Baker v Mackenzie
[2015] ACTSC 272
•8 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Baker v Mackenzie & Anor |
Citation: | [2015] ACTSC 272 |
Hearing Dates: | 20, 21, 22 April 2015 |
DecisionDate: | 8 September 2015 |
Before: | Mossop AsJ |
Decision: | See [67] |
Category: | Principal Judgment |
Catchwords: | PERSONAL INJURY – Motor vehicle accident involving pedestrian – consideration of standard of care where pedestrians are children – contributory negligence of pedestrian – consideration of diminution in work capacity caused by injuries – assessment of economic loss |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 45, 102 Civil Liability Act 2002 (NSW) Court Procedures Rules 2006 (ACT) |
Cases Cited: | Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Dungan v Chan (2013) 64 MVR 249 Marien v Gardiner (2013) 66 MVR 1 Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Stocks v Baldwin (1996) 24 MVR 416 Strong v Woolworths Ltd (2012) 246 CLR 182 Warth v Lafsky (2014) 66 MVR 445 |
Parties: | Sarah Michelle Baker (Plaintiff) Tammy Mackenzie (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel: Mr R McIlwaine SC and Mr D Shillington (Plaintiff) Mr D Wilson (First and Second Defendants) |
| Solicitors: Baker Deane & Nutt (Plaintiff) Moray & Agnew (First and Second Defendants) | |
File Number: | SC 73 of 2014 |
Introduction
Sarah Baker was injured in a motor vehicle accident which occurred on 17 August 2009. She was, on that date, almost 14 years old. She was crossing Tharwa Drive in Calwell on her way to school and walked into the side of a vehicle driven by the first defendant. While the plaintiff has made an excellent recovery she alleges ongoing disabilities as a consequence of the accident. As a result of agreements between the parties reached during the course of the hearing the contested issues in the case were limited to:
(a)whether or not the first defendant was negligent;
(b)the extent of the plaintiff’s contributory negligence; and
(c)the extent of economic loss arising from any diminution in the plaintiff’s capacity for work.
Overview of the facts
In 2009 the plaintiff was in year eight at Calwell High School. Her usual method of getting to school was to catch the bus with her brother to Builder Crescent in Calwell where two of her cousins lived. She would then walk from there to school. Calwell High School is located on the opposite side of Tharwa Drive to Builder Crescent. Therefore, it was necessary to cross Tharwa Drive in order to get to school. Relevantly for the purposes of the present case, there were two routes which could be adopted to cross Tharwa Drive. The first was to travel from Builder Crescent through an underpass which went under Tharwa Drive. From there it was possible to leave the paved path and follow a reasonably direct path through a primary school and then to Calwell High School. An alternative route, which was followed by the plaintiff, her brother and two cousins, involved crossing Tharwa Drive at a point a few tens of metres north-east of the underpass. At the edge of the road immediately above the underpass there was a concrete barrier preventing vehicles that might leave the road from falling down from the road to the underpass below. At the end of that concrete barrier was a further section of metal guardrail. The route adopted by the plaintiff, her brother and cousins crossed Tharwa Drive at the end of this metal guardrail. By adopting this route children travelling to Calwell High School would take the most direct route to the school and would avoid the necessity to go down to the underpass and then climb up from the underpass on the other side. While the plaintiff agreed with the proposition put to her in cross-examination that adopting this route would save only “a couple of seconds” when compared with the underpass route, it is likely to have saved more like a minute or two and avoided the necessity for a short descent to, and ascent from, the underpass.
While there was evidence that school children commonly crossed Tharwa Drive by crossing the road rather than using the underpass, it is also clear having regard to the worn dirt path up from the underpass that the underpass was also commonly used by those whose ultimate destination was either the primary school or Calwell High School.
The first defendant was taking her daughter to school on the morning of the accident. She was travelling north-east along Tharwa Drive. She observed the plaintiff, her brother and two cousins at the edge of the road prior to them commencing to cross the road. She braked so as to reduce her speed. She saw them cross Tharwa Drive to a painted median strip. As she drove past the group of children the plaintiff stepped out and struck the right front side of the vehicle. It is clear from the pattern of damage on the first defendant’s vehicle that the plaintiff walked into the side of the vehicle rather than walking in front of, and being hit by, the vehicle.
The first defendant stopped quickly, as did following vehicles. Police and ambulance were called. The plaintiff was recorded as having a Glasgow Coma Scale reading of 9 at the scene of the accident. This had reduced to 8 upon arrival at the Accident and Emergency Department of the Canberra Hospital. Post-traumatic amnesia testing revealed a period of post-traumatic amnesia of three days. She was discharged from hospital on 24 August 2009.
In her statement of claim dated 18 February 2014 the plaintiff alleges the following particulars of negligence:
(a) Failure to keep a proper lookout;
(b)Failure to brake, steer or otherwise control her motor vehicle so as to avoid striking the Plaintiff;
(c) Failure to warn the Plaintiff of her approach;
(d) Driving recklessly in all the circumstances;
(e) Driving at an excessive speed in the circumstances.
In final submissions senior counsel for the plaintiff submitted that the first defendant had been negligent in failing to do all three of slowing down, flashing her lights and sounding her horn upon approach to the group of children.
Evidence in relation to the accident
The plaintiff had no recollection of the accident. The oral evidence given in relation to the accident was that of the first defendant, her daughter Rhiannon Mackenzie and Andrea Albiez, the driver of a vehicle following the first defendant’s vehicle. The documentary material relied upon included, relevantly:
(a)an Australian Federal Police summary of a taped record of conversation with Lietta Seumanutafa (the plaintiff’s cousin) and a summary of contact with Matthew Lang (the plaintiff’s cousin) (parts of exhibit 9);
(b)a statement signed by Ms Albiez dated 17 August 2009 (part of exhibit 9);
(c)answers to interrogatories affirmed by the first defendant on 7 August 2014 (exhibit 12);
(d)a transcript of a digitally recorded interview between an investigator and the first defendant which occurred on 13 January 2010 (exhibit 1).
Also in evidence was a collection of 24 photographs of the location of the accident and the surrounding area (exhibit 10).
Ms Albiez said that she had left home and been driving for approximately three minutes before the accident. She said that she was travelling behind a four-wheel-drive which the evidence established was that of the first defendant. After she passed through the roundabout at the intersection of Drakeford Drive and Tharwa Drive she was travelling at about the speed limit. The road sloped downhill towards the intersection with Lawrence Wackett Crescent. While she initially was about 100 metres behind the first defendant’s vehicle, she noticed that the first defendant braked on more than one occasion as she travelled down the slope towards the accident site. The gap between the cars narrowed to between 30 to 50 metres. Ms Albiez was also braking as she went down the hill. She noticed pedestrians on the right-hand side of the road very close to the road. She described that the children “rushed onto the road and stopped in the median strip”. She described their movement as a “slow jog”. She thought there were five children although she now understands that there were in fact four. She said that one of the girls did not stop at the median strip but instead ran into the side of the car in front of her. She said that prior to the accident the children were looking up. One of the children, a boy, was looking to where she was driving. Her statement that one of the girls did not stop was later clarified when she said the children were on the median strip for a second or two before the girl moved off.
In cross-examination she agreed that she was aware that school students regularly crossed the road at the point that this accident happened. She agreed that she became concerned when she saw the children run towards the road because she thought it was dangerous. Neither her vehicle nor the vehicle in front had reached Lawrence Wackett Crescent when she first saw the children. The whole affair took a matter of seconds.
The first defendant gave evidence that she was driving her daughter to school. Her daughter, Rhiannon, was sitting in the passenger seat. Her son was in one of the rear seats. She said that there was a decline in the road leading to the intersection with Lawrence Wackett Crescent. She approached the top of the hill and then descended to the intersection. She was doing the speed limit which was 80 km/h. As she started going down the hill she put her foot on the brake to ensure that she did not go over the speed limit. As she approached the intersection with Lawrence Wackett Crescent she saw the plaintiff and three other people. She first saw them in the area between Tharwa Drive and Builder Crescent. She said that as a result of seeing the children she put her foot on the brake even more and said that she was doing roughly 70 to 75 km/h. She observed them running to the middle of the road where there was a “painted island”. She said they stopped but, as she proceeded past, the plaintiff kept going and stepped into her car. She estimated that at the point the plaintiff walked into the side of her car she was doing roughly between 60 and 65 km/h. She said that the pedestrians were stationary on the painted median strip for “a few seconds” before the plaintiff moved off the median strip. She said she pulled her car over immediately.
In cross-examination she agreed that she had seen many children run across the road there. She was cross-examined to suggest that in her interview with the second defendant’s investigator she had accurately estimated her speed at the point of the accident as between 70 and 75 km/h. She said that that figure was correct at the time when she saw the children but she said that because she had her foot on the brake she was doing a speed lower than 70 or 75 km/h when the collision occurred. She agreed with the proposition that she “could see unfolding in front of [her] a potentially dangerous situation”. She said that was why she slowed down. Later in her cross-examination the following appears:
So the short point is that you're clearly now aware of a potentially dangerous situation unfolding with these young children?---Yes, that's correct.
Or these children, anyway. Who you knew, because you'd seen it happen regularly in the past, were likely to run across the whole road. You'd seen that happen many times?---Yes.
It was common. That's what the kids did?---And I always said, "I wish they'd use the underpass."
Absolutely. But you knew at the time that that's a real risk of what was likely to happen?---That's why I slowed down. I wasn't speeding.
You knew it was a real risk of what was likely to happen, didn't you?---Yes.
But I want to suggest to you that you simply stayed at the speed that you were travelling at, 70 to 75, because, despite you being aware of this real risk, you simply weren't sure whether they were going to stop or not?---So I didn't stay at that speed. I wasn't sure they weren't going to stop, I slowed down further.
In relation to slowing down, sounding her horn or flashing her lights the following appears in the transcript:
But if when you first saw them you’ve slowed right down to something like 40 and if they continued to run, you would have been able to stop before having an accident, wouldn’t you?---Probably.
And as well, you didn’t sound your horn in order to warn them that you were there, approaching?---No, I didn’t. I didn’t feel it necessary because the kids would have seen me and I didn’t want to startle them.
…
You didn’t flash your lights either, did you, to warn - - -?---I didn’t feel it necessary.
And you didn’t try to take any evasive action by steering further over?---If I had have veered to the left, I would have hit - injured myself and my children in the car by hitting a tree or causing an accident if I’d have braked and the cars behind me would have rear-ended me.
In re-examination she explained why she did not sound the horn, saying:
I didn’t deem it necessary be the kids were on the side of the road or in the middle and if I had of sounded the horn I would have startled them and any number of things could have happened.
The evidence as to where she observed the children looking was as follows. In examination in chief she said:
Do you recall whether you noticed the direction in which the pedestrians were looking?---In my direction of the road.
So their left?---Yes.
To their left?---Yes.
In cross-examination the following exchanges occurred:
If you go to the bottom of the page, “Do you recall at any time the girl Sarah looking in your direction?” and you said, “No”. That’s correct, isn’t it?---Well, they were running towards the road, they were looking in my direction.
Sorry?---They were running towards the road and so I mean - - -
But they were running across the road - - -
MR WILSON: Just let her finish?---Sorry?
MR McILWAINE: They were running across the road?---Yes.
Yes?---So they were looking in - I was coming down and they were looking in my direction as I was coming down the hill.
So did you see them actually looking at you because they’d be looking across the road, wouldn’t they?---Yes.
Yes so they wouldn’t be looking at you?---Not necessarily at me but they were looking in the direction I was heading towards.
I’m sorry, I understand what you’re saying. They were looking from - - -?---Across the road and I was coming down the road - - -
Yes, so they weren’t looking - - -?--- - - -so they were looking and they would have seen out of the corner of their eye that I was coming.
Well, you don’t know that, do you, because you were some distance back. All you know is they were looking straight ahead?---From the side of the road - - -
Sorry?--- - - - we’re talking about from the side of the road.
Well, what you saw them doing was running from the side of the road at an angle across the road to the median strip?---Yes.
So they would be looking towards the school, wouldn’t they?---Yes.
Yes not back up Tharwa Drive where you were. That’s common sense, isn’t it?---I suppose.
In re-examination the issue was revisited:
When you saw the pedestrians crossing the road, at any stage did you see them looking in your direction?---Not necessarily my direction, no.
...
MR WILSON: Thank you, your Honour.
Mrs McKenzie, you told me that at some point these pedestrians looked in your direction and you told Mr McIlwaine that as they were running across the road they were looking in the direction in which they were travelling?---Yes.
All I'm really asking you is at what point do you say they looked in your direction?
MR McILWAINE: If you know?---From the side of the road when they were on the side of the road, they were looking across the road, so.
...
MR WILSON: When they were in the middle of the road, which direction were they looking?---Across the road.
Thus the end result of the evidence was (notwithstanding considerable efforts of counsel for the defendants) that the first defendant observed the children looking in her direction when they were on the Builder Crescent side of Tharwa Drive but observed them looking straight ahead when they were at the painted median strip in the middle of the road.
The first defendant was cross-examined by reference to a transcript of an interview with an investigator retained by the second defendant. In that transcript the following appears:
Q.23 What happened, just prior to, during and after the accident occurred?
A. Okay. As I was coming down the hill approaching Lawrence Wackett I seen four kids on the side of the road - well, running towards the side of the road. So I slowed down, being kids always running across there all the time. I slowed down to about 70 - between 70 and 75 kilometres an hour. Proceeded at that speed. And the kids kept running from the side of the road into the middle.
Three stopped and one kept going. And I was unable to do anything at that stage. It was - I - I couldn’t do anything. I just stopped. Pulled - pulled the car over. Got out of the car. Ran over to see if she was okay.
…
Q.40 Okay. Now, how far would you estimate that you were away from the four children when you first saw them?
A. Maybe a hundred metres. Cause I spotted - I seen them running before - just before I got to Lawrence Wackett.
…
Q.42 How far away, when they actually ran into the centre of the roadway, how far away was your vehicle from their position?
A. I’d probably say five metres, 10 metres. Cause I wasn’t able to stop when I seen the four kids run into the middle. Three of them stopped and the fourth one kept going. I wasn’t able to stop. I didn’t have a chance to do anything.
…
Q.44 Okay. So - and just to clarify this, were you able to apply the brakes at all?
A. I applied the brakes. Yes, I slowed down as I seen them running from the side of the road into the middle.
Q.45 Yep.
A. And at - at the time of the accident I would have only been doing about 70 to 75 ks.
…
Q.75 Did you have clear vision in front of you on approaching that - that area of roadway?
A. Yes.
Q.76 Do you recall at any time the girl Sarah looking in your direction?
A. No.
…
Q.81 Are you able to say whether at any time Sarah stopped in that centre portion?
A. No.
Q.82 And that’s - you’re unable to say?
A. I - I know she didn’t stop.
Q.83 Now, just in regard to a description of the way that Sarah was running, how would you describe the - the actual run itself? And what I mean by that is there’s levels, obviously, of speed involved in - in running.
A. Mmm-hmm.
Q.84 Okay. From a walk to a jog. What - how would you describe?
A. Oh, well, she wasn’t running, running. Oh, maybe a jog.
...
Q.137 … Did you at any time expect or perceive that Sarah was going to run into the path of your vehicle prior to the actual --
A. No, cause I - as I seen the kids running into the middle of the road, like I said, I slowed down to between 70 and 75 ks, and thought they would have stopped. I proceeded on. I didn’t speed up or anything. I proceeded at that speed. And Sarah was the only one that didn’t stop.
The answers to interrogatories which were affirmed on 7 August 2014 estimated the first defendant’s speed as follows:
A. From 200 metres from the point of collision, the defendant’s vehicle travelled at between 70 kms/ph – 60 kms/ph. At the point of collision, the defendant was travelling at between 60 and 65 kms/ph.
Rhiannon Mackenzie was almost 14 years old at the time of the accident. She was sitting in the passenger seat of her mother’s car. She remembered seeing children jogging across the road to the median strip. She noticed her mother’s car decreasing speed. She said: “They paused on the median strip, and then … Sarah then continued to step out onto the road and collided with the side of our car.” She said that the children were looking up the road in the direction of her mother’s car. She estimated the speed of her mother’s vehicle at the point of impact as 50 km/h. In cross-examination she said that she had seen the plaintiff looking left, up the road towards her car, but that when she first saw the children she could not recall seeing any of them looking at her vehicle. In re-examination she said she had felt a decrease in the car’s speed when travelling down the hill and then again when she saw the children.
The police summary of the circumstances of the accident (exhibit 9) was as follows:
The girl, Sarah Michelle Baker was crossing the road from south to north on her way to the nearby Calwell High School. It appears she was talking with a group of friends and seems to have not stopped in the median with the others. Without looking at approaching traffic she continued into the east bound lane and was struck by a Ford Territory driven by Tammy Belinda Mackenzie, 37yrs.
The summary of the conversation with Lietta Seumanutafa (exhibit 9) included the following:
As the group were walking they were talking and laughing amongst one another.
Sarah BAKER was a short distance in front of the others and she reached the edge of Tharwa Drive about 8:50am.
At that time, Sarah BAKER walked across the west bound lane to the median strip in the middle of the road.
At that location she became distracted and turned around toward the group that was a short distance behind and laughed at something one of them had said.
As she turned back around and stepped from the median strip onto the road a silver coloured car that was travelling east on Tharwa Drive struck her, clipping the back of her legs.
A case note of contact with Matthew Lang (exhibit 9) provided:
-The weather was clear and traffic was medium to heavy in both directions on Tharwa Drive.
-After waiting about 30 seconds for traffic approaching from the right to clear the group crossed to the median where they stopped to wait for traffic approaching from the left.
- They were in a line along the median in the [following] order from right to left:
-Jason, Matthew, [Lietta], Sarah.
-Matthew could clearly see vehicles approaching from the left from where he was standing.
-He was looking both ways because he always check for car from both directions.
-He saw Sarah was standing half on the median, half on the road.
-He saw Sarah looking away from him and then look toward him and toward traffic approaching from the left.
-He saw Sarah move the corner of his vision before she was struck by the vehicle.
-He did not see her step off.
The photographs in exhibit 10 show the intersection between Tharwa Drive and Lawrence Wackett Crescent just before the underpass. Travelling in the north-easterly direction there is a right-hand turning lane for those vehicles turning into Lawrence Wackett Crescent. At the end of that right-hand turning lane is a painted median strip designed to accommodate the reduction in the width of the road from three lanes (including the right-hand turning lane) down to two lanes in the section after the intersection. Where the underpass passes under the road there is a paved shoulder with concrete barriers at the edge. At the northern and southern ends of the concrete barriers on either side of the road are metal guardrails. Travelling in the north-easterly direction, while there is a shoulder adjacent to the concrete barrier, at the end of the concrete barrier that shoulder quickly tapers out and beyond the end of the metal guardrail there is simply a single lane in the northerly direction without a shoulder and bounded on the left-hand side by an angled curb adjoining the grassy verge. At the point where the accident occurred the shoulder has ended and the painted median strip has reduced to a width that appears to be a little more than one metre.
Findings
I accept the evidence of Ms Albiez. She was a disinterested third party and impressed me as a careful and reliable witness. While I generally accept the evidence of the first defendant I have taken into account in assessing her evidence that the trauma and upset associated with this incident is likely to have affected her evidence. There was some inconsistency between the statements made in January 2010 to the investigator about her speed and her answers to interrogatories in 2014 and the oral evidence that she gave. I consider that it is likely that she was reconstructing what was likely to have occurred by reasoning backwards from the proposition that she had maintained the use of her brake when approaching the accident scene and hence must have been travelling at a reduced speed. However it is not possible to say that her reconstruction of her speed in 2014 when she answered interrogatories or in oral evidence was likely to be more reliable than her statements to the investigator in 2010.
In relation to Rhiannon Mackenzie’s evidence, given her age at the time of the events, the fact that she was not the driver of the vehicle at the time and the inconsistencies between the evidence of her and her mother about the speed at which the vehicle was travelling and where the children were looking as they crossed the road, I did not consider that her evidence was reliable. In particular I do not accept her evidence that she saw the plaintiff, of all the children, look left up the road towards her mother’s vehicle as she was crossing the road. In addition to the inconsistencies with her mother’s evidence I think it is unlikely that the plaintiff would have been observed looking left up the road towards the oncoming vehicle in the light of the subsequent conduct, namely walking into the side of it as it passed her.
The first defendant was driving in a north-easterly direction along Tharwa Drive. She was travelling at about the speed limit of 80 km/h. As she was descending towards Lawrence Wackett Crescent she used her brake several times in order to ensure that she did not exceed the speed limit by reason of the descent. Prior to reaching the intersection she saw the group of four children between Builder Crescent and Tharwa Drive. She was familiar with school children crossing Tharwa Drive in this area notwithstanding the availability of the underpass. She recognised that the children’s actions in crossing the road there created a hazardous situation. Because of that she slowed down further.
The children, having waited for a gap in the traffic, moved across the south-west bound lane to the painted median strip in the middle of the road. They were travelling at a slow jog. At the point where they crossed the road, the road itself narrows and the painted median strip reduces in width before narrowing to a single centre line. The children were talking among themselves as they crossed the road. They all reached the median strip and when on the median strip were standing facing in their direction of travel across the road. They stopped there for a second or two. The plaintiff was slightly ahead of the others. The plaintiff was the furthest from the oncoming traffic. The plaintiff, after turning toward the other members of the group and laughing at something that had been said, failed to pay attention to the oncoming traffic and stepped into the first defendant’s vehicle as it passed her. She came into contact with the front right-hand side of the vehicle. That impact created the dents in the vehicle shown in photograph 19 in exhibit 10. At the point of collision the first defendant was travelling at a speed between 65 and 75 km/h. Having regard to the evidence it is not possible to be more precise than this statement which accepts that the first defendant was not driving at the speed limit but does not accept that she had slowed to the bottom end of the range that she estimated in 2014 and gave evidence of in 2015.
Negligence
Authorities
The principles concerning the duty of care a driver owes to other road users are usefully summarised in the judgment of Meagher JA in Marien v Gardiner (2013) 66 MVR 1 at [33]-[37]. While that was a New South Wales case and hence picked up references to the Civil Liability Act 2002 (NSW), the provisions of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) are to the same effect and hence the summary is a convenient one that may be applied in the ACT. Meagher JA said:
[33]The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook (1986) 162 CLR 376; s 5B. [CLW Act s 43]
[34]The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy (2007) 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1). [CLW Act s 43(1)]
[35]Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung (2001) 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander (2005) 223 ALR 228 at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path".
[36]The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37]Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.
A driver must take into account the possibility of careless behaviour by pedestrians and the fact that drivers are in charge of frequently lethal machines: Stocks v Baldwin (1996) 24 MVR 416 at 418; Dungan v Chan (2013) 64 MVR 249 at [16]-[17]. A greater standard of care is required of motorists when children are in the vicinity of a road or reasonably expected to be in the vicinity: Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 at 372-374 (‘Mitchell’); Gunning v Fellows (1997) 25 MVR 97 at 98; Mobbs v Kain (2009) 54 MVR 179 at [87]; Warth v Lafsky (2014) 66 MVR 445 at [56]. As to how that applies to children of 14 years of age Kirby P in Mitchell said (at 375):
The appellant and his companion were 14 years of age at the time of the accident. Whilst this takes them out of the 5-year-old or 8-year-old class, it leaves them squarely within the category of “young persons” from whom irresponsible, foolish and careless conduct can be expected.
Application of authorities
In the present case the first defendant was subject to a duty of care which required her to take into account the presence of, and potentially inattentive or unpredictable behaviour of, high school-aged children attempting to cross the road. That higher duty arose because the first defendant was aware that the road was close to more than one school and that students regularly crossed in that location. The first defendant was in fact aware that the conduct of children in crossing the road at that point created a potentially dangerous situation to which she was required to respond.
The reason the accident occurred was that, contrary to the first defendant’s expectations based on what she had observed, the plaintiff was paying so little attention to the oncoming traffic that she stepped out and hit the side of the first defendant’s vehicle. While it was clear that the children intended to cross the balance of Tharwa Drive, there was no observable indication prior to the accident that they were unaware of the oncoming traffic. The risk that the first defendant was faced with was that of unpredictable and unexpected behaviour by high school-aged children who had run across the other side of the road but had then stopped at the median strip.
Had the children not stopped at the median strip then it would be clear that the obligation on the first defendant was to do more than she in fact did. That is because, so far as she could observe, the children were not paying attention to the hazard created by oncoming traffic. She would have been obliged to take measures such as slowing right down or taking evasive action so as to avoid any injury.
Had the children been younger then in my view the first defendant would have been required to take measures beyond those she took. That is because younger children are more likely to behave unpredictably and irresponsibly even in circumstances where they were apparently aware of oncoming traffic. On the other hand, had the pedestrians been adults, having observed them to have paused their journey at the median strip, it would be reasonable to proceed on the basis that they were aware of the oncoming traffic. The circumstance of the plaintiff is therefore one which is significantly dependent upon the extent to which a driver is required to accommodate unpredictable behaviour from young people who are behaving outwardly as though they are aware of the potential danger posed by oncoming traffic.
In my opinion it is significant that the point at which the accident occurred was one where the road was narrowing. Not only did the shoulder on the left-hand side of the road disappear, to be replaced with an angled curb, but also the median strip on which the children came to stand was narrowing. The disappearance of the shoulder on the left-hand side and its replacement with an angled curb immediately adjacent to the carriageway meant that there was less room for the first defendant to manoeuvre so as to give the children a wide berth. These features of the road appear from the photographs in exhibit 10, particularly photographs 3, 4, 5, 6, 20, 21, 22 and 24. Because of the narrowing of the road she was compelled to drive quite close to a group of children on a relatively narrow painted median strip. The absence of room to manoeuvre on the left and the narrowness of the median strip meant that the situation was one which inevitably forced the first defendant into close proximity to the children. Had those features not been present then in my view it would have been reasonable for the first defendant to continue as she did but perhaps give the group of children a wider berth by moving left on the carriageway or possibly even onto any available shoulder. That would have avoided the risks posed by the group of children doing something stupid such as pushing one another or something careless such as that which the plaintiff did. However because of the features of the road which inevitably forced the first defendant into proximity of the children, in my view, she was obliged to do more than simply continue at the speed that she did.
The plaintiff’s submissions put the proposition that the first defendant should have slowed down, flashed her lights and sounded her horn. The harm that resulted from the accident was not the harm that a driver would be guarding against as she approached the children crossing the road. The risk that she would be guarding against was that the children end up on the road in front of the car and that she crashed into them. The harm that actually occurred resulted from the plaintiff stepping into the side of the first defendant’s vehicle. Because of that I consider it appropriate to consider the question of negligence at the same time as considering the question of causation.
In order to establish that a breach of duty on the first defendant’s part caused her injuries, the plaintiff had to establish that the first defendant’s negligence was a necessary condition of the occurrence of that harm: CLW Act s 45. That determination "is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities": Wallace v Kam (2013) 250 CLR 375 at [14] (‘Wallace’). It "involves nothing more or less than the application of a 'but for' test of causation": Wallace at [16]; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [45], [55]; Strong v Woolworths Ltd (2012) 246 CLR 182 at [18] (‘Strong’).
“Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred”: Strong at [32]. Causation is "approached by applying common sense to the facts of the particular case": Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 at [43]. If factual causation is established, the plaintiff must also establish that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused: CLW Act s 45. The defendants made a submission that liability should not extend to the harm caused in the circumstances of this case. On the hypothesis that liability was otherwise established it is clearly not a case where the potential qualification on liability arising from s 45(1)(b) can be invoked. The qualification in s 45(1)(b) arises out of recommendation 29 of the Ipp Report (Review of the Law of Negligence Final Report, September 2002). That recommendation was designed to address (at [7.47]):
... a perception amongst various groups that courts are too willing to impose liability for consequences that are only ‘remotely’ connected with the defendant’s conduct. In other words, there is a feeling that the net of responsibility for the consequences of negligence is being cast too widely.
It provides a legislative indication to courts that there is a normative issue to be considered when determining whether factually causative negligence should lead to liability for particular harm. In my view there can be no doubt that in a case such as the present it is appropriate for the scope of the first defendant’s liability to extend to the harm caused to the plaintiff. There was a direct and immediate connection between the driving of the first defendant’s vehicle and the injury suffered by the plaintiff. This appears to me not to be a case where any significant normative issue arises as to whether liability should extend to the harm suffered by the plaintiff.
In relation to the speed of the first defendant’s vehicle, the plaintiff submitted simply that 65 km/h was too fast. Some of the cross-examination was based on the proposition that the first defendant should have slowed down to 40 km/h. I am not satisfied that it is reasonable to require a driver on a road such as this to slow down so dramatically to accommodate the risk that teenage children might behave unpredictably. Indeed, in circumstances where the children appear to be aware of the obvious hazard, slowing down might increase the risk by encouraging them to “make a run for it” which they would not do if the vehicle maintained its speed. As to speeds greater than this but less than the speed at which the first defendant was travelling, in my view, even if the first defendant was held to be travelling at a speed which was greater than reasonable in all the circumstances, that would not lead to the first defendant being liable to the plaintiff because the plaintiff has not established the causal link between any breach of duty and the harm that she suffered. Consistently with a consideration of the probable course of events had the omission not occurred, it is necessary to consider what would have happened if the first defendant had driven more slowly. In those circumstances the plaintiff, failing to pay attention as to whether or not there was a vehicle approaching, would have stepped out into the path of the first defendant’s vehicle. That might have led to the plaintiff stepping in front of the first defendant’s vehicle and being run down by the vehicle, leading to injuries at least as severe as those which she actually suffered. Alternatively, depending upon how slowly the first defendant’s vehicle was travelling, it may be that the first defendant, both because of her lower speed and having not proceeded so far down the road, would have been able to stop prior to any collision with the plaintiff. However there was no expert or other evidence that would permit an assessment of what would have been the situation had any particular speed been adopted at any particular distance after the children were first seen by the first defendant. Therefore it is not possible to say on the balance of probabilities that the injuries suffered by the plaintiff would have been avoided had a different speed been adopted. Only if an extreme duty was imposed on the first defendant would such a conclusion be possible, namely, if the first defendant was obliged to slow down and potentially stop so as to permit the children to cross the road. As indicated above I do not consider that a person in the position of the first defendant on Tharwa Drive was required to adopt such an approach in order to accommodate the potentially careless or unpredictable behaviour of high school children such as the plaintiff.
In relation to the sounding of the horn on the first defendant’s vehicle I consider that in the circumstances some additional form of warning to the children was necessary in order for the first defendant to discharge her duty. That is because the circumstances were such that the children would inevitably come into close proximity to the vehicle at a point where it had limited capacity to avoid them. Some measure to alert the children to the presence of the vehicle was in my view reasonable. That was not because they were obviously unaware of the presence of the vehicle but rather, given the fact that they were children, to give them a “wake up call” and to ensure they were paying proper attention to the risk posed by the oncoming vehicle. Sounding of the horn briefly would have achieved that goal. Although the first defendant said that she did not take that course because she was afraid that the children might be startled, the risk of startling would be low if the children were paying attention and likely to be beneficial if they were not. It must be remembered that although often deployed as an instrument of aggression, the car horn is a tool to alert others of danger and could have been used in a manner consistent with its purpose.
I am satisfied that had the first defendant sounded her horn either as the children were crossing the road toward the median strip or at the point where they were on the median strip then the plaintiff would have been alerted to the presence of the first defendant’s vehicle and it is more likely than not that she would not have distractedly stepped into its path.
Headlights were an alternative means of drawing attention to the oncoming vehicle. However it was daylight and the weather was fine, reducing the significance of a flashing of the headlights. Unless the children happened in any event to be looking in the right direction it is unlikely that flashing of the headlights would have been effective and I am not persuaded that it was not reasonable of the first defendant to fail to flash them. Expressed with fewer negatives, I am satisfied that the first defendant acted reasonably when she failed to flash them. In any event, I am not satisfied that any flashing of the first defendant’s headlights would have avoided the accident and hence I am not satisfied that the failure to do so was a cause of the harm suffered by the plaintiff. It is certainly possible that the flashing of headlights as the children crossed the road may have caught the attention of the plaintiff so that when she reached the middle of the road she was clearly aware of the first defendant’s vehicle’s presence. However I am not satisfied that it is more likely than not that the plaintiff would have been so alerted.
In summary I am satisfied that the failure of the first defendant to sound her horn involved a breach of her duty that caused the plaintiff’s injuries.
Contributory negligence
By their amended defence the defendants plead contributory negligence. The particulars of contributory negligence alleged are:
(a)Failing to take any or any reasonable care for her safety.
(b)Failing to keep any or any proper lookout.
(c)Failing to observe the approach of the first defendant’s vehicle.
(d)Entering the road in circumstances where the plaintiff knew, or ought to have known, that it was dangerous to do so.
(e)Walking, jogging or running into, or otherwise colliding with, the defendant’s vehicle.
(f)Failing to use the underpass to cross the road.
Section 102 of the CLW Act requires, in the case of contributory negligence, that the damages for the wrong be reduced to the extent that the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage. The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for damage involves a comparison of both:
(a)culpability, that is, the degree of departure from the standard of care of the reasonable person; and
(b)the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494 (‘Podrebersek’).
The finding on a question of apportionment is a finding upon a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds: Podrebersek at 493-494.
In the present case the degree of departure from a standard of reasonable care was very significantly greater on the part of the plaintiff than on the part of the first defendant. She failed to pay any attention to the presence of oncoming vehicles in circumstances where it must have been obvious that there was at least a significant risk that they were present. She did so in circumstances where there was a reasonably available alternative to exposing herself to any risk by the use of the underpass. On the other hand the first defendant only departed from a standard of reasonable care because she failed to take an additional step to accommodate the risk that inattentive youth may do something stupid or careless in the face of an obvious hazard.
Examining the relative importance of the acts of the parties in causing the damage leads to a similar conclusion. The actual act which caused the damage was the plaintiff stepping into the side of the first defendant’s vehicle. The first defendant’s vehicle was the object which the plaintiff struck rather than being the object which struck the plaintiff.
In my view, in those circumstances, I consider that it is just and equitable to reduce the damages recoverable for the wrong by 80%.
General damages
The defendants submitted that an award of $200,000 for general damages was appropriate and this submission was adopted by the plaintiff. As at the date of the hearing the parties submitted that an appropriate award of interest was $9,000 which appears to have been based on an award of $80,000 for the past. In my view it is appropriate that $100,000 be attributed to the past and that fact and the delay in getting judgment leads to an award for interest of $12,000.
Past economic loss
While this was not subject to a formal agreement both parties submitted that the appropriate figure was $9,000. The plaintiff’s final submissions did not identify that a claim for interest was pressed and hence I award no interest.
Future economic loss
The plaintiff submitted that the award for loss of earning capacity should reflect the likelihood that had the accident not occurred the plaintiff would have either completed year 12 and obtained marks consistent with those needed for entry into a nursing degree at university or alternatively been able to enter nursing by an alternative pathway without having completed year 12. Further she pointed to the evidence of Rose Young, a child-care centre director who had previously employed the plaintiff, who gave evidence that while the plaintiff could perform the tasks of a childcare worker she could not properly carry out the functions of a “room leader”. The plaintiff submitted that this was because of her executive functioning impairments. The plaintiff relied upon the report of Peter Defina, a clinical psychologist who had performed a vocational assessment, and submitted that an award of damages for lost earning capacity should be based on an earning capacity but for the accident commensurate with average female weekly earnings in the Australian Capital Territory which, although there was no evidence, were said to be $1,200 per week net. This was said to give rise to a differential of $493 per week.
The defendants submitted that the plaintiff was in the type of employment that she would have been irrespective of the accident. That appeared to be based on the evidence of her school performance prior to the accident, her desire to be in a caring profession and the fact that each of her three siblings left school without completing year 12 and at one time or another two of her siblings had been working in childcare and her sister, Hayley, continued to do so. They submitted that it was appropriate to award the plaintiff an amount of $100 net per week for all of the remaining years until age 67 even though the plaintiff would be off work for at least a period from time to time by reason of having one child and possibly more. They submitted that a reduction of 20% for adverse vicissitudes would take into account time off work by reason of maternity leave and other reasons. The defendants pointed to the fact that the plaintiff’s mother had been out of paid employment whilst caring for her children for 18 years.
In my view the evidence does establish that the plaintiff has ongoing executive functioning impairments. The issue is the extent to which these impairments involve an impairment of her earning capacity and the extent to which this will manifest itself over the balance of her potential working life.
While I accept that care must be taken in judging what would have occurred but for the accident by reference to the career paths of the plaintiff’s siblings, in the present case I think that it is likely that even without the accident the plaintiff would not have completed year 12. She had learning difficulties in relation to literacy and numeracy and obtained average school grades both before and after the accident. There was no evidence that established any motivation or interest in the academic content of school. Her twin brother also left school prior to the completion of year 12.
While there was some evidence about an interest in nursing, this was not one which was particularly well-developed at the age of almost 14 years when the accident occurred. In the absence of objective matters which make a particular career choice more likely, it is obviously a hazardous exercise to base predictions of future career paths upon the statements of persons in their early teens. In my view, in the light of the evidence of Rose Young, it can be said that in her chosen field she has been impeded by her brain injury from making, over time, some progression so as to achieve higher remuneration. It is certainly possible that notwithstanding her cognitive impairments she will be able over time to take on the responsibilities of a room leader but the current position appears to be that she is not suitable for that. There was some evidence pointing to a lack of motivation and other evidence pointing to cognitive impairment as being the cause of this difficulty. It is not possible to say that she could not reach the higher level of responsibility although as the evidence currently stands that appears to be unlikely.
I do not accept the plaintiff’s submission that future loss of income should be calculated on the basis that she would have otherwise achieved the equivalent of average female weekly earnings in the Australian Capital Territory. That appears to me to be not consistent with her pre-accident school performance. Similarly, I do not accept the somewhat pessimistic opinion of Mr Defina that if the plaintiff could not maintain her current employment that the most likely outcome would be for a series of short to medium term jobs with increasing periods of unemployment. The evidence was more consistent with a reasonable capacity to perform work at a particular level but without the capacity that might otherwise have existed to advance above that level.
The obvious factor affecting the extent of future economic loss is the fact that the plaintiff is likely to have significant periods out of the workforce as a result of having her first child which is due in November 2015. There is also the possibility that she will have more than one child. Her mother has four children and spent 18 years out of the paid workforce.
She is now 20 years of age and therefore the period until she reaches 67 years of age is 47 years. This gives a multiplier of 1325.3. In my view an award of damages must take into account:
(a)the loss of the opportunity to rise higher within the childcare sector pay scales while recognising that there remains a chance that she will manage to do so;
(b)the likelihood that she will have substantial periods out of the workforce although it is very difficult to say how long that will be in total because that is dependent upon how many children she has and the financial and personal circumstances of the plaintiff and her partner;
(c)the chance that but for the brain injury she would have been able to obtain higher level qualifications so as to permit her to become a nurse or other better paid employee.
The evidence discloses that the difference in pay rates for a childcare worker as opposed to a room leader is around $180 net per week (the evidence of Rose Young at T86 indicating a range of $140-$216 per week). This appears to me to provide a reasonable basis for an assessment of her loss of earning capacity. It takes into account both the prospect of the plaintiff doing better than anticipated as well as the possibility that she would not have done better in any event. I then discount that by 20% to take account of the usual vicissitudes and to take account of time taken out of the paid workforce to raise children. That gives a figure of $190,843 ($180 x 1325.3 x 0.8). Having regard to the uncertainties involved, while it could be described as a buffer, I have proceeded in the way that I have so as to expose more clearly the rationale for an award of this amount.
Other heads of damages
Griffiths v Kerkemeyer damages, past and future out-of-pocket expenses and the cost of financial advice necessitated by the plaintiff’s injuries have all been agreed and I include the agreed figures in the summary of damages set out below. A claim for damages under s 100 of the CLW Act was not pressed. Superannuation follows from the economic loss figures using 11% of net income loss.
Consistently with the notes on practice provided to parties in personal injury matters conducted before me I have not allowed any amount for interest except where that was identified in the schedule of damages provided by the plaintiff.
Summary of damages
The damages that will be awarded to the plaintiff are summarised in the following table.
General damages $200,000 Interest on past component $12,000 Economic loss – past $9,000 Economic loss – future $190,843 Superannuation loss – past $990 Superannuation loss – future $20,993 Griffiths v Kerkemeyer – past (agreed) $10,000 Out-of-pocket expenses – past (agreed) $28,663 Out-of-pocket expenses – future (agreed) $7,500 Financial advice (agreed) $15,000 Subtotal $494,989 Reduction for contributory negligence of 80% $395,991 Award of damages $98,998
Conclusion
The plaintiff is therefore entitled to a judgment of $98,998. Having regard to the quantum of the judgment and the provisions of the Court Procedures Rules 2006 (ACT) I consider that I should hear the parties further on costs.
The orders of the Court are:
1. Judgment be entered for the plaintiff in the sum of $98,998.
2. The usual order as to interest.
3. The proceedings are listed for any argument in relation to costs on 21 September 2015 at 9.30 am.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 8 September 2015 |
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