Public Defender: Layton Smith, 12, trapped on a legal treadmill after horror crash

THE Court of Appeal has been told a driver whose van hit a car, leaving a young boy with lifelong ­injuries, could have taken his foot off the accelerator, despite being in the throes of a heart attack.

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THE Court of Appeal has been told a driver whose van hit a car, leaving a young boy with lifelong ­injuries, could have taken his foot off the accelerator, despite being in the throes of a heart attack.

Lawyers for the boy, Layton Smith, want the court to set aside a 2014 verdict that the van driver was unconscious and therefore not negligent.

Without fault, his insurer, NRMA, did not have to compensate Layton. The law has since been changed, but it was not retrospective. Layton was nearly two years old when his family was involved in the crash in September 2004 on the Great Western Highway at Mt Druitt. The van driver, a 63-year- old carpet layer, was pronounced dead at the scene.

The wreckage of the car carrying the Smith family in the 2004 crash. Source: Facebook

Layton Smith in 2004, then aged 2, recovering in hospital from being hit in a car crash that is in 2016 the subject of a NSW Supreme Court appeal. Picture: Supplied

In the 2014 court case, Layton had sought $5 million in personal injury damages. Although it had successfully defended the action, NRMA last year offered the family more than $1.2 million.

This was rejected after Layton’s father, Troy, received legal advice that all legal avenues had to be pursued otherwise access to the National Disability Insurance Scheme could be jeopardised. The NDIS said this advice was incorrect.

Documents filed by Layton’s lawyers said “the primary judge erred in failing to consider if (the driver) was negligent after the commencement of onset of cardiac arrhythmia in not taking his foot off the accelerator, not braking and steering.’’

Nor should the judge have relied on testimony from a husband and wife who saw the accident because of the “inherent implausibilities in their evidence”, the documents said.

The couple were in a car next to the van at traffic lights moments before the crash. They said they saw the van driver slumped over to the left.

Layton’s lawyers argued the judge should have held this account to be “unreliable” because he also accepted evidence from the driver of a prime mover who was behind the Smiths who said the van driver “appeared to be sitting upright in the position expected of a person driving a vehicle” as it careened over the median strip toward the Smiths’ car.

When the appeal will be heard remains unclear. It won’t be this year, with the case mired in legal argument.

Layton Smith, 12, pictured with his father Troy at RAAF Memorial Park in Mt Druitt. For Public Defender.