El Sleiman & Anor v Holt

[2000] HCATrans 23

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S148 of 1998

B e t w e e n -

MAHER EL SLEIMAN by his tutor ZOUHEIR EL SLEIMAN

Applicant

and

RACQUEL HOLT

First Respondent

JOSEPH EL SLEIMAN and NOUHA EL SLEIMAN

Second Respondents

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2000, AT 10.18 AM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:   May it please the Court, I appear with MR T.J. BOYD for the applicant.  (instructed by Cameron Gillingham Boyd)

MR P.W. TAYLOR, SC:   If the Court pleases, I appear with my learned friend, MR A.M. COLEFAX, for the first respondent.  (instructed by Malcolm Johns & Company)

MR J.M. HENNESSY:   May it please the Court, I appear for the second respondent.  (instructed by Uther Webster & Evans)

GAUDRON J:   I understand that you will not be putting submissions, Mr Hennessy.

MR HENNESSY:   That is so, your Honour.

GAUDRON J:   Yes, Mr Gross.

MR GROSS:   Your Honours, we argue special leave based on a particular egregious miscarriage of justice on the facts.  We do not qualify on the usual basis the question of general legal principle of public importance.  The four‑year‑old plaintiff was struck at night in Marion Street, Auburn, which was a quiet, wet, suburban street ‑ ‑ ‑

GUMMOW J:   We know all that, Mr Gross.  That is all emotional material.  We have to get down to the tintacks.

MR GROSS:   Your Honours, the case was decided at both levels as if the accident occurred in virtually a darkened World War II blackout situation with narrow cones of light coming from some light poles.  That is contrary to the defendant and passenger’s evidence.  The defendant, as is shown at page 5, says:

A.  I was just driving along and I saw some people get out of their cars.  They were standing on the side of the road.  And I slowed down because they started to cross –

and the passenger likewise saw the group of people come from the side of the road.  On the other side of the road, that is the direction to which these pedestrians were heading, was another group of people comprising the uncle, his wife and a number of children, including two more siblings of the plaintiff aged six and four.  So that this was a zone which had great numbers of pedestrians, but in any event a significant number of children.

Your Honours, the plaintiff’s mother, on the evidence, crosses the road carrying the two‑year‑old by the hand and carrying a three‑month‑old baby and had to run to avoid the defendant’s vehicle.  Justice Newman held and noted that the defendant said and the passenger corroborated that the defendant slowed the vehicle down to avoid a collision occurring - page 4 – and she took evasive action to enable them to cross safely.

GUMMOW J:   Where is the error in Justice Sheppard’s judgment in the Court of Appeal?

MR GROSS:   Your Honours, the error is that his Honour put the case outside the category of cases where there is a higher duty ‑ ‑ ‑

GUMMOW J:   He seems to have given a very anxious and full consideration to what was a difficult case.

MR GROSS:   With respect, not.  His Honour used the language of anxiety but his Honour, in our submission, misconstrued the facts in a fundamental way.  Your Honours, the particular category of case he said we fell outside was where there is a higher duty to drive defensively where pedestrians might be expected to come onto the roadway and he gave examples of that as being where children are seen on or near the road with the increased possibility they will suddenly move onto the road.  His Honour said the case does not fall within that category.  His Honour basically said that although it was a mother and two small children actually crossing, the defendant thought they were just people.  I think the defendant described them in her own evidence as being European people.  “They dressed differently to Australian people.  There were adults there.  There were shorter people than adults and I don’t know their sizes or ages”.  This is an observation that is made by a driver who has slowed her vehicle to avoid a collision with these people.

His Honour Justice Sheppard resolved this difficulty by saying at page 27 that although in fact it was a mother carrying one and carting another small one, the defendant mistakenly believed that there were not children crossing the road, that they were presumably adults of different sizes.  If an observation is made like that with that degree of proximity, it is nonsense, in our submission, to say, “We can resolve the apparent conflict on the basis that the defendant wasn’t aware there were children”.

GAUDRON J:   What do you say was the duty of care in this case?

MR GROSS:   Having ‑ ‑ ‑

GAUDRON J:   No, just tell me what you say it was and tell me how it was breached.

MR GROSS:   Having becoming aware of the presence on the roadway of a group crossing and of the close proximity of other people in the area, the duty was to drive defensively so as to eliminate the possibility that there were more persons yet unobserved about to cross.

GAUDRON J:   All she could do was stop, is that what you are saying?

MR GROSS:   She should have stopped and…..but, your Honours, the problem was that she accelerated.  If in fact the speed was, as was found by his Honour, I think 36 kilometres per hour and not the 55 or 60 that the driver and passenger thought they accelerated to, if in fact it is only 36 kilometres and that is the point you get to by accelerating, the commencement point, whether it be 30 kilometres less or something less than that region, it is a very slow speed.  If you are going at a very slow speed, two things happen.  The first thing is you have a superior opportunity to stop very quickly.  Secondly, you have a better opportunity to see the child who does emerge, bearing in mind that the child actually crossed seven metres of the roadway, yet was only seen by the driver a metre away from the car.

The other thing of course is that if you have slowed down for the first lot of pedestrians – this has all happened in a very short space of time because it is a vehicle that is still moving – what you are doing is inviting the possibility of another child or another pedestrian seeing that as an invitation or opportunity to join the others by crossing.  But what did she do?  She accelerated – and we would submit on any of the evidence by at least 30 kilometres per hour – but certainly at such a rate that she denied both the child and herself the opportunity to avoid the accident.  His Honour Justice Sheppard pulls these matters together at pages 29 and 30.  At the top of page 29 his Honour refers to the obligation to drive defensively in the situation I have just described, that is:

where pedestrians, particularly children, might be expected to come on to the roadway.

He gives at line 25 on page 29 the example of where there are young children on the footpath or edge of the road, allowances have to be made.  In fact, he says, “great care is required”, et cetera.  At line 36:

In my opinion the present case does not fall into the category of case into which counsel seek to put it…..there were no objective signs that children were about except for the fact that Ms Holt and her passenger had seen people cross in front of the vehicle –

How could a driver exercising any lookout think they are only people and they are not children when they are the size of a two‑year‑old and a three‑month‑old baby accompanying their mother?  In any event, on the evidence which I have just referred your Honours to, there is a group of people including more children on the other side to which they are heading.  If in fact the defendant successfully avoids the first group crossing and has to brake to do so, she is already in a very close zone to where in fact the plaintiff ultimately comes out.  In fact, they crossed all on the same path.  They crossed from the rear of the vehicle to the vehicle across the road.  Yet his Honour Justice Sheppard, the other two judges agreeing, says:

There were suggestions in the cross‑examination that, if she had not slowed down, she would have struck them.  I do not see that reaching a conclusion on that matter, if it could be reached, is of any great assistance.

Of course it is because, if in fact she is so close that she only just avoids the first group, she must be close enough to know there are children.  But in any event she ‑ ‑ ‑

GUMMOW J:   Close enough to know that there are children?

MR GROSS:   Yes, that were crossing in front of her.  But in any event, she knows that there are pedestrians crossing and the amount of time between narrowly missing the first group crossing on that path and when the child comes out in the same path must be a very narrow time frame indeed.  A careful driver would wait, even proceeding at a slow speed, before hitting the accelerator and taking off.  What you have is a degree of acceleration which involves, on all the evidence, doubling the speed and probably increasing the speed by 30 kilometres per hour.  His Honour Justice Sheppard said at the bottom of page 29:

The fact is that she did take adequate avoiding action –

that is the earlier pedestrians –

and she thought that it was safe to resume a normal speed.  She accelerated.

If in fact his Honour has posed the question “Was it negligent to accelerate?”, there can only be one answer to that question.  If in fact the child comes from a zone of darkness, as seems to be the general thrust of the findings here, the child is coming from a zone where the driver cannot eliminate the possibility of more pedestrians emerging.  In our submission, the driver does not bet on the fact that they have all crossed.  You allow for the possibility that, particularly as events have emerged suddenly, that it is not necessarily the last of the people wanting to cross.  We submit that when measured by the usual standards of how defensive driving operates, you do create some latitude for error, you do not hit the accelerator.  So, your Honours, the case is ultimately as simple as that.

I recognise that I come here on a question of fact and in jurisprudential terms the case has no real appeal.  This Court will soon complete 100 years of its history.  Never in that history has this Court given a decision concerning the obligations of motorists towards child pedestrians, nor has it given any comprehensive authoritative discussion of the legal obligations in modern day conditions of motorists towards pedestrians in residential areas.  The result of all that is trial judges in this class of case cannot look to a single utterance of this Court and instead are left to sift counsels’ submissions based usually upon the felicitous or confusing wording of the latest ex tempore, hastily-written, unreported judgment of the Court of Appeal which these days gets the same currency as one which is in the law reports.

The outcome often depends upon the trial judge reading between the lines of those cases or operating on an unstated or even an acknowledged analogical reasoning by reference to either the outcome or the wording or the general feeling which the Court of Appeal is exhibiting in terms of hostility or difficulty in finding for plaintiffs in these cases.  One result of this is that subcultures develop, as of course occurs in the common law in a number of areas, potentially one in each State but where the outcome at trial depends upon the perception of the current mood or form which can swing wildly from time to time towards pedestrian cases.

Your Honours, we appreciate these cases are not really decided at trial level on the lofty plane of legal principle.  However, the force of analogical reasoning based on the facts and outcomes in the Court of Appeal reported and unreported cases tend to determine the matter.  Your Honours, we would submit that the trial judges and the lawyers who advise clients operate without any assistance of one case from the court which, in a considered fashion, provides some guidance.

Your Honours, if the case is measured by the usual criteria, other than miscarriage of justice, we recognise that in terms of questions of law, we are not there, we rate one out of 100, but we would submit that if, for the first time in 100 years this Court is to decide a child pedestrian case, this is the case.

We would argue, finally, your Honours, that the argument for deciding a child pedestrian case is stronger now than ever.  The number and speed of cars in residential area is great increased, and modern medicine tends to save the children, they do not die; they tend to live long lives with

extremely costly needs placing great burdens on everyone.  Your Honours, we would submit that this class of victim, which will grown, has no assistance from this Court and we would submit that if the Court is to move to resolve the difficulty, this is an appropriate vehicle.

GAUDRON J:   Thank you, Mr Gross.  Yes, Mr Taylor.

MR TAYLOR:   If your Honours please.  My learned friend, having made it clear that there are really two bases for the application, can I deal with each of them? 

The concept of egregious error, with respect, is not really developed in the outline of argument and as near as I can summarise it, it seems to be based upon three propositions of fact.  First of all, that people, including children, were on the left-hand side of the road.  It is convenient to get a picture of this case by your Honours imagining looking down a wide road and seeing on the right-hand side the place where the child is coming from and then on the left-hand side what my learned friend seeks to characterise as the rest of the group to which the child was going. 

Now, your Honours are at a disadvantage because we do not have the transcript but the reality is this:  the people on the left-hand side that my learned friend seeks to say constitute part of the egregious error, there is not a word about them in any of the judgments to suggest that they were seen or should have been seen by Ms Holt, and the reason why that is so, notwithstanding that it was specifically a ground of appeal in the Court of Appeal, the reason why it does not figure in the judgments is because of the objective facts, and the objective facts are simply these:  no street lights on the left-hand side of the road; cars parked all along the left-hand side of the road; the people on the left-hand side of the road parked out three to four houses back towards the observer where Ms Holt is coming from.  So, she is at a housing block 60 feet – this car is parked 200 feet closer.  The people are on the footpath, an unlit footpath on the left-hand side of the road.  Hardly surprising that there is no finding anywhere that Ms Holt saw them and, indeed, she denied in her evidence that she did see them and there was no real cross-examination to suggest that she should.  So, the egregious error, No 1, that there is this group that the boy is running to, is simply not demonstrated in any of the judges’ findings, either at first instance or on appeal, as something that Ms Holt should have seen or was responsible for failing to observe. 

The second egregious error that my learned friend seeks to say the Court of Appeal and the trial judge made was that Ms Holt should have seen that there were children crossing the road because, as he said to your Honours, “She was close enough to tell”.  Now, of course, “close enough” is not a quantitative term.  The evidence was that when she saw the

people cross she was a good way back.  Even the child’s mother said that the car was a good way back and her evidence was that she had time to cross the road twice when she first saw the car.  So that the notion of “close enough” is an emotive way of saying she was close enough to see the children but the real question is whether or not, at least in the Court of Appeal, there was an anxious consideration about whether or not - - -

GAUDRON J:   We do not think we need to hear you further.  Mr Gross, did you wish to reply to that?

MR GROSS:   No, your Honours.

GAUDRON J:   Yes, thank you.

The facts of this case are not such as to give rise to any question of principle.  Moreover, the actual decision of the Court of Appeal is not attended with any doubt.  Special leave accordingly is refused.  Written submissions having been made with respect to costs, it is refused with costs.

Call the next matter.

AT 10.37 AM THE MATTER WAS CONCLUDED