MARSHALL by his next friend SIAN RHONDA ROBERTS & ANOR -v- WENSINK - [2009] WADC 34

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MARSHALL by his next friend SIAN RHONDA ROBERTS & ANOR -v- WENSINK [2009] WADC 34

CORAM: SCOTT DCJ

HEARD: 17 FEBRUARY 2009

DELIVERED : 24 MARCH 2009

FILE NO/S: CIV 889 of 2006

BETWEEN: TRISTIAN JAMES MARSHALL by his next friend SIAN RHONDA ROBERTS
First Plaintiff
SIAN RHONDA ROBERTS
Second Plaintiff
AND
NICO ALEXANDER FREDERICK WENSINK
Defendant

Catchwords:

Road traffic collision - Negligence - Collision on T-junction where view from continuing road obscured - Turns on own facts - Trial as to liability only

Legislation:

Nil

Result:

Defendant liable in negligence

Representation:

Counsel:

First Plaintiff                  :     Mr J Myer
Second Plaintiff             :     Mr J Myer
Defendant:     Mr D Burton

Solicitors:

First Plaintiff                  :     Bradley & Bayly
Second Plaintiff             :     Bradley & Bayly
Defendant:     SRB Legal

Case(s) referred to in judgment(s):

Derrick v Cheung (2001) 181 ALR 301
Knight v Maclean [2002] NSWCA 314
Manley v Alexander (2005) 223 ALR 228
Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369
New South Wales v Fahy [2007] HCA 20
The Council of Wyong v Shire (1980) 146 CLR 40
Vairy v Wyong Shire Council (2005) 223 CLR 422

SCOTT DCJ:

Background

In this case the first plaintiff (born 22 September 1993) by his next friend, his mother, also the second plaintiff, sues the defendant for damages arising out of a motor vehicle accident which occurred on 22 July 2000 when the first plaintiff was aged 6. The trial before me was to determine the issue of liability only.
It is common ground between the parties that in the early afternoon of 22 July 2000 the first plaintiff, his older brother Corey (who was then 11) ("Corey") and his older sister Michaela (who was then 9, nearly 10 years of age) ("Michaela") rode their bicycles from their home in Tobin Place, Bunbury to eventually, Monger Court, Bunbury.
Monger Court runs from west to east and relevantly, has a down hill gradient to a continuing road, namely Brand Avenue, which runs north ‑ south. The speed limit on Brand Avenue is 60 kilometres per hour.
To the east of Brand Avenue there was at the time of the collision, vacant land upon which there were hills which were utilised by children in the area for BMX bike humps.
The children rode down Monger Court towards Brand Avenue with the intention of crossing Brand Avenue so that the first plaintiff and Corey could ride their bikes over the bike humps. The order in which the children rode down Monger Court is in issue and I will deal with that matter later in this judgment.
At the material time, the defendant was driving a Toyota land cruiser utility registration number 910 018 (the "defendant's vehicle") which had a bull‑bar on the front and a tray back. He had delivered a load of wood to his brother-in-law's home in Yardley Court, a road which was to the south of and parallel to Monger Court.
After unloading wood at his brother-in-law's home the defendant, with the balance of the load of wood on the tray of his vehicle, proceeded to drive home.
He travelled east along Yardley Court, turned left into Brand Avenue and then proceeded in a northerly direction along Brand Avenue towards the intersection of that road with Monger Court.
As he drove through the intersection of Brand Avenue and Monger Court, the first plaintiff, whilst riding his bike, collided into the defendant's vehicle.
The bike being ridden by the first plaintiff collided into the defendant's vehicle at a point just behind the left rear wheel. At the time of the collision the position of the defendant's vehicle was such that the front of the vehicle was at about the mid-point of Monger Court where it intersected with Brand Avenue.
As a consequence of the collision, the plaintiff sustained severe injury.
In the statement of claim, the plaintiffs allege that:
1.Corey entered the T‑junction of Monger Court and Brand Avenue ("T‑junction") a few seconds ahead of the first plaintiff;
2.The collision between the first plaintiff and the defendant's vehicle ("collision") was caused by the negligence of the defendant in that the defendant:
(a)failed to stop or slow down on the entry of Corey into the T‑junction;
(b)failed to heed the risk that another bicyclist may enter the junction;
(c)failed to keep a proper lookout;
(d)failed to steer, manoeuvre or otherwise control his vehicle to avoid colliding with the first plaintiff.
The defendant, by his defence:
1.Denies that Corey or any other infant cyclist entered the T‑junction a few seconds ahead of the first plaintiff;
2.Says that the first plaintiff was the first person to enter the T‑junction;
3.Says that at all material times he was driving the defendant's vehicle at a speed of not less than 45 kilometres per hour being a speed within the lawful speed limit;
4.Says that his view or opportunity to view any road users or cyclists travelling down Monger Court was compromised or impaired by reason of the presence of trees and green shrubbery situated on the southern end of the T-junction;
5.The first plaintiff rode down Monger Court at an excessive speed;
6.The first plaintiff failed to slow down and/or stop at the T‑junction;
7.The first plaintiff failed to give way to the approach of the defendant's oncoming vehicle and rode his bicycle directly into the left rear wheel when the defendant's vehicle was already half way through the T‑junction;
8.The first plaintiff recklessly entered the T-junction without first checking to see if there was any other approaching traffic on the road way;
9.The first plaintiff rode his bicycle recklessly and negligently down Monger Court at a speed which was excessive in the circumstances and barely missed colliding with a vehicle being driven by Ms Casey Armstrong whilst still in Monger Court, seconds prior to his bicycle entering Brand Avenue and striking the left rear wheel of the defendant's vehicle.
The defendant further says in his defence that given that the first plaintiff entered the T‑junction suddenly and unexpectedly, and given that the defendant's view was obstructed by the presence of trees and shrubbery on the left hand corner of the T‑junction and the excessive speed in which the first plaintiff had ridden his bicycle down Monger Court, the defendant was not provided with any reasonable opportunity to observe the first plaintiff's presence on the road and had no reasonable chance or opportunity to take preventative measures to avoid a collision.
The defendant denies that he was negligent as alleged or at all. The defendant does not raise the issue of contributory negligence on the part of the first plaintiff, having regard to the first plaintiff's age. As a consequence, as was conceded by counsel for the defendant at the outset of the trial, from the defendant's standpoint the issue of liability is on an "all or nothing" basis.

Evidence

Corey Matthew Marshall

Corey said that the first plaintiff, their sister Michaela and he decided to ride their bikes to a friend's house. He said that he did not know the address of the friend's house, and that address was known to Michaela.
On that point Michaela in her evidence said that she did not know the address of the friend, Corey did.
He described in his evidence the route which they took. Eventually, they rode to the top of Monger Court which runs downhill to the T‑junction with Brand Avenue.
He said that over the other side of Brand Avenue (to the east of Brand Avenue) there was a section of BMX jumps. They decided that they would ride on the jumps on the way to their friend's house. The first plaintiff and the defendant each adduced into evidence a book of photographs. Exhibit C photograph 6 shows the area to the east of Brand Avenue in which the BMX jumps are situated.
Corey said that the order in which they rode down Monger Court was him, then the first plaintiff and then Michaela.
He said that he rode onto Brand Avenue first. When he was in the middle of Brand Avenue he saw what transpired to be the defendant's vehicle to his right. He rode to the other side of Brand Avenue at which time he "heard a bang – a thud – tyres screeching". He turned around and his brother was on the floor (meaning the roadway).
He said that the defendant's vehicle was 15 to 20 metres to his right when he first saw it. He said that the weather was fine and the visibility was "very good, very clear".
When he was riding on Monger Court towards the T-junction, he was riding in the centre of the road.
He said, in cross-examination, that he could see up both sides of Brand Avenue as he was coming down (Monger Court) and he rode straight over Brand Avenue.
When he was riding down Monger Court, he did not see any vehicle, and in particular a white vehicle, turn in and drive up Monger Court.
He said that there was a white vehicle parked on the (southern) side of Monger Court. He denied that the white vehicle was situated at a point almost directly opposite the driveway on the northern side of Monger Court shown in Exhibit C (photograph 4). He said that the vehicle was further up Monger Court (ie further west). He marked the location of that white vehicle on photograph 7 (Exhibit C).
He denied that of him, the first plaintiff and Michaela, it was the first plaintiff who reached the T-junction first.
He denied that a white vehicle was driven up Monger Court and that the first plaintiff rode around the passenger side of that vehicle (the southern side) and he and Michaela rode around the driver's side to avoid it.
He said that when he, the first plaintiff and Michaela got to the top of Monger Court, he saw the white vehicle which was then parked in the position he described.
He said that when he was riding down Monger Court towards the T‑junction he was travelling at about 30 kilometres per hour. He said that he was able to estimate his speed because a few times he had been riding along the street with his father next to him in his car, and the car was travelling at 30 kilometres per hour.
He was referred to Exhibit C (photograph 1) and said that the height and volume of the shrubbery in that photograph (situated on the south‑west corner of the T-junction) was an accurate representation of the shrubbery at the time of the collision.
He said that some of his recollection was a bit of a blur but in re‑examination, stated that what was a blur was what happened after the collision saying:
"… but a lot of it I remember just like it happened yesterday; these sort of things don't come out of your mind too easily".
He denied that a vehicle being driven up Monger Court had to brake so as to avoid a collision with the first plaintiff.
He acknowledged that he knew that there was a lot at stake in the litigation, that a lot of money was involved, that he had a particular interest in the outcome of the litigation for his brother, that he had given evidence to do the very best he could to support his brother, and that he understood the seriousness of giving evidence on oath. He said that he would not lie under oath to help his brother.
He was shown Exhibit C (photograph 6) and said that the defendant's vehicle stopped (after the collision) at a point just north of the photograph.
Corey marked on Exhibit B (photograph 14) the location of the defendant's vehicle when he first saw it as he went through the T-junction. The vehicle was near the driveway next to what appeared to be a bus stop pole.

Michaela Marie Marshall

She said that she, the first plaintiff and Corey were riding their bikes to their friend's house. Her bike was pink, Corey's was silver and the first plaintiff's was blue and they each had helmets of the same colour.
She said that Corey knew where the friend lived.
When they got to Monger Court, she and the first plaintiff swapped bikes.
The order in which they rode down Monger Court towards the T‑junction was Corey, then the first plaintiff and then her. That order did not change as they went down the hill.
She said that Corey rode over Brand Avenue and onto the other side. The first plaintiff struck a vehicle (the defendant's vehicle) and bounced back onto the pavement.
She said that she swore at the driver of the vehicle into which the first plaintiff collided and he kept saying "I'm sorry, I'm sorry, I'm sorry".
Whilst she was riding down Monger Court she did not remember seeing a white vehicle turn into Monger Court and travel towards her.
She denied that when riding down Monger Court the first plaintiff was in front of Corey and that the first plaintiff nearly collided with a white vehicle.
She said that it was not the case that the first plaintiff rode around the white vehicle on the southern side to avoid a collision with it.
She denied that the first person who went through the intersection was the first plaintiff followed by Corey and her. She said that Corey was first.
She said that she did not see any vehicle in Brand Avenue at the T‑junction when she approached the intersection.
She said that the first plaintiff hit the defendant's vehicle behind the left rear wheel.
At the time of the collision, she thought that the defendant's vehicle was half way through the intersection.
She then marked on Exhibit C (photograph 6) where the front of the defendant's vehicle came to a halt which was just to the left of the metal pole on the northern side of the T-junction.
She said that the state of the shrubbery depicted in Exhibit C (photographs 1 and 2) represented the state of the shrubbery at the time of the collision, and said that there was a solid fence behind the shrubbery.
The only other evidence adduced by the plaintiff comprised a Google plan of the area marked Exhibit A which was admitted into evidence by consent.

Defendant

The defendant was born on 9 July 1949. He had had his motor drivers licence since he was 19 years of age. He was the holder of a heavy combination licence and had many years of experience driving heavy machinery and various trucks, scrapers, etc.
The only traffic offence for which he had been convicted was a conviction of dangerous driving when he was 19 years of age.
He said that at about lunchtime on 22 July 2000 he drove to his brother‑in‑law's place in Yardley Court and unloaded wood from his vehicle for his brother‑in‑law.
He then proceeded to drive his vehicle with the remainder of the load of wood towards his home in Carey Park, which was about 7 ½ to 8 kilometres away.
He was not very familiar with the area around Yardley Court and Brand Avenue. The only times he had been there were when he visited his brother-in-law in the evening when he and his wife went and played cards.
He said that the weight of the wood remaining on his vehicle was about one and a half to two tonnes.
He said he left his brother-in-law's house at about 1.30 or 1.40 pm. He drove down Yardley Court and turned north (left) into Brand Avenue.
He took the corner at about 10 to 15 kilometres per hour and then accelerated, after shifting into third gear, to approximately 40 to 45 kilometres an hour as he approached Monger Court.
He said in examination in chief that the view up to Monger Court was very obscured by large bushes and shrubbery and also a 2 metre fence so that "your vision is not very good at all".
He was not aware of any people in the area. As he approached the T‑junction with Monger Court a little white vehicle turned right (into Monger Court) in front of him. That white vehicle had been travelling south, towards him, in Brand Avenue.
He said that he first observed the white vehicle turning in front of him when it would have been "about 10, 12, maybe 14 feet" in front of him and he then continued on in a northerly direction on Brand Avenue. He said that his eyes were focussed "straight ahead of me looking for any, if any other traffic was coming". There was then the following exchange:
Q:And then what happened?
A:Then all of a sudden, out of the corner of my left eye, I glimpsed a movement, saw the child, and slammed on the brakes.
Q:What can you describe who you observed, or what you observed?
A:All I saw was – and instantly was these – maybe three to four young kids on bicycles, just out of the corner of my eye.
Q:And then when you saw the child, what did you do?
A:I immediately hit the brakes because he was coming down the southern side of Monger Court.
Q:And when you first saw the child and you then applied your brakes, what response time do you estimate you had?
A:Only a split second.
Q:Where was your distance of your vehicle, where was your vehicle travelling when you were struck, in terms of Monger Court, the intersection?
A:I was half way through the intersection.
The defendant then marked on photograph 4 (Exhibit C) where his vehicle was when the collision occurred.
This location was in the middle of the T-junction and the defendant marked the front of his vehicle.
The defendant then marked on photograph 6 (Exhibit C) where the front of his vehicle was when it came to a halt after the collision – which was just north of the end of the red paving at the T-junction at a point just south of the metal pole.
He said that when he was driving along Brand Avenue in a northerly direction and immediately prior to the impact, there was nothing to draw his attention to either side of the road.
He was not able to assess the speed that the first plaintiff or the other children were travelling because he only saw him (the first plaintiff) for a split second.
He said that the weather at that time was overcast. It had been raining earlier in the day but the roads were dry.
He said that nobody rode across in front of him, except the woman in the white vehicle. No young male cyclist rode in front of him before the collision.
In cross-examination the defendant said that he did not notice that his view into Monger Court was obstructed until after the white vehicle had turned in front of him because he was concentrating on the road ahead.
He was watching her turn in front of him. He conceded however that Brand Avenue is a straight road and from Yardley Court he could see about 600 metres up the road.
He confirmed that the white vehicle was possibly 4 metres in front of him when it turned (up Monger Court).
He said that there was nobody in front of him after that vehicle had turned and then he was concentrating on the road ahead. He said that he did not look up in the direction she was turning.
He said that the only two vehicles on Brand Avenue were his and the white vehicle.
He did not know that there were bike jumps and a BMX track on the eastern side of Brand Avenue at the time because he was looking straight down the road.
He said that he never saw any children on that land with BMX bikes. He said that there was no need to look onto the right hand side of the road (Brand Avenue) because there were no exit or entrance points.
He backed off the accelerator when the white vehicle turned in front of him. He said that the white vehicle had plenty of time to turn in front of him even though he was travelling at 40 to 45 kilometres per hour and the white vehicle was only 10 to 14 feet away.
He said that he first saw the white vehicle when it was 150 to 200 metres away from his vehicle and it indicated an intention to turn into Monger Court when it was about 70 to 75 metres from Monger Court.
He did not turn his head and watch the progress of the white vehicle once it turned into Monger Court because he was concentrating on the road ahead.
After reading his police statement, which was put to him, he confirmed that he said in that statement that he "noticed out of the corner of his eye to his left three kids on bikes after the white vehicle had gone over the paved entrance to Monger Court."

He then said that "I looked at Monger Court after the car went past in front of me and then straight back to the road again". In response to a question "…but was it at the point that after the car went over the paved strip, you then saw three or four kids to your left in Monger Court", he said "Yeah, it was just out of the corner of my eye and then bang, the incident".
He was not sure whether the first plaintiff struck his vehicle and then he saw the first plaintiff out of the corner of his eye or whether he saw the first plaintiff out of the corner of his eye and then he (the first plaintiff) struck his vehicle because it happened in a split second.
He remembered a little girl swearing at him and that he said "sorry".
There was then the following exchange:
Q:Alright. And how long had your brother-in-law lived there, as at July 2002? (sic)
A:At the time of the accident, 3 months.
Q:Alright, and how often would you have visited him in that time?
A:About twice a week, but only in the evenings.
Q:Alright. And was he a family man, did he have young children?
A:No, he didn't have any children at all.
Q:Alright. But that was a newly developed area in Bunbury around that time wasn't it?
A:There was a lot of development going around Bunbury all over.
Q:But it was sort of area you'd expect children to be in, new houses going up, houses, fairly new houses, new area.
A:Yeah, all over the place.
Q:And, of course, where you live in Carey Park, you would often see children riding bikes and on the streets on weekends, is that correct?
A:In Carey Park, yes.
He said that the white vehicle turned in front of him when he was about level with the house which had the shrubbery. He said that at that point, he could not see some distance up Monger Court because of the shrubbery and the fence.
He thought that the shrubbery was more "scragglier" than photographs 1 and 2 (Exhibit C).
He denied that he was not paying sufficient attention to his surrounds as he approached Monger Court. He said that he saw the woman pass in front of him and then he was looking up the road, ahead of him, in case more traffic was coming.
He said he did not see the children travel down Monger Court, past the white vehicle.
In re-examination he said that the first time he saw any activity in Monger Court was when he was half way through the intersection.
He said that he was half way across Monger Court before he saw any cyclists to his left.
He said that he had not seen the first plaintiff or anyone else before he was half way through the intersection because the first plaintiff was on the southern side of Monger Court.
He conceded that at a location half way across the intersection he would have been able to see to the top of the hill of Monger Court if he was looking.
He said that when he was half way through the intersection he was focused on the road ahead of him.
On photograph 15 (Exhibit B) the defendant marked the location where the bonnet of his vehicle would have been when the white vehicle turned in front of him. That location was next to the driveway of the house on the western side of Brand Avenue, south of the T-junction.

Casey Anne Armstrong

She was then living at 1 Carr Place, Bunbury which is situated on the corner of Monger Court and Carr Place.
At the relevant time she was driving south in Brand Avenue intending to turn right into Monger Court. She was driving a white Holden Gemini.
She observed the defendant's vehicle turning left from Yardley Court into Brand Avenue.
She said that she executed her turn into Monger Court when the defendant's vehicle was a "good 50 metres" from her vehicle, having just turned into Brand Avenue from Yardley Court.
When she drove from the paved area in Monger Court there were three to four children coming down Monger Court ranging between the ages of approximately 6 to 9 or 10.
There was one girl and two or three boys but she was not sure of the number.
She said that the youngest was coming down the hill first then the older children were 3 or 4 metres behind the youngest.
They were coming down Monger Court quite fast because it was a quite a steep hill.
She had to slam on her brakes as she would have hit the first child who she said was the youngest.
The first child swerved around the left hand side (passenger side) of her vehicle being on the southern side of Monger Court.
The other children went around the driver's side of her vehicle.
She shook her head at them, and then started driving again up the hill.
She looked in her rear vision mirror and was focused on the first boy (first plaintiff) who she said swerved around her and she saw him ride into the defendant's vehicle.
She said that he struck the defendant's vehicle on the left hand side behind the rear tyre.
She said that at the time of the collision she noticed that the defendant's vehicle was not going very fast and that his vehicle was half way through the T‑junction.
She said that the state of the shrubbery in photographs 1 and 2 (Exhibit C) was the same as at the time of the accident. The height of the shrubbery in front was about a metre and a half, the shrubbery behind about 2 metres and there was a fence approximately 2 metres high. She said that she did not observe the older boy going through the intersection. She said the only one she saw go through first was the young boy in the collision.
She said that the order of the children approaching her was the child who was hit by the defendant's vehicle, and the girl and boy who were almost on a par next to each other.
She marked on photograph 13 (Exhibit B) the position of her vehicle when it stopped which was opposite the driveway on the right hand side of the photograph. The driveway was on the northern side of Monger Court. Her vehicle was on the southern side of Monger Court. She said that the first plaintiff had about a metre gap between his bike and the curb at the southern side of Monger Court when he rode around her vehicle.
She also marked on photograph 6 (Exhibit C) the location of the bonnet of the defendant's vehicle when it stopped. This location was just south of the metal pole – she estimated about a metre to two metres in front of it.
She said in cross-examination that there were always children around the area and in particular they were attracted to the BMX area on the other (eastern) side of Brand Avenue adjacent to Monger Court.
She did not remember seeing any children in that area on this occasion.
She had paced out the area in which her vehicle travelled with counsel for the plaintiff. She was using big paces that equated to about a metre. The relevant measurements were as follows:
(a)The width of the paved area (on Monger Court) was approximately 11 metres.
(b)It was approximately 26 metres from the western edge of the paving (in Monger Court) to the driveway (where her vehicle stopped). In total from the edge of Brand Avenue to the driveway was about 37 metres.
(c)The location adjacent to where she was going to turn into her father's house (where she was living) was about 47 metres from the edge of Brand Avenue (ie another 10 metres from where she had stopped her vehicle).
After the children had gone past her vehicle she started to drive off again and it was when she got almost adjacent to her father's gate (a further 10 metres) that she looked in her rear vision mirror again and saw the first plaintiff come into contact with the defendant's vehicle.
She said that the other children were at that time on the paved area. She could not recall whether there were two or three – but at least two.
She had no recollection of the colour of any bike being ridden by the children or of any helmet being worn (on Monger Court).
She was focused on the first plaintiff and admitted that although she did not recall one of the other children going across the road, because from what she saw they were still on the paving, she agreed that she was not saying it absolutely did not happen, she just couldn't recollect that it happened.
In re-examination she said that when she looked in her rear vision mirror she saw the young boy in the collision and she could "just vaguely" see the other children who from what she could see at the time were on the paved area.

Kenneth Richard Keiley

Mr Keiley was an investigator. He was a former police officer.
He took all of the photographs the subject of Exhibit C.
In examination-in-chief he said that until he was in the centre of the intersection he did not have a view into Monger Court at all because of the fence and shrubbery.
He prepared the sketch on p 14 (Exhibit C) and said that they were his measurements which were undertaken with a tape.
In cross-examination he was referred to photograph 1 (Exhibit C) and said that that photograph was taken from a position beside his vehicle which was a Toyota Hilux.
From that angle, he could see the beginning of the driveway of the house on the northern side of Monger Court shown in that photograph.
He said that as one continued to travel north from where photograph 1 was taken, the angle of sight up Monger Court improved so that one could see more of Monger Court as one got closer to the T‑junction.
He did not, however, have any photographs nor could he make any observations as to how far into Monger Court one could see when one got to the start of the brick paving on the southern side of the T-junction.

Dawn Katrina McKenna

She was the investigating police officer.
She measured the distance from the corner of Yardley Court to the corner of Monger Court at 70 metres, curb side to curb side.

Findings on the evidence

The relevant findings which I make on the evidence are as follows:
The defendant was driving his vehicle in a northerly direction along Brand Avenue, towards the T-junction with Monger Court, at a speed of somewhere between 40 and 45 kilometres per hour. There was no issue taken by counsel for the first plaintiff that the defendant's vehicle was travelling at or about that speed. The speed limit in the area in Brand Avenue was 60 kilometres per hour.
As the defendant's vehicle approached Monger Court, the white Holden Gemini being driven by Ms Armstrong in a southerly direction along Brand Avenue and towards the defendant's vehicle executed a right hand turn into Monger Court. I do not accept the defendant's evidence that Ms Armstrong executed that right hand turn about 3 or 4 metres from the defendant's vehicle. I consider it more likely that the defendant's vehicle was a good deal further south in Brand Avenue when Ms Armstrong executed that turn.
The defendant said that Ms Armstrong had plenty of time to undertake the right hand turn in front of his vehicle and there was no need for him to take any evasive action which would, in my view, have been necessary had the right hand turn been undertaken only 3 or 4 metres ahead of his vehicle.
I consider it more likely that his vehicle would have been closer to the distance of 50 metres or thereabouts from the intersection with Monger Court when that turn was executed by Ms Armstrong, in accordance with her evidence.
The defendant proceeded to drive north along Brand Avenue. There was as he knew, no vehicle in front of him. Brand Avenue was relatively straight and I accept the defendant's evidence that he could see about 600 metres along Brand Avenue, in a northerly direction, from the intersection of Brand Avenue and Yardley Court. The defendant was not looking to his right and he was not aware that there were any BMX facilities on that side of Brand Avenue. Nor was he aware of any children on that vacant land.
He was also not looking to his left and his eyes were, as he gave evidence, focused on the road ahead.
The defendant was aware that there were new houses under construction and he did not take issue with the suggestion that it was likely that there would be children in the area.
He did not see any children on Brand Avenue or in the T‑junction as he approached Monger Court. He first became aware of that obstruction after Ms Armstrong executed the right hand turn into Monger Court.
The defendant did not look to his left towards or up Monger Court until he was halfway across the intersection, a split second before his vehicle was struck by the first plaintiff.
He did not, beforehand, see any other child in the vicinity.
I found the evidence of the defendant to have been given in a forthright and candid manner doing the best he could to recollect these events. I did not find the defendant to have given evidence in a way that was most beneficial to him. I find that the defendant did not see a child ride across the front of his vehicle before the impact from the first plaintiff's bicycle.
The evidence given by Ms Armstrong was that of an independent witness. I accept her evidence that after executing the right hand turn into Monger Court she saw the three children riding down Monger Court towards her. She stopped her vehicle at a location approximately opposite the driveway of the house situate on the northern side of Monger Court which was about 37 paces or approximately 37 metres from the western side of Brand Avenue.
I accept that she had to brake because of the proximity of the three children on bicycles and that the first plaintiff, so as to avoid her, rode to the southern side of her vehicle approximately 1 metre from the southern curb. The fact that he did so is also consistent with the point of collision. The other children passed her vehicle on the driver's side. At that point, those two children, who I find to be Corey and Michaela, were in or about the centre of the road or marginally on their correct side of the road.
Ms Armstrong then drove a further 10 metres or so and when she looked in her rear vision mirror she saw the first plaintiff collide into the defendant's vehicle at a point, about which there appears to be common ground, behind the left rear wheel.
At that time, the first plaintiff was on the incorrect side of Monger Court. The location of the defendant's vehicle at the time of collision and the impact site on that vehicle also bear out that finding.
The defendant's vehicle stopped at a point in respect of which there is a conflict in the evidence. It is impossible to be precise, having regard to that conflict – the estimates being within a range of about 2 or 3 metres.
As to whether Ms Armstrong had to brake to avoid a collision with (at least) the first plaintiff and as to the manner in which the children avoided her vehicle I prefer Ms Armstrong's evidence over that of Corey and Michaela . That is not to say that I consider that the evidence given by either Corey or Michaela was untruthful. They were very young children at the time of this tragic collision. They would inevitably have been traumatised by the circumstances in which the collision occurred and I consider it entirely understandable why it might be the case that some details may not have been recalled by them given that their focus was on the collision in which their brother was involved.
To that end, I find that Corey, Michaela and the first plaintiff were riding down Monger Court at some speed. Corey estimated his speed and the first plaintiff's speed at 30 kilometres per hour and gave evidence that he was able to do so because on previous occasions, he had tested out the speed he rode his bike against his father's car. As Michaela was behind his bike he could not estimate her speed. I am satisfied that Corey and the first plaintiff were riding their bikes at or about a speed of 30 kilometres per hour down Monger Court towards the T-junction.
Corey gave evidence that at the time he crossed over Brand Avenue the defendant's vehicle was 15 to 20 metres to the south of his bike. If that was the case, given that I have found that the defendant was focused ahead of his vehicle when driving towards the intersection with Monger Court, the defendant could not possibly have missed seeing Corey on his bike. As I have said, I do not find that the defendant saw Corey on his bike riding across Brand Avenue in front of the path of his vehicle.
I do not accept that Corey and Michaela were, at the time of the collision, three or four metres to the rear of the first plaintiff. I am satisfied that Corey was the first of the children to reach the T-junction.
Ms Armstrong said that her attention was focused, in her rear vision mirror, on the first plaintiff at the point of the collision and that she only vaguely recalled seeing other children on the paved area at that time.
I accept Corey's evidence that he did ride his bike across Brand Avenue, ahead of the defendant's vehicle, but I consider it likely that that manoeuvre must have occurred at or about the same time as the defendant's attention was drawn to the impact between the first plaintiff's bike and the left hand rear of his vehicle.
Support for that finding comes from Corey's evidence that he reached the other side of the road when he heard the collision and as a consequence that could only have occurred almost contemporaneously with the collision happening.
It is common ground, and I accept, that the front of the defendant's vehicle was in the centre of the T-junction when the collision occurred and that being the case, I find that at the point of the collision, the first plaintiff was on the southern side of Monger Court and on the incorrect side of that road.
Given the nature of the shrubbery and the fence on the southern corner of the T-junction, the first plaintiff, having regard to his position on Monger Court would be obscured from a driver travelling north along Brand Avenue until the driver was very close to or had entered the T‑junction. The defendant gave evidence that he first became aware of the children after his vehicle was half way through the T-junction and I accept that to be the case.

The law

For a plaintiff to succeed in a claim for damages for personal injury based upon negligence it is necessary for the plaintiff to prove on balance of probabilities that:
(a)the defendant owed a relevant duty of care;
(b)the defendant, by his act or omission, has breached that duty of care and was thereby negligent; and
(c)the plaintiff's injury was caused by that negligence.
The inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury (Vairy v Wyong Shire Council (2005) 223 CLR 422 at 126 per Hayne J).
In The Council of Wyong v Shire (1980) 146 CLR 40 Mason J said (at 47):
"The tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence......It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
And as Gummow and Hayne JJ said New South Wales v Fahy [2007] HCA 20 at 57: "It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury."

Overall a motorist has a duty of care to other road users, including pedestrians and cyclists, to exercise due care and attention, to keep a proper lookout and to drive at a speed that is safe in all the circumstances.
In Knight v Maclean [2002] NSWCA 314 Haydon JA said:
"It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. [68]
The plaintiff bore the burden of proving negligence on the part of the defendant. This meant that in substance the plaintiff bore the burden of proving that the defendant failed to keep a proper lookout and of proving that if he had kept a proper lookout, he would have seen the plaintiff in sufficient time to avoid the collision. These burdens could not be discharged by the mere fact of the collision." [69]
In Manley v Alexander (2005) 223 ALR 228 the majority of the High Court said:
"Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle’s path. It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Rd at 4 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." [par 11 and par 12]
With respect to the duty of care owed to children it has been consistently held that whilst the standard of care is always that of a reasonably prudent driver, particular circumstances may call for the exercise of greater care and caution then usual by the reasonably prudent driver. One of those circumstances is the presence or likely presence of young children on or near the road.
In Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 Kirby P said at 372:
"One special circumstance which the courts have determined to be relevant to the standard to be expected relates to the cases in which it has been held that the driver should anticipate the presence of young children near the highway on which he or she is proceeding and take particular care in such circumstances. In a series of cases this court (and its predecessor) have stressed the special care which drivers must take when they know, or should know, that children are near the highway. The obligation has been explained in terms of imputed knowledge of the tendency of children to act in ways which adults might regard as irresponsible."
The High Court in Derrick v Cheung (2001) 181 ALR 301 dealt with an appeal involving an infant who was injured when she entered onto a roadway on which a motorist was travelling.
Relevantly the facts were that the appellant (driver) was driving along Victoria Avenue in Chatswood in an easterly direction when the respondent (the child) suddenly emerged from between two parked vehicles. The appellant braked and attempted to avoid the respondent by veering to her right however her vehicle skidded and collided with the respondent causing her serious injuries.
The trial judge found that it was clear on the evidence that as the appellant approached the point at which her vehicle struck the respondent, the combination of parked cars on her left and a tree and shrubs by the side of the footpath prevented her from seeing the respondent, or having any opportunity to do so until the respondent appeared on the roadway.
The trial judge found that the appellant was driving at a speed of 45 to 50 kilometres per hour in a 60 kilometre per hour limit.
The trial judge found for the respondent because at that speed, he said, it was beyond the power of a motorist to stop in time if a child suddenly appeared from in front of one of the parked cars.
His Honour, the trial judge, said:
"At the relevant section of Victoria Avenue the appellant could not see any small children that might have been on the pavement to her left or indeed any very small children, such as the respondent, who might have stepped onto the roadway between parked cars. The presence of houses and shops in the vicinity, taken in conjunction with the date (shortly before Christmas), the day of the week (Saturday) and the time of day (9 am) should have alerted her (appellant) to the possibility that a small child such as the respondent might be on or near the road. The appellant's emphasis in her evidence on the need, as she put it, to look straight ahead and her failure to realise that her view to the left was obscured suggests that she did not in fact have this possibility in mind."
An appeal to the Court of Appeal was dismissed. During the course of his dissenting judgment Davies AJA said:
"The facts of the present case were different from those in Stocks v Baldwin (1996) 24 MVR 416 for there was no particular perceivable risk which the appellant should have taken into account but did not. She drove with other cars at a modest speed, 45-50 kilometres per hour, keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout. The appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable was both a reasonable and a proper response to the traffic conditions on the day…"
The High Court upheld the appeal unanimously and said:
"Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be seen 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 was proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care…what was unlikely in this case was that an unattended infant of such tender years would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision was, to all intents and purposes, unavoidable."

Finding on liability

The issues which fall for determination in this case are, essentially:
1.Whether the defendant was negligent in:
(a)Failing to heed the risk that a bicyclist may enter the T‑junction and thereby drove at a speed which in the circumstances was excessive; and/or
(b)Failing to keep a proper lookout such that he ought to have seen the first plaintiff, Corey and Michaela or any of them before he did; and
2.If he was negligent, whether in the circumstances, the collision was caused by his negligence.

Driving at an excessive speed in the circumstances

Brand Avenue was a continuing road into which Monger Court formed a T-junction. The defendant was driving at a speed of 40 to 45 kilometres per hour, 15 to 20 kilometres per hour below the speed limit in that area. The defendant acknowledged that there were new houses built in the area, and I find that he knew or it would have been reasonable for him to have been aware that there might be young children riding bicycles on the roadways in the vicinity in which he was driving.
He was not a resident of the area and had not driven in the location during the daytime. In addition, he gave evidence that he was not aware that the area to the east of Brand Avenue was used for BMX bike riders. Whilst Ms Armstrong gave evidence that children regularly used that vacant land for BMX bike riding, photographs 13, 14 and 15 (Exhibit C) do not make it obvious that the land was being used for that purpose.
Nonetheless, the defendant, as I have found, knew or ought to have known that there might be young children in the vicinity and that young children may be riding bikes on the roads and as a consequence, it was necessary for him to take special care in the manner described in Mitchell v Government Insurance Office (NSW) (supra).
The defendant knew that Monger Court intersected with Brand Avenue and he knew that his view into Monger Court was significantly obstructed by shrubbery and a two metre fence. In view of the likelihood of children riding on the roadway and the substantial obscurity to his vision into the T-junction I am of the view that a speed of 40 – 45 kilometres per hour into this T-junction was in these circumstances, excessive, and resulted in a failure to properly cater for the risk of a child riding in Monger Court into the T-junction.

Failure to keep a proper lookout

The defendant was, as I have said, aware that Monger Court entered into a T-junction with Brand Avenue. He did not however notice the existence of the shrubbery or fence until the vehicle being driven by Ms Armstrong made a right hand turn into Monger Court.
In addition, his evidence was that he did not look to his left towards Monger Court until such time as the bonnet of his vehicle reached the centre of the T-junction. As photograph 13 (Exhibit B) makes clear by then he would have had a full view of Monger Court in its entirety, to the top of the hill.
As photographs 1 and 2 (Exhibit C) show, as he approached the T‑junction there was a view of the northern side of Monger Court and his line of sight would have been improved up Monger Court, as his vehicle continued to travel north from the area in which these two photographs were taken (evidence of Kenneth Richard Keiley).
Had he looked to his left towards Monger Court earlier then he did, whilst he may not have immediately seen the first plaintiff he would have seen at least Corey and perhaps Michaela who were riding down Monger Court on the northern side of that road and that would then have enabled him to brake much earlier then he did and allowed him more time to take evasive action.
Having regard to the fact that there was a substantial obstruction to his line of sight into Monger Court caused by the shrubbery and the fence which he knew was there and his awareness that children may be on the roads in the vicinity in which he was driving including Monger Court, his obligation to keep a proper look out included displaying a sufficient degree of caution so as to be aware of what traffic may be on Monger Court as he drove into the T-junction.
His failure to do so, and particularly his failure to look to his left until he was in the centre of the T-junction, amounted in my view to a failure on his part to keep a proper lookout in all of the circumstances.

Derrick v Cheung

There is of course a danger in cases such as these, in comparing the facts of other cases because, invariably, there are relevant dissimilarities.
To that end, I am acutely aware that my obligation is to make findings on the evidence in the trial before me and then apply the law to the evidence as I have found it.
Counsel for the defendant has however cited Derrick v Cheung (supra) as a case in which there are some factual similarities with this case. The distinguishing feature with this case is that the defendant was aware that the shrubbery and the fence substantially obscured his vision into Monger Court and as a consequence he should have taken such steps as were reasonable to be able to take appropriate evasive action should the need have arisen. To that end his failure to drive his vehicle into the intersection at a lesser speed and his failure to keep a proper lookout resulted in a finding that he did not, in all of the circumstances, act in accordance with reasonable care.

Whether the defendant's negligence caused the collision

In this trial, as I have said, the issue of contributory negligence does not arise. The issue is whether the defendant's negligence was a material cause of the collision.
Whilst it is the case that the first plaintiff was riding his bicycle at about 30 kilometres per hour, on the incorrect side of Monger Court approaching the T-junction, the failure as I have found on the part of the defendant to keep a proper lookout and to drive at a speed which, in all of the circumstances, was a safe speed approaching this T‑junction, prevented the defendant from braking in a timely way and/or taking other evasive action so as to avoid the collision.
That failure also denied the first plaintiff the opportunity to see the defendant's vehicle at an earlier time so as to allow him to brake and/or take evasive action of his own.
In those circumstances, I consider that the negligence of the defendant was a material cause of the collision in which the first plaintiff suffered injury.