Derrick v Cheung bhnf Hong

[2000] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S195 of 1999

B e t w e e n -

ROSALIE DERRICK

Applicant

and

WAH YE ROSANNIE CHEUNG (by her next friend XIE RUI HONG)

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2000, AT 11.42 AM

Copyright in the High Court of Australia

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MS P.J. GORMLY, for the applicant.  (instructed by Henry Davis York)

MR S.L. WALMSLEY, SC:   May it please the Court, I appear with MR P.C. SEE for the respondent.  (instructed by Beston Macken McManis)

GAUDRON J:   Mr Walmsley, the Court feels we might be advantaged by hearing first from you in this matter.

MR WALMSLEY:   Your Honours, the respondent never submitted at the trial that the traffic in which the applicant was travelling ought slow down to a crawl, which was one of the submissions that was made against us at the trial, that ‑ ‑ ‑

CALLINAN J:   What was the right speed?  What would have been a non‑negligent speed?  What would have been a speed at which the driver would have had an opportunity to observe the child and to take evasive action?

MR WALMSLEY:   His Honour did not ‑ ‑ ‑

CALLINAN J:   No, you tell me what was the right speed.  What was the submission?

MR WALMSLEY:   Well, the submission is a few kilometres an hour less than, in fact, his Honour found the applicant was travelling because of the significance ‑ ‑ ‑

CALLINAN J:   So a few kilometres?  So that the defendant was negligent for not travelling at 42 kilometres an hour rather than 45 kilometres an hour?  Is that what the submission is?

MR WALMSLEY:   Well, when I say “a few”, within perhaps five at most of the ‑ ‑ ‑

CALLINAN J:   Well, 40 instead of 45?

MR WALMSLEY:   40 instead of 45 to 50.  45 to 50, of course, which was the finding.

CALLINAN J:   So if it had been 40 to 45 then the defendant would not be negligent.  Is that the submission?  Is that the position?

MR WALMSLEY:   That is the position because ‑ ‑ ‑

CALLINAN J:   Well, that highlights the absurdity of it, does it not?

MR WALMSLEY:   Well, not necessarily, your Honour.  It was a judgment that the trial judge had to make in the circumstances, looking at the surrounding circumstances at the time, such as the day of the week and the time of the day and the presence of residential accommodation nearby and shops, several weeks before Christmas.  These are the sorts of issues that we put to the trial judge and which were considerations he took account of in deciding that having, in effect, deprived herself of the opportunity – knowing that there was no opportunity to see small, particularly small pedestrians coming out from the left.

CALLINAN J:   An escaping 21‑months‑old child.

MR WALMSLEY:   Well, including escaping 21‑months‑old children.  She was travelling on the road knowing that her vision to the left, from the left to the left, was obscured.  So in those circumstances, not in the whole of Victoria Avenue but in the part that she was travelling in at the time, it was incumbent on her to travel at a slower than usual speed so that she could make the stop in an emergency.  Now, because of the damage to the front passenger side light and the fact that the applicant had braked and skidded to the right his Honour said in those circumstances he could infer that if she had been travelling a little more slowly she probably would have avoided hitting the respondent and that is all.  We were not submitting that she had to slow down to 20 or 25 or a crawl, which was the word that was used against us below.

CALLINAN J:   I just do not know how you can calculate as you are driving along what is the right speed to within five kilometres an hour.

MR WALMSLEY:   Well, your Honour, the right speed ‑ ‑ ‑

CALLINAN J:   That is the speedometer error on most motorcars anyway, is it not?

MR WALMSLEY:   It is a question of judgment based on the surrounding circumstances at the time you are driving in that place.  So obviously matters such as schools, the presence of schools and swimming pools with children and the like are obviously factors that one must take account of when driving along roads near these objects.  This is merely an example on its facts of the case where, putting all of these factors together, the trial judge found that in those circumstances it was negligent of the driver not to have been going a little bit more slowly and he was able, because of the damage, then to find on the causation issue.  It was open to him, we say, and our learned friends say that this involves the value judgments but, as we note, in deciding whether or not there has been a breach of the duty, it always involves these factors.

Now, your Honours, we do not say and we have never said that there was any form of strict liability created by this, as our learned friends put against us.  All that we saw here was an example of a trial judge exercising well‑known, well‑established principles to facts which were proved in this case, suggesting that in this case on this particular day, given these particular circumstances, a particular speed was too high in the circumstances and he does not say, in every case where there is a young child that runs in front of a motorist, then we must find that that was necessarily negligent if the child is hit.

If there had been nothing parked on the edge of the road to the left of the driver, if there had not been trees obscuring the vision of the driver on the left‑hand side between the road she was travelling on and the footpath, then it might have been another matter, but because of those matters, the trees and the cars, her vision was impaired and it did take away her ability to stop if an emergency such as occurred occurred.  To cause following traffic to slow down, as was put against us, as being unreasonable, we say, is not to the point.

Obviously we say you do not have to travel – she did not have to travel at a crawl along the whole of Victoria Avenue, but when she got to this spot she had to modulate her speed to take account of the circumstances.  Having gone past it and slowed down, she could no doubt have sped up again and if in doing so, in slowing down, she caused cars travelling behind her to slow down and the traffic was thereby impeded to an extent, well, that is just a necessary consequence of the need on drivers to take care travelling through these areas where there are shops and people living and likely to be pedestrians, including small ones, whose presence is hidden from drivers by objects on the side of the road likes cars and trees.

So his Honour then – all he did was performed the balancing exercise in the traditional way and found it would not have been all that difficult for her to slow down a bit and had she done so, for the reasons that I have put to your Honours, she would probably have been prevented from hitting the respondent.  His Honour’s reference to serious injuries is taken out of context, we say, by the applicant.  His Honour was merely saying in his judgment when looked at in context, “This is a very delicate exercise one goes through as a trial judge looking at these various factors.”  And, of course, picking up what Judge of Appeal Priestley had said, it is ironic – he was really saying, “It is ironic that when one exercises a balancing exercise that depending on how I find, one way or the other, a seriously injured plaintiff might or might not be compensated.”  He was merely making a

remark in passing but not putting it forward necessarily as a reason why the plaintiff ought win.

Your Honours, that is the case that we put below and it is as simple as that.  We say the circumstances were such that they dictated a slower speed.  There was sufficient evidence to justify his Honour’s finding on causation and for those reasons we say that leave ought not be given.  There was reason there - there was evidence there to justify the findings.  They ought not be disturbed.  May it please the Court.

GAUDRON J:   Mr Hislop, in cases of this kind where a grant of special leave results it is very common – in fact, it is almost invariable practice for an undertaking to be given not to seek to disturb the costs orders below and to pay the costs in any event in this Court; is it not?

MR HISLOP:   Your Honour is far more aware of the practice and procedures in this Court than I am.  If that is the procedure, I will take a short instruction on it in order to ‑ ‑ ‑

GAUDRON J:   Yes.  Well, I mean, it is very often and it is usually the case.  I take it your representing an insurance ‑ ‑ ‑

MR HISLOP:   Would your Honour pardon me one moment?

GAUDRON J:   Yes.

MR HISLOP:   I will have a response to that in one moment I believe, your Honour, if your Honour can bear with me.

GAUDRON J:   Yes.  Well, I do not think we need to hear you otherwise.  Do you ‑ ‑ ‑

MR HISLOP:   No, your Honour.

GAUDRON J:   The proposal would be that, subject to an undertaking in those terms, there would be a grant of special leave in this matter and I think you may be able to ‑ ‑ ‑

MR HISLOP:   Yes, I now have those instructions to agree to that, your Honour.

GAUDRON J:   Yes.  Well, the undertaking would be not to seek to disturb the costs orders below and to pay the costs of the proceedings in this Court in any event.

MR HISLOP:   Yes, your Honour.

GAUDRON J:   Yes.  Well, on those terms there will be a grant of special leave.

MR HISLOP:   Yes, may it please the Court.

GAUDRON J:   Call the next matter, please.

AT 11.53 AM THE MATTER WAS CONCLUDED