Lane v Chaplin - [2015] TASFC 4

[2015] TASFC 4

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Lane v Chaplin [2015] TASFC 4

PARTIES:  LANE, Sergeant Richard
  v
  CHAPLIN, Bradley

FILE NO: 547/2014
JUDGMENT

APPEALED FROM: Chaplin v Lane [2014] TASSC 32

DELIVERED ON:  19 March 2015
DELIVERED AT:  Hobart
HEARING DATE:  10 November 2014
JUDGMENT OF:  Tennent, Wood and Estcourt JJ

CATCHWORDS:

Traffic Law – Offences – Particular offences – Negligent driving – Other matters – Charge of causing death by negligent driving – Causation – Test to be applied.

Traffic Act 1925 (Tas), s 32(2A).
Mobbs v Kain (2009) 54 MVR 179, distinguished.
Aust Dig Traffic Law [1105]

REPRESENTATION:

Counsel:
             Appellant:  D Coates SC and S Nicholson
             Respondent:  C Gunson
Solicitors:
             Appellant:  Acting Director of Public Prosecutions
             Respondent:  Fitzgerald & Browne

Judgment Number: [2015] TASFC 4
Number of paragraphs: 105

Serial No 4/2015
File No 547/2014

SERGEANT RICHARD LANE v BRADLEY CHAPLIN

REASONS FOR JUDGMENT FULL COURT

TENNENT J
WOOD J
ESTCOURT J
19 March 2015

Orders of the Court:

Appeal allowed.

Orders of Chief Justice made 18 June 2014 quashed.

Serial No 4/2015
File No 547/2014

SERGEANT RICHARD LANE v BRADLEY CHAPLIN

REASONS FOR JUDGMENT FULL COURT

TENNENT J
19 March 2015

On 29 February 2012, Ashley Edmonds ("Ashley"), then aged 13, was hit by a vehicle as she crossed a road at Karanja and was killed. She had just alighted from a school bus. The driver of the vehicle which hit Ashley was Bradley Chaplin ("the respondent"). The respondent was charged with causing death by negligent driving contrary to the Traffic Act 1925, s 32(2A). In the alternative to that charge, he was charged with driving without due care and attention contrary to the Australian Road Rules 2009, r 367(1). He was also charged with speeding. The respondent pleaded not guilty. On 11 December 2013, Magistrate McTaggart found that the respondent's negligent driving caused Ashley's death. Her Honour also found that the facts supported a finding of guilt of both that and the alternative charge. The respondent was also found guilty of speeding: see Lane v Chaplin [2013] TASMC 46.
The respondent sought a review of that decision. On 18 June 2014, the learned Chief Justice allowed the motion to review, set aside the orders of Magistrate McTaggart, and dismissed the count of causing death by negligent driving: see Chaplin v Lane [2014] TASSC 32. These reasons relate to an appeal from that decision.
The appeal has been brought by the State. The sole ground of appeal is that:
"The learned Chief Justice erred in law in finding that it was not open to the learned Magistrate to conclude as a matter of law that the defendant's driving was negligent and causative of the death of Ashley Edmonds."

The decision of the Chief Justice

His Honour summarised the facts of the case and made reference to some of the evidence. At [8] he dealt with the learned magistrate's reasoning. He said:
"Her Honour reasoned that if the applicant had slowed to 40km/h when his vehicle was 50 metres away from the bus, and had travelled at that speed over those 50 metres and when travelling beside the bus, then the girl would have completed her crossing of the road before he reached the rear of the bus, there would have been no collision, and the girl would not have died. She concluded that it followed that the applicant had caused the death of the child by his negligent driving in driving at a speed exceeding 40km/h as from a point 50 metres away from the bus."
His Honour then went on at [9] to [18] to say:
"9        Counsel for the applicant argued that that reasoning was erroneous. His contentions can be summarised as follows:
oThat the circumstances that resulted in the applicant being at a particular place on the road when the girl emerged from behind the bus were not, in law, part of the causes of death.
oThat it had not been proved beyond reasonable doubt that travelling at 80km/h rather than 40km/h increased the risk of a fatal collision.
oThat it followed that it had not been proved beyond reasonable doubt that the applicant's negligence in travelling at 80km/h, rather than 40km/h, at any relevant time was a cause of the death of the girl.
10        Counsel for the respondent contended that there was no error in the learned magistrate's reasoning.
11        In Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179, the New South Wales Court of Appeal considered reasoning similar to that relied on by the learned magistrate. That case concerned a collision between a vehicle and a schoolboy who had just got off a school bus and hurried onto the road. The vehicle was approaching from the rear of the bus. The boy emerged from a position in front of the bus and collided with the side of the passing vehicle. The primary judge found that the motorist had been negligent. One of the arguments before the Court of Appeal was to the effect that, if the motorist had slowed below 40km/h before reaching and while passing the bus, his vehicle would not have been where it was at the time of the collision, and so the schoolboy would not have collided with the vehicle or been injured. The principal judgment in that case was delivered by McColl JA, with whom Macfarlan JA agreed. At [99], her Honour rejected that argument out of hand, with these words:
'Another submission put forward by Mr Campbell was, in effect, that the second appellant [the motorist] had to travel at a speed (which he did not identify) which meant he would not be where the respondent [the boy] was when he emerged from the front of the bus. The circularity of the reasoning inherent in the latter submission is such that, in my view, it need not be considered further.'
12        Giles JA, who concurred with the orders proposed by McColl JA, addressed the submission in greater detail. At [19] he quoted a passage from Glanville Williams, Joint Torts and Contributory Negligence, Stevens, London, 1951, which concluded with the following paragraph:
'A more frequent illustration as applied to original negligence would be as follows. D is driving a vehicle without keeping a proper lookout. P, driving negligently, collides with him. The facts are such that even if D had been keeping a proper lookout he could not have avoided P, and the accident would have happened just the same. Here D's driving the vehicle is a cause of the accident, for had he not been at that spot at that time the accident would not have happened. But D's negligent failure to keep a proper look-out cannot be assigned as a cause of the accident. Therefore there is no negligence on the part of D causing the accident and an action by P against D must fail, whether before or after the Contributory Negligence Act.'
13        At [20] and [21], his Honour rejected the submission, saying:
'20 Other illustrations were given. The illustration as applied to original negligence, while not identical to the present case, is pertinent. D being at the spot at the time was not in law a cause of the accident. Even if the second appellant had been driving more slowly, the respondent would have collided with the side of his motor vehicle. Driving at 40 kilometres per hour was a "but for" cause, whereby the second appellant's motor vehicle was where it was. But any negligence in driving at an excessive speed "cannot be assigned as a cause of the accident".
21 One may postulate that the second appellant had driven at an unsafe speed fifteen minutes earlier, or had driven contrary to a red light at an intersection a few kilometres before coming up to the bus, and that his motor vehicle would not have been where it was but for the failure to drive reasonably. I do not think it could be suggested that there would be causation in law. Indeed, the second appellant's motor vehicle would not have been where it was had he sped past the bus at 100 kilometres per hour: cf Draxton v Katzmarck (1938) 280 NW 288 (Minn), cited in Hart and Honoré, Causation in the Law, 2^nd ed (1985) at 122 in considering the American courts' rejection of causation where the accident would not have happened but for earlier speeding. So in the present case, the fact that the second appellant's motor vehicle would not have been where it was at the time the respondent ran out, had he slowed to below 40 kilometres per hour before reaching and while passing the bus did not, in the present case, make out causation in law.'
14        As far as I know, there are no Tasmanian authorities in relation to this form of reasoning. I must therefore follow the decision of the New South Wales Court of appeal: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]; CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [49].
15        The applicant's negligence in driving at an excessive speed from the time he was 50 metres away from the bus may well have resulted in his vehicle being at the point of impact at the moment of impact, but as a matter of law it was not open to the learned magistrate to make a finding that his negligence was therefore a cause of the death of the girl. That is to say, she erred in law by finding the charge proved on that basis.
16        Since she was not satisfied beyond reasonable doubt that travelling at 80km/h rather than 40km/h increased the risk of a fatal collision, she was quite right not to find the charge proven simply on the basis of negligence in speeding at the time of the collision. That is clear from a number of reported cases. In Van Der Heuvel v Tucker [2003] SASC 110; (2003) 85 SASR 512, a motorist had been negligently driving at an excessive speed when his vehicle's axle failed. Because there was no evidence that the speed increased the risk of the axle failing, the Full Court of the Supreme Court of South Australia held, by majority, that injuries suffered by a passenger were not caused by the negligence of the driver in speeding. In Latham v Fergusson [2006] NSWCA 288; (2006) 46 MVR 412, a motorist was not keeping a proper lookout when a child emerged from behind a sign onto a pedestrian crossing. The New South Wales Court of Appeal held that the driver's negligence in failing to keep a proper lookout did not cause the child's injuries because, if the driver had been keeping a proper lookout, she would have had insufficient time to react and brake so as to avoid impact. In Lyonsv Fletcher [2014] NSWCA 67, a driver was not keeping a proper lookout, and his vehicle collided with a drug-affected jogger who had climbed over a barrier and commenced to cross a busy road. The New South Wales Court of Appeal held that his negligence was not a cause of the pedestrian's injuries since those injuries would not have been avoided if the motorist had been keeping a proper lookout.
17        At the hearing before the learned magistrate, the prosecutor's strongest argument may well have been that, in the circumstances of this case, the applicant had a duty to travel at a speed well below 40km/h. There was evidence that he knew the area; that he had seen the bus; that its driver was waving to him; that there were no houses on his right hand side of the road where the bus had stopped; that there were houses to his left hand side where the bus had stopped; and that there were no children in view. Slowing almost to a stop would not have delayed the applicant significantly. However, as I have said, it was reasonably open to the learned magistrate to conclude that the applicant's duty of care did not require him to travel more slowly than 40km/h, and her finding to that effect has not been challenged in these proceedings.
18 Ground 1 of the notice to review asserts that the learned magistrate erred 'by finding that the applicant's driving caused, for the purposes of s32(2A) of the Traffic Act 1925, the death of the deceased'. Because that finding was based on the sort of reasoning that Mobbs v Kain makes impermissible, that ground must succeed."
Two issues arise from his Honour's conclusion at the end of [18]. The first is what was the reasoning which led Magistrate McTaggart to make the finding she did? The second is what reasoning is it that Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 renders impermissible, and is that reasoning the same as that adopted by the learned magistrate.

The reasoning of the learned magistrate

There was no dispute before Magistrate McTaggart or the learned Chief Justice that Ashley's death was caused by being hit by the respondent's vehicle. The issue was whether the negligent driving of the respondent was a substantial or significant cause of Ashley's death.
Commencing at [10], the learned magistrate examined the issue of causation. At [28], she set out in summary form what she distilled from the authorities to which she referred. Her Honour said as follows:
"28 In summary I can distil from the authorities that the principles relating to causation that I should apply in this case are as follows:
1The defendant's negligent driving must be a substantial contributing cause of Ashley's death;
2The defendant's negligent driving need not be the sole, direct or immediate cause of death;
3The concept of 'substantial' means an operative cause - not too remote, not merely part of the history of events, and more than de minimis;
4The question of causation is determined by applying common sense to the facts as found, bearing in mind that the defendant's acts will attract criminal liability;
5The question of causation is one of objective fact; and is not dependent upon the defendant's appreciation of his actions."
Her Honour then said at [29] and [30]:
"29 The Court must be satisfied to the criminal standard in respect of each element of the charge. In this case it is agreed that:
1     The defendant was the driver of a white Ford Ranger four-wheel-drive single cab flat tray utility.
2     That the utility was in a roadworthy condition before and at the time of the collision.
3     That Ashley died as a result of the collision due to head and chest injuries.
30   However defence counsel specifically submits as follows:
(a) Given the unreliable state of the evidence, the Court cannot be satisfied as to the speed of the defendant's vehicle at any relevant time, including at the point of impact.
(b) The evidence is unable to establish that the defendant failed to keep a proper lookout.
(c) Given (a) and (b), prosecution is unable to prove that the defendant drove negligently.
(d) That prosecution is unable to establish that the manner of the defendant's driving, even if the court finds it to be negligent, was a substantial cause of Ashley's death."
At [63] to [78] of her reasons, her Honour dealt with the duty of the driver. She said:
"63    Many authorities, particularly civil cases, have specifically dealt with the duty of a driver of the vehicle towards pedestrians, and in particular children, whose actions are known to be unpredictable. Whilst a civil action in negligence involves both breach of duty and causation, these cases are of assistance in relation to the duty of care. See Stocks v Baldwin (1996) 24 MVR 416; Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301; Mobbs v Kain [2009] NSWCA 301; Manley v Alexander [2005] HCA 79; Clarke v Freund [1999] NSWCA 197.
64     In Rayner v Cochrane [2011] TASSC 45 a 12 year old ran from the entrance of a driveway onto a gravel road to get to his house across the road. The defendant was travelling at no more than 25km/h in a 50km/h zone and hit the child when he was in the centre of the road. In finding that in the circumstances the defendant had not breached her duty of care, Evans J concisely restated the relevant principles from the main authorities at para 13 as follows:
'The exercise of reasonable care does not require a driver to drive in such a way as to be in a position at all times to anticipate anything that a pedestrian might do, or be in a position to reduce the speed of the vehicle to a level which will avoid any risk of a collision; Wensink v Marshall [2010] WASCA 117 at [54], citing Knight v Maclean [2002] NSWCA 314 at [68]; and also Mobbs v Kain [2009] NSWCA 301 at [4] and [101].
The standard of reasonable care required of drivers is a high standard (because cars are dangerous) but it is not a standard measured by success or perfection assessed with the wisdom of hindsight; Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523 at [47].
The question to be addressed is not whether different conduct on the part of those involved would have produced a different result, but whether the plaintiff has proved the defendant has not acted in accordance with reasonable care; Hamshere v Favelle [2009] NSWCA 4 at [21] referring to Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13]; and also see Dennis v Keep [2002] NSWCA 227 at [18].
It is relevant to take into account s12 of the Act which provides that 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; Mobbs v Kain at [92].
The liability of a driver is not absolute or strict such as to require a driver (in the absence of a specific perceivable danger) to slow down to a speed where he could stop in any conceivable circumstances and avoid an accident. This would supplant the obligation to take reasonable care; the Act, s11, Mobbs v Kain at [101] and [103] and Knight v Maclean at [66].
It is only where the driver knows, or ought reasonably to know, that children may be on or near the road that the exercise of reasonable care may call for greater than usual caution in light of the propensity of children to act in unexpected ways; Wensink v Marshall at [53], Knight v Maclean at [64], South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 at [60] and Tobin v Worland [2005] NSWCA 188 at [43].
The presence of the background risk of children entering suburban roads unexpectedly can satisfy the test of reasonable foreseeability, but is not at a level as to require a driver to take particular or special precautions such as to drive at a speed so as to enable the driver to see up obstructed intersecting roads so as to be able to take evasive action in the event of a child entering from it; Wensink v Marshall at [26] – [27].
A driver is entitled to drive with his eyes ahead until noticing something to the left or right which calls for greater concentration to the left or right; Knight v Maclean at [65] – [66]. A driver is not required to drive looking for obscured hazards; Wensink v Marshall at [55] – [56].'
65 In the circumstances before the Court involving a stationary school bus displaying flashing warning lights and a warning sign, the Road Rules prescribe that a driver must travel at 40km/h within a 50 metre distance of that bus. As submitted by Mr Allen, such prescribed speed represents a maximum legal speed for vehicles to travel at through the relevant area. It does not change the obligation on the reasonable and prudent driver to adopt a speed appropriate to the circumstances he or she is confronted with, if particular circumstances require that an ordinary prudent driver would drive at a speed lower than the prescribed speed. See Mobbs v Kain (supra) per Giles JA; Rowes Bus Service Pty Ltd v Cowan [1999] NSWCA 268 Dungan v Chan [2013] NSWCA 182.
66     In Mobbs v Kain [2009] NSWCA 301 a 10 year old child was injured when he alighted from, and crossed the road very quickly in front of, a stationary school bus and was struck by a motor vehicle. The driver was complying with the prescribed speed at the time of the collision.
67     McColl JA stated at para 100:
'In my view, and with respect to the primary judge, the matters to which his Honour referred in that paragraph do not take the case outside the circumstances it might be inferred the legislature intended to cover by enacting cl 40 of the 1999 Regulation. In my view, the evidence did not disclose any additional factor which should have caused the second appellant to reduce his speed below the applicable speed limit, especially in light of the fact that he was keeping a proper lookout. He had a clear view of the bus from a distance of at least several hundred metres before he passed it, during which time he saw no children in or around it. He slowed his speed. He did not see any particular danger. He had a clear explanation, which the primary judge accepted (at [65]), for not seeing the respondent until "for all practical intents and purposes the same moment that the collision took place" – the fact that the respondent "emerged at a rapid pace, somewhere between a fast walk and a jog, from behind the bus that wholly obscured him until almost the very instant that he collided with the car".
101 In my view this was not a case in which the possibility that a child might emerge from the front of the bus, meant that the second appellant had to slow down to a speed where he could either stop in any conceivable circumstances. Such a finding would impose absolute or strict liability on drivers: Rowes (at [90]) per Cole JA, Knight (at [66]) per Heydon JA.'
68     In Rowes Bus Service Pty Ltd v Cowan (supra) at paras 58-60 Stein JA (Foster AJA agreeing, Cole AJA dissenting) upheld the trial judge's finding that a driver was driving too fast in the circumstances where, as he was approaching a school bus, he reduced his speed to 40km/h upon seeing people, including school children, on the roadway at the rear of the bus knowing that there was a possibility that children could emerge from the front of the bus. Stein JA stated at para 39 that it 'must have been obvious to him that they were waiting for the opportunity to cross the road, and if one of them ran out in front of his vehicle an accident was inevitable ... because at 40km/h he could not have stopped in time so as to avoid an accident'.
69     Dungan v Chan [2013] NSWCA 182 involved a pedestrian hit by a vehicle whilst attempting to quickly cross seven lanes of traffic after the pedestrian light began flashing red. Emmett JA, with whom Ward and Gleeson JA agreed, stated at [17]:
'Thus, a motorist may have some reason, because of the surrounding circumstances, to be aware that pedestrians are likely to behave carelessly. A driver may be guilty of breach of duty if it is established that, although driving at a pace, and in a place, that is lawful, the driver has nevertheless been put on notice, by conduct that the motorist saw or should have seen, that a pedestrian might act in such a way as to put that pedestrian in danger from the motorist (Albert v Nominal Defendant [1999] NSWCA 73; (1999) 29 MVR 107 at [6]). A motorist must always be conscious of the fact that a pedestrian may do something silly and must adjust his or her driving to account for that possibility. On the other hand, a motorist can hardly drive in such a way that he or she expects such accidents to occur every minute. Otherwise, no traffic would ever move. Unless there is some reason for a motorist to look to the right or the left, it is not surprising that he or she may be looking straight ahead when driving his or her motor vehicle (Stojanoska v Fairfax [1998] NSWCA 225 at [4]).
Before there should be a finding of breach of duty, the evidence must disclose some factor that would cause a motorist to reduce his or her speed below the applicable speed limit, particularly if he or she is keeping a proper lookout. If a motorist slows down and does not see any particular danger, but has a clear explanation for not seeing a pedestrian, there may be no breach of duty. The mere fact that there was a possibility of a pedestrian being on the road would not of itself require a driver to slow down to a speed where he or she could stop in any conceivable circumstances. Such a finding would impose absolute or strict liability on drivers (Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 [100]-[101])'.
70     In the present case I take into account that the speed limit on the straight was 100km/h, and that the defendant's vehicle was effectively the only vehicle on the road apart from the school bus. Gordon River Road in the vicinity of the point of collision has few driveways or intersecting streets (except Karanja Court) where traffic might be expected to emerge. It is effectively a marked single lane straight country road. In good driving conditions, absent the presence of any particular hazards, it might well be appropriate on the section of road to travel at the maximum speed limit of 100km/h.
71     However the presence of the stationary school bus displaying flashing lights and visible for a very long distance, significantly changes the obligations of a driver in the defendant's position. He had driven the route regularly, had seen school buses often, and was aware, or ought to have been aware, that Mr Itchens was dropping off school children at the point where the bus had stopped. His actual awareness of the bus well before the collision point is demonstrated by an unhurried conversation with Mr Banks-Smith to identify 'Desi', presumably seeing the school bus ahead. At that point Mr Itchens must have been stopped or almost stopped, but in any event had the flashing lights activated. The stationary bus and lights should have alone put the defendant on notice that children may very well be alighting and crossing the road. However, there was an additional factor of Mr Itchens waving at him to slow down, such waving commencing from about 500 metres back from the position of the stationary bus. Whilst there is a dip in the road just before the approach to the bus that would have restricted visibility, the waving was in two separate slow parts that could have been seen by the defendant.
72     I find that the defendant could not have seen Ashley alighting from the bus and moving to the rear of the bus with her sister. This was conceded by the prosecution. I find that the first opportunity for the defendant to see Ashley was when she in fact emerged from behind the rear of the bus.
73     Whilst the defendant could not have seen children alighting from the bus, the arm movements of the driver would have caused any prudent driver to immediately anticipate the presence of children alighting from the bus. Making such an arm motion in such circumstances is a visible and clear warning to a motorist to enter the area with great caution as children are alighting. It could only mean that the time period requiring the particular caution had not passed. The defendant knew the area. He knew that the entrance to Karanja Court was approximately opposite where the bus was stationary. There were only paddocks and no houses on the same side as the parked bus. There were no other prominent visual distractions to divert his attention except a very large school bus with flashing lights occupying a significant part of the other lane. Whilst I find that at the point of the collision Mr Itchens was intending to start to move off, there was no clearly visible movement of the bus that would have led the defendant to believe that the hazard had passed. In this regard I accept the evidence of Mr Itchens. I also accept Mr Rayner's evidence that the bus was stopped at the time of the collision.
74     The reasonably prudent driver in these circumstances would have been very careful to anticipate the presence of children. He would have reduced his speed from around the maximum upon seeing the bus and the arm motions of the driver to allow him to anticipate children being in the vicinity, and even behind, the school bus and to allow him to safely stop if necessary.
75     Given that children were not visible and that the school bus had not moved to any perceptible degree, the degree of care needed in my view was to travel at a speed at or below 40km/h.
76     As to the requirement to travel below 40km/h, I am not satisfied that the reasonably prudent driver did have such a duty in the circumstances. Whilst great caution was required, no children were actually visible to the defendant at any point. Mr Itchens had in fact stopped waving and had sat down in his bus as the defendant approached close to the bus. Further, his waving was not a stop signal but should properly have been interpreted as a caution for the defendant to slow down to the prescribed 40km/h.
77     The authorities that I have cited relating to similar circumstances vary in accordance with the particular facts of each case.
78     In my view, whilst minds might very well differ, this is not a case where the requisite driving standard would require a driver in the defendant's position to slow down to such a slow speed such that he could stop in any conceivable circumstances. In this case it may, for example, be that the collision could have been avoided if he defendant had approached the bus at a speed of between 15 - 20km/h. As stated, the speed limit was ordinarily 100km/h and there were actually no children in sight at all. The authorities that I have cited are civil matters. In this case I should be satisfied to the criminal standard of the standard of the ordinary prudent driver. It may be that to find that the defendant had a duty to slow to say one half of the prescribed speed measures the standard impermissibly by 'success or perfection assessed with the wisdom of hindsight'."

Her Honour then dealt at [109] to [125] with her conclusions as to causation. She said:
"109   Mr Allen submitted that it would be perverse to find that the only cause of the collision was Ashley failing to give the defendant sufficient time to react in view of the circumstances of this case and the well-known reasons drivers are required to exercise extra caution in areas known to contain children. I agree with this submission.
110    In my view the defendant's negligence in travelling at approximately 80km/h within 50 metres of the bus is a substantial and operative cause of the collision and thus Ashley's death.
111    From at least 500 metres away, probably farther, Mr Itchens waved on two occasions to signal the defendant to slow down. As discussed, the waving could only have been intended as a warning that schoolchildren were still alighting from the bus. If the children had already alighted and had crossed the road and the bus was pulling out to leave, there would be no need for hand signals.
112    The rationale for the speed limit of 40km/h near a school bus displaying a warning sign and warning light signifies to approaching drivers that special caution is needed as school children are likely to be in the vicinity. It is well known that the movements of children near roads may be unpredictable and that they may emerge quickly onto the road without proper lookout for vehicles.
113    For a period of time and within a certain area, when a school bus is stopped on a road with lights activated and children alighting, a potential hazard exists. That hazard involves the possibility of passing vehicles striking children entering or alighting from the bus. Parliament has seen fit to address this potentially hazardous situation by requiring a maximum speed of 40km/h within 50 metres of a school bus displaying lights and a warning sign. Within this 50 metre zone a vehicle travelling at 40km/h has a greater capacity to stop if necessary in the event of a child's presence on the road. In some cases, such as the present, approaching this hazard zone at the prescribed speed will allow the hazard to safely pass.
114    On the facts of this case, the defendant either saw or ought to have seen the driver of the bus using a clear arm signal and the stationary school bus with its lights flashing. He should have decelerated from the speed limit of 100km/h to ensure that he was travelling no more than 40km/h within 50 metres of the bus. He had ample time to see the school bus. He was familiar with the fact that the bus would be dropping children off. He knew the area and the fact that Karanja Court was the place where the children would live. There were no houses on the side on which the school bus was parked and there was an obvious likelihood in those circumstances that children would cross the road. There was some evidence about the extent to which a driver in the defendant's position may have perceived that this school bus was moving off. Mr Itchens said he was only just starting to move off. I find that any movement of the bus at that point was imperceptible. In any event, Mr Itchens' hand signals had only ceased shortly before he sat back down in the bus. There was nothing else to distract the defendant apart from the school bus. An ordinary prudent driver would have focused on the bus from a distance of several hundred metres away where it was visible on the straight and then have kept a close eye on it whilst reducing speed.
115    That reduction in speed in this case should have occurred from the time when Mr Itchens' hand signal was first visible. If the defendant had been driving as an ordinary prudent driver, driving the only vehicle in the vicinity of a school bus with flashing warning lights where children are expected to cross the road to go to their house, his driving actions from the first time the bus was visible should have been focused towards exercising the caution necessary in these circumstances. Instead the only action taken was to decrease his speed apparently from a speed around the speed limit of 100 to 80km/h. The purpose of slowing in this case was for safety and to allow the hazard period to elapse. By entering the area at a speed twice the speed prescribed by law, he put himself into the area and time zone of the potential hazard. In doing so, the hazard that both Mr Itchens and the regulations were contemplating materialised.
116    As discussed, if the defendant had been driving as the ordinary prudent driver, instead of travelling at speed into that zone, the hazard of Ashley crossing the road suddenly would have been allowed to pass - this was clearly the intention of Mr Itchens in waving from a long distance. As noted, it may have taken Ashley only a little more than half a second to a second, bouncing quickly, to reach a point just over the centreline of the road. She was travelling at a fast pace. It can reasonably be conservatively assumed that a completed road crossing whereby she would need to travel somewhere under 3 metres across most of the eastbound lane, would have taken another 2 seconds or so.
117    If the defendant had exercised caution by decreasing his speed when overwhelmingly the circumstances signalled the need to ensure at least that he decelerated to enter the 50 metre area at a speed of 40km/h, there is no question that the collision would not have occurred.
118    The defendant's actions in driving negligently are therefore directly causative of Ashley's death. Ashley's failure to look out for vehicles travelling in the direction of the defendant's vehicle was also most significantly causative of her death.
119    In my view the defendant's driving actions when approached in this way can clearly be seen to be a direct cause of Ashley's death, and a substantial contributing cause notwithstanding Ashley's own contribution in running onto the road closely in front of the defendant's vehicle. Such an approach to causation is a common sense approach to the facts as found, whilst firmly bearing in mind that the Court is attributing responsibility in a criminal matter.
120    In my view this approach does not contain any error of simply looking backward to identify what would have avoided the accident. See Mobbs v Kain (supra) per Giles J at para 5. In that case both Giles JA and McColl JA both cautioned against the approach of reasoning using the 'but for' test of causation. At paragraph 20 Giles JA stated:
'D being at the spot at the time was not in law a cause of the accident. Even if the second appellant had been driving more slowly, the respondent would have collided with the side of his motor vehicle. Driving at 40 kilometres per hour was a "but for" cause, whereby the second appellant's motor vehicle was where it was. But any negligence in driving at an excessive speed "cannot be assigned as a cause of the accident".
21 One may postulate that the second appellant had driven at an unsafe speed fifteen minutes earlier, or had driven contrary to a red light at an intersection a few kilometres before coming up to the bus, and that his motor vehicle would not have been where it was but for the failure to drive reasonably. I do not think it could be suggested that there would be causation in law. Indeed, the second appellant's motor vehicle would not have been where it was had he sped past the bus at 100 kilometres per hour: cf Draxton v Katzmarck (1938) 280 NW 288 (Minn), cited in Hart and Honoré, Causation in the Law, 2nd ed (1985) at 122 in considering the American courts' rejection of causation where the accident would not have happened but for earlier speeding. So in the present case, the fact that the second appellant's motor vehicle would not have been where it was at the time the respondent ran out, had he slowed to below 40 kilometres per hour before reaching and while passing the bus did not, in the present case, make out causation in law.'
121    However, the facts of the present case can be clearly distinguished. The defendant was travelling at double the prescribed speed for the zone, not the prescribed speed; and the negligent driving of the defendant was through the very portion of road where Mr Itchens was trying to slow the defendant's approach to allow time and maximise safety of the alighting children. The defendant's act of negligent driving is not part of the history of events but an integral part of causation.
122    Ashley's act in running out onto the road in very close proximity to the defendant's approaching vehicle made it impossible for the defendant to stop but did not break the chain of causation. Simply put, had the defendant reacted in his approach by slowing as the prudent driver would have, Ashley would have had time to safely cross the road.
123    The defendant was at least required to be travelling at 40km/h for a distance of 60 metres before the collision, being the prescribed 50 metre distance together with the length of the bus. At 40km/h instead of 80km/h, in this zone alone he would have allowed Ashley a further 2.7 seconds to cross the road. Added to this period of time would be, at the very minimum, the additional time for deceleration from 80km/h to 40km/h before reaching the prescribed zone. Clearly this would have been another several seconds. As stated the prudent driver would have, in any event, slowed well before the legal requirement to do so.
124    Thus Ashley would have safely crossed the road, had the defendant not deprived her of that opportunity by his speed that was twice the prescribed limit at the time of the collision. I am satisfied beyond reasonable doubt that the defendant's negligent driving caused Ashley's death.
125    I add that my conclusion on causation is not affected by whether the parking of the bus near a crest in the westbound lane was also 'a cause' of Ashley's death. Mr Ruller stated that the position of the bus was dangerous, and gave reasons for his opinion. Mr Itchens gave detailed evidence about why he parked the bus in that position and the processes leading to his decision. The fact remains that the bus was visible to an approaching driver for a lengthy distance. It was not parked illegally. Drivers often encounter situations that are not ideal, and must respond appropriately. I doubt that in the context of the authorities discussed it could be said that the parking of the bus could be a cause of Ashley's death, as opposed to a fact that was simply part of the circumstances that a driver was required to meet. Even if it was a cause of the death, the defendant's driving remained a substantial cause for the reasons given."
Her Honour was clearly mindful of the decision in Mobbs v Kain and distinguished that case at [121].

Submissions

Counsel for the appellant submitted that the learned Chief Justice's decision to regard himself as bound by the decision of the New South Wales Court of Appeal in Mobbs v Kain was wrong. Firstly, he submitted that that case was not authority for the proposition apparently propounded by the learned Chief Justice. Secondly, he submitted that, if that case was authority for that proposition, the decision was plainly wrong. He submitted that Mobbs v Kain did not prohibit as a matter of law a conviction in the circumstances of this case as found by the learned magistrate. He submitted that the case was authority for the proposition that, in fixing the appropriate legal duty, a court should look prospectively and not retrospectively from the cause of the accident, and that the case was otherwise dependent on its own facts.
Counsel for the respondent submitted that the reasoning of the learned Chief Justice was correct, and that counsel for the appellant had to convince the Court that the New South Wales Court of Appeal was plainly wrong in Mobbs v Kain; Latham v Fergusson (2006) 46 MVR 412; Lyons v Fletcher (2014) 66 MVR 219 and Johnston v Stock (2014) 66 MVR 434, and that the South Australian Full Court was plainly wrong in Van Der Heuvel v Tucker (2003) 85 SASR 512.
There was no dispute that, as a matter of principle, this Court should not depart from decisions of intermediate appellate courts of other jurisdictions unless convinced those decisions are plainly wrong.

Mobbs v Kain

It is necessary to analyse this decision because the learned Chief Justice's decision was dependent upon his interpretation of it and because of the arguments mounted by counsel as to it.
In this case, a 10 year old boy alighted from a bus after it stopped. He walked round to the front of the bus and then crossed the road. As he did so a car travelling in the same direction as the bus hit him. The bus was bright yellow and was stationary. At the time, the relevant road rules provided that a driver approaching a bus from the rear in circumstances where the bus carried a particular warning sign and its warning sign was activated could not pass the bus at a speed greater than 40kph. There was no dispute that, when the collision between the car and the boy occurred, the bus was still stationary, the bus was bright yellow, it had the relevant warning sign and its warning lights were activated.
An unchallenged finding at the trial was that the driver was travelling at about 40kph, and was therefore complying with the prescribed speed limit. It was submitted to the trial judge that even travelling at that speed was too fast in the circumstances. Those circumstances included the existence of a perceived risk that children might unexpectedly emerge from behind the bus and the driver's acknowledgement that he was aware of that risk. The trial judge ultimately held that the driver was negligent in that, in the light of the perceived risk, he failed to drive at a speed less than the applicable limit. He did not however identify any speed at which the driver should have been driving.
The learned Chief Justice in the present case quoted some remarks which McColl JA made at [99]. With respect, the remarks relate to one argument mounted by counsel for the child and did not fairly reflect her Honour's overall reasoning. It is necessary to set out what her Honour said on the issue of liability and causation because the rationale behind the case becomes clearer. Her Honour said at [91] to [110]:

"Conclusion: liability
91 The second appellant, as the driver of a vehicle on a public road, was under a duty to other persons on and in the vicinity of the road on which he was driving to exercise reasonable skill and care with a view to avoiding the causing of injury to those persons. The question of whether he failed to exercise the requisite reasonable skill and care, and if so whether this caused injury to the respondent were questions of fact: Turkmani v Visvalingam [2009] NSWCA 211 (at [27]) Hodgson JA (Beazley, Hodgson and McColl JJA agreeing); Liverpool City Council v Estephan [2009] NSWCA 161 (at [42]) per Giles JA (McColl JA agreeing and Basten JA relevantly agreeing). It might be accepted that the line of authorities to which I (and the primary judge) have referred recognise that, as a matter of principle, 'a person driving a motor vehicle on a public road should, as a reasonable person, appreciate that there is a significant risk of causing serious and perhaps catastrophic injury to other persons; and for that reason should, as a reasonable person, exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections': Turkmani (at [28]).
92 In considering what will constitute a discharge of a driver's obligation to take reasonable care, it is relevant to take into account the proposition enunciated in Derrick (at [13]) which finds reflection in s 5C(b) of the Civil Liability Act, that 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. In Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 (at [540]), Young CJ in Eq expressed the somewhat different view that s 5C(b) deals 'with the situation where there were two or more apparently equally viable alternatives and a choice was made which turned out not to be the best'.
93 It is not necessary to consider the range of operation of s 5C(b), particularly in circumstances where it was not referred to either below or in submissions on appeal. It clearly had some bearing on the issue of breach, although I accept that the primary judge did not reach his conclusion on that topic by reference solely to the proposition that the second appellant could have driven more slowly but, rather, by reference to the circumstances enumerated (at [69] in particular) which in his view militated in favour of that conclusion.
94 The starting point, in my view, for considering the primary judge's finding that the second appellant was travelling at an excessive speed, is the facts that the second appellant was complying with the applicable speed limit and was keeping a proper lookout. As even the majority in this Court in Derrick v Cheung accepted (at [7]), 'travelling within the designated speed limit and in conformity with the traffic flow is ordinarily reasonable. Indeed, to do otherwise would often create risks'.
95 It is important to look at some matters of evidence to which the primary judge referred (at [151]) when dealing with the issue of contributory negligence. That evidence demonstrated that the bus was at least several hundred metres in front of the second appellant when he first saw it. It took him at least 30 seconds from that time until he reached it. During that time, he did not see any children on the kerb side where the bus was. As the primary judge found, he accepted that he knew that the purpose of the bus pulling over was to let children off and that that was the likely purpose for it being stationary at the kerb. In response to a question whether he was looking for children on the side of the road, he said he was 'keeping my eyes open for everything'. He agreed with the proposition that 'in particular [he was] looking to see where these children [he] couldn't see were'.
96 The second appellant also agreed with the proposition that if there was a particular situation that made it appear there may be something unexpected in front, the driver should 'slow even further' than the prescribed speed limit. However he disagreed with the proposition that if one did not know 'where the child or children who got off the bus are or are going to be, you should pass the bus at a speed which is slower than 40 kilometres an hour'. In response to the proposition that not knowing where whoever it was who was getting off the bus was as he approached, he should have slowed down to something twenty or twenty-five kilometres an hour and not continued at forty kilometres per hour, the second appellant said he 'wouldn't get past the bus if I went that slow'. He disagreed with the proposition that, in the circumstances, he should have slowed his speed to twenty kilometres per hour.
97 There was considerable discussion in the course of argument on the appeal concerning the expert evidence adduced by the plaintiff from an engineer, Mr Grant Johnston. The primary judge only referred to that evidence twice, once, as I note below, apparently to reject it and (at [66]), despite its apparent earlier rejection to accept Mr Johnston's evidence that the accident was unavoidable at 40 km/h.
98 Mr Johnston undertook various calculations relating to expected reaction times and stopping times, having regard to assumptions he made concerning the circumstances of the accident. One of the critical assumptions upon which he based his conclusions was that the respondent had emerged from the kerb at a 45° angle. The primary judge, however, found (at [39]) that the respondent's angle of travel from the kerb was 30 degrees. The primary judge also concluded (at [39]) that the point of impact between the vehicle and the respondent was in the order of 2.7 metres from the front of the bus. He contrasted that finding with Mr Johnston's estimate of that distance as approximately 4.8 metres. When his attention was drawn to these matters, Mr D Campbell of Senior Counsel, who appeared with Mr I McGillicuddy for the respondent on appeal and at trial, effectively conceded that the Court could not take Mr Johnston's calculations into account for the purpose of determining either breach of duty or causation. Accordingly I have not referred to various of his submissions, made before this concession, concerning Mr Johnston's evidence about speeds at which the accident was avoidable.

99 Mr Campbell submitted that in the light of the perceived risk that impulsive children who had just alighted from the bus might run across the road, it was incumbent on the second appellant to be driving at a speed whereby he would be able to avoid the accident if a situation such as presented occurred. He pointed out, correctly, that many of the cases in which a conclusion that a driver was travelling at an excessive speed was made, there was no actual calculation of the speed at which the defendant ought to have been travelling: see Mye v Peters (1967) 68 SR (NSW) 298. He contended that in this case the second appellant should have slowed down until he could identify the children who had alighted from the bus and where they were, or seen what they were doing. He accepted that that might mean that, in order to discharge his obligation to exercise reasonable care, the second appellant would have to stop even in a line of traffic, or stop then nose in front of the bus in order to ensure no impulsive child was on the verge of speeding across the road. Another submission put forward by Mr Campbell was, in effect, that the second appellant had to travel at a speed (which he did not identify) which meant he would not be where the respondent was when he emerged from the front of the bus. The circularity of the reasoning inherent in the latter submission is such that, in my view, it need not be considered further.
100 Mr Campbell also submitted that the second appellant was not entitled to act in accordance with the applicable speed limit for the reasons set out in the primary judgment (at [69]). In my view, and with respect to the primary judge, the matters to which his Honour referred in that paragraph do not take the case outside the circumstances it might be inferred the legislature intended to cover by enacting cl 40 of the 1999 Regulation. In my view, the evidence did not disclose any additional factor which should have caused the second appellant to reduce his speed below the applicable speed limit, especially in light of the fact that he was keeping a proper lookout. He had a clear view of the bus from a distance of at least several hundred metres before he passed it, during which time he saw no children in or around it. He slowed his speed. He did not see any particular danger. He had a clear explanation, which the primary judge accepted (at [65]), for not seeing the respondent until 'for all practical intents and purposes the same moment that the collision took place' – the fact that the respondent 'emerged at a rapid pace, somewhere between a fast walk and a jog, from behind the bus that wholly obscured him until almost the very instant that he collided with the car'.
101 In my view this was not a case in which the possibility that a child might emerge from the front of the bus, meant that the second appellant had to slow down to a speed where he could either stop in any conceivable circumstances. Such a finding would impose absolute or strict liability on drivers: Rowes (at [90]) per Cole JA; Knight (at [66]) per Heydon JA. It would supplant the obligation to take reasonable care with the impermissible obligation of ensuring the respondent's safety: cf s 5B, Civil Liability Act; Waverley Council v Ferreira (at [11]) per Ipp JA (Spigelman CJ and Tobias JA agreeing); Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot [2009] NSWCA 247 (at [23]) per Sackville AJA (Ipp and Basten JJA agreeing). It should also be recalled that to find breach for failing to take precautions against a risk of harm, not only must the risk be foreseeable and not insignificant, it must also be such as, in the circumstances, a reasonable person in the person's position would have taken those precautions: s 5B(1); see also Lieng (above).
102 Although the appellants do not challenge his Honour's finding that Kingscliff Street was a 'quiet residential' street, there was, as I have said uncontested evidence that there was traffic flow in both directions of travel. Although it was not the busy sort of road encountered in Stocks, Derrick, Knight or Rowes, it was nevertheless a thoroughfare along which the second appellant was driving in mid-afternoon on a weekday.
103 It is not reasonable, in my view, to require the second appellant to slow down to whatever speed would have avoided the accident. Leaving aside the high level of abstraction at which such a conclusion is expressed and its failure to address the particular risk, it is, in my view, the product of impermissible hindsight reasoning. The s 5B/Shirt inquiry requires the Court to look forward to identify what a reasonable person would have done in the circumstances, not backward to identify what would have avoided the injury: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 (at [57]) per Gummow and Hayne JJ; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126]) per Hayne J.
104 Tobin, which the primary judge clearly regarded as a close analogy to the present case, was, in my view, a very different case. The driver was driving on a Sunday in a residential area, she saw a child on the road and she failed to keep a proper lookout even though alerted to the possibility of children coming onto the road.
105 In my view the primary judge erred in concluding that the second appellant was driving at an excessive speed in the circumstances.
106 I would allow the first, second and third grounds of appeal.
Causation
107 The principles embodied in s 5D of the Civil Liability Act accord with the common law concept of causation: Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 (at [59]) per McDougall J (Ipp and Young JJA agreeing). In applying the common law principles in the context of a motor vehicle accident, the relevant test for causation is that stated by McHugh J in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [23], namely 'the breach of duty by the defendant caused the particular damage that the plaintiff suffered...[and] [t]he existence of the relevant causal connection is determined according to common sense ideas': see Flounders v Millar [2007] NSWCA 238 (at [91]) per Hoeben J; (at [38]) per Ipp JA (Handley JA agreeing with both judgments).
108 In accordance with s 5D(1)(a) of the Civil Liability Act, it was necessary that his Honour identify the negligence which was 'a necessary condition of the occurrence of the harm'; see also Fogarty v Creasey [2002] NSWCA 318 (at [33]) per Heydon JA (Meagher and Beazley JJA agreeing). The respondent bore the burden of proving on the balance of probabilities any facts relevant to that issue: s 5E.
109 Turning to the primary judgment, I would observe that, to the extent his Honour appeared to address this issue, his reasons were found in his conclusion (at [70]), that if the second appellant had been driving more slowly, he could have stopped in time or avoided the collision. It is difficult, with respect, in the absence of any finding as to the speed at which the second appellant should have been driving, to sustain that conclusion.
110 In my view his Honour did not identify the negligence which was 'a necessary condition of the occurrence of the harm' and the respondent did not otherwise establish that any conduct on the second appellant's part caused the particular damage that the respondent suffered. Rather, as a matter of common sense, it was the respondent's dash across the road which caused the collision."

Two parts of what was said by McColl JA in Mobbs v Kain need to be highlighted because they indicate the nature of the impermissible reasoning she was considering. At [101], her Honour said:
"In my view this was not a case in which the possibility that a child might emerge from the front of the bus, meant that the second appellant had to slow down to a speed where he could either stop in any conceivable circumstances. Such a finding would impose absolute or strict liability on drivers: …".
At [103], her Honour said further:
"It is not reasonable, in my view, to require the second appellant to slow down to whatever speed would have avoided the accident. Leaving aside the high level of abstraction at which such a conclusion is expressed and its failure to address the particular risk, it is, in my view, the product of impermissible hindsight reasoning. The s 5B/Shirt inquiry requires the Court to look forward to identify what a reasonable person would have done in the circumstances, not backward to identify what would have avoided the injury."
McColl JA has there, in my view, identified the central theme in that case, namely the necessity to avoid impermissible hindsight reasoning. She did so in the context of the facts of that case which were markedly different from those in the present case in one significant area. That was the mode of driving of the relevant driver. In Mobbs v Kain the driver was driving at the applicable speed limit. The court at first instance found the driver should have driven even more slowly than the prescribed limit, and that, had he done so, he would have avoided the collision. However, there was no finding as to what that speed should have been, but a conclusion that the driver had to have been driving at whatever slow speed was necessary to avoid the accident. Because he did not avoid the accident, he was going too fast and caused the accident.
In the present case, the appellant submitted that the respondent had a duty to drive at the prescribed speed limit for the prescribed distance prior to where the accident occurred. He breached that duty. The circumstances in which he did so were that he knew the area, there was a bus with flashing warning lights stopped on the side of the road, he knew that such a bus would be letting school children off, and the driver of the bus was making clear warning hand signals. The factual circumstances were very different from those in Mobbs v Kain, and, in any event, do not give rise to the somewhat circular type of reasoning criticized in that case.
The learned magistrate correctly, in my view, identified the impermissible reasoning considered in Mobbs v Kain, that is "hindsight" reasoning, and distinguished that case upon its facts. With respect, the reasoning adopted by the learned magistrate was not rendered impermissible by the decision of the court in Mobbs v Kain, and the learned Chief Justice erred in finding that it was.
I would, in the circumstances, allow the appeal and quash the orders made by the learned Chief Justice.
The motion to review before the Chief Justice in fact contained four grounds. Counsel abandoned ground 4. His Honour dealt only with ground 1, and did not find it necessary to deal with grounds 2 and 3 because of his conclusion as to that ground. Grounds 2 and 3 have not been abandoned, and it would therefore remain open for the respondent to pursue them if he wished. If he does wish to pursue them, the matter will need to be remitted to the Chief Justice for that purpose. Counsel for the parties should be heard as to what further orders there should be.

File No 547/2014

SERGEANT RICHARD LANE v BRADLEY CHAPLIN

REASONS FOR JUDGMENT FULL COURT

WOOD J
19 March 2015

The appeal should be upheld, as it was open to the learned magistrate to conclude as a matter of law that the respondent's negligent driving was causative of the death of Miss Ashley Edmonds. Contrary to the conclusion of the learned Chief Justice, the learned magistrate did not engage in impermissible hindsight reasoning of the kind identified in Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179. I agree with the reasons of Tennent J, and also the detailed reasons provided by Estcourt J at [90]-[100], distinguishing the facts of Mobbs v Kain and distinguishing the reasoning of the learned magistrate from the type of reasoning criticised by the New South Wales Court of Appeal. There is nothing that I would wish to add with respect to those matters.
In these reasons, I specifically address some of the arguments that were advanced by the respondent in resisting the appeal which identified so-called "conceptual difficulties" with the learned magistrate's reasoning regarding causation.
The aspect of the reasoning subjected to scrutiny was the learned magistrate's consideration of what would have happened if the respondent had driven at 40km/h, instead of approximately 80km/h, in the prescribed area within 50 metres of the school bus. This is known as "but for" reasoning or the causa sine qua non test. The magistrate reasoned that, but for the respondent's breach of duty - his negligent driving - Miss Edmonds would not have been killed in the collision.
I mention the facts in brief; they are set out fully in the learned magistrate's decision quoted in the judgments of Tennent and Estcourt JJ.
Miss Edmonds, aged 13, died as a consequence of head and chest injuries sustained in a collision with a utility driven by the respondent on Gordon River Road at Karanja.
Shortly after 3pm, on 29 February 2012, Miss Edmonds was travelling home from school on the school bus with her sister. The school bus stopped on Gordon River Road, partially occupying the westbound lane. The two sisters alighted from the bus on the verge side and moved towards the rear of it. Their intention was to cross the road to their home in Karanja Court. The entrance to Karanja Court was approximately opposite the stationary bus.
Miss Edmonds moved quickly from behind the bus onto the road. She crossed the road without looking. She reached a point over the centre line of the road and into the eastbound lane. At that point, she collided with the utility driven by the respondent in an easterly direction along Gordon River Road.
As the respondent approached the stationary school bus, it faced him, parked in the oncoming lane. There was only one house in the vicinity, opposite the bus.
The bus displayed its school bus warning sign. The school bus driver had activated the flashing warning lights and they were visible to the respondent for at least 600 metres prior to the point of the collision.
Initially, the respondent drove at a speed of about 100km/h. When he was approximately 500 metres away, Mr Itchens, the bus driver, gave the respondent a clear arm signal to slow down, waving outside the window. Mr Itchens repeated this arm signal when the respondent was approximately 200 metres from the bus. The waving was in "two separate slow parts" and could have been seen by the respondent.
When he was approximately 100-200 metres from the bus, the respondent slowed to 80km/h and continued to drive past the bus at that speed.
Rule 374(1) of the Road Rules 2009 required the respondent to slow to a speed not exceeding 40km/h within 50 metres of the school bus on the road displaying a school bus warning sign and a school bus warning light.
The learned magistrate made findings that:
•     The arm movements of the driver were a "visible and clear warning to a motorist to enter the area with great caution as children are alighting. The respondent either saw or ought to have seen the arm signal. The signal could only mean that the time period requiring the particular caution had not passed".
•     The respondent knew that Karanja Court was where children leaving the bus would live.
•     In having regard to the restricted speed area of 50 metres, "it is well known that the movements of children near roads may be unpredictable and that they may emerge quickly on the road without proper lookout for vehicles".
•     A reasonable prudent driver would have slowed to 40km/h before entering the 50 metre zone and travelled at a speed of 40km/h or lower, and his failure to do so was negligent.
•     The learned magistrate could not be satisfied that Miss Edmonds would not have died had the respondent been driving at approximately 40km/h at the time of impact. The evidence as to what would have happened at that speed was described as equivocal. The learned magistrate did not make a finding that travelling at 80km/h on impact, rather than 40km/h, increased the risk of a fatal collision.
•     The learned magistrate found that it could have taken Miss Edmonds as little as 0.67 seconds to move from the point of being visible to the point of collision. Proceeding on the basis of a perception reaction time of 1.6 seconds, at either 80km/h or 40km/h, the respondent would not have had time to react in order to take evasive action. The magistrate found, as agreed, that at either speed the collision would have occurred.
The learned magistrate reasoned that, if the respondent "had exercised caution by decreasing his speed when overwhelmingly the circumstances signalled the need to ensure at least that he decelerated to enter the 50 metre area at a speed of 40km/h, there is no question that the collision would not have occurred". And further, the learned magistrate determined that had the respondent "reacted in his approach by slowing as the prudent driver would have, Ashley would have time to safely cross the road".
The learned magistrate concluded that the respondent's actions in driving negligently, by not decreasing his speed and entering the 50 metre zone at twice the prescribed speed, were directly causative of Miss Edmonds' death. Also, Miss Edmonds' failure to look out for vehicles travelling in the direction of the respondent's vehicle was also most significantly causative of her death.
The respondent argued that there were conceptual difficulties with this reasoning. The submissions lead to scrutiny of the magistrate's reasoning and, in particular, the application of the "but for" test.
The question of whether a defendant's negligence caused the particular occurrence is a question of fact and is answered by reference to common sense and experience. It is a question into which considerations of policy and value judgments necessarily enter. The question is whether the negligent driving of the respondent was so connected with Miss Edmonds' death that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it. The "but for" test is not a comprehensive definitive test of causation. In many cases it has an important role to play as a negative criterion, but it is not an appropriate test for all situations. It is a useful aid in determining whether something is properly to be seen as an effective cause. For these well established principles see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
The "but for" test can yield false positive and false negative results. Indeed, the reasoning criticised in Mobbs v Kain had led to a false positive result. It may also be over-exclusionary, such as in a situation where there are two or more acts or events and each would be sufficient to bring about the harm or injury. The results which the "but for" test yields must be tempered by the making of value judgments and the infusion of policy considerations: March v Stramare per Mason CJ at 516.
In a case where there is more than one person at fault, such that if any one of them had acted properly the accident would not have happened, it may be proper to regard them as having jointly caused the accident. Here, too, the question of legal liability is determined by applying common sense. Whether conduct is a "cause" of injury remains to be determined by a value judgment involving ordinary notions of language and common sense: March v Stramare per Deane J at 52.
In criminal cases, the question of causation is also to be determined by the application of common sense, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1990) 172 CLR 378 at 387, 411, 423. Likewise, the "but for" test is a useful tool in determining whether a causal link existed between an accused's act or omission and the injury. Before a person will be held criminally liable, the causal link between that act or omission must be "sufficiently cogent to justify attributing causal responsibility, ie legal responsibility to that person": Royall, per McHugh J at 440. There may be more than one cause, in which case the question is whether an act of the accused substantially contributed to the death: Royall at 411, 423.

An immediate observation to make in light of March v Stramare is that the "but for" test is a legitimate inquiry even if it does give rise to difficulty.
It will be seen that the respondent's arguments have extracted the "but for" aspect of the learned magistrate's reasoning and subjected that to scrutiny. For the purpose of considering the operation of this test, common sense considerations and value judgments weighing in favour of a finding of causation have been put to one side.
It was argued that the negligence of the respondent was not causative of death, because death would have resulted even if he had not breached his duty. The argument was that, had the respondent been driving at the permitted speed of 40km/h when Miss Edmonds emerged from behind the bus, with less than 1.6 seconds to perceive her presence and react, the collision would have happened with the same results. He would not have had time to react to Miss Edmonds' presence on the roadway. This argument applies "but for" reasoning to the time when Miss Edmonds was first visible. This is in contrast to a comparison at any other point of the 50 metre zone.
I digress to note that it seems that it is less usual for courts in cases of negligent driving to be faced with applying the "but for" test to a continuum of conduct, rather than a confined negligent act or an omission. A case based on omission or failure to act naturally falls for analysis by the "but for" test: Bennett v Minister of Community Welfare (1992) 176 CLR 408, per Gaudron J at 420. In cases involving negligence in failing to keep a proper look out, there is generally a particular moment in time when it is asserted that the driver omitted to keep a proper look out and the "but for" test is well suited to the question of whether performance of the duty would have averted the harm.
Here, the facts are quite different and the "but for" test is to be applied to an extended act of negligent driving, albeit a matter of seconds and a distance of 50 metres of the school bus immediately before the collision. The question is at what point the test should be applied. I reject the argument that the "but for" test should be applied only to the time Miss Edmonds was first visible to the respondent. The test should capture the negligent conduct, not just some of it. After all, the task at hand is to ascertain legal responsibility for the fatal collision: March v Stramare per Mason CJ at 509, Deane J at 522 and McHugh J at 530–531; Royall v The Queen per Deane and Dawson JJ at 411 and McHugh J at 441. That cannot be carried out if only part of the conduct is considered. It is sound in principle to apply the test to the entirety of the respondent's negligent driving, in order to ascertain its causal connection to the death, and not to select a moment in that continuum of negligence.
A second argument advanced by the respondent is that the reasoning of the learned magistrate treated the respondent's duty as if it was confined to Miss Edmonds in the very precise circumstances of this accident. Submissions included the following:
"His duty was to all road users, including pedestrians, and hence the deceased, and that duty applied outside the precise circumstances of this accident. The reasoning also involved the creation of a model, or line of logic, which assumed that all elements remain constant other than the speed of the respondent's motor vehicle. It assumed that the deceased stepped out at precisely the same instant. It assumed that the bus dropped her off at precisely the same time. It assumed that the deceased walked from the front of the bus to the rear of it at precisely the same speed. In so doing the reasoning fell into the type of error identified n Derrick v Cheung (2001) 181 ALR 301 at 305 [13]:
'Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.'"
It is submitted for the respondent that, while this is a statement relating to whether breach of duty had been established, it is equally applicable in considering the learned magistrate's approach to causation.
This authority is acknowledged and is an observation about the somewhat artificial nature of the "but for" test in shifting one fact and replicating the precise set of circumstances as a hypothetical comparison. However, the very nature of the test is concerned with duplicating the same circumstances in order to test the causal relationship between the negligent act or omission and the occurrence. This comparison is inherent to the test and if it is a shortcoming, it is a shortcoming of the test in general, not the learned magistrate's approach.
The respondent contends that the magistrate treated the respondent's duty as if it were confined to only Miss Edmonds in the very precise circumstances of this accident. His duty was to all road users, including pedestrians, and thus Miss Edmonds, and that duty applied outside the precise circumstances of this reasoning. The learned magistrate did not conclude otherwise. Turning to the question of causation, that inquiry must necessarily focus on the particular occurrence. The effective cause (or causes) of that occurrence, here the fatal collision, is the matter in issue. I add that generalising the enquiry and taking account of others to whom the duty is owed in fact highlights the danger he posed to all pedestrians, particularly school children alighting from the bus, including those who may not keep a proper look out. The danger that the respondent exposed pedestrians to was significantly increased by a speed of 80km/h rather than 40km/h. The faster speed reduced the time required for the utility, on its approach, to travel over the distance between it and the school bus and reduced the opportunity for it to be seen. Reducing speed for the distance of 50 metres would have given time and opportunity for the approaching danger to be noticed, any pedestrians to be alerted and evasive action to be taken by driver or pedestrian. In the event of a collision, a speed of 80km/h versus 40km/h increases, as a general proposition, the chance of a fatality or serious injury. Of course, this is not to the point in ascertaining whether the respondent caused the fatal collision.
The respondent's submission, that the learned magistrate overlooked that the duty was to all road users, is a criticism of the magistrate's characterisation or treatment of the duty of the respondent as being or incorporating an obligation to allow the hazard to pass. Further, it is argued that the magistrate erroneously regarded that a purpose of the restricted speed zone was to allow the hazard of alighting school children to safely pass. It was contended that the difficulty with this reasoning is that the restricted speed zone is a requirement which applies regardless of the relative positions of alighting school children and the location of vehicles in the zone. This point may be demonstrated with an example that, if the respondent had been driving at 40km/h but was further down the road, having left home fractionally earlier, then the hazard may not have safely passed. The respondent illustrated this further, giving the example of a school bus with its warning lights activated in a busy suburban street with vehicles at different points throughout the zone. It was said that allowing time for the hazard to pass could not be a purpose of the zone. Rather, the purpose was for vehicles to reduce speed, and to give improved opportunity for reaction and thus for collisions to be avoided or, at least to make the resulting consequences of a collision less serious. It seems to me that, as a general proposition, this is sound.
It was submitted that it was erroneous to use this purported purpose of the rule, allowing the hazard to pass, as a foundation for causation, because in reality the restricted speed zone applied wherever a motor vehicle was within the zone and regardless of the movements of a specific child. However, it seems to me that the learned magistrate did not attribute the objective of allowing the hazard to pass as part of the rationale for the road rule, viewed in isolation. Rather, the learned magistrate noted that was the effect that compliance with the rule would have had in this case [113] (the relevant paragraphs are set out in the reasons of Tennent J at [11]). That is undoubtedly correct. When commenting at [115], that the "purpose of slowing in this case was for safety and to allow the hazard period to elapse" it can be seen from the context of her reasons that the learned magistrate was referring to slowing as a consequence of Mr Itchen's signals as well as the road rule. Her Honour treated these signals as alerting the respondent to slow down and said that "the waving could only have been intended as a warning that schoolchildren were still alighting from the bus" [111]. In other words, the hazard of children alighting from the bus was pending. The magistrate did not reason, as suggested, about the purpose of the road rule. Moreover, it was open to the learned magistrate to conclude that the signals gave rise to a duty to slow down to 40km/h as prescribed vis-à-vis a particular hazard, indeed, particular individuals, which arose with reference to or directly related to the respondent's location at the time he was warned in relation to the hazard. Indeed, this was the magistrate's reasoning and is reflected in her comments about the duty that was owed. Allowing the hazard to pass would have been the effect of compliance with the warning given by Mr Itchens to the respondent to reduce his speed, together with compliance with the road rule to drive at 40km/h. I add that it can be seen that this is a particular case with vastly different considerations which distinguish it from a mere obligation to comply with a speed zone and a surprise hazard.
Finally, it was argued that the reasoning of the learned magistrate would lead to perverse results. Applying the same test, the accident could have been avoided if the respondent drove at a considerably faster speed, say 140km/h, because he would have passed the spot of the accident before Miss Edmonds stepped out from behind the bus. Logically, that result follows from the application of the "but for" test as applied to demonstrate that the speed of 80km/h was an effective cause. The test has this effect because the reasoning undertaken by the learned magistrate rests on a fixed timeframe, as it must. To allow the comparison, the time that the respondent arrived at the 50 metre zone and the time at which Miss Edmonds crossed the road are fixed. This logical consequence of the "but for" test identified by the respondent is a product of the nature of the test. I do not see that as particularly significant. In many cases where the "but for" test is applied and measured against what would have happened if there had not been a breach, it is possible to imagine that the injury or death would be avoided by a more careless act or more substantial deviation from the standard of care. It is demonstrative of the need for common sense and value judgments to prevail.
The arguments do not demonstrate conceptual flaws in her Honour's reasoning. The learned magistrate properly applied the "but for" test and the respondent's negligence was not excluded as a cause of Miss Edmonds' death. The arguments do reveal some limitations of the test. This point is not telling except to demonstrate the necessity of the application of common sense and a check of policy considerations.
The learned magistrate's analysis included a careful consideration of authorities regarding causation and she distilled at [28] of her reasons the correct principles regarding causation. There is no criticism of her Honour's analysis or summary. Later, in concluding, her Honour expressly referred to these principles, describing her approach as a common sense approach to the facts as found, whilst bearing in mind that the determination will attribute criminal responsibility.
Common sense considerations are embedded in her Honour's reasoning regarding causation. For example, the magistrate referred to the fact that the negligent driving at twice the prescribed limit was through the very portion of road where Mr Itchens was trying to slow the respondent's approach to allow time and maximise safety of the alighting children. Further, she noted that the very hazard both Mr Itchens and the road rule were contemplating (children alighting from the bus, including children not keeping a proper look out) materialised.
It can be seen from the magistrate's reasons that the issue of causation has been answered with reference to common sense, not merely on the "but for" test, and that value judgments were considered and are integral to her reasoning.
I conclude that the conclusion reached by the learned magistrate, that the respondent's negligence was a direct and a substantial contributing cause of the collision and Miss Edmonds' death, was open to her as a matter of law. The potential hazard of children crossing the road, including children not keeping a proper look out, ought reasonably to have been evident to the respondent. Mr Itchens' signals warned that the period of risk had not subsided and the hazard was still pending. Notwithstanding that, the respondent drove at a speed twice that of the prescribed limit, immediately before and up to the moment of impact. The duty was breached and the risk eventuated. It was the very hazard of a child crossing without looking that materialised. There were no other factors at play. The respondent's speed was an immediate cause and had an integral role in the fatal collision.
The causal link was sufficiently cogent to justify attributing legal responsibility to the respondent.
It is for these reasons I agree with Estcourt J at [89]: "Common sense notions of causation are more than sufficient to resolve the question adversely to the respondent, there are no countervailing policy considerations which intrude on the question and the 'but for' test applied as a negative criterion of causation does not excuse the respondent."
I agree with the orders proposed by Tennent J and the course proposed with respect to the remaining grounds of the notice to review.

File No 547/214

SERGEANT RICHARD LANE v BRADLEY CHAPLIN

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
19 March 2015

Shortly after 3pm on 29 February 2012, Ashley Edmonds, aged 13, was travelling home on a school bus with her sister Gemma. At that time the school bus stopped on Gordon River Road at Karanja and was partially occupying the westbound lane. The two sisters alighted from the bus on the verge side of the road and proceeded towards the back of the bus. Their intention was to cross the road to go to their home in Karanja Court opposite where the bus was stopped. Ms Edmonds moved quickly from behind the bus onto the road. She reached a point over the centre line of the road and she was fatally struck by a utility driven by the respondent.
The respondent was subsequently charged with causing death by negligent driving and was convicted by Magistrate McTaggart. The respondent appealed to this Court and Blow CJ allowed the appeal, Chaplin v Lane [2014] TASSC 32, on the basis that the learned magistrate had erred in her reasoning as to the question of causation. The appellant has appealed to this Court on the sole ground that:
"The learned Chief Justice erred in law in finding that it was not open to the learned Magistrate to conclude as a matter of law that the defendant's driving was negligent and causative of the death of Ashley Edmonds."
On the hearing of the motion to review before Blow CJ, there was no challenge to the learned magistrate's finding that the respondent was driving his utility at 80km/h at the time of the collision, and no challenge to her finding that the respondent was negligent in driving at such a speed. It was accepted that Ms Edmonds died as a result of a collision. The respondent contended before the learned Chief Justice that the magistrate had erred in concluding that she was satisfied beyond reasonable doubt that there was a causative link between the respondent's negligence and Ms Edmonds' death.
At this point it is necessary to understand r 374(1) of the Road Rules 2009 which required the respondent to drive at a speed of no greater than 40km/h at the time and place of the collision. That sub-rule reads as follows:
"(1)     A driver must not drive at a speed exceeding 40 kilometres per hour within 50 metres of a bus that is on a road and displaying —
(a)       a school bus warning sign; and
(b)       a school bus warning light.
Penalty: Fine not exceeding 20 penalty units."
The learned magistrate found that the respondent's duty of care required him to drive at a speed no greater than 40km/h, and that finding was not challenged in the proceedings before the learned Chief Justice.
On the basis of uncontroversial expert evidence as to speeds, distances, and drivers' perception/reaction times the learned magistrate concluded that, even if the respondent had been travelling at only 40km/h when Ms Edmonds emerged from behind the bus, a collision would have been inevitable, and that the evidence did not establish that she would have survived a collision at such a speed. Thus, as there was no evidence that travelling at 80km/h rather than 40km/h increased the risk of a fatal accident, it was not open to her Honour to find the charge proved on the basis that the respondent was negligent in speeding at the time when Ms Edmonds emerged from behind the bus.
However, her Honour reasoned that had the respondent slowed to 40km/h, as required, when his vehicle was 50 metres away from the bus, and had he travelled at that speed over those 50 metres, and when travelling beside the bus, then Ms Edmonds would have had time to have completed her crossing of the road before the respondent reached the rear of the bus and there would have been no collision. Her Honour concluded that it followed that the respondent had caused Ms Edmonds' death by his negligence in driving at a speed exceeding 40km/h as from a point 50 metres away from the bus.
On the respondent's motion to review, the learned Chief Justice held that the respondent's negligence in driving at an excessive speed from the time he was 50 metres away from the bus may well have resulted in his vehicle being at the point of impact at the moment of impact, but as a matter of law it was not open to the learned magistrate to make a finding that his negligence was therefore a cause of Ms Edmonds' death. His Honour found that the learned magistrate erred in law by finding the charge proved on the basis on which she did.
Blow CJ's reasoning appears at [11]–[14] of his Honour's reasons for judgment as follows:
"11      In Mobbs v Kain (2009) 54 MVR 179, the New South Wales Court of Appeal considered reasoning similar to that relied on by the learned magistrate. That case concerned a collision between a vehicle and a schoolboy who had just got off a school bus and hurried onto the road. The vehicle was approaching from the rear of the bus. The boy emerged from a position in front of the bus and collided with the side of the passing vehicle. The primary judge found that the motorist had been negligent. One of the arguments before the Court of Appeal was to the effect that, if the motorist had slowed below 40km/h before reaching and while passing the bus, his vehicle would not have been where it was at the time of the collision, and so the schoolboy would not have collided with the vehicle or been injured. The principal judgment in that case was delivered by McColl JA, with whom Macfarlan JA agreed. At [99], her Honour rejected that argument out of hand, with these words:
'Another submission put forward by Mr Campbell was, in effect, that the second appellant [the motorist] had to travel at a speed (which he did not identify) which meant he would not be where the respondent [the boy] was when he emerged from the front of the bus. The circularity of the reasoning inherent in the latter submission is such that, in my view, it need not be considered further.'
12        Giles JA, who concurred with the orders proposed by McColl JA, addressed the submission in greater detail. At [19] he quoted a passage from Glanville Williams, Joint Torts and Contributory Negligence, Stevens, London, 1951, which concluded with the following paragraph:
'A more frequent illustration as applied to original negligence would be as follows. D is driving a vehicle without keeping a proper lookout. P, driving negligently, collides with him. The facts are such that even if D had been keeping a proper lookout he could not have avoided P, and the accident would have happened just the same. Here D's driving the vehicle is a cause of the accident, for had he not been at that spot at that time the accident would not have happened. But D's negligent failure to keep a proper look-out cannot be assigned as a cause of the accident. Therefore there is no negligence on the part of D causing the accident and an action by P against D must fail, whether before or after the Contributory Negligence Act.'
13        At [20] and [21], his Honour rejected the submission, saying:
'20       Other illustrations were given. The illustration as applied to original negligence, while not identical to the present case, is pertinent. D being at the spot at the time was not in law a cause of the accident. Even if the second appellant had been driving more slowly, the respondent would have collided with the side of his motor vehicle. Driving at 40 kilometres per hour was a "but for" cause, whereby the second appellant's motor vehicle was where it was. But any negligence in driving at an excessive speed "cannot be assigned as a cause of the accident".
21        One may postulate that the second appellant had driven at an unsafe speed fifteen minutes earlier, or had driven contrary to a red light at an intersection a few kilometres before coming up to the bus, and that his motor vehicle would not have been where it was but for the failure to drive reasonably. I do not think it could be suggested that there would be causation in law. Indeed, the second appellant's motor vehicle would not have been where it was had he sped past the bus at 100 kilometres per hour: cf Draxton v Katzmarck (1938) 280 NW 288 (Minn), cited in Hart and Honoré, Causation in the Law, 2nd ed (1985) at 122 in considering the American courts' rejection of causation where the accident would not have happened but for earlier speeding. So in the present case, the fact that the second appellant's motor vehicle would not have been where it was at the time the respondent ran out, had he slowed to below 40 kilometres per hour before reaching and while passing the bus did not, in the present case, make out causation in law.'
14        As far as I know, there are no Tasmanian authorities in relation to this form of reasoning. I must therefore follow the decision of the New South Wales Court of appeal: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 at [49]."

The learned magistrate considered the question of causation in some detail in her reasons for decision. At [10]–[28] her Honour said as follows:
"'Causing death'
10     I must determine the correct test to be applied in respect of causation.
11     Ultimately I accept the prosecution submission that the appropriate test to be applied in respect of causation is whether the defendant's negligent driving was a substantial or significant cause of Ashley's death.
12     Issues of causation in the criminal law appear to arise most frequently in the cases of unlawful homicide.
13     In Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 Brennan J stated at p398:
'The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim: Pagett [1983] EWCA Crim 1; (1983) 76 CrAppR 279, at p288. It need not be the sole, direct or immediate cause of the death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken.'
14     Toohey and Gaudron at p423 stated:
'In Campbell v The Queen (1981) WAR 286, at p290; (1980) 2 A Crim R 157, at p161, Burt CJ (with whom Jones and Smith JJ concurred) expressed reservations about attempting to explain causation in the context of a charge of dangerous driving causing death. His Honour said:
"It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter."
Burt CJ's comments have much to commend them. In particular, there is little to be gained, but there is a risk of confusion, if the members of a jury are introduced to the sophisticated notions of causation that tend to bedevil the law of torts. Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased's death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause: R v Butcher [1986] VicRp 4; (1986) VR 43, at pp55-56; R v McKinnon (1980) 2 NZLR 31, at p36. In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death.'
15     Their Honours further stated at p424:
'The question whether an act of the applicant caused the death was one to be answered as a question of objective fact. It did not depend upon the applicant's appreciation of the consequences of any act of his. The Full Court of the Supreme Court of South Australia observed in R v Hallett (1969) SASR 141, at p 149:
"Foresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation."'
16     Mason CJ stated at p387:
'In this respect I agree with the statement made by Burt CJ in Campbell v The Queen (1981) WAR 286, at p290; (1980) 2 A Crim R 157, at p161, that it is "enough if juries (are) told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter"; see also Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47, per Windeyer J. at p69. That is the test that has been applied in negligence cases by this Court: see March v E and MH Stramare Pty Ltd [1991] HCA 12; (1991) 65 ALJR 334; 99 ALR 423.'
17     Deane and Dawson JJ also agreed with the statement of Burt CJ and the principle of substantial cause.
18     The concept of 'substantial cause' has been interpreted as conduct that cannot be dismissed as trivial or merely part of the history of events leading to the commission of the crime; see Royall (supra) per McHugh J at 442; R v Smith (1959) 2 QB 35.
19     The test in Royall (supra) has been applied in many other authorities in the context of homicide cases; see for example, R v Carter [2003] QCA 515 ; Sharmake Aidid v R [2010] VSCA 56; R v Franklin ( 2001) 3 VR 9.
20     The above principles of causation have also been applied to charges that allege an act of driving has caused death or injury. Campbell v The Queen (1981) WAR 286; R v Cornish 33 A Crim R 91; Crane v R 23 MVR 359.
21     In R v Cornish (supra), a decision of the South Australian Court of Criminal Appeal, it was held that the test for causing death by dangerous driving was whether or not the appellant's behaviour was a substantial contributing cause of death. At p92 King CJ stated:
'The argument before us was that if the deceased had been wearing a seat belt he would not have died as a result of the accident. In consequence it was said that the accident, and hence the appellant's manner of driving, was not the substantial cause of death. This argument, to my mind is quite untenable.
The injuries from which the deceased died were incurred in the accident. If there had been no accident the deceased would not have suffered those injuries and would not have died. It is perfectly plain, therefore, that the accident was the cause, or at the very least a substantial contributing cause, of the deceased's death. Indeed, whatever affect the failure to wear the seat belt might have had, it is perfectly apparent that a substantial cause of the death of the deceased was the occurrence of the accident. If, therefore, the appellant's manner of driving caused the accident, it follows that a substantial cause of the deceased's death was the driving of the appellant.'
22     In Tasmania, in Attorney-General's Reference No 1 of 1993; R v Bacic (1994) 20 MVR 93, the Court of Criminal Appeal dealt with the question of whether the trial judge erred in law in directing the jury that the deceased's possible failure to wear a seatbelt, and the possibility that had he been sitting in a different part of the car he might not have died, were factors they could legitimately take into account in determining whether the Crown had established that the accused's dangerous driving caused the deceased's death.
23     The Court held that the question was not a question of law that arose at the trial and therefore declined to determine the question.
24     However, Slicer J, in obiter discussion, considered the issue of causation in a charge of causing death by dangerous driving. Slicer J commented, at p107, that Royall laid down the appropriate test for direction to juries regarding causation.
25     In Scott v Stanford (1991) 14 MVR 85, a case of dangerous driving causing bodily harm, Murray J referred to the authorities including Royall (supra) and held that questions of causation are to be resolved in a common sense way; they are to be resolved in the context that one is attributing liability for a criminal offence; they are to be resolved by considering whether there is in a factual sense a substantive process or chain of causation extending from the conduct of the offender to the harm suffered by the victim. In a case where the victim has also contributed directly to the occurrence of that harm his Honour stated that it then becomes appropriate to ask whether the victim's contribution has in fact broken the chain of causation.
26     In March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Deane J set out the appropriate approach which should be adopted when more than one causative factor could be regarded as a necessary condition of liability; that in determining what caused an accident from the perspective of legal liability one must apply common sense to the facts of each particular case. He stated that some factors or faults relating to the cause of an accident may be so remote as to be of no assistance. It may be that depending on the circumstances there will be a finding that one fact or cause only is relevant whilst in other circumstances there may be two or more causes.
27     Whether the alleged act caused the death is a question of fact: Arulthilakan v R [2003] HCA 74 per Kirby J at 55; (2003) 203 ALR 259; R v Bacic, (supra).
28     In summary I can distil from the authorities that the principles relating to causation that I should apply in this case are as follows:
1   The defendant's negligent driving must be a substantial contributing cause of Ashley's death;
2   The defendant's negligent driving need not be the sole, direct or immediate cause of death;
3   The concept of 'substantial' means an operative cause - not too remote, not merely part of the history of events, and more than de minimis;
4   The question of causation is determined by applying common sense to the facts as found, bearing in mind that the defendant's acts will attract criminal liability;
5   The question of causation is one of objective fact; and is not dependent upon the defendant's appreciation of his actions."
For present purposes I respectfully adopt her Honour's distillation of the relevant principles to be derived from the authorities she examined.
Her Honour's conclusions as to causation were as follows:
"110   In my view the defendant's negligence in travelling at approximately 80km/h within 50 metres of the bus is a substantial and operative cause of the collision and thus Ashley's death.
111    From at least 500 metres away, probably farther, Mr Itchens waved on two occasions to signal the defendant to slow down. As discussed, the waving could only have been intended as a warning that schoolchildren were still alighting from the bus. If the children had already alighted and had crossed the road and the bus was pulling out to leave, there would be no need for hand signals.
112    The rationale for the speed limit of 40km/h near a school bus displaying a warning sign and warning light signifies to approaching drivers that special caution is needed as school children are likely to be in the vicinity. It is well known that the movements of children near roads may be unpredictable and that they may emerge quickly onto the road without proper lookout for vehicles.
113    For a period of time and within a certain area, when a school bus is stopped on a road with lights activated and children alighting, a potential hazard exists. That hazard involves the possibility of passing vehicles striking children entering or alighting from the bus. Parliament has seen fit to address this potentially hazardous situation by requiring a maximum speed of 40km/h within 50 metres of a school bus displaying lights and a warning sign. Within this 50 metre zone a vehicle travelling at 40km/h has a greater capacity to stop if necessary in the event of a child's presence on the road. In some cases, such as the present, approaching this hazard zone at the prescribed speed will allow the hazard to safely pass.
114    On the facts of this case, the defendant either saw or ought to have seen the driver of the bus using a clear arm signal and the stationary school bus with its lights flashing. He should have decelerated from the speed limit of 100km/h to ensure that he was travelling no more than 40km/h within 50 metres of the bus. He had ample time to see the school bus. He was familiar with the fact that the bus would be dropping children off. He knew the area and the fact that Karanja Court was the place where the children would live. There were no houses on the side on which the school bus was parked and there was an obvious likelihood in those circumstances that children would cross the road. There was some evidence about the extent to which a driver in the defendant's position may have perceived that this school bus was moving off. Mr Itchens said he was only just starting to move off. I find that any movement of the bus at that point was imperceptible. In any event, Mr Itchens' hand signals had only ceased shortly before he sat back down in the bus. There was nothing else to distract the defendant apart from the school bus. An ordinary prudent driver would have focused on the bus from a distance of several hundred metres away where it was visible on the straight and then have kept a close eye on it whilst reducing speed.
115    That reduction in speed in this case should have occurred from the time when Mr Itchens' hand signal was first visible. If the defendant had been driving as an ordinary prudent driver, driving the only vehicle in the vicinity of a school bus with flashing warning lights where children are expected to cross the road to go to their house, his driving actions from the first time the bus was visible should have been focused towards exercising the caution necessary in these circumstances. Instead the only action taken was to decrease his speed apparently from a speed around the speed limit of 100 to 80km/h. The purpose of slowing in this case was for safety and to allow the hazard period to elapse. By entering the area at a speed twice the speed prescribed by law, he put himself into the area and time zone of the potential hazard. In doing so, the hazard that both Mr Itchens and the regulations were contemplating materialised.
116    As discussed, if the defendant had been driving as the ordinary prudent driver, instead of travelling at speed into that zone, the hazard of Ashley crossing the road suddenly would have been allowed to pass - this was clearly the intention of Mr Itchens in waving from a long distance. As noted, it may have taken Ashley only a little more than half a second to a second, bouncing quickly, to reach a point just over the centreline of the road. She was travelling at a fast pace. It can reasonably be conservatively assumed that a completed road crossing whereby she would need to travel somewhere under 3 metres across most of the eastbound lane, would have taken another 2 seconds or so.
117    If the defendant had exercised caution by decreasing his speed when overwhelmingly the circumstances signalled the need to ensure at least that he decelerated to enter the 50 metre area at a speed of 40km/h, there is no question that the collision would not have occurred.
118    The defendant's actions in driving negligently are therefore directly causative of Ashley's death. Ashley's failure to look out for vehicles travelling in the direction of the defendant's vehicle was also most significantly causative of her death.
119    In my view the defendant's driving actions when approached in this way can clearly be seen to be a direct cause of Ashley's death, and a substantial contributing cause notwithstanding Ashley's own contribution in running onto the road closely in front of the defendant's vehicle. Such an approach to causation is a common sense approach to the facts as found, whilst firmly bearing in mind that the Court is attributing responsibility in a criminal matter.
120    In my view this approach does not contain any error of simply looking backward to identify what would have avoided the accident. See Mobbs v Kain (supra) per Giles J at para 5. In that case both Giles JA and McColl JA both cautioned against the approach of reasoning using the 'but for' test of causation… (quotations omitted).
121    However, the facts of the present case can be clearly distinguished. The defendant was travelling at double the prescribed speed for the zone, not the prescribed speed; and the negligent driving of the defendant was through the very portion of road where Mr Itchens was trying to slow the defendant's approach to allow time and maximise safety of the alighting children. The defendant's act of negligent driving is not part of the history of events but an integral part of causation.
122    Ashley's act in running out onto the road in very close proximity to the defendant's approaching vehicle made it impossible for the defendant to stop but did not break the chain of causation. Simply put, had the defendant reacted in his approach by slowing as the prudent driver would have, Ashley would have had time to safely cross the road.
123    The defendant was at least required to be travelling at 40km/h for a distance of 60 metres before the collision, being the prescribed 50 metre distance together with the length of the bus. At 40km/h instead of 80km/h, in this zone alone he would have allowed Ashley a further 2.7 seconds to cross the road. Added to this period of time would be, at the very minimum, the additional time for deceleration from 80km/h to 40km/h before reaching the prescribed zone. Clearly this would have been another several seconds. As stated the prudent driver would have, in any event, slowed well before the legal requirement to do so.
124    Thus Ashley would have safely crossed the road, had the defendant not deprived her of that opportunity by his speed that was twice the prescribed limit at the time of the collision. I am satisfied beyond reasonable doubt that the defendant's negligent driving caused Ashley's death."
Senior counsel for the appellant, Mr Coates SC, submits that the learned Chief Justice erred in his decision to regard himself as bound to follow the reasoning of the New South Wales Court of Appeal in Mobbs v Kain (2009) 54 MVR 179 and to hold as a consequence that it was not open to the learned magistrate as a matter of law to find that the respondent's negligence caused the accident because it resulted in his vehicle being at the point of impact when he otherwise would not have been.
Counsel for the respondent, Mr C Gunson, submits that there was no error in the reasoning of the learned Chief Justice and that to succeed, the appellant must convince this Court that the New South Wales Court of Appeal was plainly wrong in its decision in Mobbs v Kain.
Mr Gunson argued that the learned magistrate's reasoning identifies the respondent's driving as a cause of the accident for no other reason than that it put him at the spot at the time the accident occurred, and that if he had not been there the accident would not have occurred. That reasoning, he contends, citing Mobbs v Kain (above) at [19]-[21] and Draxton v Katzmarck (1938) 280 NW 288 (Minn), is contrary to law and principle.
Mr Gunson further submits that the learned magistrate's reasoning treated the respondent's duty as if it was confined to only the deceased in the very precise circumstances of this accident, whereas his duty was to all road users, including pedestrians, and hence the deceased, and that duty applied outside the precise circumstances of this accident. He contends that the reasoning also involved the creation of a model, or line of logic, which assumed that all elements remained constant other than the speed of the respondent's motor vehicle. That is to say, that it assumed that the deceased stepped out at precisely the same instant, it assumed that the bus dropped her off at precisely the same time, and it assumed that the deceased walked from the front of the bus to the rear of it at precisely the same speed. In so doing this, it is submitted, the learned magistrate's reasoning fell into the type of error identified in Derrick v Cheung (2001) 181 ALR 301 at 305 [13]:
"Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence."
I find Derrick v Cheung and Draxton v Katzmarck and a number of other authorities cited on behalf of the respondent to be of little assistance in approaching the question of causation in this case. Whilst somewhat analogous factually and while throwing up situations which, like the present case, bedevil the theory of legal causation, they turn, as one might expect, on their own facts. I focus therefore on Mobbs v Kain which was clearly central to the respondent's argument both in this Court and below before the learned Chief Justice.

In Mobbs v Kain, Giles JA said at [20]-[21]:
"… Even if the second appellant had been driving more slowly, the respondent would have collided with the side of his motor vehicle. Driving at 40 km per hour was a 'but for' cause, whereby the second appellant's motor vehicle was where it was. But any negligence in driving at an excessive speed 'cannot be assigned as a cause of the accident'."
However, while it is true in the present case that even if the respondent had been travelling at 40km/h (or even 20km/h) at the moment when Ms Edmonds ran out, he still may not have been able to avoid a fatal collision with her, the unchallenged finding is that had he not been driving negligently in excess of 40km/h on entry to and within the 50 metre 40km/h zone, Ms Edmonds would have been able to cross the road when she did without injury.
The present case is not a case such as Mobbs v Kain where it can be said that respondent's driving at 80km/h was nothing more than a "but for" cause, whereby the respondent's motor vehicle was where it was when it was.
The question of fact to be resolved as a matter of common sense is whether the respondent's excessive speed was a substantial or significant cause of the collision. That question of fact is not to be approached simply by observing that, given the respondent's vehicle was where it was when it was, then even if the respondent had been driving more slowly, Ms Edmonds would still have collided with his vehicle. To approach the question in that way is to misidentify the starting point of the causation inquiry. The question of fact is not whether driving at 40km/h immediately prior to or at the point of impact would have avoided the collision; it is whether entering the 50 metre 40km/h hour zone at 40km/h, as was the respondent's duty, would have avoided the collision altogether. Unquestionably it would.
In my view, the inquiry as to causation is not appropriately focussed on the excessive speed of the respondent's vehicle and the consequences of his breach of duty at the moment of Ms Edmonds' entry onto the roadway or at impact, but rather on the excessive speed of the respondent's vehicle from the time he entered the 40km/h zone and the consequences of his breach of duty for Ms Edmonds' safe exit from the roadway, having entered when she in fact did.
If in the present case the focus of the inquiry as to causation were elsewhere, given the defined and identifiable nature of the restricted speed zone and what I regard as the obvious policy behind the law to allow children, with known propensities to run onto roads, the chance to cross more safely, the outcome on causation would not be in accordance with common sense ideas, but would, in my respectful view, be an affront to common sense.
Giles JA also said in Mobbs v Kain (above) at [21]:
"One may postulate that the second appellant had driven at an unsafe speed 15 minutes earlier, or had driven contrary to a red light at an intersection a few kilometres before coming up to the bus, and that his motor vehicle would not have been where it was but for the failure to drive reasonably. I do not think it could be suggested that there would be causation in law. Indeed, the second appellant's motor vehicle would not have been where it was had he sped past the bus at 100 kilometres per hour."
With respect, I agree entirely with those observations. However, in the present case it is unnecessary to postulate about some hypothetical event at some random earlier time in respect of which the driver was under no duty of care to the pedestrian. The present case involves a factual inquiry in respect of an exact place and a precise point in time about the consequences of the respondent's breach of his identified and subsisting duty of care. For 50 metres prior to the point of the collision and only seconds before it, the respondent was under a duty of care to travel at 40km/h and he did not. Had he done so the collision would not have occurred. Common sense notions of causation are more than sufficient to resolve the question adversely to the respondent, there are no countervailing policy considerations which intrude on the question, and the "but for" test applied as a negative criterion of causation does not excuse the respondent. That is to say, that it cannot be said that the collision would have nonetheless taken place with the same result if the respondent had entered and driven in the 40km/h zone at 40km/h.
In Mobbs v Kain, McColl JA said at [99]:
"Another submission put forward by Mr Campbell was, in effect, that the second appellant had to travel at a speed (which he did not identify) which meant he would not be where the respondent was when he emerged from the front of the bus. The circularity of the reasoning inherent in the latter submission is such that, in my view, it need not be considered further."
That is not the appellant's submission in this case. The appellant's wholly incontrovertible submission in this case is simply that the respondent had a duty to travel at 40km/h for an identifiable 50 metres of roadway immediately adjacent to the bus, and that had he not breached that duty Ms Edmonds would have completed the crossing of the road that she commenced when in fact she did. There is, in my view, no circularity in that reasoning. That approach is far less artificial and far more in accord with common sense and justice than to approach the inquiry by positing that the starting point is that the respondent was where he was when he was and then, ignoring how he got there, to observe that even if he was then travelling at the required speed of 40km/h a fatal collision would still have occurred.
Giles JA said further in Mobbs v Kain at [15]-[16]:
"It is well recognised that answers to questions of causation may differ according to the purpose for which the question is asked. The question is asked in the present case for the purpose of attributing legal responsibility for the injury to the respondent, according to the law of negligence whereby the risk against which the second appellant was obliged to take care by driving at a reasonable speed was the risk that his motor vehicle would run into a person emerging from in front of the bus. The mountaineering illustration given by Lord Hoffmann can also be put in terms that the risk against which the doctor was obliged properly to examine the knee was the risk of continued injury to, or injury by reason of unfitness of, the knee. Had the climber's knee given way on the expedition, causing injury, there may have been causation. The risk of the climber being swept away by an avalanche, because he went on the expedition, was not the doctor's concern. The risk of a pedestrian running into the side of a motor vehicle, because the motor vehicle is there, is ordinarily not the driver's concern.
To similar effect is Windeyer J in Faulkner v Keffalinos (1971) 45 ALJR 80. The plaintiff was injured in a motor vehicle accident, and before trial was injured in a second motor vehicle accident which would independently have been incapacitating. His Honour said (at 86):
'The consequences that flow from the second accident cannot I think be regarded as caused, in any relevant sense, by the respondents' tort. I realise that philosophers and casuists may see these as indirect consequences. But for the first accident, the respondent might still have been employed by the appellants, and therefore not where he was when the second accident happened: but lawyers must eschew this kind of "but for" or sine qua non reasoning about cause and consequence.'"
Such "but for" or sine qua non reasoning is not necessary in the present case. It is true enough that the respondent's driving at 80km/h after he entered the 40km/h zone was the reason why he was where he was in that zone when he was, but it is specious logic to then say that, given he was where he was when he was, it would have made no difference to the fatal outcome had he been then and there travelling at 40km/h. The relevant consideration is where the respondent would have been in the zone in the period from Ms Edmonds entering the roadway and her leaving it safely had the respondent not been negligent by travelling at twice the permitted speed within the zone.
The point of distinction between the present case and Mobbs v Kain (above) and the examples cited by Giles JA in that case, is the very limited duration of the restricted speed zone which confines the "history of events" to a short few metres and does not involve a consideration of the respondent's driving at significantly earlier times. There was no need to speculate as to what may have happened if events had been different 15 minutes earlier as Giles JA postulated; a consideration as to the required behaviour of the respondent could be confined within a distance of 50 metres of the point of impact and the learned magistrate had evidence from which she was able to conclude what would have occurred had the respondent not been in breach of his duty over that short distance.
Mobbs v Kain is also distinguishable of course on the basis that there was no finding at trial or on appeal in that case that the driver was driving at an excessive speed. Moreover, the case involved an allegation that the respondent should have driven at a particular speed or at a particular time or place in order to have avoided the collision in any conceivable circumstances. The submission in Mobbs v Kain was truly circular, as observed by McColl JA at [100], ie that the driver should have driven at such a speed, unspecified, as would have avoided the pedestrian hitting the side of the car.
Giles JA said at [9]-[10]:
"[9] To repeat, the respondent collided with the side of the second appellant's motor vehicle, and the second appellant was keeping a proper lookout. Stopping from a speed did not matter in the manner the accident occurred. As McColl JA has noted, the respondent effectively abandoned reliance on Mr Johnson's calculations. If the motor vehicle was there, the respondent would have suffered his injury whether the motor vehicle was travelling at the time at (say) 20 km per hour or at 40 km per hour. Hence the respondent argued that, had the second appellant slowed below 40 km per hour before reaching and while passing the bus, his motor vehicle would not have been where it was at the time the respondent ran out, and so the respondent would not have collided with the motor vehicle and been injured.
[10] In my opinion, causation is not made out in this way. It is not enough that, had the second appellant driven more slowly, his motor vehicle would not have been there for the respondent to collide with its side."
In Mobbs v Kain the driver's duty was to "pass the bus" at a speed of not more than 40km/h and he was in fact driving at that speed when he passed the bus. McColl JA, with whom McFarlane JJA agreed, found that the exercise of reasonable care did not require the driver to drive at a speed of less than 40km/h as that was the speed prescribed by the legislation.
In the present case the respondent's duty was to drive at a speed no more than 40km/h within 50 metres of the bus and he in fact drove at 80km/h.
It was self-fulfilling on the facts of Mobbs v Kain to have required the driver to drive at a speed which would have permitted him to stop if the appellant had emerged from behind the bus in the way he did. That is, as Giles JA noted at [3], merely to say that because there was an accident the speed was too great. Such reasoning is flawed because it looks backwards to identify what would have prevented the accident and then nominates such measure as the duty, thereby conflating the duty and the breach.
Such is not the present case when the measure identified is compliance by the respondent with his duty to drive for a specified distance at 40km/h. The breach of that duty was in the respondent travelling at twice that speed for that specified distance. Had he not breached his duty in that way, as a matter of fact the collision would not have occurred and Ms Edmonds would not have been fatally injured as she was.
To so identify duty and breach and damage is not merely to say, impermissibly, as Giles JA noted in Mobbs v Kain at [10], that had the respondent driven more slowly, his motor vehicle would not have been there for the appellant to collide with its side. It is to say that the respondent's breach of duty caused the accident. The respondent's driving at 80km/h is not a "but for" cause of the accident, it is a common sense cause and one that, in my view, is not displaced by any identifiable policy consideration.
In Mobbs v Kain, McColl JA said at [107]:
"[107] The principles embodied in s 5D of the Civil Liability Act accord with the common law concept of causation: Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 at [59] per McDougall J (Ipp and Young JJA agreeing). In applying the common law principles in the context of a motor vehicle accident, the relevant test for causation is that stated by McHugh J in Chappel v Hart (1998) 195 CLR 232 ; 156 ALR 517 ; [1998] HCA 55 at [23], namely 'the breach of duty by the respondent caused the particular damage that the plaintiff suffered … [and] [t]he existence of the relevant causal connection is determined according to common sense ideas': see Flounders v Millar (2007) 49 MVR 53 ; [2007] NSWCA 238 at [91] per Hoeben J; at [38] per Ipp JA (Handley JA agreeing with both judgments)."
At [110] her Honour said:
"[110] In my view his Honour did not identify the negligence which was 'a necessary condition of the occurrence of the harm' and the respondent did not otherwise establish that any conduct on the second appellant's part caused the particular damage that the respondent suffered. Rather, as a matter of common sense, it was the respondent's dash across the road which caused the collision."
In the present case the common sense cause of the collision was not, in my view, Ashley's "dash across the road", rather, it was, as the learned magistrate found at [124], that by travelling at a speed that was twice the prescribed limit in the 50 metre zone the respondent deprived Ashley of the opportunity to have safely crossed the road. I regard the respondent's negligence so identified as a necessary and sufficient cause of the occurrence of the harm to Ashley.
I would uphold the appeal. The appellant's appeal to this Court was against the order of the learned Chief Justice upholding ground 1 of the respondent's notice to review the learned magistrate's findings and conviction on the charge of negligent driving causing death. The learned Chief Justice found it unnecessary to determine the remaining grounds 2 and 3 of the respondent's notice. Those grounds should be returned to his Honour for determination.