Daniel James Waterworth v Jackalene Deborah Bambling; Rosemary Wyn Waterworth v Jackalene Deborah Bambling; Geoffrey Victor Waterworth v Jackalene Deborah Bambling; Ruby Anne Hughes v Jackalene Deborah Bambling;
[2013] NSWDC 17
•15 March 2013
District Court
New South Wales
Medium Neutral Citation: Daniel James Waterworth v Jackalene Deborah Bambling; Rosemary Wyn Waterworth v Jackalene Deborah Bambling; Geoffrey Victor Waterworth v Jackalene Deborah Bambling; Ruby Anne Hughes v Jackalene Deborah Bambling; Aaron Ryan Hughes v Jackalene Deborah Bambling; Tyara Jasmine Hughes v Jackalene Deborah Bambling; Brendon Hughes v Jackalene Deborah Bambling [2013] NSWDC 17 Hearing dates: 24-28 September 2012, 15 February 2013 Decision date: 15 March 2013 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict for the Cross-Claimant - for Orders see paragraph 140 of Judgment
Catchwords: Concurrent tortfeasors; liability of bus company for injuries to school children; apportionment of liability. Legislation Cited: Motor Accidents Compensation Act 1999
Civil Liability Act 2002
Motor Accidents Act 1988Cases Cited: Rowes Bus Service Pty Limited v Cowan; Sufong v Cowan [1999] NSW CA 268
Urban Transit Authority v Ruz-Canales (1995) 22 MVR 249
Jarvis v Scrase (Unreported) QCA 22 December 1998
Kuhl v Zurich Financial Services Australia Limited (2011) 243 CLR 361
Strong v Woolworths (2012) 96 ALJR 267
Chapman v Hearse (1961) 106 CLR 112
Coregas v Penford Australia [2012] NSWCA 350
Chapel v Hart (1998) 195 CLR 232
Idameneo (No. 1 2 3) Pty Limited v Dr Colin Gross [2012] NSWCA 423
Allianz Australia Insurance Limited v GSF Australian Pty Limited & Anor (2005) 221 CLR 568
Nominal Defendant v GLG Australia Pty Limited (2006) 228 CLR 529
JA & BN Bowden & Sons Pty Limited v Doughty [2009] NSWCA 82
Victoria v Bryar (1970) 44 ALJR
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529Texts Cited: Fleming, The Law of Torts 10th Ed at 9.190 Category: Principal judgment Parties: Jackalene Deborah Bambling - Cross-Claimant
Busways North Coast Pty Limited - Second Cross-Defendant
Zurich Financial Services Australia Limited - Third Cross-DefendantRepresentation: W Fitzsimmons - Cross-Claimant
K Andrews - Second Cross-Defendant
S Harben SC - Third Cross Defendant
Sparke Helmore
DLA Piper Australia
Higgins Lawyers
File Number(s): 2009/00339353 Publication restriction: Nil
File No's Continued: 2009/00339354, 2009/00339355, 2009/00339615, 2009/00339616, 2010/00104899, 2011/00373879
INDEX
Page 3
Introduction
Page 4
Issues to Be Determined
Page 5
The Cross-Claimant's Claim against Busways
Page 7
The Evidence
Page 19
The Expert Evidence
Page 34
Findings of Fact
Page 37
Busways' Duty of Care and Breach
Page 42
Causation
Page 47
Apportionment
Page 47
The Third Cross-Claim
Page 50
Conclusions
Page 51
Orders
JUDGMENT
Introduction
On 11 May 2006 at approximately 3.50pm, a tragedy occurred on Lorne Road, near Kendall. A bus owned and operated by the second cross-defendant ("Busways") had just dropped three school children, Zoe Hughes aged seven, her brother, Aaron Hughes aged twelve and Daniel Waterworth aged fourteen, at an undesignated bus stop in the gravel shoulder of Lorne Road, on the driveway to premises at 267 Lorne Road. Once the children had alighted from the bus, the bus driver continued his journey in a westerly direction along Lorne Road by indicating and pulling out onto the single-lane carriageway for vehicles travelling west. The children alighted from the bus on the southern side of Lorne Road and after the bus had left, they proceeded to cross Lorne Road, travelling to the northern side of the roadway where their homes were located.
As the three children were crossing the road they were struck by a vehicle driven by Jackalene Bambling (the "Cross-Claimant") who had been travelling in a westerly direction along Lorne Road and was proceeding around a blind corner just to the east of where the bus had stopped to drop off the children. Zoe Hughes suffered fatal injuries and the two boys were severely injured. Seven claims were brought by the two boys and family members in respect of this incident. The Cross-Claimant admitted breach of her duty of care in each case.
Those claims have all been resolved by settlements. In these proceedings, the Cross-Claimant seeks contribution against Busways towards the settlement monies she is required to pay the seven plaintiffs.
The third cross-defendant ("Zurich") joined the proceedings pursuant to s 79 of the Motor Accidents Compensation Act 1999 ("MACA"). Zurich applied to join to the proceedings because Busways have sought indemnity from Zurich pursuant to a Compulsory Third Party policy issued by Zurich. Indemnity has been denied by Zurich, and a question arises as to whether, in the event that Busways is found liable to the CrossClaimant, that policy responds. It will only do so if, in the circumstances, it is found that the MACA applies to any liability on the part of Busways.
Another Cross-Claim brought by the Cross-Claimant against Hastings Shire Council has been settled.
Issues to be Determined
The following issues are to be determined in this matter:
(i) Did Busways owe a duty of care to the three children who had alighted from the bus?
(ii) If a duty of care was owed to the children, what was the scope and/or content of such duty of care?
(iii) If a duty was owed, was there a breach of that duty?
(iv) Was such breach, if any, causative of any relevant loss?
(v) If so, how was that loss to be apportioned as between the Cross-Claimant and Busways?
(vi) If Busways is liable for any of the loss, does the MACA apply, giving rise to an obligation on the part of Zurich to indemnify Busways pursuant to the Compulsory Third Party policy as defined by the MACA?
The Cross-Claimant's Claim Against Busways
By Amended Statement of Cross-Claim, the Cross-Claimant, who had admitted breach of duty of care to the plaintiffs, sought "contribution towards any verdict recovered against it by the plaintiff in the action" on the basis that any damages suffered by the plaintiff also occurred as a result of the negligence of Busways by itself, its servants or agents. The particulars of Busways' alleged negligence are set out as follows:
"(a) Permitting school children to alight from a school bus at a location which was inherently unsafe;
(b) Permitting school children to alight from a school bus immediately following a blind corner where the vision of travelling motorists was obstructed;
(c) Failing to undertake a safety audit of the school bus route, including a safety audit of all school bus stops/drop off points;
(d) Permitting children to alight from a school bus in the absence of appropriate warning signs being installed warning that Lorne Road was a school bus route;
(e) Permitting children to alight from a school bus in the absence of a warning sign that motorists were approaching a school bus stop/school bus drop off point;
(f) Failing to request the first cross-defendant or any other relevant authority to install appropriate warning signs including signs of a school bus route and/or school bus stop/drop off point;
(g) Stopping the bus in a location contrary to the provisions of Reg 193 of the Australian Road Rules;
(h) Failing to warn the children of the dangers presented in crossing the roadway from the point near where the children exited from the second cross-defendant's bus;
(i) Failing to warn the children to cross the roadway together in a single group so as to make them more conspicuous to other road users such as the Cross-Claimant;
(j) Failing to direct the older children to accompany the deceased across the roadway in circumstances where the driver knew or ought to have known the deceased was vulnerable by virtue of her age and the absence of her older sister, Tyara Hughes, who usually accompanied the deceased across the road way;
(k) Failing to observe the deceased was in a position of peril upon her leaving the bus and prior to her attempting to cross the roadway;
(l) Having so failed to observe that the deceased was in such peril, the driver was negligent in permitting her to attempt to cross the roadway by herself and/or in failing to restrain her from doing so;
(m) Failing to ensure that all children crossed the roadway safely in the circumstances where the driver of the second cross-defendant's bus knew or ought to have known that the deceased was trailing behind the older children."
Whilst not resiling from any of those particulars of negligence, learned counsel for the Cross-Claimant opened the case on the basis that the primary case brought was that Busways should never have used the location as a bus stop. Alternatively, there was a failure to take steps, with the assistance of the Hastings Shire Council, who was the relevant road authority, to have installed appropriate signage, both at the bus stop itself and on approach so as to warn motorists approaching the blind bend in the road that school children may be on or about the road. Other particulars relied on was that the bus driver should have given a rudimentary warning to the children or, alternatively, should have ensured that the children crossed safely before he left.
Essentially the case against Busways was brought on three bases, namely:
(1) That the location of the bus stop was unsafe and just patently dangerous and should not have been used as a school bus stop;
(2) That Busways ought to have conducted an audit of the school bus route which would have demonstrated that it should not have been used; and
(3) The driver of the bus failed to warn the children and/or direct the older children in respect of the crossing of the road.
The Cross-Claimant's case was that in respect of each of those claims, a relevant duty of care arose, the scope of which extended to taking reasonable care for the safety of school children so as to avoid a foreseeable risk of harm to them, that such duty of care was breached by Busways and that the breach was causative of the injuries giving rise to the plaintiff's claims. On that analysis, the Cross-Claimant and Busways were equally responsible for the damages.
The Evidence
The Cross-Claimant gave evidence that she had lived on Lorne Road at Lorne for a number of years prior to the accident. She was familiar with the road and was well aware that it was a school bus route. Her own daughter had caught the same school bus previously and she knew that the bus stopped at properties along Lorne Road for the purpose of school children getting onto and off the bus.
On the afternoon of the accident, the Cross-Claimant had been at a TAFE College in Port Macquarie. She was heading home to Lorne at an earlier time than her usual routine. She gave evidence that as she approached the bend prior to the bus stop she was driving at approximately 70 kph. As she came around the bend, she saw the bus and the children in front of her on the road. She gave the following evidence in chief:
"Q: Where was the bus when you first saw it?
A: My recollection is that the bus was still taking off from the driveway on the left hand side. I believe the left-hand rear wheel was still on the gravel.
Q: So the bus was facing straight ahead? Was it at an angle, do you recall?
A: It was at an angle.
Q: Where did you see the children?
A: They were behind the bus, scattered in different positions on the road.
Q: Can we just take each one at a time. Firstly, Zoe, who I think you later came to know as Zoe, where was Zoe when you first saw her?
A: She was on my side of the road.
Q: Are you able to give his Honour any idea by how much she was on your side of the road?
A: She was closer to the white line than to the edge of the road.
...
Q: When you say the "white line", which line are you talking about?
A: The middle of the road.
Q: The two boys ... do you recall where they were when you first saw them?
A: Yes. Aaron was closest to me on the right hand side of the road, and Daniel was further, the other side of Zoe on the right hand side of the road, still on the road but the right hand side."
When asked what happened, the Cross-Claimant gave the following evidence:
"A: That's when I saw the bus kids, and I just recall pulling on the steering wheel as I seen there was an empty vacant property on the right hand side. So that's the direction I went to try and get off the road."
In cross-examination the Cross-Claimant acknowledged that she knew that the school bus route proceeded along Lorne Road, and that there were no bus stop signs for points where the bus stopped. She knew that the road was used by logging trucks, milk tankers and other large vehicles as well as buses and she was familiar with the blind corner just prior to the subject bus stop, having driven around it on numerous occasions. The CrossClaimant was asked whether she had seen on previous occasions school children in the area where the accident occurred which she denied. She had, however, seen children on Lorne Road at a point further to the west of where the accident occurred.
The Cross-Claimant conceded that on the day in question the speed of her vehicle was too fast to avoid a collision with the children. She also gave the following evidence:
"Q: You see, I want to suggest to you that at the time you came around the corner, the bus had already come back onto the roadway and was proceeding down the road, well away from that driveway.
A: You can suggest it, but it's not what I seen and it's not what I recall (sic)."
...
Q: I want to suggest to you that if you had continued to drive on your side of the road, you would have simply driven past all three children?
A: A possibility."
In re-examination the Cross-Claimant said that she was not aware that the driveway to premises at 267 Lorne Road was one of the places where children got off the school bus. She also gave the following evidence about instructions given to her own daughter, prior to this accident, by the driver of the school bus:
"A: It would have been the previous year at least, because my daughter was no longer at school. She was under instructions by the bus driver that she had to get on the bus on the left hand side in our driveway. She was not to cross the road to try and pull him over on the opposite side of the road, otherwise he would not stop for her."
In a statement given to Senior Constable Dietrich in the hours after the accident, the Cross-Claimant said:
"I was driving home, I saw the bus pull out, and I saw the kids on the road. I only noticed the bus at first, I tried to swerve. I think they went the same way I did. I lost control and I think I hit a child front on. I then went off into the trees. I think I already lost control and veered off into the paddock when I hit the children (exhibit 5)."
In a record of interview conducted by the Police on 13 May 2006 (exhibit 6A) the CrossClaimant gave the following account:
"435. I was travelling along Lorne Road, and as I come around the bend, I noticed the school bus and three children crossing the road. At the time, I don't know what to say here, I just know that I braked and the car, the car swerved and I swung the wheel around to the right, trying to get away from the children. The children were running at that time."
When asked when she first saw the bus where was it in relation to the roadway, she answered:
"A: The road, Lorne Road, it was half out on the road, the rear end of the bus was still on the gravel where he had pulled over, apparently pulled over for the children, so he was only just moving out from the gravel."
She did not notice whether the flashing lights were working at the back of the bus and indicated that at that point the children were on the road, one was in the centre of the road and the other two were heading towards the other side. At that stage they were walking.
When asked what she did, the Cross-Claimant said:
"A: I remember hitting the brakes, I, I remember seeing the kids running and screaming; my car was, I must have lost control of the car as I hit the brakes, because it was swerving on the road, and I grabbed the wheel and I just, all I kept on thinking is, I've got to get this car going in a different direction, forward, and I reefed on the wheel and I took it into the paddock and the kids were there."
Mr Darryl Lee gave evidence in the Cross-Claimant's case. He operated an excavation business in which he drove an 8-tonne truck towing a trailer. He was travelling east along Lorne Road towards the scene of the accident. As he was coming around a right hand bend which led to a straight stretch of road leading to the scene of the accident, he saw the school bus proceeding in the opposite, or westerly direction, with its lights flashing. Mr Lee was driving his truck at approximately 40 kph and having proceeded past the bus, observed something on the road. He pulled up his truck just before the object and got out of his vehicle to discover Zoe Hughes on the road and at that time he heard a woman screaming on the left hand bank on the northern side of the road.
In his statement to Police taken two days following the accident, he described the events as follows:
"As I came up towards the turf farm, possibly named Jindalee Turf Farm, on the northern side of Lorne Road, about three kilometres west of Lorne, I saw a school bus, facing west on Lorne Road, driving slowly and I could see his lights flashing. The lights flashing are the ones put on when he lets kids off, and because of his speed, I assumed he had just let kids off. The road was narrow, and I slowed down a bit, but I was only probably doing about 20 kph. I drove past the bus and then all of a sudden, about 100 metres past, where I passed the bus, I saw a woman acting funny, waving her arms. She was sitting down on the side of the road, she was facing sort of south-west, and basically facing me. She was about two metres off the road. (exhibit 6B)
Senior Constable Dietrich was the first police officer to attend the scene of the accident. His notebook statement became exhibit 5B. It contained the Cross-Claimant's statement set out in para 17 above. It also stated that he did not notice any visible skid marks on the roadway.
Later that night, Senior Constable Dietrich tested the lights on the bus and found them to be operational, operating on a flashing basis for 19 seconds, with 22 flashes.
In cross-examination, Senior Constable Dietrich gave evidence that there was a sign on the side of the road stating that Lorne Road was a bus route. He later identified that as a school bus route. He gave evidence that the buses picked up at various points, and that there were not always bus stops with bus seats and signs. He gave the following evidence in respect of the relevant bus stop:
"Q: As you travel along this road from Kendall and let's say leading up to where the bridge is, there are very few places where you can pull off to the side of the road, aren't there?
A: Yes.
Q: In fact, at and around the scene of this accident, the only place you could pull off to the southern side of the road was in the driveway?
A: Yeah, and that driveway is big enough to get the entire bus off the road.
Q: But if you go further back towards Kendall, it's some kilometres back before there's anywhere where you could pull the bus off the roadway, isn't there?
A: It would be, yeah, another driveway which would be big enough would be a fair way back.
Q: If you were headed west from that driveway, again, it would be some considerable distance before there would be anywhere where you could pull the bus off the roadway?
A: Correct.
Q: How far do you think that would be?
A: I'd say probably on the southern side, yeah, it would be a long distance.
Q: Are you talking kilometres?
A: Definitely, yeah, otherwise there's the next street on the right. There would be an area there that they could pull off, but then they'd have to try to turn around and keep going west. That would be very difficult.
Q: The next street on the left you referred to?
A: Right, sorry.
Q: How far is it to the next street on the right?
A: It would be 350 metres."
Daniel Waterworth gave evidence that he had been given specific instructions by his mother to always "look, listen, wait and then go", before crossing the road and that was followed every day. On this day, he was asked as follows:
"Q: Having got off the bus, what did you do?
A: We looked, we waited, we listened, and then we went.
Q: When you did all of those things, where was the bus?
A: The bus was long gone, out of sight, out of hearing distance.
When asked how he got off the bus on this day he answered:
"A: We stepped off the bus. We stepped towards the driveway, further back into the driveway, where we were able to wait until the bus is long gone, out of hearing distance. Then we're finally able to step forward a bit and look around, look both ways at least twice, and then cross, if nothing is in hearing distance or in seeing distance."
Mr Waterworth gave evidence that on this occasion he looked in both directions and listened for traffic before commencing to cross the road. He gave evidence both he and Aaron had crossed to the northern side of the road and that Zoe was, whilst still on the road, on the northern side of it, when he heard a horn and then screeching tyres. That caused him to turn to the east when he saw the car driven by the Cross-Claimant pointing towards him, coming onto the east bound traffic lane. As well as the car horn, he heard a screeching of brakes. He tried to get Aaron Hughes behind him by outstretching his right arm, and saw Zoe moving at a normal walking pace towards him. The next moment they were hit by the car.
Mr Waterworth was in year 9 at Camden Haven High School at the time of the accident. Up until year 5 his mother had met him when he got off the bus to cross the road. From the time he started high school he gave evidence that he would always wait for the bus to leave and once it was out of hearing range, he would listen for cars coming from the east travelling in a westerly direction. He agreed they had to wait until the bus disappeared before they could hear anything and that meant waiting until the bus was around the next corner and out of sight. There were occasions when he had heard cars coming from the east and they had waited for cars to pass, before crossing.
Daniel Waterworth denied on this occasion walking to the back of the bus before it drove off.
During a Police interview (exhibit XD2), Daniel Waterworth had drawn a diagram which indicated that in fact on this occasion, rather than step back from the bus and wait, he and Aaron Hughes had walked towards the back of the bus before commencing to proceed to cross the road. The sketch plan became exhibit XD3. Daniel told the Police he heard both a screech of tyres and a car horn before the collision. Usually, Zoe Hughes' sister, Tyara, would look after her whilst crossing the road.
He denied that the reason he did not hear the Cross-Claimant's car at all on this occasion was because the bus was still a lot closer, and was in fact pulling out of the bus stop. He could otherwise give no explanation as to why on every other occasion he had heard car engine noise for vehicles coming from the east.
Rosemary Waterworth is Daniel's mother. On 11 May 2006 she was at home. When he was at primary school she had met Daniel where the bus stopped outside 267 Lorne Avenue and crossed the road with him. She gave evidence that the course of action adopted by them was as follows:
"A: Always wait until the sound of the bus was gone. Listen for cars coming around the bend. Watch for cars both coming into Kendall, listen, cross smartly."
Once Daniel went to high school, Mrs Waterworth no longer met the bus. However, they discussed the road crossing. Her evidence was:
"Q: What would he say?
A: I know the drill, mum. Wait, listen, cross."
Mrs Waterworth was sitting in her front room, listening to a relaxation CD with her eyes closed. She gave evidence that she heard something:
"A: I heard the bus come - drop, like, coming from the stop up through the gears, the loudest sound as it crossed our open driveway on down the hill from our driveway, then I heard the thump."
The bus made a different sound as it proceeded across the front of the Waterworth property according to Mrs Waterworth. The difference was described as follows:
"A: As it's coming through the trees toward the driveway there's a more muffled sound. You can distinctly hear it coming through the gears as it goes across the open driveway, the sound is louder and muffled as it goes beyond the drive behind the trees again."
She heard the bus go past her driveway. She estimated that it had past the driveway for a period of four seconds when she heard a "thud" which she described as an unusual sound.
Mrs Waterworth then walked smartly to the roadway where she saw the Cross-Claimant coming through the fence line to the northern side of the road. When the cross claimant told her that she had just hit three children, she ran to the site where she saw what she described as a bundle on the road, which was Zoe Hughes. By the time she got there, the Cross-Claimant was crouching over Zoe. She then heard a loud guttural groan and found Daniel further to the north of the roadway.
In cross-examination Mrs Waterworth stated that she heard only the "thud", and nothing else. Following the accident, Mrs Waterworth told the Police that she ran out of the house up to the roadway. She provided two statements to the Police, the first was recorded but not verified by her. The second was completed 12 months following the incident, prior to the Coroner's Inquest. Mrs Waterworth was adamant that she did not hear any other noise other than the bus travelling west past her property, and the "thud". Her statement to Police dated 15 June 2006 became exhibit XD4.
The Crash Investigation Statement prepared by Constable Graham John Wright was exhibit 2. He described Lorne Road as being "relatively narrow and undulating with several blind corners". His report contains a description of the accident site and the collision damage to the vehicle. That examination revealed what he described as "pedestrian impact" to the front near-side guard and collision damage to the front bonnet area. As well as identifying the position of Zoe Hughes on the roadway, Constable Wright identified the location of the positions where Aaron Hughes and Daniel Waterworth came to rest, four metres and eight metres north of the northern road edge respectively. Constable Wright conducted an interview with Mrs Bambling and conducted a detailed examination of her vehicle after it was taken to Wauchope Police Station. He conducted an examination of the roadway on the day of the accident and later in dry daylight condition and observed no evidence anywhere on the roadway of vehicle debris that assisted in determining the exact path of travel of Mrs Bambling's vehicle while it was on the road or "sliding through the area of impact". Constable Wright took witness statements including one from Daryll Lee.
Constable Wright also conducted a test to determine the "drag factor", namely, the slipperiness of the roadway and conducted a number of drivethrough tests at the accident scene, which determined the maximum available distance where a driver was able to observe the power pole referred to as the bus stop was approximately 90 metres. He also attended the scene with the bus driver and bus to ascertain the time taken for the bus to pull away from the bus stop and pass the Waterworth's residence. This took an average of 16 seconds. The warning light system on the bus operated correctly, flashing for 19 seconds after the doors closed. He noted that the bus generated considerable noise as it pulled away from the bus stop, limiting the ability to hear vehicles approaching from the east. This was amply demonstrated in a DVD of a drive-through of the accident scene which was exhibit 12.
A reconstruction of the collision was not possible due to the absence of tyre and scuff marks on the roadway.
Constable Wright calculated that a vehicle travelling between 70 and 80 kph would require between 35 to 46 metres to slide to a stop under emergency braking on that road surface, given an average drag factor. When a perception/reaction time of 1.6 seconds was allowed, the vehicle would travel between 31 and 35 metres before an evasive option is undertaken. This meant that, under emergency braking, the vehicle would take between 66 and 81 metres to come to a stop. This was represented diagrammatically on exhibit Z3.
In this case the maximum distance available for evasive action was 90 metres. The actual distance was possibly less, taking into consideration evidence that the children had walked to the east of the bus stop across the road for a distance estimated between 10 and 12 metres. The report went on to state:
"13.2 I consider that the location of the bus stop relative to the corner with limited sight distance is a factor in the collision. Removal of vegetation and re-shaping of the embankment to the south of the roadway may be an option to increase sight distance should the bus stop remain in its present location ...
13.5. There is insufficient physical evidence to offer a conclusive independent analysis of the collision ..."
Exhibit 3 comprises a bundle of photographs which confirm the narrowness of Lorne Road at the accident site, the blind corner for vehicles travelling west towards the accident site and the limited sight lines for the area where the bus stopped outside 267 Lorne Road for drivers of vehicles travelling around that blind corner towards it. Photos numbered 35, 36 and 37 also confirm there was signs on Lorne Road indicating that it was a school bus route (see also exhibits 19 and 20). Exhibit 22 comprises three enlarged photos of the approach to the accident site, heading west.
Exhibit 6C was a statement of Margaret McKeachie, the owner of the property adjacent to where the bus stopped. That document describes the sharp corner and narrowness of Lorne Road, and the difficulties faced by her in exiting her driveway to travel east.
A statement was tendered from Mr Wayne Smith, the bus driver (exhibit 7). He stated that on the day of the accident he was pretty certain that as the children got off the bus they started moving backwards towards the east. He was not entirely certain because once he closed the door they were in a blind spot alongside the bus. He described checking his mirrors and pulling out onto the road and accelerating away normally. Thereafter, he did not hear or notice anything.
Mr Smith's evidence before the Coroner on 21 June 2007 was also tendered (exhibit 9). In that evidence he said that he had been dropping children off at that particular driveway for about three years. There had been no previous incidents at that particular place but there were occasions when the bus was in the process of moving back onto the roadway when a vehicle came around the corner heading west. Following the incident, the bus did not stop at that particular drop off point and children from that area got off at Kendall and were collected by their parents from there.
Exhibit 8 comprised the bus timetable for the school bus route from Camden Haven High School to Lorne. It showed a designated stop at 3.49 pm at 267 Lorne Road. Exhibit 10 was a letter dated 20 September 2004 from Busways to the General Manager, Hastings Council, outlining a survey of urban bus routes which were not school bus routes. In that letter Busways sought the Council's approval for the proposed bus stop locations on the three nominated routes.
The Expert Evidence
The expert evidence relied on by the Cross-Claimant comprised three reports of William Keramidas (exhibits 13, 14 and 15), together with a joint experts' report dated 11 July 2012 (exhibit 16). Busways and Zurich both relied on the report of Mr William Bailey dated 26 July 2011 (exhibit Z1). A separate judgment was delivered on 28 September 2012, limiting the admissibility of experts' reports to one in each interest in the proceedings.
In his first report dated 20 May 2009 (exhibit 13), Mr Keramidas, having examined the exhibits and transcript from the inquest which took place on 21 and 22 June 2007, together with other documents, came to a conclusion that a safe speed for the bend on Lorne Road would be in the order of 60-65 kph. Mr Keramidas was of the opinion that because the sight lines through the bend to the area of the bus stop were limited, that the use of the gravel driveway outside 267 Lorne Road as a bus stop was inappropriate. Mr Keramidas went on to state:
"In the author's opinion, if a safety audit of the location being used as a drop off point for the Hughes and Waterworth children was conducted, the deficiency in sight lines would be so obvious and would precipitate immediate action to either remove this location as a stop or highlight its existence through appropriate hazard signing. As indicated by the bus driver, however, it appears that the drop off of children at various locations is essentially "ad hoc", and even the investigating police were unable to determine the basis on which the bus stop was ever contemplated or came into existence."
In Mr Keramidas' opinion, the site and existence of the bus stop were significant causal factors in the subject collision due to the following:
"1 The limited sight lines meant that the driver would have had no opportunity for early detection of the bus or children until she reached a point where emergency evasive action was required.
2. The location of the bus stop was deficient, in that it did not provide sufficient sight lines, nor was it marked as a bus stop in any way.
3. In the absence of any advanced warning signs, the existence of the stop would not have been known to the driver, even though she was a local resident and used the road on essentially a daily basis. It appears from her account that she would ordinarily travel this section of roadway a short time later in the day than she did on this occasion, and therefore was unaware that there was a school bus stop just beyond the "blind" left hand bend. Had she been aware of this, there would be a potential for her to have adjusted her speed, and whilst still probably requiring emergency evasive action, could potentially have avoided colliding with the children.
A further complicating and exacerbating factor in this particular case was the fact that the road surface was wet at the time of the incident and therefore in the course of performing her evasive manoeuvre the vehicle has lost traction, whereas under dry conditions it may not have. In dry conditions it is quite probable that she would have avoided colliding with the children, albeit that she herself is likely to have been injured by coming into collision with the trees on the northern side of the roadway [resulting from an evasive steer to the right]."
In his second report dated 18 May 2010 (exhibit 14), Mr Keramidas responded to a report from Mr Grant Johnstone dated 27 September 2009.
In a second supplementary report dated 6 December 2011, Mr Keramidas made an assessment of what in his opinion were contributions to the accident caused by Busways and the Hastings Council, and in doing so, reviewed his original assessment, as well as the assessment of the other three experts. As the report contained comment in respect of assessments by Mr Stuart-Smith and Mr Johnstone, much of that report was ruled inadmissible, subject to leave being granted to call further evidence in respect of some factual matters. In his opinion, Busways were liable to contribute on the following basis:
"1 The bus driver appears to have been aware of the potential danger posed by stopping at this site.
2. The bus driver had the authority to refuse to stop at this site under the regulations.
3. The bus driver appears to have had the ability to keep the children under surveillance after they alighted from the bus and did notice that they had moved towards the east [closer to the corner] and dispersed.
4 The bus driver should have been prepared to give guidance or assistance to the children given that they were unaccompanied and included a young child in the group.
5 The bus driver was unaware of how and when this particular drop off point came into existence but did not appear to communicate any concerns to the bus company, even though he needed to adopt an unusual practice to re-enter the traffic lane.
6 It is not known if the bus company was aware of the existence of this particular safe drop off point, even though they were responsible for its selection as a "safe" stop and the stop had been used for several years.
7 If the bus company was not aware of the existence of this drop off point, then they should have been, at least through some communication with their drivers.
8 If in doubt as to the "safety" of the site, the bus company should have advised their drivers of their obligations under the regulations not to stop at any unsafe location, and should have referred their concerns to the Council for advice and engineering treatments."
In evidence in chief, Mr Keramidas acknowledged that he and Mr Bailey had reached agreement in respect of the collision sequence which included the rest position of each of the children as identified by the Police investigation, and also the point of impact of Mrs Bambling's vehicle with each of the children. That point of impact is demonstrated diagrammatically in Mr Bailey's report (exhibit Z1 at p 41, fig 17).
Mr Keramidas also identified exhibit 10 as being the type of audit that should have taken place in respect of the school bus route. He described such a process taking half a day, for the 20 stop locations for school bus route 2. In respect of the subject location outside 267 Lorne Road, his evidence was:
"A: Is that the sight lines - the limited sight lines would be immediately obvious. It's not an issue of foliage or anything like that. There's a physical restriction created by the curvature of the roadway and the crest. At that point the next phase would be to identify who is being picked up and dropped off at that location and to notify those people that until further investigation that site would need to be temporarily suspended. The next step would be to approach Council and indicate that, "this is what we have in terms of what we think there is a potential for sight line risks", and from that point then, for an investigation to be carried out."
In cross-examination Mr Keramidas described the motion of the vehicle as it tracked towards the children on Lorne Road as rotating as the wheel turned to the right, as a "yaw condition". The vehicle was travelling in a north-westerly direction and by the time it reached the children was in a broadside slide.
On the question of whether Mrs Bambling could have avoided the children on the roadway, Mr Keramidas gave the following evidence:
"Q: And even if, instead of pulling her vehicle to the right, she had applied her brakes and stayed in her lane, she would have missed the children altogether?
A: Providing she didn't lock her brakes, that would be correct, yes.
Q: Now assuming for a moment that the children - two boys were on the northern grassed section of the bitumen section of the roadway ...
A: Yes.
Q: As she has come around the corner the distance that she would be able to see them either on that side or just reaching that side, would be a distance of in excess of 90 metres?
A: Probably in excess of 95.
Q: And at that point in time, if she had commenced to slow her vehicle by not harsh braking, but reasonable braking, and kept her vehicle in her lane, even if Zoe had been just short of the centre line in moving in a northerly direction, then continued to do so, the defendant could have continued straight past her without hitting her.
A: There are a number of assumptions embedded in that, including whether Zoe continued in that path, but yes.
Q: So if the child kept walking at a range of 95 metres plus, the defendant started slowing?
A: Yes, all of those things could match up."
That evidence was based on an assumed speed of 70 kph. At a greater speed, the time for avoidance was lessened.
Mr Keramidas acknowledged that in the joint experts' report (exhibit 16) agreement was reached between the experts that a speed of 65 kph was a reasonable and safe speed for the curvature of the bend in the condition of the day, based on a reasonable prospect of avoiding anything on the roadway. Based on that speed, Mr Keramidas gave the following evidence:
"Q: If the defendant's vehicle had been driven round that corner at a speed of 65 kph, and Zoe had been, let's say, a distance of one metre to the south of the centre line of the roadway, and still walking in a northerly direction, the defendant could have continued along the road past Zoe without collision?
A: The collision could certainly have been avoided by her doing that, providing she didn't overreact to seeing the child."
Mr Keramidas also agreed that for a distance from one kilometre east of the driveway of 267 Lorne Road to a point one kilometre west of that driveway on the southern side of the road, there was only one place where the bus could pull off the roadway and stop, which was the subject driveway. Whilst acknowledging that there was nowhere else to stop for that distance, it was put to Mr Keramidas that it was the best point on the southern side of the road for the bus to stop to which he answered:
"A: It would certainly be the best point, but still unacceptable."
Mr Keramidas had estimated the vehicle's speed at impact with Zoe at between 55 and 60 kph, assuming no braking, his evidence was that the vehicle had been travelling over 65 kph as it came around the corner, in a range between 65 and 70 kph, with a possibility that the speed may have been as high as 75 - 78 kph. His best estimate was that it would be at the 70, low 70's range of speed.
Mr Keramidas conceded that at the point where the children alighted from the bus, and stepped back from it, their view to the west would be obscured by foliage from a tree on the southern side of the road and would be limited to a distance of 50 metres. As the bus progressed to the west, that foliage would also have the effect of dampening the noise from the bus.
In re-examination Mr Keramidas clarified that, assuming no braking by the driver of the vehicle, the vehicle would travel 90 or 95 metres at 17 or 18 metres per second, which would take five seconds from the driver's first detection of something on the roadway to impact. If two and a half seconds of that time was taken up with a delay for perception and reaction by the driver, this would leave a much shorter distance of between 42 and 50 metres for the vehicle to respond to the danger ahead.
In response to the proposition conceded by Mr Keramidas in crossexamination that the driver of the vehicle could have avoided the children on the roadway had she remained in her own lane, the perception response time had to be taken into account together with her perception of the back near-side tyre which was near the edge of the road. In answer, Mr Keramidas said:
"A: Well, it further complicates it because again we have to deal with what would - what is the expected driver response in that situation. This is one of the critical issues that essentially if you were to boil it down in terms of expert evidence, is this a single target that she's avoiding or is it multiple? The existence of the bus creates essentially - it closes off the opportunity of the left lane or - sorry, the westbound lane. She then has potentially a spread of children across the front, which at the time she first sees them, means that she only has clear to the right, and that becomes her decision making process. It would take several more seconds to rejudge that process and its too late."
Mr Keramidas was able to identify the commencement of the children's journey across the road as a distance of up to one and a half metres beyond the back of the bus in its stationary position. In respect or Mr Waterworth's evidence that he heard a screeching noise prior to impact, Mr Keramidas gave evidence to the effect that the screeching noise was created by heat being generated as the tyres slid over the stones on the road surface which was damp. In his view, Mr Waterworth hearing the screech was consistent with a locked wheel condition of a vehicle in a spin, having initially been in a side slip yaw. In his view, the screeching noise was attributed to braking.
In adhering to his evidence that the site was inappropriate for use as a bus stop, Mr Keramidas said as follows:
"The reason is, this location, as was part of the question that Mr Andrews asked, well, this is a location where it's the only place where a bus can pull off the road. And I agreed that is the case. The sight lines are such, though, that the risk generated for young children crossing the road at that point is just too high. The sight lines are such that you are talking about critical levels, be it in dry conditions, wet conditions. And if we are looking at this as a bus drop off point, bus stop, it doesn't really matter what you call it, sight lines for a westbound vehicle, in this case a car, on the next occasion we know, there's lots of heavy trucks, it is outright in my opinion dangerous for young children to be crossing at that point. So it might be the only place you can stop the bus on the southern side of the roadway, but there are certainly alternatives that you can have beyond stopping there or within one kilometres on either side."
A report of Mr William Bailey was exhibit Z1. Mr Bailey's conclusions may be summarised as follows:
(1) On his analysis Mrs Bambling was probably travelling at between 69 and 77 kph through the left hand curve and approximately 51-60 kph at impact.
(2) On his analysis Mrs Bambling took 2.8 seconds to detect the position of Zoe on the roadway, a significant longer time for perception response than would be otherwise anticipated. Therefore, her time to perceive and respond to the situation was longer than would be compatible with a driver maintaining reasonable vigilance.
(3) A collision would have avoided by moderately heavy braking, assuming a driver perception response time of 1.7 seconds or less.
(4) Mr Bailey did not agree with Mr Keramidas' opinion that the location was inappropriate for dropping off children from a school bus or that the road could not be crossed in reasonable safety.
The collision analysis undertaken by Mr Bailey led him to conclude that Mrs Bambling probably began her avoidance manoeuvre when her vehicle was approximately 20 metres, or a little more, from the point of impact with the children. In his opinion, Mrs Bambling's choice to swerve rather than braking alone, appears to indicate the perception that the collision could not be avoided by braking and this was consistent with a heavy swerve to the right. Based on studies adopted by him, Mr Bailey was of the opinion that most drivers were able to commence heavy braking within approximately 1.4 to 1.6 seconds, however, a significant factor in reducing driving perception response times for reasonably conspicuous hazards on curves is that a driver would be looking at a small area of the field view, meaning in this case, the location where the children were first located within the driver's field of view.
In his evidence in chief Mr Bailey stated that the area of disagreement between himself and Mr Keramidas, relating to perception reaction time, had been resolved, subject to one area of disagreement relating to whether a driver could perceive one hazard on the road or more than one, in this case three children. It was Mr Bailey's evidence that in the circumstances here, the driver would be really responding to one object as opposed to a number of objects.
Having viewed the Police video (exhibit 11), he gave evidence that the bus would take 5 seconds to reach a stage where the nearside rear tyre was about to move from the gravel onto the roadway, by which time the bus was travelling at 25 kph and would have covered about 18 metres. He then said:
"There would be no risk of collision with the vehicle that was accelerating away, albeit at bus rate, but accelerating away, from the position that Mrs Bambling's vehicle would have been in when she reported making that sighting. I don't know exactly where that position is, but I know she made some responses before she got to the point of impact, so I can go back within that - that 90-95 metre distance to the point of impact. But there's no - there's no point at which her vehicle could have been close enough if she'd continued, that she would have been at any risk of colliding with the rear of the bus. Having said that, she may have had to adjust her speed to accommodate the fact that the bus would have been travelling slower for a period, but "by accommodate speed", I mean -
Q: As the bus would accelerate?
A: You know, foot off the accelerator."
Mr Bailey gave evidence that to cross the road which was measured at 5.4 metres in width, a person travelling at 2 metres per second would take 3.6 seconds, and a person travelling at 1.77 metres per second would take 3.1 seconds.
Mr Bailey was cross-examined about his disagreement with Mr Keramidas about the bus stop being in an inappropriate location. He conceded that a sight line of greater than 90 metres would have been desirable, but that the issue needed to be evaluated in the context of possible locations. His opinion was based on the fact that the location was one of a limited number of areas where the bus could pull off the road completely, and that the bus could return to the roadway without causing undue disruption to traffic. A third factor was his reasoning that "the roadway could be crossed in safety by pedestrians using normal procedure". He explained that as follows:
"The generality of crossing a road. It was meant to be an inclusive term because there were different ages of - different ages of children. But crossing in accordance with the procedures that are - the philosophy that I've outlined or the protocol I've outlined, of stopping, looking, listening, thinking about the things. The point there, and I think I did the calculation there or maybe it was a little different, was that the time it would take to get across the roadway, right, I think it's 5.4 metres, if you assume that a vehicle travel at the speed limit at that time, was sufficient that irrespective of being able to hear anything that was around the corner because sometimes hearing might be useful, sometimes it may not be, there was sufficient time to clear the roadway."
When it was put to him that the unpredictability of children pedestrians once they get off a school bus was a relevant factor determining speed limits, Mr Bailey gave the following evidence:
"A: That's one of the factors, but it's only one of numerous factors that modifying the speeds of vehicles has an influence on. I mean the research, as I understand it, for child pedestrian fatalities in rural roads is that - I think it was reviewed - MUARC did a study in 2008. But the numbers are very low. I think that there were four in a number of years. I think all four involved running children. ..."
Part of Mr Bailey's opinion was therefore based on the location of the bus stop being the only convenient place for the bus to pull off the road close to the children's homes. He gave this evidence:
"Q: Also, the question of convenience - that is, a location close to a home - surely you're not suggesting convenience should trump safety?
A: No. The point is not convenience. The point is that the child has to be transported to their home, and for instance in this case the children walk to one home which was further east and another home which was further west, so there is the journey to be considered as part of where a bus stop - or where they may be dropped off by a bus."
It was put to Mr Bailey that the bus company had an obligation to consider all of the children they were dropping off at a bus stop including the youngest of those children and he gave this evidence:
"A: Well, that it's not a seven year old in this case being dropped off on her own. It's not children who are being dropped off at an unfamiliar location. That there is - there is a level of experience of children at this - of these children at that location. So those are relevant considerations for a rural bus stop. I mean, the way rural bus stops move, they're quite flexible. You know people - people - people move from house to house, you know, it's not - it's not - it doesn't have the same sort of infrastructure and fixed locations that a bus stop in an urban area has, and certainly in those days. I mean, it's evolved in the last, you know, 10 years."
It was put to Mr Bailey that it would not have taken much for the bus company to undertake effectively a form of safety audit on this bus route, to which he said:
"A: I wouldn't agree that it wouldn't take much, but it could be done. I think Mr Keramidas said the whole thing could be done in half a day and I think that's probably optimistic, given that it's necessary to identify - you know, to visit each site, identify what issues are and then look at those issues and form some view on them."
Mr Bailey agreed that in determining the appropriateness or otherwise of a particular bus stop it was important to take into account the nature of the traffic that is likely to be using the roadway. In this case he said the likely presence of large vehicles such as milk trucks or logging trucks may not produce a problem within the limited sight distance. His opinion was challenged as follows:
"Q: But Mr Bailey, let's put the situation where it's not Mrs Bambling but it's a log truck that's coming around that corner on approach to that bus stop. Are you suggesting, given the limited sight distance, well below what is otherwise required with children crossing at that point, do you seriously suggest that it's an appropriate place for children to be dropped?
A: My comment was that it was sub-optimal.
Q: I'm asking now?
A: But that it's not dangerous, it's not inherently dangerous, that's incorrect.
Q: Are you suggesting that it's not inherently dangerous that a child might enter the roadway at a point well short of what is a minimum stopping sight distance, if you have vehicles such as log trucks or milk lorries coming around that corner in a westbound direction? Are you suggesting that in those circumstances this is not a dangerous bus stop?
A: Yes."
When put to him that the absence of a bus sign on approach to the bend would further increase the dangerous nature of this particular bus stop he said:
"A: It doesn't increase the dangerous nature of it, but they are factors which could be addressed and would reduce the risk, yes."
It was put to him that a warning sign in this situation where the sight lines were very limited would be critical, to which he gave the following evidence:
"A: No, I don't believe it's critical. I'm not saying it wouldn't have some benefit. It clearly would. But the issue was that these were marginal sight lines which required engineering and judgment in the choice of a bus stop location, and that there are more factors to be considered than just the sight line. This is not a situation where the sight line was so short that it could never be used as a bus stop. I just don't think that's correct."
Finally, Mr Bailey gave this evidence on the question of the safety of the bus stop:
"Q: Mr Bailey, just finally dealing with the question of safety of this bus stop, you maintain that, despite this roadway having a governing speed limit of 80 kph, despite there being absolutely no signage on approach, given the limited stopping sight distances and the sort of vehicles that may travel on this roadway, it's an appropriate bus stop for a 7 year old to cross the roadway?
A: No, I don't consider in appropriate spot (sic), without further assumptions, the assumption being that the 7 year old being in the company of people who are older and familiar with crossing the road, and I would place Daniel - if it's Waterworth; I think it is - in that category, and that that was a place that he had crossed on numerous occasions. He had a set of instructions for how to cross that. There was another point. Sorry, it's just disappeared from my mind."
Mr Bailey further agreed that the only area of dispute between himself and Mr Keramidas, in respect of perception reaction time, was the effect of multiple targets which led to Mr Keramidas' opinion in this case that a reasonable perception reaction time would be 2.5 seconds, as opposed to Mr Bailey's opinion of a range of 1.4 seconds to 1.6 seconds.
It was put to Mr Bailey that he could not put himself in the position of Mrs Bambling, given the situation that confronted her as she approached around the blind bend. He gave the following evidence:
"A: No, I don't agree that I can't have any comment on that. What I can say is that compared to other drivers, in observational studies of perception response, there was sufficient time to make a braking response to seeing children on the road, and that's the advice that I've given."
In answer to a question from me, Mr Bailey gave the following evidence:
"Q: Would the presence of a bus stop sign at this location provide an awareness for regular road users that that was a place where school buses usually stop?
A: It could provide - it wouldn't indicate necessarily school buses. It would just indicate buses. It would have the potential, if it was seen and identified as such, to create an awareness that there was a bus stop at that location. So that that has the potential to create an expectation around the corner that there could be a bus stop."
He conceded that the presence of a bus stop sign would be the sort of factor that may diminish the perception reaction time.
In re-examination, Mr Bailey expanded on his evidence that in his opinion the site was not dangerous as a bus stop in the context of Lorne Road being used by logging trucks and milk trucks. He gave this evidence:
"A: I expressed that view on the basis that the width of the roadway was such that the walking speeds of the road users involved in this crash, that they could clear the roadway - and I provided a calculation I think in my report - within the sort of approach times that any vehicle, whether it was a heavy vehicle or a milk truck or anything else, before such a vehicle would reach their crossing point."
The joint experts' report (exhibit 16) is dated 11 July 2012. It sets out, inter alia, the following matters of agreement.
(1) A speed of 65 kph was a value common to all experts' opinion as being a reasonable and safe speed for the curve in the condition of the day.
(2) The sight line distance based on the geometric features was agreed to be 90-95 metres to the centre of the road in the area of the crossing path. This sight distance would be less when looking towards the left side of the road and more if looking towards the right side of the road.
(3) It was agreed that the crossing path is likely to have been 1215 metres east of the reference pole (being the power pole shown on exhibit 23).
(4) Figure 1, depicted in diagrammatical form, the general configuration at the time of the accident.
(5) The Police measurement of 0.55g is the best data on the likely friction available on the roadway on the day.
(6) Assuming the Police friction data, the distance to stop from 70 kph would be 35 metres. The distance to stop from 80 kph would be 46 metres.
(7) The driver's perception response time will be effected by whether or not there was a significant difference in time or location between the visual stimuli that preceded her response (s).
(8) A driver travelling at 70 kph who responded to the presence of an immediate hazard, could react and brake to a stop within a total distance of up to 82 metres (assuming braking for 35 metres at 0.55g & perception response time of 2.4 seconds).
(9) It was agreed that the location where the bus stopped was not signposted as a bus stop.
Findings of Fact
Having regard to all of the evidence I make the following findings of fact:
(1) On 11 May 2006 at just prior to 3.50pm a bus owned by Busways and driven by Mr Wayne Smith along Lorne Road near Kendall, pulled off the paved surface of Lorne Road onto the unpaved driveway outside premises located at 267 Lorne Road.
(2) At that place, Daniel Waterworth, aged fourteen, Aaron Hughes, aged twelve, and Zoe Hughes, aged seven, alighted from the bus and initially stepped away from the bus.
(3) The three children proceeded to walk towards the back of the bus in an easterly direction.
(4) I find that the children reached a point adjacent to the back of the bus before crossing the road, that was approximately 12 metres east of the reference pole.
(5) I find that Mr Smith, having satisfied himself that the roadway was clear, proceeded to drive the bus back onto Lorne Road, heading in a westerly direction. The warning lights on the bus, known as "wig wag lights", were activated for a period of 19 seconds, operating for 22 flashes.
(6) I find that once the bus was in motion it would have taken 5 seconds for the vehicle to reach a stage where the nearside rear tyre was about to move from the gravel onto the roadway. By that time, the bus would have been travelling at 25 kph and would have travelled 18 metres.
(7) From its position of rest outside 267 Lorne Road, the bus would have taken 16 seconds to proceed beyond the Waterworth's residence. At this stage, the "wig wag lights" would still be flashing on the bus.
(8) I find that the children's view of the bus as it proceeded west along Lorne Road would have been partially obscured by some foliage on the southern side of Lorne Road.
(9) I find that foliage would also have had some affect in dampening the sound from the bus.
(10) I find that before the bus had passed the Waterworth's residence, within 16 seconds of it leaving the location where it dropped the children off, the children proceeded to cross the road from south to north.
(11) I find that the Cross-Claimant was driving in a westerly direction around the sweeping left-hand curve at a speed in excess of 70 kph and on the balance of probabilities, at between 70 and 75 kph.
(12) I find that when she was at a distance of approximately 90 metres away, she observed the three children on the roadway.
(13) At that point, Daniel Waterworth and Aaron Hughes were near the northern boundary of Lorne Road. Zoe Hughes was near the centre of the road.
(14) I find that the Cross-Claimant failed to react to the presence of the children on the roadway in a timely fashion and that she lost control of her vehicle by swerving suddenly to the right hand side of the road.
(15) The Cross-Claimant's vehicle proceeded in a north-westerly direction towards the children, rotating as it went, in a clockwise direction, sliding broadside towards the children.
(16) I find that the nearside left hand front panel of the vehicle struck both Aaron Hughes and Daniel Waterworth, causing them to be thrown in a generally north-west direction, away from the roadway.
(17) I find that the side of the vehicle struck Zoe Hughes, causing her to be thrown in a generally westerly direction along Lorne Road, where she came to rest on the northern edge of Lorne Road.
(18) I find that the Cross-Claimant's vehicle then left the roadway and struck a tree.
(19) I find that the collision with the children occurred within 20 seconds of the bus leaving 267 Lorne Road, and that the "wig wag lights" on the bus were still operational when it was observed by Mr Daryll Lee, who was driving his truck in an easterly direction towards the accident site.
(20) I find that a speed of 65 kph was a reasonable and safe speed for a prudent driver to be driving west around the blind curve prior to the accident site.
(21) I find that if the Cross-Claimant had responded in a timely fashion to the children on the roadway, she had the opportunity to use the brakes on her vehicle and otherwise control it so as to avoid the children on the roadway.
(22) I find that whilst the Cross-Claimant saw the bus in a position where she perceived the left rear wheel to be off the paved surface of the roadway, she could have proceeded to control her vehicle so as to avoid the children on the roadway without the risk of a collision with the bus.
(23) I find that the driveway outside 267 Lorne Road was a patently unsafe location for a school bus stop for children residing along the northern side of Lorne Road, given the limited sight lines for drivers of vehicles travelling west on Lorne Road.
In coming to these findings of fact, I find each of the lay witnesses were doing their best to give their clear recollection of events to the Court and not to mislead the Court in any way. However, as stated from the outset, this was a tragic event with highly emotional consequences for all of those involved. The Cross-Claimant, who had admitted breach of her duty of care, was clearly visibly moved by the consequences of her actions. Mr Waterworth, who was only 14 years of age at the time of incident, and was in a position of self-perceived responsibility as the eldest child present in the absence of Zoe's older sister Tyara that day, was also affected by his experience. Where there was a conflict between his evidence and matters he had discussed with Police following the accident, I have preferred his earlier account.
Implicit in these findings are that I do not accept the evidence of Mr Waterworth that the bus had disappeared from view prior to the children crossing the road, and that they waited at the place where they alighted from the bus before crossing. Whilst I accept that he had been taught from an early age to always wait until the sound of the bus was gone, to listen for oncoming traffic and watch for cars coming from both directions, that did not occur on this day. The only explanation for him failing to hear the Cross-Claimant's vehicle was that the noise of the bus had not dissipated entirely.
Understandably, no member of the Hughes family gave evidence in these proceedings and there was no evidence before me as to what training the Hughes children had undergone in respect of crossing the road.
I have also treated cautiously the evidence of Mrs Waterworth, relying as it did, not on her observation, but rather her hearing in respect of the course of travel of the bus. She was at the time listening to a relaxation tape with her eyes closed at a distance from the roadway. It is not established on the evidence what the noise she described as a "thud" was. It took her some time to reach the roadway and then some further time to arrive at the accident site whereupon she located her son in bushes off the roadway and remained with him. There was, in her evidence, an element of reconstruction which rendered it somewhat unreliable.
Mr Lee was also deeply affected by his experience. He had done his best to resuscitate Zoe Hughes and she had died in his arms. His evidence was, however, consistent with his statement to Police taken two days following the accident (exhibit 6B).
Busways' Duty of Care and Breach
In Rowes Bus Service Pty Limited v Cowan; Sufong v Cowan [1999] NSW CA 268, Stein JA (with whom Foster AJA agreed), described the duty of care of a bus company in the following terms:
"25. As a general proposition it may be said that a bus company's duty of care to a passenger may cease when the passenger is deposited safely on the footpath. But this general proposition must yield to particular factual circumstances which may demand that the duty to act reasonably towards a passenger continues to operate after a passenger has alighted from the bus.
26. For example, if a bus stopped at a place which was dangerous for a passenger to alight, such as within the roadway itself, and the passenger was then knocked over by a motor vehicle, then the duty of care would extend to that foreseeable risk. Urban Transit Authority v Ruz-Canales (1995) 22 MVR 249 is such an illustration. A bus driver, requested by a passenger, allowed him to alight by opening the door when it was dangerous to do so. To open the bus door in the circumstances was clearly a breach of the duty of care to the passenger."
Stein JA went on to refer to Jarvis v Scrase (unreported QCA 22 December 1998) as an illustration where the bus company's duty of care can extend to after a passenger has disembarked from a bus.
Cole AJA dissenting, agreed with that analysis, but described Jarvis v Scrase as a "special case involving a school bus where the driver had authority and control over the young children who were his passengers".
The Cross-Claimant here submitted that the scope of the bus company's duty of care extended beyond that described in Rowes Bus Service v Cowan. It was submitted that the duty extended to dropping the school children at a location that would avoid a foreseeable risk of injury to them. The scope of the duty was extended here because of the vulnerable age of the passengers and the fact that the bus company, and through it, the driver, had authority and control over those passengers.
The Cross-Claimant submitted that Busway's duty of care was breached by its choice of location for the bus stop which was patently unsafe and dangerous for use by children having to cross the road, that Busways failed to conduct an audit of the bus route and that the driver failed to warn the children and/or direct the older children in respect of the crossing of the road.
The cross-defendant submitted that at the time of the accident, no duty of care existed as the duty of Busways, which was in existence prior to the children leaving the bus, had ceased. That submission was adopted by Zurich.
Each case must depend on its own facts. Here, the particular route had been used for a number of years, apparently without incident, for children crossing adjacent to 267 Lorne Road. However, as exhibit 10 demonstrated, Busways carried out a safety audit of its urban bus routes, other than the school bus routes. Given the vulnerability of passengers on those school bus routes, it ought to have carried out an audit of the school bus route, and had it done so, I find that a reasonable inspection of the site would have determined that it was a dangerous location for children residing on the northern side of Lorne Road and its use would have been terminated subject to consultation with the Hastings Shire Council.
In arriving at this finding I prefer the evidence of Mr Keramidas set out in paragraphs 52, 53, 57 and 68 above, to the evidence of Mr Bailey referred to in paragraph 74-81 above. Mr Bailey's analysis ultimately hinged on the fact that it was a narrow road of 5.4 metres which could be quickly crossed, that child pedestrian fatalities in rural roads had been low over the years, that there was no other suitable location within a kilometre both east and west of this location for dropping children safely, that an audit may take longer than half a day as estimated by Mr Keramidas, and notwithstanding that it was a "sub-optimal" location given the use by Lorne Road of heavy logging and milk trucks, with no warning signs, the youngest child, aged seven years, was crossing with an older child who was familiar with crossing the road at a place that he had crossed safely on numerous occasions. I find this analysis flawed in that it does not address the limited line of sight for a driver approaching from the east around a blind corner which must give rise to a foreseeable risk of injury to vulnerable pedestrians, and it places a heavy onus on them to take care for their own safety after being placed at risk by Busways.
Busways submitted that the evidence established that there was no other place to drop the subject children within one kilometre to the east and west of 267 Lorne Road. Busways submitted that the duty of care of the bus driver was to drop the children at the safest place he could and then depart safely, and that he did that. What happened thereafter was beyond the scope of the bus company's duty of care, consistent with the Court of Appeal's decision in Rowe's Bus Service Pty Limited v Cowan. Busways was not aware of any other incident concerning this location and that was a relevant factor in accordance with the High Court's decision in Kuhl v Zurich Financial Services Australia Limited (2011) 243 CLR 361 at [82].
I do not accept the cross-defendant's submissions. The circumstances of this case involved Busways use of a location for dropping off children on a country bus route which was dangerous. The very reason for the choice of location was that it comprised a double driveway and the bus could be removed wholly from the road so as to avoid vehicles travelling around the blind corner in a westerly direction colliding with it.
In applying ss 5B and 5C of the Civil Liability Act 2002 to determine the question of breach of Busway's duty of care, I find that the risk of harm, relevantly in this case, was the risk of injury to school children from motor vehicles whilst crossing Lorne Road in a northerly direction to complete their journey home.
I find that in accordance with s 5B(1)(a) that risk was foreseeable, namely, it was a risk of which Busways knew or ought to have known. I also find that that risk was not insignificant given the vulnerable ages of the children involved and the risk of collision with a motor vehicle.
The precautions advocated by the Cross-Claimant that Busways should have taken were first, not using the bus stop as it was unsafe and it was patently dangerous for use as a school bus stop; secondly, that Busways ought to have conducted an audit of the route which would have demonstrated that use of the route should be suspended and; thirdly, that the driver of the bus failed to warn the children and/or direct the older children in respect of the crossing of the road. Having regard to s 5B(2), I find that a reasonable person in the position of the defendant would have taken the first two of those precautions on the basis that the probability that harm would occur if care was not taken was high, such harm was likely to be serious indeed, there was little burden on Busways in taking those precautions to avoid the risk of harm and the social utility of the activity creating the risk of harm, namely, the operation of a school bus route, mandated that the activity should be carried out with reasonable care so as to avoid the unnecessary risk of injury to the school children using the route.
I do not accept Busway's submission that there was no other place to drop the children off. The dangerous location of the bus stop did not justify its use. The children should have been dropped off where it was safe to do so, irrespective of the distance from their respective homes.
None of the "other principles" in s 5 C of the Civil Liability Act are relevant to the circumstances here. I therefore find that s 5B has been satisfied and that Busways breached its duty of care to the plaintiffs, by using what was a dangerous location for dropping the children off, and by failing to carry out an audit of the school bus route which would have led a reasonable person in Busways' position to have terminated its use.
I am not persuaded that Busways reached its duty of care by the bus driver failing to warn the children of the dangers of crossing Lorne Road at that particular point, or of directing the older children in respect of crossing the road. The bus driver has dropped the children there every school day over a period of three years. He described them as good children and had no way of apprehending that they were particularly at risk on this day. I therefore find that the plaintiffs' case as pleaded as against the bus driver, namely, the particulars of negligence in paragraphs (h), (i), (j), (k), (l) and (m) has not been made out.
Causation
Section 5D of the Civil Liability Act provides relevantly as follows:
"5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
...
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
It was conceded by the Cross-Claimant that s 5D(2) does not apply in the present circumstances.
To establish causation pursuant to section 5D requires a positive answer to two inquiries, ie, factual causation, and scope of liability. In Strong v Woolworths (2012) 96 ALJR 267 the plurality stated: -
"18. The determination of factual causation under s 5D(1)(a) is a statutory statement if the "but for" test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. While the value of that test as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff's harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm.
19. The division of the causal determination under the statute into the distinct elements of factual causation and scope of liability is in line with the recommendations in the Final Report of the Committee convened to review the law of negligence ("the Ipp Report"). The authors of the Ipp Report acknowledged their debt to Professor Stapleton's analysis in this respect. The policy considerations that inform the judgment of whether legal responsibility should attach to the defendant's conduct are the subject of the discrete "scope of Liability" inquiry. In a case such as the present, the scope of liability determination presents little difficulty. ...In particular cases, the requirement to address scope of liability as a separate element may be thought to promote clearer articulation of the policy considerations that bear on the determination. Whether the statutory determination may produce a different conclusion to the conclusion yielded by the common law is not a question which is raised by the facts of this appeal.
20. Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm."
The Cross-Claimant has submitted that factual causation has been established here pursuant to s 5D(1)(a). In respect of s 5D(1)(b) the Cross-Claimant submits that, having regard to the scope of the risk in question, legal responsibility should be attributed to the crossdefendant. Further, the Cross-Claimant submits that it is not to the point that Busways had dropped off the children at this location on numerous other occasions without incident and that it is no answer for Busways to rely on the Cross-Claimant's admitted negligence as an intervening or supervening cause so as to break the chain of causation.
The Cross-Claimant has therefore submitted that her intervening negligence was foreseeable, and even if that negligence amounted to gross negligence, there was no break in the chain of causation as the Cross-Claimant's driving was not a causally independent event (relying on Chapman v Hearse (1961) 106 CLR 112 and Fleming, The Law of Torts 10th Ed at 9.190).
The cross-defendant submitted, correctly in my view, that the test for factual causation was "whether it was more probable than not that the taking of the steps as suggested by the defendant in this case would have prevented or minimised the injuries sustained by the plaintiffs" (relying on Coregas v Penford Australia [2012] NSWCA 350 at [130], Hoeben JA with whom Meagher JA and Bergin CJ in Eq agreed). In that case, Hoeben JA referred to the High Court's decision in Strong v Woolworths, supra, at [126] as follows:
"126 The decision in Strong recognises that the test of factual causation in s 5D(1)(a) may be satisfied in circumstances not only where the defendant's negligence was a necessary condition of the occurrence of the harm, but also in circumstances where there were two sets of conditions jointly sufficient to account for the occurrence of the harm and the defendant's negligence was necessary to complete one of those sets of conditions."
Busways has submitted that none of the precautions advocated by the Cross-Claimant would have had the effect of minimising or preventing the injury due to the way in which the defendant was driving in circumstances where she knew the applicable speed limit, she knew that the road was damp, that it was a school bus route, that children got on and off the bus at various places along that route, that it was a blind corner, that there was a possibility of children being on or near the roadway having seen them previously further down the road, and that there was a risk of collision if she was unable to stop her vehicle.
Busways also submitted that allowing the children to alight elsewhere would have created a danger by requiring the children to walk along a prolonged length of road of at least one kilometre in circumstances which were considered by all the witnesses as dangerous. I do not accept the latter submission which overstates the evidence. It could only be speculative as to what other arrangements would have been made for the children to complete their journeys home had Busways taken the precaution of not using this location as a drop off point for the school children.
I do not accept the first submission of Busways either. The driving of the defendant in breach of her duty of care to the children does not mean that factual causation cannot be made out against Busways. In Kuhl v Zurich Financial Services, supra, the majority stated at [104] that the test for causation was as stated by Barwick CJ in Victoria v Bryar (1970) 44 ALJR 174 at 175 as follows:
"The question is whether the taking of the particular step which the defendant did not take 'more probably than not' ... would have prevented or minimised the injury which was in fact received."
Kuhl involved an appeal from the Supreme Court of Western Australia and concerned a claim by a workman who was injured by faulty equipment, and therefore did not involve a consideration of S 5D of the Civil Liability Act 2002 as did Strong v Woolworths, supra. However, the statement referred to in Victoria v Bryar, supra, was relied on by Justice Hoeben in Coregas Pty Limited v Penford Australia Pty Limited, supra, at [128]. After to referring to a number of authorities, his Honour went on to say:
"130 Those cases make it clear that the relevant question as to factual causation, which the trial judge was required to and did address, was whether more probably than not, the taking of steps to make the ramp horizontal by using chocks or inserting fold-out legs would have prevented or minimised injury sustained by Mr Spence."
I am satisfied that there was a foreseeable risk of injury to the children by use of the dangerous location as a school bus stop from a vehicle coming around the blind corner heading in a westerly direction. I am further satisfied on the evidence that it was more probable than not that had Busways taken the two precautions set out above, the injuries sustained by the plaintiffs would have been prevented or minimised.
I am further satisfied that the scope of liability question is satisfied here pursuant to s 5D(1)(b). It is appropriate that legal liability should attach to Busways given the vulnerability of the school children passengers.
Professor Fleming states that the "but for" test for causation does not provide a satisfactory solution in the case of intervening harm (at 9.190, referring to Chapel v Hart (1998) 195 CLR 232 at [120]). However, I am satisfied here that factual causation has been made out based on the "but for" test of causation in that Busways' negligence was a necessary condition of the occurrence of harm to the plaintiffs, and made a material contribution to that harm (see Idameneo (No. 1 2 3) Pty Limited v Dr Colin Gross [2012] NSWCA 423 at [72] and [73], per Hoeben JA (with whom McColl and Ward JJA agreed)).
I am therefore satisfied that both factual causation and scope of liability have been made out pursuant to s 5D(1)(a) and (b) in respect of the breach of Busways' duty of care as outlined above.
Apportionment
The Cross-Claimant has submitted that in the event that I find Busways negligent, a just and equitable apportionment between the two tortfeasors would be to apportion liability equally between them. I do not accept that submission.
The question of apportionment of responsibility between joint tortfeasors involves determining respective shares for the responsibility for the damages by way of a comparison of culpability, i.e. of the degree of departure from the standard of care of each of the parties and a comparative examination of the whole conduct of each negligent party in the circumstances. It is a matter of discretion depending on the relative importance of the acts of each of the parties or omissions of each of the parties in causing the damage, see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at pp 532 - 533.
Whilst I have found that the negligence of Busways was causative of the plaintiffs' injuries, the evidence established that the Cross-Claimant's negligence had a causative potency far in excess of that of the negligence of Busways. It was the defendant's breach which involved her failing to brake in time and to control her vehicle, and to keep it on its correct side of the road and thereby avoid collision with the children who were on the northern side of the road, that must be apportioned the bulk of responsibility for the plaintiffs' injuries. I find that liability should therefore be apportioned 80% to the Cross-Claimant and 20% to Busways.
The Third Cross-Claim
Zurich is the third Cross-Claimant. Zurich was joined by its own application to the proceedings pursuant to s 79 of MACA. As a compulsory third party insurer of Busways, Zurich will only be liable to indemnify Busways if the liability of Busways is set to arise pursuant to the MACA.
Section 3 of MACA contains the following relevant definitions:
"Claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle."
"Claimant means a person who makes or is entitled to a claim."
"Injury:
(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is the result of and is caused during:
(i) the driving of the vehicle, or
(ii) a collision, or action taken to avoid a collision, with the vehicle, or
(iii) the vehicle is running out of control, or
(iv) Such use or operation by a defect in the vehicle, and ..."
"Motor accident means an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person."
Zurich has submitted that the bus was a motor vehicle within the meaning of MACA, however, there was no fault by either Busways or the driver of the bus in the use or operation of the vehicle where injury was the result of and caused during the driving of the vehicle.
The operative provisions of MACA have been given a restrictive interpretation consistent with the objects the Act has set out in s 5 thereof - see Allianz Australian Insurance Limited v GSF Australia Pty Limited & Anor (2005) 221 CLR 568 per McHugh J at [46].
Allianz Australian Insurance Limited v GSF Australia Pty Limited, supra, was a case that involved the definition of "injury" under the Motor Accidents Act 1988. That case concerned a system of mechanical unloading from a truck which conveyed containers to the rear of the truck, following which, they were removed by forklift. An employee was injured when the mechanical unloading system became inoperative and he was required to manually convey the containers to the rear of the truck. The High Court held that the injury was not an injury for the purposes of the definition in s 310 of the Motor Accidents Act.
In Nominal Defendant v GLG Australia Pty Limited (2006) 228 CLR 529, the High Court was concerned with the application of s 69(1) of MACA, in a case where a worker was injured due to an unregistered forklift truck being used to unload containers by use of a ramp. Vibration from the forklift caused a container to fall from a stack of boxes onto the worker causing him injury. The High Court held that the injury was not a result of a driving of a forklift within the meaning of the definition of injury. At [27] the plurality said:
"27 It is true that the occupier was at fault. The fault, however, lay not in the use or operation of the forklift truck, namely, the driving of it. The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven, rather than devising and providing a reasonably safe system of unloading the containers which would not cause vibrations likely to destabilise the boxes being unloaded."
The Nominal Defendant and GLG Australia Limited was applied in the Court of Appeal's decision in JA & BN Bowden & Sons Pty Limited v Doughty [2009] NSWCA 82. At [31] Giles JA said as follows:
"31 As GLG instructs it is a matter of characterisation. That which is to be characterised is the owner's fault. Is it in 'the use or operation of the vehicle' or, in a case such as GLG or the present, in the system of work put in place by an employer who is also the vehicle's owner? There is no universal answer. In the present case, the latter characterisation is to be preferred."
The Court held that MACA did not apply because the fault of the employer was in that case characterised as a fault in the system of work put in place.
The liability of Busways as outlined above did not arise by virtue of the fault of Busways or its driver in the use or operation of the bus on the day in question. The injury occasioned was not as a result of or caused during the driving of the vehicle, nor otherwise within the definition of injury within s 3(a) of MACA. Busways' liability arose from their use of a dangerous location to drop the school children off and their failure to carry out an audit of the route, not from the fault of the driver in the use or operation of the vehicle by either the driving of the vehicle or any of the other matters listed in the definition of injury in s3(a) of MACA.
The liability of Busways therefore does not arise pursuant to the MACA and the Compulsory Third Party policy issued by Zurich does not respond to Busways' liability.
Conclusions
The Cross-Claimant has established her claim in negligence against Busways. Busways breached its duty of care to the plaintiffs and such breach was causative of the injuries and damage suffered by them, in that I am satisfied that both tests in s 5D(1) of CLA have been satisfied.
Liability to the plaintiffs is to be apportioned 80% to the Cross-Claimant and 20% to Busways, for the reasons I have set out above.
Further, the liability of Busways could not be characterised as arising pursuant to the MACA and therefore the Compulsory Third Party policy issued by Zurich does not respond to Busways' liability.
The orders below reflect those findings.
Orders
I make the following orders:
(1) Verdict for the Cross-Claimant on the Cross-Claim in each matter.
(2) Liability to the Plaintiffs in each matter is to be apportioned 80% to the Defendant/Cross-Claimant and 20% to the CrossDefendant in each case.
(3) The Cross-Defendant is to pay the costs of the Cross-Claimant.
(4) The Third Cross-Claim is dismissed, with no order as to costs.
(5) The exhibits are to be returned forthwith.
(6) Liberty to apply on 7 days notice to the parties in respect of the orders made above.
Decision last updated: 18 March 2013
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