Girmay v Green - [2021] TASSC 52

[2021] TASSC 52

COURT: SUPREME COURT OF TASMANIA

CITATION: Girmay v Green [2021] TASSC 52

PARTIES:  GIRMAY, Brehane Giday
  by his litigation guardian Tsege Gebregiorgis Behre
  v
  GREEN, Jason Vivian

FILE NO:  689/2008
DELIVERED ON:  4 November 2021
DELIVERED AT:  Hobart
HEARING DATES:  12, 13 October 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Torts – Negligence – Other particular claimants, defendants and circumstances – Road accidents – Pedestrian accidents – Children – Child running across road into side of moving car – Driver travelling slowly but unable to avoid collision – Driver not negligent.

Civil Liability Act2002 (Tas), s 11.
Marien v Gardiner [2013] NSWCA 396, 66 MVR 1, referred to.
Aust Dig Torts [1308]

REPRESENTATION:

Counsel:
             Plaintiff:  P G J Zeeman
             Defendant:  K E Read SC, D W Symes
Solicitors:
             Plaintiff:  Murdoch Clarke
             Defendant:  Dobson Mitchell Allport

Judgment Number: [2021] TASSC 52
Number of paragraphs: 33

Serial No 52/2021
File No 689/2008

BREHANE GIDAY GIRMAY by his litigation guardian
Tsege Gebregiorgis Behre v JASON VIVIAN GREEN,

REASONS FOR JUDGMENT BLOW CJ

4 November 2021

This is an action for damages for personal injuries resulting from a motor vehicle accident. At about 2.10pm on 9 September 2005 the plaintiff, Brehane Girmay, was crossing Albert Road in Moonah on foot when he was involved in a car accident and suffered catastrophic head injuries. By agreement, the action has proceeded to trial only in relation to the issues relating to liability. The quantum of the plaintiff's claim has been agreed, subject to Court approval, the plaintiff being under a disability.
The plaintiff is a member of an Ethiopian family. Not long before the day of the accident, he and his family moved into a house in Central Avenue, Moonah, around the corner from Albert Road. On the day in question, it appears that he was 12 years old, although I was told that there was no reliable record of his date of birth. He had been taken to some shops by two male family friends in a car. They drove him back towards his home, heading west along Albert Road. The driver crossed Central Avenue and then stopped the vehicle opposite the Olympic Takeaway shop, which was at 96 Albert Road, on the corner of Central Avenue. The plaintiff was in the back seat. He got out of the car through the left rear door, went around the rear of the car, and commenced to cross Albert Road, heading towards the shop. His home was beyond the shop, three doors up from it in Central Avenue.
At the same time the defendant, Jason Green, was driving his mother's blue Toyota Corolla sedan east along Albert Road towards its intersection with Central Avenue. There was a collision between that vehicle and the plaintiff. He fell backwards onto the roadway, hit his head, and suffered permanent brain damage.
The collision occurred on a long straight section of Albert Road. The defendant was travelling down a slight incline after passing through the junction with Gormanston Road, about 200 metres before the site of the collision. He would have had a clear view of the road ahead after travelling over a slight rise in the vicinity of Gormanston Road. A pedestrian crossing Albert Road where the plaintiff began to cross would have been able to see the tops of approaching cars before they reached Gormanston Road and, subject to any vehicles obstructing the view, would have been able to see approaching vehicles in the stretch of about 200 metres between Gormanston Road and the accident site. Albert Road was quite a busy road, with one lane of traffic travelling in each direction, and a marked centre line.
The case for the plaintiff is that the collision was caused by the defendant's negligence. It is alleged that he failed to keep a proper lookout, drove at an excessive speed, failed to observe the plaintiff in time to avoid a collision, and failed to brake, stop, slow down or manoeuvre his vehicle sufficiently or at all so as to avoid a collision.
The case for the defendant is that the plaintiff was running across the road; that the defendant was keeping a proper lookout and driving at a reasonable speed; and that the defendant braked and swerved to the left on seeing the plaintiff; but that a collision was unavoidable because the plaintiff suddenly ran across the road.
Counsel for the plaintiff called only one witness, Mr Tedros Bioou. He was a passenger in the front seat of the car from which the plaintiff alighted. Counsel for the defendant called four witnesses – the defendant, a Mr Brown who had been travelling with him, the then proprietor of the Olympic Takeaway shop, and an engineer.
Mr Bioou gave evidence to the following effect. He and the driver of the car took the plaintiff to the K-Mart to change some clothes at the request of his mother. They changed the clothes. They brought him back to Albert Road. They stopped opposite the Olympic Takeaway. They had been told to drop the plaintiff there. He and the plaintiff got out of the car. He looked to see whether there were any cars coming. He did not see any. He told the plaintiff that it was safe to cross the road. He told him to take care when crossing the road. The plaintiff was moving slowly as he crossed the road. He did not run. Mr Bioou did not see or hear the car driven by the defendant before the impact. The plaintiff fell down on the street. The moving vehicle crossed to the other side of Central Avenue before stopping.
Police officers arrived at the scene of the accident very soon after it happened. They took statements from the defendant, his passenger and the shopkeeper, but not from Mr Bioou or his companion. Apparently that was because they spoke no English. It is most unfortunate that I do not have a contemporary account of the relevant events from Mr Bioou or his companion, but only oral evidence from Mr Bioou, given from memory sixteen years after the accident.
The shopkeeper, Ms Heenan, gave the following account of events in her police statement:
"About 2.10 pm on Friday 9 September 2005 I was working at the Olympic Takeaway. At that time I was standing behind the counter near the front window. Whilst standing there I had a clear view of the street.
My attention was drawn to a family which was parked in a white Toyota sedan, across the street. The car was parked facing towards Moonah and on the opposite side of the road.
The next thing I saw was the family out of the car. There were two adult males and a young boy. They were all dark-skinned, they appeared Sri Lankan to me or something along those lines.
All of a sudden the young boy started running across the street towards the shop.
I noticed that there was no traffic in the far lane, so he got across to the middle safely. However, he kept running and then I heard the screeching sound of brakes coming from the city bound lane.
I anticipated what was about to happen, and ran from where I was standing around the counter so I could go outside. As I ran outside I yelled out to Shelley to ring the ambulance.
It took me about 2-3 seconds to get outside. At this point I became aware of a small blue car, I think it was a Toyota Corolla, later model, had pulled up just outside the front of the shop."
Ms Heenan administered first aid. She probably saved the boy's life.
Under cross-examination she confirmed that she had not seen the impact. Her oral evidence was substantially consistent with her police statement, though there were some details that she could no longer remember. For example, she remembered that one of the men who had been travelling with the plaintiff got out of their car, but did not remember whether the other one had got out or not.
The defendant was formally interviewed by a police officer a few hours after the accident. A recording of the interview was tendered on the trial. His version of events was to the following effect. He was travelling with his mate John Brown in his mother's car. He had returned some videos. Then they called into Cooley's Hotel in Moonah, where they had one quick beer. Then they drove along Albert Road to the place where the accident occurred. It had been raining. The roads were wet. There were damp patches. It was not raining at the time. He was travelling at roughly 40 kilometres per hour. He was in third or fourth gear. He was not using his mobile phone. He noticed a white car parked on the other side of the road. By the time he saw the child he was halfway across the other lane, or thereabouts. He "hit the brakes and headed for the gutter, but … just could not do anything". The car skidded a little bit after he applied the brakes. It did not have ABS braking. There were no skid marks. He thought his passenger swore when the plaintiff was running out onto the road. The boy tried to stop running, but it was too late. He hit the car, went backwards, and hit his head on the road. He hit the car on the front driver's side guard. There was no damage to the vehicle.
The defendant told the police that he was taking pain killer medication called Tramal for his back and his neck, and that he had two of those tablets the previous night and two more during the morning. He said that he had been taking Tramal for eight years and that it did not make him drowsy, although there was a warning about drowsiness on the packet.
The defendant was 36 years old at the time of the accident. He had been driving for about 19 years. He underwent a breathalyser test after the accident. No alcohol was detected. A police officer checked his mobile phone during his interview, and confirmed that it had not been in use at the time of the accident.
One of the police officers questioned the defendant about his assertion that he was only doing 40 kilometres per hour. He conceded that he could have been going faster, but denied that he could have been travelling at 60 kilometres per hour. The officer asked him why he was only doing about 40 kilometres per hour. He replied, "The speed limit is only 50 and – yeah – and I got done down there a couple of weeks ago." In fact the speed limit was 60 kilometres per hour.
Under cross-examination the defendant conceded that he could have been travelling at 50 kilometres per hour. He said that there was no traffic in front of him as he travelled along Albert Road, and nothing parked around the shop on his left side of the road. He accepted that he could have seen the parked white car from about 100 metres away. He said that he saw people in the car but did not know how many. He said that he did not see anybody get out of that car, and did not see anyone on the footpath. He said his car came to a stop somewhere around the door of the shop, and that he moved his car around the corner into Central Avenue after the police asked him to do that. His account of the relevant events was substantially unshaken.
The vehicle driven by the defendant was inspected by a transport inspector some days after the accident. He found that the steering, brakes and tyres were all in good order. He said that the vehicle was roadworthy and well maintained.
The defendant's passenger, Mr Brown, made a police statement on the day in the form of a statutory declaration. It included the following:
"We left Cooleys and drove east along Albert Road Moonah towards the Brooker Highway. By this time it was approximately 2:10pm.
Jason and I discussed travelling down Gormanston to Mermaids takeaway on Derwent Park Road, Glenorchy but was thought [sic] to head straight home.
It was at this stage in a split second I observed a young male with dark skin run from a white car parked on the opposite side of the road parked in a westerly direction.
I yelled at Jason and said 'LOOK OUT'. Jason braked hard but was unable to avoid hitting the youth.
The youth was struck with the front of Jason's car on the drivers side. The youth then fell to the ground. I exited the car and ran to the youth.
…
Whilst ravelling [sic] down Albert Road I believe the car was travelling at a speed of 40-50 kph. I tried to locate any skid marks but was unable to do so.
I believe due to the speed at which the youth ran across the road there was no possible way that Jason could avoid hitting the youth. The youth crossed the road without looking at what the traffic conditions were."
Under cross-examination Mr Brown said a number of things that were not included in his statutory declaration. For one thing, he said that he had sworn when he told the defendant to look out. More significantly, he said this:
"… I seen what I thought was a light, could have been white, it could have been light grey sedan pull up directly opposite the shop, heading in a westerly direction, and it was at this point I observed a young – a young fellow, Sudanese or African appearance, to me it appeared he – he jumped out of the back seat of the vehicle with no supervision whatsoever, at a young age, and sprinted, did not look left, did not look right, sprinted across the road to that shop, and it was at this stage that Jason had already applied the brakes, tried to take evasive action, and the young gentleman ran into the car. He was running that fast he could not stop."
He said that he saw two adults in the front seat, and that they did not get out until after the collision.
The eastbound and westbound portions of Albert Road were separated by a single broken white line. It was not in the centre of the road. The police took measurements that were included in a report that was tendered during the trial. Further information was compiled from aerial photographs and other sources by the defendant's expert witness, Mr Hall. The westbound part of Albert Road, from which the plaintiff ran, was 4.5 metres wide. The eastbound section of the road, on which the defendant was driving, was about 5.9 metres wide. A police officer estimated that the distance between the two cars at the point of impact was 4.3 metres.
I am satisfied that the plaintiff ran out from behind the car in which he had been travelling. I accept the evidence of Ms Heenan, the defendant and Mr Brown to that effect. It is very significant that all three of them described the boy running across the road, first in contemporaneous statements to the police and again in oral evidence 16 years later. I have no reason to doubt Mr Bioou's honesty, but I think his memory must have become inaccurate over the years. If the boy had been moving slowly as he crossed the road, and not running, it is highly likely that the accident would not have occurred. I also consider it significant that Mr Bioou did not see the approaching car before the impact, and that he appears to have made a mistake about that car proceeding across the intersection with Central Avenue before it stopped.
The defendant's expert witness, Mr Christopher Hall, is a mechanical engineer with about 46 years' professional experience and impressive expertise in the investigation of motor vehicle accidents. He has analysed about 3000 accidents in the course of his career. His expertise was unchallenged.
He prepared a report and summarised his conclusions as follows:
"1.4    In the circumstances, the likely perception/response time applicable to an alert driver was 1 – 1.5 seconds, with a value closer to 1.5 seconds being more likely.
1.5     From a speed of 45kph, and taking into account a likely perception/response period of 1 – 1½ seconds, Mr Green required approximately 26 – 34 metres to bring the Toyota to rest.
1.6     A period of 3.2 – 4.1 seconds, of which 2.2 – 2.6 seconds equated to the braking period, would have elapsed during which Mr Green brought the Toyota to rest after responding to Mr Girmay's emergence out from behind the parked vehicle.
1.7     Given the damp/wet road conditions, the running speed of Mr Girmay was likely to have been in the order of 3.2 – 4.3 metres per second, which would have provided Mr Green only 1.1 – 1.3 seconds within which to avoid a collision with Mr Girmay.
1.8     It was not possible for Mr Green to avoid the collision in such a short time period.
1.9     Even in the event that Mr Girmay ran slowly at a pace equivalent to a very slow jog, Mr Green would not have been able to bring his vehicle to a halt before reaching Mr Girmay's path across the roadway.
1.10    The action by Mr Green of swerving left and braking were consistent with the typical response of an alert driver, and there was no other reasonable course of action available to him."
Those conclusions were based on sophisticated calculations which took into account published research as to relevant variables, including the running speeds of boys of various ages in wet conditions, drivers' perception-response times, skid resistances for braking vehicles on wet roads, and intervals between the application of the brakes and wheels beginning to skid. Mr Hall's methodology and calculations were fully exposed. His conclusions were uncontradicted, and not shaken by cross-examination. I accept his expert opinion evidence unreservedly.
A person who drives a motor vehicle on a road always owes a duty of care to persons on or near that road, including pedestrians. Provisions in the Civil Liability Act 2002 apply to breaches of that duty of care. Provisions as to the standard of care are to be found in s 11 of that Act, which reads as follows:
"11 General principles
(1) A person does not breach a duty to take reasonable care unless –
(a) there was a foreseeable risk of harm (that is, a risk of harm of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things):
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the potential net benefit of the activity that exposes others to the risk of harm.
(3) For the purpose of subsection (2)(c), the court is to consider the burden of taking precautions to avoid similar risks of harm for which the person may be responsible."
Also, s 12(a) of that Act provides as follows:
"12 Other principles
In a proceeding relating to liability for breach of duty –
(a)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done …".
There is a convenient summary of the law relating to a driver's duty of care in the judgment of Meagher JA, with whom Macfarlan and Emmett JJA agreed, in Marien v Gardiner [2013] NSWCA 396, 66 MVR 1. In that judgment his Honour referred to s 5B of the Civil Liability Act 2002 (NSW) which is the equivalent of Tasmania's s 11. His Honour said the following at [33] to [37]:
"33 The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy [Vairy v Wyong Shire Council [2005] HCA 62, 223 CLR 422] at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
34    The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New SouthWales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
35    Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander [[2005] HCA 79, 223 ALR 228] at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'.
36    The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
37    Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole [South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205, 55 NSWLR 113] at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."

In Warth v Lafsky [2014] NSWCA 94, 66 MVR 445, McColl JA, with whom Preston CJ of the LEC and Tobias AJA agreed, said the following at [56]:
"56 Notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 (at 418) per Mahoney P; Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 (at [16] - [17]) per Emmett JA (Ward and Gleeson JJA agreeing). A greater standard of care is required of motorists when young children are in the vicinity of a road, or reasonably expected to be in the vicinity: Gunning v Fellows (1997) 25 MVR 97 (at 98) per Beazley JA (with whom Mason P and Cole JA agreed); Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 (at [87]) per McColl JA (Macfarlan JA agreeing). Motorists should 'exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections': Turkmani v Visvalingam [2009] NSWCA 211; (2009) 53 MVR 176 (at [28]) per Hodgson JA (Beazley and McColl JJA agreeing)."
This accident occurred during school hours. There was no reason to expect children to be in the vicinity of the Olympic Takeaway shop. There was no reason for special vigilance on the part of the defendant. His duty of care required him to keep a proper lookout as to what was in front of him and behind him, to keep a lookout for vehicles approaching Albert Road on Central Avenue from his right or left, and to be aware of his vehicle's speed. Mr Brown may have spotted the plaintiff before the defendant did, but he was in a position to look anywhere he chose, and it therefore does not follow that the defendant was not exercising reasonable care.
It could be that the defendant was travelling at a speed a little faster than the speed of 45 kilometres per hour that Mr Hall used as the basis for his calculations. I do not think that that would make a difference to the outcome of this action. I accept Mr Hall's evidence. It establishes that the defendant could not have avoided a collision unless he had been travelling significantly more slowly than the assumed speed of 45 kilometres per hour. The risk of a pedestrian suddenly running across the road on a collision course with an approaching car was not so significant that a reasonable motorist in the defendant's position would have travelled so slowly that a collision could have been avoided. I am therefore satisfied that the defendant did not breach his duty of care.
For these reasons, I order that judgment be entered for the defendant.