Johnson, Clayton Christopher and Donna v Johnson, Rex Graeme - [1998] TASSC 16

16/1998

PARTIES:  JOHNSON, Clayton Christopher
  JOHNSON, Donna
  v

JOHNSON, Rex Graeme

TITLE OF COURT:                 SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 49/1997
DELIVERED:  4 March 1998
HEARING DATE/S:                5 November 1997
JUDGMENT OF:  Wright, Crawford and Slicer JJ

CATCHWORDS:

Torts - Negligence - Essentials of action for negligence - Standard of care - Particular persons and situations - Motor vehicle cases - Child riding bicycle on road - Defendant's view of child obscured by oncoming vehicle - Collision - Contributory negligence.
Australian Digest Torts [48]
Appeal - Interference with judge's findings of fact - Inferences drawn by trial judge - Inferences of fact from admitted or found facts - Duty of appellate court to decide according to own conclusion - Regard to view of trial judge in reaching that conclusion - Inference of negligence of driver - Speed of vehicle excessive - Inconsistent evidence of witnesses - Whether adverse inferences should be drawn.

Jones v Dunkel (1959) 101 CLR 298; Warren v Coombes and Another (1978 - 1979) 142 CLR 531; Whiteley Muir & Zwanenberg Limited v Kerrand Another (1966) 39 ALJR 505, applied.

Australian Digest Appeal [21]

REPRESENTATION:

Counsel:
             Appellant:  J K Levis and C N Dockray
             Respondent:  T J Ellis
Solicitors:
             Appellant:  C N Dockray
             Respondent:  Clarke & Gee

Judgment category classification:
Court Computer Code:
Judgment ID Number:  16/1998
Number of pages:  20

Serial No 16/1998
File No FCA 49/1997

CLAYTON CHRISTOPHER JOHNSON by his next friend Donna Johnson and DONNA JOHNSON v REX GRAEME JOHNSON

REASONS FOR JUDGMENT FULL COURT

WRIGHT J
CRAWFORD J (Dissenting)
SLICER J
4 March 1998

Orders of the Court

Appeal allowed.

Judgment for defendant set aside; in lieu thereof, judgment for plaintiff for damages to be assessed reduced by ten per cent on account of his contributory negligence.

Serial No 16/1988
File No FCA 49/1997

CLAYTON CHRISTOPHER JOHNSON by his next friend Donna Johnson and DONNA JOHNSON v REX GRAEME JOHNSON

REASONS FOR JUDGMENT FULL COURT

WRIGHT J
4 March 1998

At about 5pm on 17 December 1990, the appellant, then aged 7½ years, sustained serious injuries when his BMX bicycle collided with the respondent's Nissan Pintara station sedan in West Peel Street, Launceston. The appellant, by his mother and next friend, sued the respondent, alleging that the collision was caused by the respondent's negligent driving. This allegation was denied and the respondent alleged that the appellant was contributorily negligent. The action proceeded to trial, on the issue of liability only, in the Supreme Court at Launceston in May 1997 before Underwood J. On 21 May 1997, his Honour gave judgment for the respondent. The appellant now seeks that that judgment be set aside and, in lieu, judgment be entered in his favour. There were several grounds of appeal but, in substance, they challenge the learned trial judge's findings and conclusions in two essential respects.
Two witnesses, each characterised by his Honour as "careful, accurate and reliable", gave evidence which was in significant conflict on a very important question of fact, namely the position of the appellant's young companion Rowan La Palombara at the time the collision occurred. The appellant contends that the evidence of a Peel Street resident, Mr Brown, should have been preferred to that of a passing motorist, Mrs Ray, whereas his Honour found himself unable to choose between them, with the result he declined to make one of the findings of crucial importance to the appellant's case.
The appellant also contends that on the basis of his Honour's findings as to the speed of the respondent's vehicle before the accident, he should have concluded that the respondent was travelling at an excessive speed which deprived him of the ability to stop, slow down, or manoeuvre so as to avoid the collision.
To gain an understanding of these matters, it has been necessary to review the evidence in some detail. However, as this was also done by the learned trial judge and as his narrative of relevant matters and his findings were not challenged, except in the respects already mentioned, it seems appropriate to set out his description of the material events. This description fairly and accurately summarises the effect of the evidence.
"West Peel Street ('Peel Street'), Launceston in the residential suburb of Summerhill, is a major suburban road. It runs in a straight line over a distance of a little more than two kilometres in a general east/west direction. The accident happened on a stretch of Peel Street between its junctions with Cambridge and Harris Streets. There, the street is ten metres wide from kerb to kerb, the roadway is made from hotmix and the footpaths are formed. Many of the houses in the area are occupied by families with young children. Summerdale Primary School is located at the intersection of Peel and Stanley Streets, about 500 metres from the accident scene.

On the afternoon of 17 December 1990 the weather was warm and fine. The road surface was dry and the visibility was good. The defendant was driving a car along Peel Street from west to east. The Harris Street junction lay ahead of him and to his left, and about 100 metres further on, also to his left, was the Cambridge Street junction. The Harris Street junction is situated on a slight crest in Peel Street which effectively obscured the defendant's view of Peel Street ahead of him until he was approximately thirty metres from Harris Street. From this point on there was nothing in the streetscape to obscure the defendant's view of Peel Street ahead of him for a distance of about 150 metres.
The accident happened on the plaintiff's [sic] (this should obviously be the 'defendant's') correct side of the road about forty metres past its junction with Harris Street. The infant plaintiff, then 7½ years old, rode his bike at an angle towards the defendant across Peel Street from south to north. He had almost reached the other side when he was hit by the defendant's car. All the material events that led up to this accident occurred in just under one minute. There were some differences between the accounts given by the witnesses which is hardly surprising as they were asked to recall the minute detail of a very traumatic event that happened over six years ago.
Mrs Johnson, the infant plaintiff's mother, gave evidence that the infant plaintiff (Clayton) had a BMX two-wheel bike. I infer that Clayton was a skilled cyclist. He was given his first bike when he was two years old and had been riding a two-wheel bike for about 2½ years before the accident. Clayton and his older brother lived with their parents at 117 Peel Street which is situated on the southern side of Peel Street, a short distance to the east of the junction with Cambridge Street.
Next-door to the Johnson family lived the La Palombara family. Rowan La Palombara was a little older than Clayton. The two boys were friends. About 5pm on 17 December 1990, Mrs La Palombara spoke to Mrs Johnson over the fence that separated the two properties. Mrs La Palombara wanted Rowan to go on an errand for her to the chemist shop a short distance away on the opposite side of Peel Street. She asked Mrs Johnson if Clayton could go with him so Mrs Johnson called Clayton from inside their house and told him what Mrs La Palombara wanted. Clayton's bike had been left at the La Palombara house, so Clayton climbed over the fence and shortly afterwards was seen by Mrs Johnson riding down the La Palombara driveway and out onto the footpath of Peel Street. Mrs Johnson noticed that Clayton was not wearing his helmet and ran towards the street calling to him to come back and get it but it appears that he did not hear her. She turned back and walked to go inside her house. The last she saw of the boys was as they turned left onto the southern footpath of Peel Street and headed west up Peel Street. When she got to the door, Mrs Johnson heard a screech of brakes. She raced back down her driveway and onto the street. A short distance away on the opposite footpath of Peel Street she saw her son lying injured.
Mrs Ray was an important witness called on behalf of the plaintiff. She impressed me as a careful, accurate and reliable witness. She was not cross-examined. There is no reason at all why her evidence should not be accepted. The difficulty is that, in one important respect, Mrs Ray's evidence is in conflict with the evidence of another witness, Mr Brown. Mr Brown also impressed me as a careful, accurate and reliable witness and similarly, there is no reason why his evidence should not also be accepted.
Mrs Ray lived in Springvale Place, Summerhill. At about 5pm on the day of the accident, she was driving her Mitsubishi L300 mini bus along Cambridge Street towards its junction with Peel Street. Her intention was to turn right into Peel Street, travel west along it for approximately 100 metres to Harris Street and then to turn right to go up Harris Street on her way home. Also in the vehicle with Mrs Ray were her 6 year old son and 3 year old daughter. When she reached the junction of Cambridge and Peel Streets she stopped to give way to traffic moving along Peel Street. While she was stationary, she noticed two boys on bicycles directly opposite her on the southern footpath of Peel Street. She did not know either of them but her son pointed to one of them and said 'that's Clayton, he goes to my school.' At the time Mrs Ray first saw the boys on the footpath on the other side of the road, they were riding in an easterly direction along Peel Street, one slightly in front of the other. Although out of sight at this time the defendant must have been about 300 - 400 metres or so away from the Harris Street junction and approaching in the opposite direction to the one in which the boys were travelling.
The traffic cleared and Mrs Ray turned into Peel Street. She said that the boys were riding quite quickly and quite close together when she straightened up and drove past them. Both were still on the southern footpath. Mrs Ray said that she gradually increased her speed but would have not reached more than forty kilometres per hour before slowing in order to make the right-hand turn into Harris Street. She said there was a car travelling in the same direction as she was and about thirty to forty metres in front of her. This vehicle was going quite slowly and indicating an intention that it, too, intended to turn into Harris Street.
Mrs Ray said that when she was almost halfway along the distance between the two junctions she glanced in her rear vision mirrors. She said that both boys were still on the southern side of Peel Street but Clayton was then riding along the gutter with the other boy still on the footpath. She said at this stage:
'I think that was about the last time I looked in my rear vision mirror to see if there was any traffic coming up behind me, you know, just that Clayton was still travelling along the edge of the road in the gutter. I remember seeing the other child actually straddled his bike in a stationary position on the footpath. I started slowing down for the oncoming cars ... .'
Mrs Ray said that the car in front of her turned right into Harris Street before she reached the junction. I find that this vehicle turned right before the oncoming defendant reached the Harris Street junction. As Mrs Ray got close to the Harris Street junction she said that she saw a car approaching her from the opposite direction. I find that this was the defendant's vehicle. Mrs Ray said that she slowed to about twenty kilometres per hour. She said that she did not have to stop to give way to the defendant. He went past her as she was just about to make her right-hand turn. As she was turning, Mrs Ray heard the screech of brakes, looked to her right down Peel Street and before she actually entered Harris Street, she saw the infant plaintiff 'hit [the defendant's] bonnet, come off the windscreen of the motor vehicle, onto the footpath.' Mrs Ray continued driving into Harris Street, parked and ran back to the scene of the accident.
Mr Brown lived at 135 Peel Street directly opposite the Harris Street junction. He was working on his front fence on the afternoon of the accident. About 5pm Mr Brown stopped work to have a cigarette. He stood near his front fence looking east down Peel Street and noticed two boys on bikes riding along the footpath towards him. He said they were just past the Cambridge Street junction when he first noticed them. He said that he recognised Clayton as one of the two boys. He had seen him on many previous occasions. He noted that Clayton was not, but the other boy was, wearing a bike helmet. He said that when he first saw them, the other boy, who obviously must have been Rowan, was riding in front of Clayton. To this point, there is no difference between Mr Brown's evidence and Mrs Ray's evidence. To accept the evidence of Mrs Ray and the evidence of Mr Brown would result in a finding that the time Mrs Ray drove past the two boys was the same time that Mr Brown first saw them. However, Mr Brown said that there was no traffic travelling in either direction on Peel Street when he first saw the boys. He said that Rowan was slightly in front of Clayton and 'there was no vehicles and no trees as an obstruction, there was no traffic on the street at this stage parked or travelling through.' Mr Brown said that when Rowan approached the driveway of 131 Peel Street (located about halfway along the 100 metres between Harris and Cambridge Streets) he cycled at an angle across Peel Street to the northern side. He said that Rowan just veered right across Peel Street without pausing before he did so. Mr Brown said that when Rowan got to the other side of Peel Street he stopped, spun his bike round and turned to face Clayton who was by this time, straddling his bike on the opposite, or southern side of Peel Street. Mr Brown said he then saw a vehicle coming out of Cambridge Street and turn right into Peel Street. His evidence (given without objection) was that 'Clayton obviously observed this vehicle and waited at this driveway at 131 Peel Street.' This vehicle must have been the one driven by Mrs Ray. Mr Brown said that he could hear Rowan calling out something to Clayton across the road but he could not make out what was being said. He said as soon as the vehicle went past, Clayton sped off across the road at an angle to join Rowan. Mr Brown said that directly after that he heard a screech of brakes and he saw the middle of the defendant's bonnet hit Clayton and he saw him thrown up in the air, down on the bonnet and then off onto the kerb."

It will be seen that from this evidence emerged what his Honour described as a "fundamental irreconcilable difference" between Mrs Ray's evidence and that of Mr Brown. Mrs Ray claimed that the two boys, Clayton and Rowan, were still on the southern side of the road after she had driven past them. Mr Brown said that Rowan had crossed to the northern side of the road and was waiting for Clayton to cross, that there was some verbal exchange between them from opposite sides of the road, following which Clayton waited for a west bound car to pass before cycling across the road towards his friend. It will be noted that Mr Brown knew both boys and was taking a break from his labours when he made his observations. Unlike Mrs Ray, he was not immediately concerned with other moving traffic. It is also noteworthy that Mrs Ray, who was intent upon making a right hand turn into Harris Street across the path of oncoming traffic, claims to have seen both boys on the southern side of the road immediately before the collision between the appellant's bike and the respondent's station wagon by means of the rear vision mirrors fitted to her vehicle. In such circumstances one may expect Mr Brown's observations to be more accurate than those of Mrs Ray.

The learned trial judge observed that:

"There is no doubt from the totality of the evidence that Clayton rode his bike across the road at an angle immediately after Mrs Ray had gone past him towards the Harris Street junction."

That junction is some distance from the point of the collision and on the basis of the scale plan which was used by several witnesses to illustrate the position of the boys and the movements of vehicles, it seems probable that Mrs Ray's vehicle had travelled about forty to forty-five metres past that point before the collision occurred. She said that upon hearing the brakes screeching on the respondent's vehicle, she looked out her driving side window and saw the collision actually taking place. Just prior to this she had been travelling at about twenty kilometres per hour at which speed she was able to pass behind the respondent's vehicle without stopping as she made her turn to the right. She was in the process of making that turn at the moment of collision.

Mr Levis, senior counsel for the appellant, argued that these and other considerations should lead to the conclusion that, as Mrs Ray did not see Rowan cross to the northern side of the road, such an event may have happened after her vehicle had passed the two boys, and that the vehicle from behind which Clayton moved suddenly into the path of the respondent's vehicle could have been another vehicle which had been following behind Mrs Ray. In this way, Mr Levis argued, the apparently conflicting accounts by Mrs Ray and Mr Brown could be reconciled. Mr Levis pointed to the fact that in the respondent's statement to the police, which was taken on the day of the accident, he described Clayton as emerging suddenly from behind "a blue coloured car". As Mr Levis also correctly pointed out, Mrs Ray was driving an eight seater 1984 Mitsubishi L300 bus. Its colour was not given in evidence, but the argument advanced was that it would be unlikely that the respondent would describe such a vehicle as a blue coloured "car". On its own, this point does not carry very much weight. After all, people frequently refer to station wagons, utilities and other small to medium size vehicles as "cars".
It is easy enough to understand that Mrs Ray may have failed to see Rowan cross the road behind her vehicle if that is what he did, but on Mr Brown's version of events, if her vehicle was the one from behind which Clayton rode across the street, Rowan must have crossed the road in front of her. In doing so, he must have been clearly visible to Mrs Ray. How did she fail to see him? It is this conundrum which causes one to search for reconciliation between her account and that of Mr Brown but, notwithstanding Mr Levis' able argument, I am unable to view the accounts as mutually compatible. Even allowing for the distance which she says she travelled after passing the boys and her slow speed in approaching and making the right hand turn, I can see no proper basis for believing that a blue vehicle was following her. Neither she nor Mr Brown suggested the presence of such a vehicle but, in any event, it seems unlikely that there would have been sufficient time for Rowan to have crossed the road safely on to the northern footpath, to have turned his bike around and to have had even a brief conversation with Clayton as described by Mr Brown before this mysterious vehicle passed both boys, allowing Clayton to pass behind it across to the northern side of the road.
I think that the learned trial judge's finding that Clayton "rode his bike across the road at an angle immediately after Mrs Ray had gone past him towards the Harris Street junction" is unassailable. Of course, if this finding is correct, and I believe it is, it poses a further difficulty which stands in the way of the acceptance of Mrs Ray's evidence. How did she travel as far as she did before the accident, bearing in mind the low speed at which her bus was travelling? In dealing with this problem there are several factors which must be taken into account. The first of these is Clayton's speed. Although one has the impression that he travelled fairly fast, he was only a little boy and he seems to have started from a completely stationary position. Furthermore, his path across the road was at an angle and he was struck by the respondent's vehicle when he was within about one metre from the northern edge of the road, so he must have travelled ten metres or so himself before the collision took place. These features do not allow a positive conclusion that Mrs Ray was wrong, but there remains some cause for circumspection in evaluating her evidence.

Rowan's position on the road at the time of the collision was of paramount importance to the appellant's case. As the learned trial judge said:

"A central plank in the infant plaintiff's case was that although the defendant's view of Clayton might have been obscured by Mrs Ray's vehicle, he ought to have seen Rowan on the other side of the road and from his stance, been alerted to the fact that there might be another child on the other side of the road."

By referring to Rowan's stance, the learned trial judge was, no doubt, referring not only to the fact that, according to Mr Brown, Rowan had turned his bicycle so as to point it back across the road, but also to the fact that he had engaged in a brief conversation with Clayton whilst in that position.

Mr Ralph, who was driving his car a short distance behind the respondent's vehicle, was also called to give evidence on behalf of the appellant. The learned trial judge found himself unable to accept Mr Ralph's evidence except in one respect. His Honour said:

"... I do accept his evidence when he said that he noticed the car in front of him brake and the next thing he saw was 'a child came from the left hand side of the road, virtually coming straight at me ... on a bicycle ... he was going like the clappers. He was ... like a fear stricken gazelle. I mean he was peddling like a maniac, absolutely flat out and he had the fear of God in his eyes'."

It is plain that in this rather arresting passage Mr Ralph was describing Rowan's behaviour immediately after Rowan had seen Clayton collide with the respondent's vehicle. It must have been a horrifying and traumatising event for any young observer. Mr Ralph's description was virtually mirrored by that of Mr Brown who said that "young Rowan sort of freaked out, rather hysterical and rode off in a westerly direction towards Harris Street."

The learned trial judge explained his disinclination to accept Mr Ralph's evidence, except in respect of this matter, on the basis that he was "hazy, imprecise and subject to a large measure of reconstruction". He also criticised his argumentative method of answering questions and inconsistencies and confusion in his answers. With all respect, I have difficulty in accepting such a wholesale denunciation of Mr Ralph. I have read his evidence carefully and on the whole I find it consistent. He was an independent witness. He was obviously keeping a good lookout as he managed to avoid hitting Rowan as he rode hysterically into the oncoming traffic. His description of where he parked his car and what he did at the scene was in part corroborated by Mr La Palombara. His evidence was inconsistent with no witness other than Mrs Ray. Many witnesses, particularly intelligent witnesses, become defensive and argumentative when their truthfulness or reliability is challenged by opposing counsel. Experienced counsel can sometimes exploit this tendency by asking appropriately loaded questions. In the present case, counsel for the respondent was, no doubt, intent upon discrediting Mr Ralph because his evidence was plainly unhelpful to the defence case. Similarly, it might be observed that Mrs Ray, who somewhat inexplicably was called as a witness for the appellant, gave evidence plainly favourable to the defence. As a result she was not cross-examined. Consequently, her evidence was not tested at all and it is therefore not surprising that she impressed the learned trial judge as, at least prima facie, "careful, accurate and reliable". Notwithstanding the learned trial judge's advantage in actually seeing and hearing Mr Ralph in the witness box, I would not reject the bulk of his evidence. Indeed, I would see it as a valuable aid in the difficult task of assessing the conflict between Mr Brown and Mrs Ray.
In discussing the evidence of Mr Ralph in conjunction with that of Mr Brown, the learned trial judge said:

"Immediately before he rode as described by those witnesses, Rowan may have been stationary on the northern side" [of the road] "before the accident, as described by Mr Brown, or he may have crossed from the southern side immediately behind Clayton and ridden around the accident and out again towards Mr Ralph. Either version of events is consistent with his observed behaviour after the accident."

With all respect, I cannot reach the same conclusion. Both Mr Brown and Mr Ralph described Rowan as commencing his wild ride from the footpath on the northern side of the road. Mr Ralph described Rowan's path in the following passage from the transcript:

"At a point in time when you travelled or approached or travelled through the intersection did you see anything untoward about the vehicle in front of you? ... Yeah, I have some recollection, it's hard but, I remember it braking suddenly, oh not suddenly, um braking quickly which I mean, I certainly became aware of a car braking and I'm coming up behind sort of thing.
And did anything then immediately happen? ... Yeah as I, a child came out from the left hand side of the road pretty well coming virtually coming straight at me.
On anything? ... On a bicycle, yeah. One of those little, I don't know if you call them a BMX bike or, and he was going like the clappers. He was, I sort of said like a fear stricken gazelle. I mean he was peddling like a maniac, absolutely flat out and he had the fear of God in his eyes. And he was coming out from the, I suppose, coming, if the kerb was like that, he was coming out at say 30 or 45 degree angle off, going east, coming off the, that would be the north side of the road, left side coming straight at me."

Mr Ralph then drew a diagram which became exhibit P6 showing the path of his car and Rowan's bicycle. According to that diagram, Rowan had ridden out from a position on the northern footpath.

The witness explained his diagram as follows:

"It's a bit hard to follow really but I've drawn the broken line showing a kid leaving the pavement onto the roadway coming out probably roughly at a 30 degree angle, maybe 45, but coming out at an angle, heading this way. My path at the time was coming up to that circle or circles — my path was coming down here and at the stage where I started to go out and around him he was still out here somewhere, so as I was driving this way like this I was looking left, right, left, right, and there was this kid right on me. He was just like come straight off the pavement and coming straight at me." [My emphasis.]

The photographs and diagrams show that there is a nature strip of grass between the kerb and the footpath. I consider it to be unlikely in the extreme that if Rowan had been stationary on the southern side of the road immediately before the accident he would have ridden across the road, across the width of the nature strip onto the northern footpath and back out on the road again, even in a state of blind panic. Furthermore, no one claimed to have seen him do so. Additionally, it seems to me that between Clayton's collision with the car and Mr Ralph's emergency manoeuvres to avoid Rowan, there simply was not enough time for Rowan to have seen the accident, reacted to it, pedalled off from a stationary position near the southern kerb to the footpath on the far side and then back again to a point on or near the centre of the road where Mr Ralph narrowly missed hitting him.

It is difficult to understand how Mrs Ray could have failed to observe Rowan crossing to the northern side of the road but the only conclusion which I can come to on the balance of probabilities is that she did. I think her evidence as to the position of the two boys immediately before the accident cannot stand.

I find Mr Brown's evidence convincing and supportive of the conclusion for which the appellant's counsel contends, viz, that the respondent should have been alerted to potential danger by Rowan's behaviour before the collision, even though he had no real chance of seeing Clayton on the southern side of the road until he emerged from behind Mrs Ray's vehicle.

The respondent gave no evidence at the trial and Mr Levis argued that this provided a sound basis for drawing adverse inferences against him on the principles discussed in Insurance Commissioner v Joyce (1948) 77 CLR 39 and Jones v Dunkel (1959) 101 CLR 298. However, I see that as an inappropriate method of dealing with the present case. Here there were eye witnesses to the accident. The choice to be made is between their competing accounts. I find Mr Brown's account preferable to that of Mrs Ray and as a consequence I find the "central plank" of the appellant's case to be established. The respondent did not give evidence. We do not know whether or not he saw Rowan waiting on the northern side of the road in the position described by Mr Brown. There is no mention of this matter in his statement to the police and his answers to interrogatories are also silent on the issue. Had Rowan not been waiting for Clayton on the northern footpath, I would be unable to characterise the respondent's speed, found by the learned trial judge to be fifty-five kilometres per hour up to the point at which the brakes were applied, as excessive, but, on the basis of the version of facts which I find to be preferable, in my opinion he should have seen Rowan and reacted to his presence by slowing down and exercising particular care. He was familiar with the street, he knew that a school was nearby. Indeed, that is where he had come from immediately before the collision. It was a warm summer's evening, close to Christmas. He should have anticipated the presence of children in the vicinity. Had he observed Rowan and reacted appropriately, the accident would probably not have happened. As it was, his vehicle had become almost stationary when the collision occurred. If the brakes had been applied only a second or so before they were, the collision would not have happened.

Peter Howard Hoban, an engineer, gave evidence that a motorist approaching the Harris Street junction in an easterly direction in Peel Street, ie, approaching from the same direction as the respondent, would have had a clear view along Peel Street towards Cambridge Street and beyond when he reached a point about sixty-two metres from the point of impact.

Accordingly, the respondent should have been aware of Rowan astride his bicycle on the northern footpath at about this distance from the accident, and, had he applied his brakes or eased off the accelerator so as to slow down, he would have been able to avoid the accident. A fortiori, if he had seen Rowan ride across the road before taking up the position just described, he should have been even more cautious as he approached. Either way, he failed to take reasonable steps to avoid a collision, in my opinion.

It was submitted by counsel for the respondent that the infant plaintiff's contributory negligence was partially responsible for the collision. The onus of establishing contributory negligence lies upon the respondent but, in my opinion, that onus has been discharged in the present case. In assessing whether or not a young person has shown a lack of reasonable care for his own safety, the age, intelligence and experience of that child must be taken into account (see Walters v Glasser 34/1962 (Gibson J), McHale v Watson (1966) 115 CLR 119 and Bullock v Miller 13/1987, (Underwood J).) In the present case the plaintiff was aged 7½ years at the time at which he was injured. He had received instruction in road safety from his mother and had had some experience of riding his bicycle outside the home environment in the company of older boys. His mother had instructed him generally to look both ways and to ensure that the path was clear for him before crossing streets. In my opinion, Clayton failed to show a want of care for his own safety in failing to keep a proper lookout and riding his bicycle onto the wrong side of the road and into the path of the respondent's vehicle. There was also evidence that Clayton was aware that he should always wear a safety helmet when riding his bicycle and it was his practice to do so. There is a good chance that he heard his mother calling to him to return to the home and get his helmet immediately before the collision occurred. Although the trial was limited to issues of liability, there was material before the Court from which it may reasonably have been concluded that the injuries which Clayton sustained would not have occurred or, at least, would not have been as severe as they were had he been wearing a protective helmet at the time. Paragraph 4(c) of the particulars of contributory negligence allege that Clayton was contributorily negligent in failing to wear his helmet. However, this particular was specifically abandoned by the defence at the trial and there was no attempt to resile from this during the course of the appeal. Obviously therefore, Clayton's failure to wear a helmet must be left entirely out of account in assessing his degree of contributory negligence.

In my opinion, his conduct in attempting to cross the road in the face of oncoming traffic marked a substantial departure from the standard of care which could be expected of boys of his age, experience and understanding. I am therefore of opinion that his entitlement to damages from the respondent should be reduced by ten per cent.

In my opinion, the judgment of the learned trial judge should be set aside and in lieu thereof, judgment should be entered for the infant plaintiff for ninety per cent of his damages to be assessed.

CRAWFORD J
4 March 1998

The first appellant was aged 7½ years on 17 December 1990, when he and his bicycle collided with a Nissan Pintara sedan driven by the respondent. He and his mother sued the respondent for damages for negligence but failed and judgment was entered for the respondent. From that judgment they have appealed. I will refer to the first appellant as Clayton.
Wright J, in his reasons for judgment, has incorporated a substantial part of the reasons for judgment of the trial judge which explain the essential facts and evidentiary disputes. I mention one minor error in what was said by the trial judge, which was not noted by Wright J, that being that at the time Mrs Ray first saw Clayton and his friend, Rowan La Palombara, riding along the southern footpath of Peel Street as she was about to enter Peel Street from Cambridge Street, the boys were riding in an easterly direction whereas in fact Mrs Ray's evidence was that they were riding in a westerly direction. She described them as starting to race up the street, on the footpath.
All of the witnesses to give evidence were called by the appellants. The respondent did not give evidence and he called no witnesses. The two principal witnesses were Mrs Ray and Mr Brown. The learned trial judge gained the impression from each that they were careful, reliable and accurate witnesses and there seemed no reason why his or her evidence should not be accepted. However at least one of them was plainly mistaken about some aspects of what occurred in Peel Street shortly before the accident took place, and their differences became important issues at the trial and on appeal. I will not repeat all of the evidence of those two witnesses or all of what the learned trial judge said about their evidence. However I will mention some of it and deal with the differences between them.
Mrs Ray drove an eight seater bus, what has been referred to as a minibus, in a westerly direction along Peel Street from the Cambridge Street junction to the Harris Street junction, a distance of about 100 metres. She said she did not exceed forty kilometres per hour before slowing in order to make a right turn into Harris Street. There was a car travelling in the same direction as she was about thirty to forty metres in front of her. It was travelling quite slowly and indicated that its driver also intended to turn right into Harris Street. Mrs Ray said that when she was almost halfway between the two junctions she looked in her rear vision and saw both of the boys, Clayton and Rowan, still on the southern side of Peel Street. Clayton was riding along the edge of the road in the gutter, in the same direction as Mrs Ray, and Rowan was stationary, straddling his bicycle on the footpath. Mrs Ray did not see the boys again before the accident because from that point on she concentrated on what was in front of her and on making a right turn into Harris Street. She said that the car in front of her turned into Harris Street before she reached the junction. His Honour found that the first car executed that turn before the respondent reached the same junction in the course of his journey along Peel Street in an easterly direction, opposite to that of Mrs Ray. His Honour also found that as Mrs Ray got close to the junction she saw the respondent's vehicle approaching from the opposite direction. Mrs Ray said that she slowed to about twenty kilometres per hour. She did not have to stop to give way to the respondent before she turned right into Harris Street. The respondent went past her. As she was making the right turn she heard the screech of the respondent's braking vehicle and looked back to her right along Peel Street, doing so before she had entered Harris Street. She saw Clayton hit the bonnet of the respondent's vehicle, come off its windscreen and fall onto the northern footpath of Peel Street.
The accident happened about forty metres east of the Harris Street junction. A police officer measured the skid mark left by the respondent's vehicle at sixteen metres from its rear at the point where it stopped following the collision. It was then one metre out from the northern kerb. A dent a little to the left of the front centre of the car indicated where Clayton had collided with it. Mr Brown estimated the speed of the respondent's car at the moment of the collision as being ten to fifteen kilometres per hour. He said that the car was then apparently braking heavily and by the time Clayton came down on the bonnet of the car (having been thrown up into the air on impact), the car had stopped.
There was no evidence concerning the size of Mrs Ray's minibus, apart from the fact that it was an eight seater, but it is reasonable to assume that it was significantly larger than most cars and that the respondent could not have seen Clayton on his bicycle either through or over the bus. Clayton had ridden his bicycle across the street from the southern kerb towards the northern kerb, but not directly, instead proceeding at an angle towards the north and west or to put it another way, somewhat towards the rear of Mrs Ray's bus as it proceeded away from him. He must have been obscured from the respondent's vision by the minibus for a substantial portion of his travel across the street. There was no evidence upon which the appellants could rely to establish the contrary. It was open on the evidence to conclude that because of a slight crest in Peel Street, slightly west of the Harris Street junction, the respondent may have had no opportunity to see Clayton until the boy suddenly emerged from behind the minibus and came directly into his path. There was no evidence at all concerning the speed at which Clayton was cycling, but the learned judge found that he "sped off" across the road, and that finding was not attacked by a ground of appeal.
There was nothing in the evidence to enable the learned judge to find that the respondent saw or ought reasonably to have seen Clayton before Clayton suddenly emerged on the bicycle from behind the minibus and came directly into his path. Also there was no evidence enabling a finding that the respondent did otherwise than immediately brake hard when the boy came into his vision or that the respondent did anything, or failed to do anything, which might be regarded as negligent once he had his first opportunity of seeing Clayton.

What became a substantial issue concerned whether Rowan La Palombara was straddling his bicycle on the northern footpath, adjacent to the point of impact, prior to when the accident occurred. Neither of the boys gave evidence, but Mr Brown's evidence was that Rowan was in fact at that point, a fact which was inconsistent with the evidence of Mrs Ray. Mr Brown was standing near his front fence on the southern side of Peel Street directly opposite the Harris Street junction. He said that when looking to the east he saw the two boys riding their bicycles toward him along the southern footpath of Peel Street. When he first saw them Rowan was riding in front of Clayton. To that point, Mr Brown and Mrs Ray agreed, except that Mr Brown said there was no traffic in Peel Street, either parked or moving. On Mrs Ray's evidence at that point of time she was driving along Peel Street with a car in front of her indicating an intention to turn into Harris Street, opposite Mr Brown. Mr Brown said that when Rowan was at a point about midway between the Cambridge Street and Harris Street junctions, he cycled at an angle across Peel Street from the southern to the northern side, veering to his right without stopping before he did so. Mr Brown said that on reaching the northern footpath Rowan stopped, spun his bicycle around and faced Clayton who was by that time straddling his bicycle on the southern side of Peel Street. Rowan was also straddling his bicycle, apparently waiting for Clayton to cross over to him. Mr Brown said he then saw a vehicle come out of Cambridge Street and turn toward him in Peel Street and Clayton obviously saw it and waited for it to pass. At that time, according to Mr Brown, Clayton was about midway between the two junctions. The learned judge found that the vehicle could only have been Mrs Ray's minibus because, according to Mr Brown, as soon as it went past Clayton took off across the road at an angle to join Rowan. Mr Brown agreed that the instant the vehicle passed him, Clayton was up on his pedals and across the road and that Clayton timed his take off for the instant the vehicle went past. Mr Brown was unable to remember at the time of the trial, but he told a police officer on the evening of the accident, that Clayton had not looked to his left before crossing the road.
As I said earlier, both Mrs Ray and Mr Brown impressed the learned judge as careful, accurate and reliable and yet, as his Honour also noted, there was a fundamental irreconcilable difference between their evidence. Mrs Ray claimed to have seen both boys on the southern side of the road after she passed them and she made no mention of another vehicle behind her. His Honour correctly found on the evidence that if Mr Brown's evidence was to be accepted the vehicle he had described could only have been that of Mrs Ray. If the accident took place behind her, as she was turning into Harris Street, and there is no reason to doubt that, it had to be her vehicle or another one very close to the rear of it, from behind which Clayton suddenly emerged in front of the respondent. Yet Mr Brown was firm that there was only one vehicle travelling west. On Mrs Ray's version, Rowan could not have crossed Peel Street until after she had passed him. On Mr Brown's version Rowan could only have crossed Peel Street before she passed him.
Whether Rowan was on the northern footpath was described by the learned judge as a central plank in the appellants' case. The main argument in the closing address of their counsel was that although Mrs Ray's vehicle may have obscured the respondent's view of Clayton on the right side of the road, he ought to have seen Rowan on the left side of the road and done something in response which would have avoided the collision with Clayton. However the learned judge concluded that there was no reason why he should prefer Mrs Ray or Mr Brown and he declined to make any finding as to where Rowan was.
There is no doubt that Rowan did ride his bicycle to the northern side of the street and was on or approaching that side at or about the moment of the accident, for immediately following the impact between the car and Clayton he panicked and rode his bicycle out onto the road surface from the northern side. Mr Ralph, who was driving a vehicle following that of the respondent and whose evidence about this (but nothing else) was accepted by the learned judge, described Rowan's movements in a masterly mixture of metaphors as going like the clappers, like a fear stricken gazelle, pedalling like a maniac, absolutely flat out, with the fear of God in his eyes, as he came from the northern side of the road. He also said in evidence, and in a statement he made some years ago, that he saw Rowan coming off the northern footpath. The evidence including his Honour's view of the scene, which it was agreed by the parties could be used by his Honour for the purposes of obtaining evidence, established that the footpath was immediately adjacent to the road surface and its gutter. It seems likely that the learned trial judge accepted that Rowan had come off the northern footpath in the way described by Mr Ralph, for his Honour described as accurate the substance of Mr Ralph's account of Rowan's movements. His Honour concluded and he was right to do so, that when Mr Ralph saw him Rowan was riding in panic after the accident. However his Honour also concluded, and he was justified, that it was no more likely from Mr Ralph's evidence that Rowan was stationary on the northern side before the accident than that he had crossed from the southern side immediately behind Clayton, ridden round the accident scene, (onto the footpath) and out onto the road again in a state of panic. Either version of the events was consistent with his behaviour as observed by Mr Ralph.
The appellants tendered in evidence the respondent's answers to interrogatories in which he said that upon first seeing Clayton he immediately applied his brakes. He also said that an oncoming vehicle had been obstructing his view of the southern side of the road. The answers contained the version of the accident which he gave to a police officer at the accident scene. In it he said that as far as he could see he was the only car travelling in an easterly direction along Peel Street and that on passing the Harris Street junction he was travelling at about fifty kilometres per hour. He said that about thirty metres past the junction what he described as a blue coloured car passed him travelling west. (There was no evidence of the colour of Mrs Ray's minibus.) He continued:

"Immediately this car passed me, a small boy in a yellow shirt and on a BMX bicycle appeared from behind it, crossing from east to west on an angle towards me. Before I could stop, after putting on my brakes hard and skidding the tyres, the front of my car collided with the bicycle."

The learned judge found that as the respondent approached the Harris Street junction he was travelling in the order of fifty-five kilometres per hour (the speed limit was sixty kilometres per hour). That finding was not challenged by the appellants. His Honour further found that as the respondent approached the Harris Street junction he saw Mrs Ray's minibus approaching him indicating an intention to turn right. His Honour also found that until the two vehicles passed each other, Mrs Ray's vehicle obscured the respondent's view of Clayton who had been stationary with his bike on the southern side of Peel Street (the fact that there was a slight crest just west of Harris Street would have prevented the respondent from seeing Clayton at an earlier point in time), and that as both vehicles were moving the whole of the relevant time, the respondent did not have an opportunity to see Clayton until he had crossed the junction of Harris Street and passed Mrs Ray's vehicle, that occurring when he was about thirty to thirty-five metres from the point of impact. None of those findings was attacked on the appeal. A ground of appeal which challenged the finding that until the two vehicles passed each other, Mrs Ray's vehicle obstructed the respondent's view of Clayton, was abandoned.

It was also found by his Honour that a speed in the order of fifty-five kilometres per hour was not an excessive speed having regard to the nature of the street, the weather conditions and the amount of traffic that was using or might reasonably be expected to be using that section of Peel Street. That finding was attacked by the appellants. Their main argument was that notwithstanding that the respondent may not have been able to observe the presence of Clayton until the point of time that he did, and notwithstanding that, given his speed, it may then have been impossible to avoid the collision with Clayton, the respondent ought to have reduced his speed and driven at a slower speed than that at which he was in fact driving as he approached the junction of Harris Street and the scene of the collision. That argument was made upon the alternate basis that Rowan La Palombara was on the northern footpath and should have been seen there by the respondent or that Rowan was not on the northern footpath.

The learned trial judge carefully analysed all of the evidence and explained in detail why he was unable to conclude that it was more likely than not that Rowan crossed the road when Mr Brown said he did. It is my view that his Honour was entitled to come to that view for the reasons he expressed. The appellants presented both Mrs Ray and Mr Brown as witnesses who both impressed his Honour to the extent that he was unable to determine which of them was correct about the issue. It was open to his Honour and proper to conclude that it was not affirmatively established on the balance of probabilities that Rowan was where the appellants claimed. To accept that Rowan was on the northern footpath required that Mrs Ray's evidence about seeing the two boys on the southern side, after she had passed them, was wrong. There was no greater reason to conclude that than there was to conclude that Mr Brown was wrong. With the benefit of hindsight it is puzzling why the appellants called both witnesses.

If however Rowan was on the northern footpath as maintained by Mr Brown, the learned judge was nevertheless correct to conclude that the respondent's speed of about fifty-five kilometres per hour was not excessive. If Mr Brown is to be believed there were only two vehicles proceeding along Peel Street in the vicinity, the respondent's car heading east at fifty-five kilometres per hour and Mrs Ray's minibus heading west. Mr Brown's evidence was that there were no other vehicles on the street, either travelling or parked. The width of the bitumen road surface was ten metres from kerb to kerb. On each side of it was a made footpath and on the other side of the footpaths were nature strips in front of residential properties. If Mr Brown's evidence was correct, it follows in the light of the learned judge's findings, that the respondent, after passing over the crest west of Harris Street, could only see ahead of him one approaching vehicle and one person, that being Rowan. The vehicle was the minibus moving slowly towards him, at a speed decreasing from forty kilometres per hour, with its right indicator flashing, no doubt indicating to him in the circumstances that he could safely pass it before it would turn to its right into Harris Street. If Rowan was on the northern footpath, he was off the road surface. He was not moving but was stationary, straddling his bicycle. There was no evidence from Mr Brown to suggest that Rowan gave any indication of an intention to mount it and ride out onto the road surface. On the basis of Mr Brown's evidence Rowan was simply waiting for Clayton to cross the road to him.

At that point Peel Street ran in a straight line over a distance of a little more than two kilometres. I am unconvinced that fifty-five kilometres per hour was an excessive speed and that the respondent was negligent for travelling at it. The learned judge inspected the scene upon the agreed basis that he could use what he saw as evidence. I have also inspected the scene and having done so have no hesitation concluding that in the factual circumstances of this case fifty-five kilometres per hour was a proper and reasonable speed at which to travel. A narrow suburban street was not involved here. It was a relatively wide road, as his Honour found, a major suburban road. It was argued by the appellants' counsel that if Rowan was on the northern footpath the respondent ought to have slowed, but counsel at no time mentioned a speed to which he submitted the respondent ought reasonably to have slowed. In all the circumstances his Honour was fully justified in concluding that the speed was not a negligent one, whether or not Rowan La Palombara was straddling his bicycle on the northern footpath. The evidence did not establish that the respondent drove at a speed which was excessive, failed to keep a proper lookout or failed to brake sufficiently or at all. I agree with the learned judge that the onus of proof was not discharged by the appellants.

It was argued for the appellants that the respondent ought to have taken particular care because there was a primary school five hundred metres from the accident scene and he ought therefore have realised that there was a likelihood of a number of children being in the street. The accident occurred at about 5pm, well after lessons would have finished for the day. There is no reason why the respondent ought to have taken some special care, greater care than would have been required if the school had not been where it was.

The appellants argued that because of the unexplained failure of the respondent to give evidence at the trial, the learned judge was entitled to draw inferences against him and conclude that Rowan La Palombara was on the northern footpath. Counsel cited Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49. There, Rich J, said that when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box, a court is entitled to be bold. That principle and the principle behind Jones v Dunkel (1959) 101 CLR 298, do not apply here. There were eye witnesses who gave evidence. A version of the accident, as given by the respondent, was put before the Court by the appellants. There were no inferences which were reasonably open to be drawn which were not drawn.

For these reasons I am of the opinion that the appeal should be dismissed.

SLICER J

4 March 1998

The infant appellant sustained extensive injury when struck by the respondent's motor vehicle whilst riding his bicycle along Peel Street, Launceston. The appeal is against a finding by the learned trial judge that there had been no negligence on the part of the respondent. The grounds of appeal are directed at the particular line of reasoning used by the learned trial judge claimed to result in error. The relevant grounds of appeal state:
"1That the learned trial judge ought to have held that on the evidence there were grounds upon which the version of the events leading up to the impact between the Defendant's vehicle and the infant Plaintiff, given by the witness Rodney Brown, should have been preferred to that given by the witness Lynette Elizabeth Ray, and therefore to have found that the child Rohan La Palombara was present on the northern side of Peel Street at all material times before the collision between the Defendant's vehicle and the infant Plaintiff.

2That on the version of the evidence preferred by the learned trial judge, he ought to have held that the Defendant's failure to reduce speed as he was approaching the junction of Harris and Peel Streets was an inadequate response to a reasonably foreseeable risk of injury, amounting to a breach of a duty of care that he owed to the infant Plaintiff.

3That the unexplained failure of the Defendant to give evidence at the trial of the action ought to have caused the learned trial judge to infer that the circumstances existing at the scene of the collision as the Defendant drove along Peel Street and approached the junction of that street with Harris Street, called for a reduction in the speed of the Defendant's vehicle as well as a more vigilant than usual lookout, and that his failure to so respond adequately or at all to those circumstances amounted to a causative breach of duty to the infant Plaintiff.
4Because of the Defendant's unexplained failure to give evidence at the trial, the learned judge was entitled to, and ought to have, drawn an inference that at all material times the child Rohan [sic] La Palombara was present on his bicycle on the northern footpath of Peel Street, and that fact, along with the other circumstances as found by the learned trial judge gave rise to a reasonably foreseeable risk of injury to the infant Plaintiff which called for a significant reduction in the speed of the Defendant's vehicle as he approached the junction of Harris and Peel Streets.
5That there was no proper basis for the finding of the learned trial judge that 'As the Defendant approached the Harris Street junction' the speed of the Defendant's vehicle 'was not excessive having regard to the nature of the street, weather conditions and the amount of traffic which was using, or might reasonably be expected to be in that section of Peel Street.'
6The finding of the learned trial judge that 'until the two vehicles had passed each other, Mrs Ray's vehicle obstructed the Defendant's view of the infant Plaintiff stationary with his bike on the southern side of Peel Street', was not open on the evidence and/or was inconsistent with the finding of the learned trial judge that there was no reason for preferring the account of either witness (Brown or Ray) over the other."

The appellant, aged 7½ at the time of the accident, suffered extensive brain injury and was unable to provide any version of events on the trial. An older youth, aged 8½, who had ridden his own bicycle in company with the appellant was not called as a witness. The respondent called no evidence on the trial. The appellant's case was therefore dependent on the combination of accounts given by two significant witnesses and the conclusions which may have been safely made from that combination. The learned trial judge found both witnesses to be "careful, accurate and reliable", but felt himself unable to choose between their versions in relation to an issue central to the case, namely, the position of the appellant's companion at the time of the collision. Its significance lay with the fact that the two youths were riding in a direction opposite to that of the respondent's vehicle and central to any finding of negligence was whether and at what stage either or both of the youths had crossed the road to the respondent's laneway before the collision.

The narrative of the relevant matters is comprised in the judgment of the learned trial judge (52/1997) which was not subject to challenge, and has been set out in the judgment of Wright J and requires no repetition. It is the analysis of the evidence which is the subject of challenge.

Mrs Lynette Ray had driven her vehicle along Campbell Street, an intersecting street, intending to turn west into Peel Street. She said that she noticed the two youths riding bicycles on the southern footpath of Peel Street, travelling west. She then proceeded along Peel Street some little distance and her last observation of the youths, made as she turned right out of Peel Street, was stated in the following terms:

"I think that was about the last time I looked in my rear vision mirror to see if there was any traffic coming up behind me, you know, just that Clayton was still travelling along the edge of the road in the gutter. I remember seeing the other child actually straddle his bike in a stationary position on the footpath. I started slowing down for the oncoming car ..."

The learned trial judge concluded that the respondent, travelling in the opposite direction, had passed the intersection before Mrs Ray commenced her turn into Harris Street, which was some 100 metres west off Cambridge Street. Mrs Ray stated that she heard a screech of brakes as she was making a turn and as she looked, saw the appellant "hit [the respondent's] bonnet, come off the windscreen of the motor vehicle, onto the footpath." There was no question but that the appellant's bicycle was on the respondent's side of the road and that the respondent had always been driving in his correct laneway. The critical issue was whether the appellant's companion, Rowan, had also crossed the road. A finding that he had would have enabled a conclusion that the respondent ought to have been alerted to risk to be more readily reached. Evidence of a statement made to police by the respondent, tendered on the trial, indicated that he claimed that the appellant had emerged suddenly from behind an identified "blue car", such being his first notice of the presence of youthful cyclists on the road. The crossing by another youth would strengthen the claim that he ought to have been earlier alerted. The learned trial judge was unable to make the finding that the companion had crossed the road before the appellant. He felt himself unable to make such a finding because of what he regarded as:

"... a fundamental irreconcilable difference between Mrs Ray's evidence and Mr Brown's evidence in that the latter described Rowan crossing the road in front of Mrs Ray and waiting on the other side while she went past, and the former described both boys as being on the southern side of Peel Street when she last saw them through her rear vision mirrors."

With respect to the learned trial judge, I believe that a finding as to the movement and position of Rowan was both required and possible. Rodney Brown who lived opposite the junction of Harris and Peel Streets gave an account summarised by the learned trial judge in the following terms:

"He was working on his front fence on the afternoon of the accident. ... He stood near his front fence looking east down Peel Street and noticed two boys on bikes riding along the footpath towards him. ... He said that he recognised Clayton as one of the two boys. He had seen him on many previous occasions. He noted that Clayton was not, but the other boy was, wearing a bike helmet [independently verified]. He said that when he first saw them, the other boy, who obviously must have been Rowan, was riding in front of Clayton."

The learned trial judge concluded that to accept the evidence of both Mrs Ray and Mr Brown:

" ... would result in a finding that the time Mrs Ray drove past the two boys was the same time that Mr Brown first saw them."

That such was not possible can be tested by the evidence of Mr Brown to the effect that there was no passing traffic at the time he first saw the two youths. Mr Brown averred that when Rowan was some 50 metres from the intersection with Harris Street, he crossed Peel Street, stopped on the southern side and waited facing the appellant. Mr Brown said that it was not until then that he observed a vehicle (presumed to be that of Mrs Ray) turn into and travel along Peel Street. He saw the appellant cross the road behind that vehicle, only to be struck by the respondent's vehicle. The movement of Rowan was thus crucial to the appellant's case and required resolution. The learned trial judge had been left in a position of having to adopt a methodology of resolution in the absence of evidence from a defendant. The absence of a witness has significance if the conclusion is drawn that an absent witness has something useful to add; something which goes beyond mere unnecessary repetition of a party's case (Bennett v Electrolytic Zinc Company of Australasia Ltd [1980] Tas R 177). The respondent was such a witness. As both the judicial officer required to provide the appropriate legal tests, and the fact finder charged with making findings, the learned trial judge was responsible for the total assessment of the issues central to which was the position of the youth Rowan. Absent contradiction from the respondent, he was required to act on the basis that:

"... any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence." Jones v Dunkel (1958 - 1959) 101 CLR 298, Kitto J at 308.

Absent evidence from the respondent, the learned trial judge could act more confidently on a finding that the respondent ought to have been forewarned of risk by the presence of one or more youthful bike riders on the road as he approached or passed through the intersection.

This Court, in considering the grounds of appeal ought not simply substitute its own conclusions for those of a primary tribunal; but is required to consider the methodology used by a primary tribunal and to consider inferences which were reasonably open to that tribunal. As Lord Reid said in Benmax v Austin Motor Co Ltd [1955] AC 370 at 376 (a speech approved by the High Court in Warren v Coombes and Another (1978 - 1979) 142 CLR 531):
"But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."

In this case, the point in dispute was the position of the companion Rowan. There was no direct evidence from either party, other than witnesses called on behalf of the appellant, and any finding central to the issue of negligence required the drawing of inferences from clearly established evidence. Where there is paucity or conflict of evidence from equally reliable witnesses, then this Court is entitled to employ the same methodology as was available to a primary tribunal. In employing such methodology, this Court should be mindful of the requirements stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, when he stated at 506:

"Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge's decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong."

In discussing this and contrary approaches, Gibbs ACJ, Jacobs and Murphy JJ, in Warren v Coombes (supra), concluded at 551:

"Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation."

In adopting this approach, an appellate court is entitled to examine the undisputed evidence, and, absent questions of veracity, is entitled to examine inferences reasonably open, and, absent contradiction (Jones v Dunkel (supra)), have more confidence in the making of inferences and reaching conclusions favourable to a plaintiff's cause of action.

The learned trial judge was entitled to reject the evidence of Mr Brown. But absent rejection, he ought to have proceeded to further analysis and attempt to either reconcile or resolve the apparent contradictions between two honest and reliable witnesses. At the stage of contradiction, a textual or circumstance analysis was required to reach a conclusion which required in turn the application of the test of probability. There was impasse between the two central witnesses called by the appellant, yet both were disinterested, honest and cogent. On the bases of those tests, they were indistinguishable. Resolution was required to determine the appellant's case, and, having correctly found that at the first level of analysis the accounts could not be reconciled, it is open for the "tribunal of fact", absent contradiction by the opponent, to more confidently draw inferences favourable to the appellant. That process required analysis of the competing accounts at a further level. In my opinion, analysis at a secondary level discloses a number of bases upon which one could confidently prefer one account over another. They include:

Mr Brown knew the appellant by sight, whereas Mrs Ray relied on a statement by her child, a passenger in her motor vehicle, that a particular person was the appellant. The transferred description might have resulted in error in her description as to the position of each of the cyclists.

Mrs Ray was engaged in attention to other traffic and the requirements of her own vehicle. The memory of Mr Brown was not so encumbered.

The sequential description afforded by Mrs Ray was inherently suspect. On her version, the respondent's vehicle could not have passed her vehicle before she commenced her turn. Yet in the course of her turn she heard a "screech" of brakes and observed impact, although the impact occurred half-way between the two intersections. Allowance ought to have been afforded to an account of an honest and reliable witness whose estimates of time and space might be inaccurate.

The vehicle behind which the appellant appeared need not necessarily have been that of the witness Mrs Ray. Descriptions of a blue vehicle were given. Mrs Ray was driving a blue six seater van, or minibus. The description of a blue "car" need not have necessarily been that of her vehicle. As is notorious, the memory of witnesses is often directed to the "main" event, in this case, the striking of a youthful cyclist. The finding that the appellant emerged from behind the vehicle of the witness Mrs Ray ought not have been made if the consequence was detrimental to the central finding that Rowan had not crossed the road.

There was clear evidence from a disinterested eye-witness that Rowan had crossed the road before impact. The "contradictory" witness deposed on the basis that she had intermittent vision, was involved in the movement of her own vehicle and was dependent on a descriptive account of the position of the appellant for her account and the import of her account weakened by those factors.

Whilst it is true that the appellant carried the responsibility for proving his case and that many cases involve inconsistent versions afforded by honest witnesses, it ought not be the case that the versions of honest and cogent witnesses called by a particular party be permitted to "cancel" each other out, so that a tribunal is left unsatisfied as to which version ought be preferred. In the circumstances of this case, there was a further piece of evidence which ought to have enabled the learned trial judge to make a finding as to the "irreconcilable" difference between the witnesses. There was evidence, given on the trial, by the driver of a motor vehicle following the respondent. The learned trial judge rejected much of his evidence, but accepted that as the witness observed the respondent's vehicle brake, he saw:

"... a child come from the left side of the road, virtually coming straight at me ... on a bicycle ... he was going like the clappers. He was ... like a fear stricken gazelle. I mean he was peddling like a maniac, absolutely flat out and he had the fear of God in his eyes."

That account was consistent with the evidence of Mr Brown who said that after the accident:

"... young Rowan sort of freaked out, rather hysterical and rode off in a westerly direction towards Harris Street."

The acceptance of that evidence makes it difficult to conclude that Rowan was on the side of the road opposite the respondent at the time of impact. It is difficult to conclude that during the time between impact and the accepted description of the driver following the respondent that Rowan managed to cross the road, avoid the appellant and the respondent's vehicle and ride to the left of the following vehicle. One can be more comfortable with an account predicated on the fact that he was already on the respondent's side of the roadway.

Analysis of the evidence given by Mrs Ray shows internal inconsistency, and honesty does not necessarily equate with accuracy. She had been engaged in two manoeuvres of entering and exiting from Peel Street within a distance of some 100 metres, she did not know the appellant and relied on a name provided by her son to fix whether he was in front or behind the other youth, and further, part of her observation was by means of a rear vision mirror. There were three other pieces of evidence which either strengthen the import of Mr Brown's account, or made it possible to reconcile the versions of Mrs Ray and Mr Brown. Mr Brown deposed to having seen a motor vehicle turn out of Cambridge Street which could not have been that of Mrs Ray. The respondent had told police that he had passed a blue coloured car after he had passed through the intersection of Harris Street, whereas, Mrs Ray was the driver of a Mitsubishi six-seater van or minibus. Mrs Ray made no mention of the presence of a second vehicle.
In my opinion, the inference that Rowan had crossed the road before the appellant was the finding which ought to have been reached. A finding that he had crossed and was awaiting the arrival of his friend makes it reasonable to conclude that the respondent ought to have been alert to risk by virtue of the presence of at least one young cyclist. That he took no reasonable steps to alter his speed or manner of driving upon receiving such notice, or that he failed to so notice, results in a finding of negligence. In my opinion, grounds 1, 3 and 4 are made out and the appeal should be allowed.

Contributory Negligence

Contributory negligence was a live issue on the trial. The appellant had been made aware of the requirements of road safety and he was not unused to riding in the area. He knew that he was required to pay special attention to on-coming vehicles and ought make sure that there was no traffic when he attempted to cross the road. The particulars of negligence that he had failed to wear a safety helmet had been withdrawn at the commencement of trial and it is not necessary to give consideration to this omission. The circumstances of this case are not dissimilar to those considered by Underwood J in Bullock v Miller A13/1987, a case in which a finding of ten percent contributory negligence was made against an infant plaintiff aged 5½ years. That apportionment is apposite in the circumstances of this case.
The order which I would propose is that the judgment of the learned trial judge be set aside, and in lieu thereof, judgment entered for the plaintiff for ninety per cent of his damages to be assessed.