Popovic (an infant) by next friend Zoran Popovic v Robinson - [2013] WADC 25

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: POPOVIC (an infant) by next friend ZORAN POPOVIC -v- ROBINSON [2013] WADC 25

CORAM: SWEENEY DCJ

HEARD: 20 NOVEMBER 2012

DELIVERED : 21 FEBRUARY 2013

FILE NO/S: CIV 2276 of 2010

BETWEEN: PETAR POPOVIC (an infant) by next friend ZORAN POPOVIC
Plaintiff
AND
MICHELLE RHONDA ROBINSON
Defendant

Catchwords:

Negligence - Motor vehicle accident - Collision between motor vehicle and child - Whether driver negligent

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr P E Jarman

Solicitors:

Plaintiff: Vertannes Georgiou
Defendant: Jarman McKenna

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

BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294
Derrick v Cheung (2001) 181 ALR 301
Stewart v Carnell (1984) 2 MVR 147
Stocks v Baldwin (1996) 24 MVR 416
Winters v Davidson (1989) 9 MVR 239
Wyong Shire Council v Shirt (1980) 146 CLR 40; 27 ALR 217

SWEENEY DCJ:

Introduction

On 26 August 2003, the plaintiff, then 7 years old, was walking home from school and crossing the road when he was hit by the car driven by the defendant.
The only issue before me was whether the defendant was negligent in her manner of driving and hence caused the accident. There was no pleading of contributory negligence. The quantum of damages to be awarded in the event of the plaintiff succeeding was agreed between the parties, but the issue of liability required a trial. For the reasons which appear below, however, the plaintiff's claim is dismissed.
Two witnesses testified at trial, the plaintiff Petar Popovic and his young school friend Keera Fuller, who was also walking home from school. When summarising their evidence, I intend to refer to both witnesses by their first names even though Keera is by now a young adult, both for ease of the reader but also to emphasise that, at the time of the collision, they were both young children. More than nine years has passed since the accident.
At the end of the plaintiff's case the defendant made a submission that there was no case to answer. I put the defendant to her election, so that she was asked to choose between making such a submission and giving evidence in her defence. She elected to make the submission and so there is no evidence before the court from the defendant.
There is no real practical difference, when a trial judge is sitting without a jury, between the defendant making a submission that there is no case to answer and a defendant simply electing to adduce no evidence. Certainly for the purposes of this judgment there is no obligation on me to engage in a two‑step process of making a ruling, firstly, on the no case submission and then, should that be unsuccessful, proceeding to deal with the judgment itself as a separate and final exercise: BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294 [6] (Kennedy J). In arguing the no‑case submission, the parties made all of their submissions, which were as applicable to that submission as to the case as a whole. It is sufficient for me to say that the plaintiff has not established negligence on the part of the defendant.

The intersection

The accident occurred at the T‑junction of Endeavour Drive (the continuing road) and the road described before me as Achiever Avenue (the terminating road) in Port Kennedy.
Endeavour Drive is a long curving road which runs, very broadly, north‑south. At the precise point where the accident occurred, the road runs more north‑west to south‑east, but for ease of understanding I will refer to it as running north‑south.
The street map the parties provided me with (simply printed from a website) indicates that the terminating road where the accident occurred is actually called Savannah Avenue, although Savannah Avenue then becomes Achiever Avenue. That road forms a complete loop to the west of Endeavour Drive, intersecting it at two points and, according to the map the parties provided, is called Achiever Avenue at its northernmost intersection with Endeavour Drive, but Savannah Avenue at its southernmost intersection with Endeavour Drive, where the accident occurred. The space within the entire loop of that road and its two intersections with Endeavour Drive is occupied by Endeavour Primary School, where Petar and Keera went to school.
Other street maps of similar provenance however do not even acknowledge the existence of Savannah Avenue and identify the road as Achiever Avenue at both intersections. The parties in their pleadings and the witnesses in their evidence have referred to the road as Achiever Avenue and so, notwithstanding the map I was given, I am going to refer to it as Achiever Avenue, on the understanding that the intersection I refer to is the intersection of Endeavour Drive and the road immediately to the south of Endeavour Primary School.

Particulars of alleged negligence of the defendant

On 26 August 2003 just after 3.00 pm the defendant, Mrs Robinson, was driving in a southerly direction along Endeavour Drive and was making a right‑hand turn into Achiever Avenue. Petar was crossing the road from the north side of Achiever Avenue to the south side of Achiever Avenue, when he was struck by the defendant's car and suffered injuries.
The plaintiff, Petar, alleges that the accident was caused by the negligence of the defendant in that she:
(a)failed to keep any or any proper lookout for him;
(b)executed a right‑hand turn from Endeavour Drive into Achiever Avenue when it was dangerous to do so having regard to the presence of the plaintiff and other children at the intersection;
(c)failed to give right of way to the plaintiff as he crossed the road; and
(d)failed to stop, slow down or otherwise manoeuvre her vehicle to avoid colliding with the plaintiff.
The plaintiff also points to reg 56(6) of the Road Traffic Code 2000 as it applied at the relevant time which provided (and still does provide):
If a driver at a T‑intersection is turning right from the continuing road into the terminating road, the driver shall give way to —
(a)any oncoming vehicle that is travelling through the intersection on the continuing road or turning left at the intersection; and
(b)any pedestrian on the terminating road at or near the intersection.
It is conceded by the defendant that reg 56(6) does apply in the present circumstances.
There was no evidence before me of the speed limit at that location, notwithstanding that the incident occurred directly outside a primary school. Apparently no such information was able to be obtained from the Main Roads Department. Photographs showing the general layout of the area and the speed limit were not contemporaneous.
There was, however, a concession made by the plaintiff's counsel at trial that the defendant was not speeding at the time of the incident. No reliance is placed on speed in the particulars of alleged negligence.
There is no evidence before the court of weather conditions and no reason to think the weather played any part in the accident.

The evidence at trial

Petar testified at trial. He is now 16 years of age but, in August 2003, he was 7 and a student in Year 2 at the primary school.
He used to walk to and from school and followed the same route every day. That would take him from his classroom, through the school carpark, leaving via the carpark driveway which emerged onto Achiever Avenue. He would then walk along the footpath which runs along the school side of Achiever Avenue, leading to Endeavour Drive.
I was provided with maps prepared by the parties and agreed to be to scale. Near the intersection, a pedestrian can follow the footpath into a left‑hand turn and walk alongside Endeavour Avenue to the north or, alternatively, follow a little elbow of footpath into a right‑hand turn, where the pedestrian can wait at the kerb if needs be, then cross over Achiever Avenue and find a corresponding footpath on the south side of Achiever Avenue and walk alongside Endeavour Drive to the south. From what Petar described as his route home, the latter is the route he would take, as the street he lived on came off Endeavour Drive somewhere to the south.
His school finished at 3.00 pm every day and so he placed the time as being about 3.05 pm. He was dressed in a school uniform and carrying a backpack.
Petar did not specifically recall whether, on the afternoon of the accident, he had been accompanied by anyone else as he approached the footpath, intending to cross the road. He recalled his neighbour Keera as being in the area, but could not remember precisely where she was. He agreed that, if Keera was there, he would walk with her, but had no recollection of meeting up with her that day. He said they had no arrangement to meet up on a regular basis but that, if it just happened that they met up, they would walk home together.
He could not recall precisely how many other children were standing in the area of the footpath waiting to cross Achiever Avenue, but he thought there were probably six or seven children. Petar said the footpath was clustered full of kids and there was no room, so rather than stand on the elbow of the footpath itself, he stood near a drain. There is a drain visible in the photographs, just to the west of the crossing. There is not much distance between the elbow of footpath for those crossing and the drain, a matter of some 3 m or so, depending on whether one is measuring from the western or eastern edge of the drain.
Petar was asked to designate on a plan where he had been standing and placed himself a little to the west of the footpath, in other words he indicated that he had not walked as far as the right‑hand elbow in the footpath for people intending to cross the road. It was suggested to him that he crossed the road at a point somewhat further west of the drain and closer to the school carpark driveway, but he denied that and there is no evidence to support that proposition.
Petar's intention was to go straight across Achiever Avenue. He said he looked to see if there were any cars before beginning to cross the road, turning first to his left and not noticing any cars and then turning to his right and seeing a car to his right. That car to his right must have been a car on Achiever Avenue, driving towards Endeavour Drive. That was not the defendant's car as she was on Endeavour Drive.
He said that car on Achiever Avenue stopped and the lady gestured him to cross the road. He confirmed that the lady in the car was heading towards the T‑junction and planning to turn onto Endeavour Drive and she stopped and motioned him across the road. He was not sure whether there was a vehicle in front of that vehicle intending to turn left into Endeavour Drive. He said he recalled looking to see whether there was a car in Endeavour Drive (where the defendant's car was, or was approaching) and did not recall seeing a vehicle there.
As a result of being waved across the road by the woman in the stationary car, Petar proceeded to cross the road, stepping off the kerb. He recalls reaching somewhere between halfway and three‑quarters of the way across the road and after that: 'I just remember falling down and hitting my head on the ground. I can't remember anything' (ts 17). He described his pace as a walking pace, neither fast nor slow. He recalled being carried by a lady to the first aid room and then his mother attending.
In cross‑examination Petar confirmed that he did not see any vehicle, nor recall striking a vehicle, before he hit the ground. He thought it unlikely that he had run into the back door of a car and asked rhetorically, 'Why would I run into the back of a car?' (ts 26).
It was suggested to Petar that he ran across the road, but he denied that proposition on the basis that he had never run across the road previously. He denied that his memory was simply based on what he usually did, pointing out that he did not usually stand next to the drain before he crossed the road. He also denied running across the road because he said he was aware that it was not the safe thing to do.
Contrary to Keera's evidence, he had no recollection of partially crossing the road and then stopping. Nor did he recall Keera calling out to him as he was crossing the road.
Keera Fuller is now 18 but, at the time of the accident, was 9 years old and in Year 4 at Endeavour Primary School. Consistently with Petar, she said that she and Petar would normally meet up at the pathway and walk home together and that was something that just happened every now and then, as opposed to something that was specifically arranged. She said, if they did not happen to meet up, they would just walk home separately.
She recalled that, on this particular day, she did meet up with Petar on the pathway and she too was planning to cross Achiever Avenue from the school side on the north to the south side. Given that Petar recalled her being in the area, not much turns on whether the two children did 'meet up', or were simply both present, and the difference may be a difference in perception on the day.
Keera said she stood on the elbow of the pathway for pedestrians planning to cross the road and Petar stood on her right, also on the pathway. Her account differed from his then, in that he had placed himself west of that point near the drain. Not much turns on that however, for reasons which will become apparent.
Keera said she planned to cross the road after looking for traffic both ways and she also instructed Petar to check both ways. She said she told him to look to his right while she looked to her left and then they would swap so that she would look to her right while he looked to his left.
When she looked left, all she saw was a car driving north along Endeavour Drive. That was not the defendant's car, which was driving in the opposite direction. Keera also saw a line of cars on Achiever Avenue, planning to turn left into Endeavour Drive. Although no witness said as much, that was presumably because school had just ended for the day and people were leaving the school area. Her evidence was then broadly consistent with Petar's evidence of the woman in the stationary car who waved him across. He was not sure if there was another car in front of her car. There is no suggestion that any car was planning to turn right, at least at the relevant time.
Keera said those cars on Achiever Avenue were stationary, unable to make the turn, because of cars on Endeavour Drive. She said she was planning to wait for those cars to go so that she could cross. She then saw Petar start crossing the road and so she checked the traffic again. She described him as having walked between two cars that were stationary on Achiever Avenue, behind one car and therefore in front of the car immediately behind it. She described both of those cars as being to her right. That means necessarily, I conclude, that if Petar had been standing right next to her on the elbow of footpath as she described, he must have shifted from his position and moved west on Achiever Avenue, away from Endeavour Drive, before crossing between the two vehicles. That is where Petar said he was. In re‑examination Keera agreed that the point at which she had placed Petar standing on the footpath waiting to cross was not the point from which he ultimately left the road, which was somewhat west of that and in fact very close to where Petar had said he had been standing. The difference between the two accounts in that regard rather melted away.
Keera's suggestion of that line of cars as being to her right also suggests the likelihood of another car being in front of them. In her position on the elbow of footpath, which is at least 4 m from the actual intersection, there is ample room for a car to pull further forward up to the intersection with Endeavour Avenue and wait there to turn left. One would not expect a car waiting to turn left to wait so far back from the intersection itself, although there might perhaps be reasons why it did.
Keera said she had planned to cross the road with Petar but, when she quickly checked the traffic again, she saw the defendant in her car driving on Endeavour Drive with her indicator on, ready to make a right‑hand turn into Achiever Avenue. Keera recognised the defendant in her red car because she was friends with her son.
She said the car she had previously seen driving north on Endeavour Drive (in the opposite direction to the defendant) was 'long gone' (ts 38) and the first in the line of cars on Achiever Avenue waiting to turn left into Endeavour Drive was still stationary, but she recalled the first car in the line slowly starting to move as the defendant's car turned the corner. She said Petar had been behind that car that began making the turn.
Keera described the defendant's speed as 'just slowly rolling'. She said she told Petar to stop, but he did not listen. She said it was as she saw the defendant's vehicle rolling around the corner that she told Petar to stop. By that point, of course, the two children were no longer standing together. Petar was on the roadway and several metres west of Keera.
Keera described a couple of other children waiting to cross in the vicinity of where Petar was. She recalled two or three children who had already begun to cross in front of the first car in line which placed them towards the middle of the road by the time that car began to make the turn. Petar was behind that first car and in front of the second car. Keera later changed that account and said that they had walked behind the car in front and in front of the second car and so had walked between the same two cars that Petar had walked (ts 41). Her first explanation might make sense of why the first car in line, on her account, was so far back from the intersection waiting to make its turn.
She said it was apparent that those children had been planning to continue to cross the road but had seen the defendant's car coming and so had stopped where they were as the first car slowly started to turn out. That is obviously significant evidence for the plaintiff's case. It places at least three children including Petar as standing in the same area all planning to cross the road. Its reliability however, as will emerge shortly, is highly questionable.
Keera then said 'Petar was, I don't know – not jogging but not walking. Like, a fast paced walk, trying to beat the car sort of thing. So ‑ and then I told – I tried to tell him to stop' (ts 41). She said the second car (the car Petar walked in front of) remained stationary. She said, because Petar was walking at a fast pace, he appeared to be trying to walk out in front of the other children (ts 41). She described the other children as appearing to look to their left for traffic before they continued to cross the road, but Petar started to cross and she saw the defendant's car turning. She said she told him to stop but did not think he heard that and he ran and that is when the two collided. She theorised that 'he was trying to beat the car'.
She said that, once Petar got to the middle of the road and when she saw the defendant's car, she told Petar to stop, but he got a bit faster, moving to 'kind of like a jog sort of thing' (ts 43). She marked on the plan the point at which Petar moved from a walk to something of a jog, about a third of the way across the road. She maintained in cross‑examination, however, her perception that he was more towards the middle of the road. She said the other two children had remained standing where they were.
Keera described the point of impact:
As (the defendant) was straight on the - Achiever Avenue, she started to speed up a little bit, not too much, and then as Petar was running, he ran straight into the back door of her car. (ts 44)

Keera described the defendant's speed at the time of impact as 'just, like, slowly rolling, I guess'.
While it was suggested to her in cross‑examination that Petar had hit the rear quarter window, Keera said that, from where she was standing, it looked like he hit the back door, but she was not sure. But when she was asked to mark on the photograph of the car where it was Petar hit the vehicle she nominated the rear pillar between the back edge of the back door and the front edge of the rear quarter window. In any event, it was a point significantly towards the rear of the vehicle. Hers is the only evidence on that point. Keera said, once Petar made contact with the car, he fell straight to the ground.
In cross‑examination she agreed with the proposition that Petar was still behind the first car in line when he changed his pace (ts 47). She also agreed that Petar was shorter in height than the car in front of him (ts 51) which one would expect, given his age.
It emerged, however, that Keera had made a statement back in August 2004, a year after the accident, in which she had said 'there weren't any other children trying to cross the road at the same time as us although some already had and were on the other footpath'. Clearly that is in complete contrast to her evidence about the other two or three children who also walked between two cars, but had stayed where they were before the point of impact.
Keera said that, in preparation for the trial, having looked through her statement and having spoken to lawyers, she had sat down and tried to remember and she did now recall seeing two or three children standing there (ts 50). She agreed that process had only occurred in the last couple of weeks prior to trial. She also agreed it was possible that her mind was playing tricks on her, given that she was attempting to recall nine years ago and stated 'I don't really remember much except for Petar getting hit by the – or car – Petar running into the car' (ts 51). She agreed she was possibly mistaken about other children being there in the middle of the road at the time (ts 51). In re‑examination she described her memory of the two or three children in the middle of the road as 'blurred' (ts 54).
She said she recalled calling out to Petar to 'stop, don't run' because she could see the defendant's car starting to turn and agreed it was clear to her that, if he continued to cross the road, he 'might be in trouble'. Keera said 'I honestly didn't think he heard me cos he didn't look back. He just kept moving' (ts 52). She said he changed his pace, but he did not look back (ts 52).
Keera later described the defendant's speed as being 'a medium‑slowed speed' (ts 54) when she first saw it and then said that, as the car turned more onto Achiever Avenue, the car slowed down to the point where it was rolling, contrary to her earlier evidence that the car had sped up a little once it made the turn into Achiever Avenue. She confirmed that, once the car got into Achiever Avenue, 'it sped up just to make the turn properly' (ts 55).

Legal principles

In Wyong Shire Council v Shirt (1980) 146 CLR 40; 27 ALR 217 Mason J held (at CLR 47 – 48; ALR 221):
In deciding whether there has been a breach of the duty of care 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, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. 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.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.
In Derrick v Cheung (2001) 181 ALR 301 the respondent, a toddler of 21 months, had emerged from between two parked vehicles onto the road into the path of the appellant's vehicle. The appellant was driving well within the speed limit and, when she saw the child, skidded and attempted, unsuccessfully, to avoid hitting her. The child had been described as darting out in front of the car.
While the trial judge had found that the appellant had been driving well within the speed limit, his Honour had found that, in all of the circumstances of the case, the speed was excessive, because 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. That decision was upheld by the Court of Appeal but overturned by the High Court. That court ruled that there was no basis upon which any finding of negligence on the part of the appellant could be made. Their Honours found [13]:
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 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 accepted on behalf of the defendant that, being the driver of a car in the vicinity of a primary school which had just ended for the day, and there being children around generally all wanting to go home, it was foreseeable that children would be crossing any of the roads nearby the school and that such a child might fail to take reasonable precautions for his or her safety. It is also uncontroversial that the defendant was under an obligation to give way to any pedestrian crossing Achiever Avenue. It could hardly be suggested, and was not suggested, that it was not foreseeable that any child who might be struck by the defendant's moving car would sustain injuries. It was clear, therefore, that the defendant was under a duty of care to the children in the vicinity of the intersection, including the plaintiff, to take reasonable steps to avoid such impact and injury.
That does not dispose of the matter however.
The plaintiff must prove that the defendant's driving fell short of the precautions which should have been exercised by a reasonable driver perceiving the obvious risk that a child might fail to take proper precautions for his own safety.
The parties have referred me to several cases which bare some similarity (and various dissimilarities) to the facts of this case.
In Stocks v Baldwin (1996) 24 MVR 416 the New South Wales Court of Appeal upheld a decision in which the trial judge found that the defendant was driving at an excessive speed in the circumstances, notwithstanding that he was not speeding, in circumstances where it was foreseeable that a person in the position of the plaintiff, crossing the road, might not take reasonable care for her own safety. In that case the plaintiff, a pedestrian, was crossing a busy street with three lanes on each side of a median strip some 40 m from traffic lights and, after crossing the median strip, moved through banked up vehicles in the middle lane into the kerbside lane. The trial judge apportioned 60% liability to the defendant driver on the basis that, it being reasonably foreseeable that the pedestrian might not take reasonable care for her own safety, it represented no great inconvenience to the driver to have slowed down to a speed which might well have enabled the accident to be avoided.
By contrast, in Stewart v Carnell (1984) 2 MVR 147, the New South Wales Court of Appeal stated (151):
In our view his Honour did not err when he found that the respondent was not negligent because a reasonably careful driver would have concluded, as the respondent said he did, that no‑one would be so 'silly' as to run in front of a moving line of traffic on outward bound traffic in a busy highway at peak hour. The reasonable driver would have concluded that, even if the appellant ran to the centre of the road, he would wait and not 'dart' between the stationary cars into the path of the moving lane of traffic, including the respondent. Negligence implies a want of care to prevent foreseeable injury. There are limits on the extent to which irrational behaviour of pedestrians, in apparent disregard of their own safety, should reasonably be anticipated by a reasonably careful motorist. Those limits were reached in the facts of this case.
That passage was cited with approval in Winters v Davidson (1989) 9 MVR 239. In that case three children were 'mucking about' and engaging in horseplay on a footway of a bridge, when one of the children was pushed, or was pushed and then ran, into the path of the oncoming vehicle. It was contended that the driver had been negligent in failing to sound his horn to warn the children of his approach. The trial judge held there was no negligence on the part of the driver. The Court of Appeal upheld that decision on the basis that, until the child was pushed or ran into the road, there was nothing untoward occurring and it was not reasonable to require the driver in those circumstances to anticipate the possibility of one of the children being pushed into his path and so failure to blow the horn was not a breach of the duty to take reasonable care.
In the end not much is to be gained by the dissection of other cases, although they alert the court to relevant factual issues. The case turns upon my findings of fact.

Findings of fact

It was suggested in submissions that Petar's evidence is unreliable. I did not find it so. It is obvious that his observation of this collision at the time was limited. He has no recollection of the involvement of a vehicle and simply recalls hitting the ground. That does not make his memory unreliable - indeed it suggests quite the opposite to me. Notwithstanding that logic must tell him that a car was involved and notwithstanding that he has undoubtedly been told over the years that a car was involved, he has not attempted to fill in that gap and his memory has not created a recollection of a vehicle for him.
Indeed Petar's failure to have any image of a vehicle in his memory is entirely consistent with why this incident occurred. It is quite inconceivable that he would have seen the vehicle and then walked or run straight into it. He asked rhetorically why he would run into a car and it is an obvious and fair question to ask. Even a 7‑year‑old child, failing to take proper precautions for his own safety, would not see a car and then walk or run into its rear door.
Equally unlikely is the theory posed by Keera that Petar was attempting to beat the car. Had the car run him over, or collided with him towards the front of the car, that theory might have had more credibility, but it is quite implausible to think that Petar saw the car and so badly judged its speed and the distance between him and it that he attempted to run across the road in front of it, but instead ran into the pillar between the rear door and the quarter window. I found Keera to be an entirely honest witness, and broadly speaking reliable, but one who was trying too hard to recall details from nine years ago and trying too hard to make sense of what occurred in her own mind and, as a result, her memory was somewhat susceptible to suggestion. Her memory was also a little more detailed than was quite credible. I was not convinced that every detail was genuine memory, as opposed to reconstruction.
I find Petar's evidence to be generally reliable. He did not see the car and that provides the complete explanation for why he walked or ran into it.
And there are cogent reasons for why he did not see the car. Firstly, he was a 7‑year‑old child. He may well have looked to his left and I have no difficulty accepting that he did and also that he did not, at the point at which he looked, see any car on Endeavour Drive. Keera did not initially see the defendant's car.
But the fact remains that, as Petar was in the process of crossing the road, the defendant's car did come to be at the intersection on Endeavour Drive, approaching and making the turn. Yet Petar failed to see it, because he either did not look again after his initial look, or he did not look with sufficient attention to see the car, or his vision was perhaps impeded by the car in front of him.
Secondly, I accept his evidence that he was waved across the road by a driver in a stationary car waiting to make a left‑hand turn into Endeavour Drive. A combination of Keera's evidence that there was a line of cars waiting to turn left into Achiever Avenue, Petar's evidence that he was motioned across the road by a driver in a stationary car, and what common sense and life experience suggests is likely to have occurred just after 3.00 pm at a primary school, all compels the conclusion that there was a line of cars in Achiever Avenue, waiting to turn left into Endeavour Drive.
Petar's evidence of being waved across was given in a clear, cogent and concise way and I accept it is both a genuine and an accurate memory and, again, it goes some way to explaining why this accident occurred. Petar may well have been distracted from the need to keep a proper and continuing lookout by the fact that he was waved across the road by an adult.
Keera's evidence was that the first car in that line began to make that left‑hand turn at about the same time as the defendant made her right‑hand turn from Endeavour Drive into Achiever Avenue. Petar's evidence did not particularly touch on such a car, and in cross‑examination he was unsure about whether or not there was such a car, but I am satisfied that there was such a car in front of him. It is less likely that a car waiting to turn left into Endeavour Drive would wave a child or children across their front if the way had become clear for them to make the turn and the car first in line would have, in any event, been closer to the intersection than the car Petar walked in front of. It is more likely that the car that waved Petar across was at least the second in line and stationary in any event, because the driver had to wait for at least one car in front of her to make its left‑hand turn before she could do so. Petar may well not recall such a car because it was irrelevant to him, not representing any sort of hazard or impediment to him. Certainly, Keera recalled it and I accepted her evidence in that regard.
I find that Petar did indeed walk between two cars, walking to the rear of a car waiting to turn left and in front of the car behind it, and that that must have occurred simultaneously to the defendant approaching the intersection and beginning to turn right into Achiever Avenue. Petar's being waved across by an adult might very well have diverted him from keeping an adequate lookout.
Thirdly, there is every reason to suppose that Petar was not looking the way he was walking as he crossed the road. He inexplicably walked or ran into the rear side pillar of a vehicle that he had not seen. Keera gave evidence that she called out to him to stop. She later gave evidence that he did not turn to face her when she called out to him to stop and she did not think he heard her. He may have heard something. There was also a car to his immediate left, the driver of which had waved him across. There are likely to have been other children around in the general area. He was a little boy and there was a lot going on and any one or more of those things might have distracted him from paying attention to the road and oncoming vehicles.
Keera saw the oncoming vehicle but Petar did not and the combination of his being young and insufficiently careful, having been waved across by the driver of the stationary car waiting to turn left and possibly having been further distracted is the likely explanation for how it could be that a young boy would walk or run into the rear door pillar of the defendant's car.
It is not necessary for me to make a final determination as to what precisely caused the accident. What must be proved is that the negligent driving of the defendant played its part.
Keera's recollection that there were two or three other children who followed the same path as Petar and were also walking between those two cars is utterly unreliable. This accident occurred nine years ago. A year after the event Keera made a statement saying there were no children crossing the road but some had already crossed and were on the other footpath. It was suggested in argument that defence counsel's cross‑examination about the taking of that earlier statement was inadequate if he were to use it to discredit her evidence at trial concerning the other children, but I reject that proposition. This was not an earlier statement that omitted a detail later given in evidence. The statement contained the positive assertion that there were no children crossing the road at the time. That was a specific memory, hardly contemporaneous then, but considerably more contemporaneous than the memory she arrived at some two weeks prior to trial that there were children in effect in the middle of the road. She conceded in cross‑examination that she could be wrong about that memory and said that her recollection of those children was 'blurred'. If there were some feature of the process of taking the earlier statement that reduced the impact of the inconsistency it was for the plaintiff's counsel to adduce such evidence in re‑examination. I can place no confidence in her evidence that there were other children walking between the cars, or crossing the road.
Keera herself, however, was standing on the footpath also waiting to cross. Petar gave evidence that there were about six or seven other children on the footpath and I have no difficulty accepting that evidence, given that school had just broken up for the day and children were no doubt walking home.
Given that Petar did not see the car at all and has no recollection of actually striking it, the only evidence about the point of impact comes from Keera and that evidence is uncontradicted. I accept that Petar did impact with the pillar at the rear of the passenger's door and at the front of the driver's side quarter window.
There is no suggestion that the defendant was speeding at the point of impact. There is no allegation of negligence in connection to her speed. Indeed, the irony is, given that the uncontradicted evidence is that Petar collided with a point close to the rear of the car, had she only been driving slightly faster this collision might have been avoided altogether. It would be sheer speculation to draw any conclusion based upon her speed at the time.
As I mentioned earlier, it is accepted on behalf of the defendant that it was foreseeable that children would be crossing the roads nearby the school and that it was foreseeable that a child might fail to take reasonable precautions for his or her safety.

That, of itself, however, is not an answer to the question of just what aspect of the defendant's driving is said to have been negligent and thereby caused the collision. Mere causation or contribution on her part is not sufficient. Of course in a broad sense her driving caused the collision in that, had she not been at the intersection that day, the collision would not have occurred. But the question is what aspect of her driving fell short of the precautions which should have been exercised by a reasonable driver perceiving the obvious risk that a child might fail to take proper precaution for his own safety.
While it is uncontroversial that she was under an obligation to give way to any pedestrian crossing Achiever Avenue, it is not established on the evidence that any other child was in the process of crossing the road, such that she should have given way to them, or that she was in a position to actually see young Petar as he attempted to cross the road.
There is no evidence before me of Petar's size at the age of 7, except for Keera's agreement that he was shorter than the car in front of him, but assuming him to have been an average sort of 7‑year‑old, it has not been established that he would have been visible to a driver in the position of the defendant as she made her right‑hand turn, given that he walked between two vehicles. It is unlikely, I find, that she did see him at that point.
Petar's evidence was, in effect, that he walked across the road at a normal pace. Keera's evidence described his pace as somewhat faster, a pace somewhat fast for a walk but not a jog initially, proceeding to a faster pace. If he was walking as briskly as Keera suggested, it can only have been a matter of seconds from stepping off the kerb to making it to the point of impact. Even at a normal walking pace, the timing cannot have been more than a few seconds. And for much of that very short time, he was between two cars.
The point of impact towards the rear of the car means the defendant's car was almost past him as he reached that point in the road. There is no suggestion in the evidence that the defendant's vehicle was in an unusual position in its lane and I therefore conclude that Petar's position when he impacted that car was somewhere between halfway across and two‑thirds of the way across the road. Not much turns on the precise distance he covered before impacting the vehicle. For him to have struck the pillar to the rear of the passenger door surely logic says that car was parallel to him as he took his last step.
I can find no basis upon which to conclude that the defendant actually saw him as she drove past his vicinity and nor, given that he weaved between two cars, can I conclude on the balance of probabilities that she ought to have seen him had she kept a proper lookout. She was in the process of conducting a right‑hand turn, obliged to keep a lookout for oncoming traffic and other children in the vicinity and other cars in the area and if Petar became visible as the first car in line waiting to make a left‑hand turn began to move off, it can only have been for a short moment when she was well upon him. One cannot escape the significance for the defendant of the fact that Petar impacted with the car well to its rear.
But, frankly, even if it be concluded that the defendant at least ought to have seen Petar at the last second as her car was parallel with his position and even allowing for the unpredictability of children, it was not reasonably foreseeable that a school‑aged child would simply walk right into a car in front of him. And perhaps more significantly, if the defendant did see or ought to have seen Petar at that last second, which has not been established, there was nothing she could reasonably have done to avoid the collision. I can see no opportunity on the evidence for her to have suddenly braked, or suddenly swerved to her left, in such a way as to avoid that impact. The plaintiff's particulars of negligence are not made out.
It is not reasonable to suggest that a reasonable motorist in the position of the defendant would have generally anticipated that there were children, potentially invisible to her and potentially going to put themselves at risk, such that she should have never made the right‑hand turn and simply waited in that position for several minutes or more, until all children, visible or hidden, must have cleared the area.
Having commenced her turn, which placed her into the face of potentially oncoming traffic, I find it was necessary that she continued to make her turn while proceeding with a level of caution that would have enabled her to stop her vehicle within a reasonable time if a child did act dangerously and run across the road. There is nothing in the evidence which suggests she was not acting with such caution.
Quite properly, given Petar's young age at the time of the incident, the defendant did not plead contributory negligence on his part. It is an all or nothing proposition for the defendant. But having considered all of the circumstances, I find there is insufficient basis upon which I could conclude that any aspect of the defendant's driving was negligent on that day.
Accordingly, the plaintiff's claim is dismissed.