appellant
sooner than she did?
(2) Whether if she had seen the appellant sooner, could the impact have been
avoided?

Holding
(1) Yes. Teresa have failed to see the appellant as he appeared from behind the rare
of the Holden.
(2) Yes. If Teresa had seen the appellant earlier, she would had enough time to stop
before impacting the appellant.

Analysis
Issue (1)
Teresa is under standard of care which a driver is always have to be reasonably
prudent, in some circumstances require greater watchful and attentive than usual. In
this case is the existence of young children on or near the road which circumstances
should put a driver on notice not only on the risk that the observed child may act
unpredictably like running out upon the road but also the probability of the presence
of unobserved children who may do the same, cited from Appeal Court case,
Lolomanaia v Rush. Teresa also confirmed that there was no difficulty in term of
view, no vehicle coming up, no one on her nearside. In addition, from a statement
that was made on 22 July 1992, she admitted that she instead of keep Courtney and
the area at the rear of the Holden under observation until she had passed the area of
possible conflict, she looked away, back to the road.

Issue (2)
Based on the research data, Stuart Smith conjectured that the height of the
appellant is 85 centimeters or more, which is clearly higher than the height of the
bonnet of the Magna from the ground (72 centimeters). The evidence which is given
by the respondent that the speed of her vehicle is between thirty to forty kilometers
per hour, however consulting traffic engineer Stuart Smith opined that the actual
speed of the Magna was only 20 kilometers per hour or a little more, along with the
conclusion from Mr Griffiths, a road safety researcher and Mr Jamieson, a consulting
forensic engineering, came to the final inference if she observed the appellant until
he was visible, she would have enough time to stop the car and avoid impact.

Conclusion
The judgement against Teresa is correct.