Rowes Bus Service Pty Ltd v Cowan

[1999] NSWCA 268

Reported Decision: (1999) Aust Torts Reports 81-517

New South Wales

Court of Appeal

CITATION:	Rowes Bus Service Pty Ltd v Cowan; Sufong v Cowan [1999] NSWCA 268
FILE NUMBER(S):	CA 40924/98; 40946/98
HEARING DATE(S):	9 July 1999
JUDGMENT DATE:	27 July 1999
PARTIES :	Rowes Bus Service Pty Ltd v Nicola Jane Cowan Robert Sufong v Nicola Jane Cowan
JUDGMENT OF:	Stein JA at 1; Cole AJA at 56; Foster AJA at 93

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6474/97
LOWER COURT JUDICIAL OFFICER:	Hughes ADCJ

COUNSEL:	J Hislop QC/D Cutler (Rowes Bus Service - Appellant) R Bartlett SC (Robert Sufong - Appellant) L King SC/M Elkaim (Nicola Jane Cowan - Respondent)
SOLICITORS:	Vandervords (Rowes Bus Service Pty Ltd - Appellant) Sparke Helmore (Robert Sufong - Appellant) McCourts (Nicola Jane Cowan - Respondent)
CATCHWORDS:	District Court - MVA - student alighting from bus struck by motor vehicle - allowing bus passengers to alight in a potentially dangerous area - liability - duty of care of bus company and motor vehicle driver - whether breach of duty of care - reasonable foreseeability - apportionment of liability - contributory negligence - cross-appeal on quantum of damages
ACTS CITED:	s 5(2) Law Reform (Miscellaneous Provisions) Act 1946 s 72 Motor Accidents Act 1988
CASES CITED:	Urban Transit Authority v Ruz-Canales (1995) 22 MVR 249 Jarvis v Scrase (unreported, Queensland Court of Appeal, 22 December 1998) Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 Pyrenees Shire Council v Day (1998) 192 CLR 330 Stocks v Baldwin (1996) 24 MVR 416 Yu v Yu (1998) 26 MVR 509 Mitchell v GIO (1992) 15 MVR 369 Macquarie Pathology Services Pty Ltd v Sullivan (unreported, Court of Appeal, 28 March 1995) Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 Pennington v Norris (1956) 96 CLR 1 Podreberserk v Al&S (1985) 59 ALJR 492 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
DECISION:	Each appeal upheld in part; Judgment for the plaintiff in the sum of $989,600 set aside and a judgment against the appellants in the sum of $760,145 substituted; The order of the District Court that the appellants pay the costs of the trial be confirmed; The appellants pay the costs of the appeal; The amount of contribution as between the appellants, in respect of their liability to the plaintiff under the judgment and for costs, shall be, as to the appellant, Rowes Bus Service Pty Ltd, 50 per cent, and as to the appellant, Robert Sufong, 50 per cent thereof; Cross-appeal dismissed with no order as to costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40924/98; 40946/98
DC 6474/97
STEIN JA
COLE AJA
FOSTER AJA
Tuesday, 27 July 1999

ROWES BUS SERVICE PTY LTD v Nichola Jane COWAN
Robert SUFONG v Nichola Jane COWAN
At approximately 3.30 pm on 24 June 1991 the plaintiff/respondent was travelling home from school on a Rowes’ bus along Richmond Road, Blacktown. The road ran east-west and consisted of a four lane dual carriageway in two directions which was divided by a median strip. The respondent lived in Tallanganda Drive, on the northern side of Richmond Road. The bus service terminated on the southern side of Richmond Road, near Hill End Road.

When the bus reached its final stop in Richmond Road all passengers alighted at what was an unmarked stop. A number of adults and school children went to the rear of the stationary bus, intending to cross over Richmond Road. The respondent moved to the front of the bus which occupied the first lane of traffic. She crossed in front of the bus and, upon entering the second lane of traffic, was hit by a motor vehicle driven by Mr Sufong. She suffered brain damage and a broken collar bone. She was seventeen years of age at the time of the accident.

Hughes ADCJ found both appellants liable in negligence and apportioned liability equally between them. He assessed the respondent’s contributory negligence at 20 per cent, concluding that she was walking in front of the bus and not running as argued by the appellants. A verdict for the respondent in the sum of $989,600 was entered.

On appeal , both appellants’ argued that:

1. His Honour erred in finding that the plaintiff walked rather than ran in front of the bus;

2. His Honour erred in finding the appellants’ negligent;

3. His Honour erred in apportioning liability equally between the appellants;

4. His Honour erred in assessing the respondent’s contributory negligence at only 20 per
cent.

On cross-appeal , the respondent argued that:

1. His Honour erred in his assessment of past care, nanny care and costs associated with taxi and travel needs.

HELD:

On the appeal , per Stein JA (Foster AJA agreeing, Cole AJA dissenting):

His Honour’s finding on the appellants’ liability was open on the evidence and should not be disturbed. In apportioning equal responsibility for the accident between the appellants, his Honour’s conclusion was within the discretionary range available and should not be disturbed. His Honour’s assessment of contributory negligence at 20 per cent was unsustainable and outside his discretion. Contributory negligence was re-assessed at 40 per cent.

On the cross-appeal:

The allowance made for past care, nanny care and future transport expenses was open to the trial judge and should not be interfered with.

ORDERS

1. Each appeal upheld in part.

2. Judgment for the plaintiff in the sum of $989,600 be set aside and a judgment against the appellants in the sum of $760,145 be substituted.

3. The order of the District Court that the appellants pay the costs of the trial be confirmed.

4. The appellants pay the costs of the appeal.

5. The amount of contribution as between the appellants, in respect of their liability to the plaintiff under the judgment and for costs, shall be, as to the appellant, Rowes Bus Service Pty Ltd, 50 per cent, and as to the appellant, Robert Sufong, 50 per cent thereof.

6. Cross-appeal dismissed with no order as to costs.

**********

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40924/98; 40946/98
DC 6474/97
STEIN JA
COLE AJA
FOSTER AJA
Tuesday, 27 July 1999

ROWES BUS SERVICE PTY LTD v Nichola Jane COWAN
Robert SUFONG v Nichola Jane COWAN

JUDGMENT

1    STEIN JA:

Introduction:

2    Both appellants, Rowes Bus Service Pty Ltd (the bus company) and Robert Sufong (Mr Sufong) appeal against a judgment of Hughes ADCJ delivered in the District Court on 7 December 1998. The respondent, Nichola Jane Cowan, cross-appeals on damages. It will be convenient to refer to her as the plaintiff. His Honour found both appellants liable in negligence, apportioned liability equally between them and assessed the plaintiff’s contributory negligence at 20 per cent. A verdict for the plaintiff in the sum of $989,600 was entered. Each of the appellants dispute the findings on liability, apportionment between them and contributory negligence. The appellants also contest some heads of damage.
3    For the very most part there is little dispute on the facts of this unfortunate accident. At about 3.30 pm on 24 June 1991 the plaintiff was struck by a motor vehicle driven by Mr Sufong when she was crossing Richmond Road, Blacktown, in front of a stationary bus owned by Rowes Bus Service. The plaintiff sustained severe injuries including brain damage.

Facts

4    The plaintiff was travelling home from school on Rowes’ bus along Richmond Road which runs approximately east/west and has a dual lane carriageway in each direction divided by a median strip. Its traffic lanes are marked and between 2.5 and 3.3m wide. The speed limit at the time was 80 kph, the weather fine with no parking or stopping restrictions in Richmond Road. 5    The plaintiff lived in Tallangandra Drive, on the northern side of Richmond Road. The bus company operated a supplementary service during peak or busy times. It was called the ‘head off service’. The service terminated in Richmond Road, on its southern side, near Hill End Road. After all passengers were disembarked at this stop, the bus returned to Blacktown station by travelling 200 to 300m further west along Richmond Road, negotiating a roundabout and returning along Richmond Road on its northern side. This was not a school bus service, rather a regular supplementary service carrying a fair number of school children, since the time of day was shortly after school finished. 6    The plaintiff was 17 years old at the time and in her Higher School Certificate year. When the bus got to its final stop in Richmond Road, she and between 12 to 15 other passengers, school students and adults, alighted. It was not a marked bus stop, that is, there was no actual bus sign. However, the head-off service regularly used this spot (or very close by) to set down passengers before returning to Blacktown Station.

7    The bus driver, Mr Thatcher, opened the front door of the bus to allow his passengers to alight. The plaintiff was one of the last passengers to get off. Most passengers walked to the rear of the bus along the footpath. The plaintiff went around the front of the bus. She was intending to cross over Richmond Road. At the time traffic was reasonably heavy, flowing at or near the speed limit.

8    Mr Sufong, an experienced courier driver, was driving his van along Richmond Road, which he knew well, in the lane next to the median strip at about 80 kph. He saw the stationary bus about 100m away. At the rear of the bus he saw a group of people, adults and school children, partly on the footpath and partly on the road surface. Clearly, they were waiting to cross Richmond Road. As a precautionary measure he slowed his vehicle to around 40 kph and continued along the roadway at that speed. 9    His slowing created a gap in front of his vehicle, and, so it seems, aggravated drivers to his rear, one or more of whom started to sound their horns, according to Mr Sufong. Mr Sufong passed the group of pedestrians behind the bus and when he was only a metre or so from the front of the stationary bus he saw the plaintiff run across the road. He said that he was unable to avoid the accident, the plaintiff colliding with Mr Sufong’s vehicle on the near side corner. The point of impact was about 1 m past the stationary bus. 10    There was dispute as to whether the plaintiff ran or walked across the road. Both the bus driver and Mr Sufong said that she ran. The plaintiff said she walked although her recollection of the accident was challenged because of her head injuries.

Duty of care

11    Mr Sufong does not dispute he owed a duty of care to the plaintiff, but denies any breach. On the other hand, the bus company submits that its duty to exercise reasonable care to the plaintiff ceased once she was safely deposited on the footpath. His Honour found that the bus company owed a duty of care to the plaintiff not to allow her to alight in a dangerous area. Although it is not clear, the trial judge may have also found that the bus driver was negligent in not sounding his horn as a warning to the plaintiff when she was in front of his bus attempting to cross the road. I do not see how his failure to sound his horn can be negligent in the circumstances.

The Judgment

12    In dealing with the case against the bus company, his Honour said that its driver, Mr Thatcher, had given evidence that he was instructed by his employer to stop where he did in Richmond Road. His Honour continued:

He had pointed out to his employer on prior occasions that this was very dangerous and that an earlier incident, where another young schoolgirl had been injured, occurred more or less on the same spot. He suggested to the company that he either allow passengers to alight from his bus at Hill End Road, where there was an authorised bus stop therein, and then he could go back to Blacktown station with a loss of time of about seven minutes, or he could continue down Richmond Road, around the roundabout, and let any northbound passengers off on the other side, so they would not have to cross the busy eighty kilometre an hour road. [Red AB 27 W to 28 G]

13    Later his Honour said:

I find that the bus company had been warned on at least two occasions by two different drivers, Mr Thatcher and Mr Brown, of the danger to school children in particular, but passengers in general, of crossing across a four-lane dual-highway road such as Richmond Road with a speed limit of eighty kilometres an hour in the afternoon, from the unauthorised bus stop.
Both Mr Brown and Mr Thatcher had warned the safety committee of the company, as well as the road manager, of such a danger, including at least one serious accident and several near misses. Mr Brown refused to allow northbound passengers to alight at the unauthorised stop and let them off on the other side after he went around the roundabout. The first defendant called no evidence to refute such evidence.
The experts called, Mr Vaughan and Mr Johnson, both agreed that making such an authorised stop at a place on Richmond Road in peak-hour traffic created a danger. No expert evidence, again, was called to refute this. [Red AB 30 I to X]

14    His Honour concluded that allowing passengers to alight in a dangerous area was a breach of the bus company’s duty of care to its passengers. He said that the danger could have been easily and inexpensively eliminated by one of two means and this would have eliminated a foreseeable risk.

The evidence relating to the bus company

15    The driver of the bus involved in the accident was called by the plaintiff. By the time of the trial in 1998 Mr Thatcher had been a bus driver for 20 years, 14 of them with Rowes. He confirmed that the stop in Richmond Road, near the intersection with Hill End Road, was 200 to 300m from a roundabout which the bus negotiated before returning to Blacktown station empty. He said in evidence that there were two alternative options available. First, to stop around the corner in Hill End Road and then go back by the ‘normal route’. This would involve 5 to 7 minutes extra travelling time. The second option was to give passengers (including school students) the option of getting off on either side of Richmond Road. This would add only ‘ a minute or so’ to the journey. 16    Mr Thatcher had been a member of the Drivers’ Committee at Rowes. The committee included a Mr Brian Meades, who was the Company’s Road Manager. The Operations Manager was also a member. Safety issues were sometimes discussed at the Committee. Mr Thatcher specifically raised the issue of the safety of this particular drop-off point. He told the Committee that he had seen children running across the road in front of his bus into the mainstream traffic. He suggested a re-routing. Mr Meades had been present. The meeting was in 1988 or 1989. Nothing was done by the company. 17    Another bus driver, Mr Brown, was called by the plaintiff. He had driven buses for 22 years, 10 of them with Rowes. He recalled an accident in August 1989 which had an uncanny resemblance to this accident. He pulled the bus up in the same position as in the subject accident. One girl got out and ran straight across the road in front of his bus into the traffic. She was severely injured, suffering brain damage. He reported the accident to Mr Victor Coleman, the union delegate. The delegate conferred with management. After that Mr Brown sought permission to adopt an alternative practice. He adopted the procedure of dropping off passengers, particularly children, on both sides of Richmond Road. That is, he dropped off those who wanted to remain on the southern side of Richmond Road at the stop involved in this accident. He then proceeded around the roundabout and stopped in Richmond Road on the northern side to drop off any passengers who wanted to alight on that side. 18    Mr Brown said that he made the suggestion to the bus company because of his concern for the safety of children crossing at the stop. His suggestion was intended to reduce the risks to those children. The company had no objection to his practice. However, it appears that it was not implemented for any other drivers. 19    Mr Sufong gave evidence that as a ‘professional driver’, a courier, he thought it was a dangerous location for a bus to stop. According to him, it would have reduced the risk of someone running out in front of the bus if it was to stop on the opposite side of Richmond Road.

20    Two traffic engineers gave evidence. Mr Grant Johnston in the plaintiff’s case and Mr Rodney Vaughan in Mr Sufong’s case.

21    Mr Johnston’s opinion was as follows:

Based on observations made at the site of this incident and previous experience in assessing the position of bus stops it is my opinion that the position in which this bus discharged the passengers, including Ms Cowan, was totally inappropriate and potentially dangerous. This danger existed not only to pedestrians exiting the bus but also associated with approaching westbound traffic . Richmond Road at this point provides for two lanes of through traffic and carries a substantial volume of traffic with a speed limit at the time of this incident of 80 km/h.
There was some sight obstruction on approach to this location associated with a left horizontal curve on Richmond Road which accompanied by the high volume and speed of approaching traffic could create a problem and a number of potentially dangerous lane change manoeuvres around the rear of the bus. At the time of our inspection this was found to be a difficult location for pedestrians to cross Richmond Road and it would only be exacerbated by the presence of the bus and the associated disruption to traffic this would cause. In addition there is the obvious problem of the bus acting as a visual obstructor between pedestrians and approaching traffic . This is what occurred in the context at this incident.
In conclusion, the use of this non-designated facility instead of the adjacent facility in Hill End Road apparently for the purpose of minor expediency gains created a dangerous situation for both approaching traffic and pedestrians discharging from the bus . In my opinion this location should not have been approved as a suitable bus stop position. [Blue AB 90 O - Y] [Emphasis added]

22    Mr Vaughan’s opinion was that:

… the terminating of the bus route on the southern side of Richmond Road resulted in a situation which was less safe both for passengers wishing to cross to the northern side of Richmond Road, and for passing traffic , than if the bus had proceeded around the corner to terminate the route at the signposted but stop in Hill End Road [Blue AB 101 P to R] [Emphasis added]

23    Mr Vaughan believed that the alternative option of also stopping on the opposite side of Richmond Road was available and would reduce the hazard to passengers. 24    Neither of these expert witnesses were cross-examined to suggest that their respective opinions as to the danger were incorrectly held. The bus company called no expert witness nor any management representative. Nor did it seek to cross-examine Mr Thatcher or Mr Brown to suggest that their evidence of potential danger was wrong.

Duty of care of bus company

25    As a general proposition it may be said that a bus company’s duty of care to a passenger may cease when the passenger is deposited safely on the footpath. But this general proposition must yield to particular factual circumstances which may demand that the duty to act reasonably towards a passenger continues to operate after a passenger has alighted from the bus. 26    For example, if a bus stopped at a place which was dangerous for a passenger to alight, such as within the roadway itself, and the passenger was then knocked over by a motor vehicle, then the duty of care would extend to that foreseeable risk. Urban Transit Authority v Ruz-Canales (1995) 22 MVR 249 is such an illustration. A bus driver, requested by a passenger, allowed him to alight by opening the door when it was dangerous to do so. To open the bus door in the circumstances was clearly a breach of the duty of care to the passenger. 27 Jarvis v Scrase (unreported, Queensland Court of Appeal, 22 December 1998) is another illustration of how a particular set of facts can lead to the existence of a duty of care extending after a passenger has disembarked from a bus. Particular emphasis was placed on the driver having control of the situation of a school bus containing children of tender years. The court was at pains to stress that each case must depend on its own facts. Pincus J said:

… this Court should not attempt to enunciate a principle which comprehensively sets out when a person such as a bus driver will, and when that person will not, be liable for injuries sustained by a child alighting from a bus. In my opinion, in the circumstances explained in detail in the reasons of Muir J, the primary judge was right to hold, not merely that the injury to the child was foreseeable, but that the bus driver’s duty of care extended so far as to take the simple step of observing the approach of the oncoming car and giving the child an appropriate warning.

28    One of the considerations in the case before the court is whether the facts establish that the dropping off of passengers, particularly school children, at this particular undesignated bus stop in Richmond Road was potentially dangerous. 29    It is useful to return to the much quoted words of Mason J, as he then was, in Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40. At pages 47 to 48 his Honour said:

… 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. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

30    The undisputed evidence of two of the bus company’s drivers (including the driver at the time of the accident) was that stopping at this particular unauthorised stop and allowing passengers, including children, to alight, created a foreseeable risk of danger. The bus company knew of the prior incidents, including an amazingly similar serious accident to a school child, but chose to do nothing about it. This was notwithstanding that the risk, which they had been made aware of by their drivers, could have been easily obviated with minimal inconvenience and no expense. Namely by dropping off those passengers who wished to alight on the northern side of Richmond Road, on that side of the road after traversing the roundabout. 31    With the knowledge which the bus company had from its drivers, it should not have permitted the situation to continue without adopting an option which would clearly reduce the risk to passengers, particularly school children. The company chose to ignore the drivers’ complaints and it is noteworthy that Mr Brown adopted his own practice of stopping on both sides of the road. 32    The conclusion that the bus company allowed a foreseeable risk of harm to continue after it had been brought to notice is reinforced by the evidence of the two transport engineers (Johnston and Vaughan). Both were of the opinion that in all the circumstances it was dangerous for the bus to stop where it did. Neither of the experts were cross-examined to suggest that their opinions were erroneous. 33    I do not see this as the occasion to review aspects of the law of negligence, where it is or where it is heading. It is unnecessary to analyse the notion of proximity and review the opinions of the Justices of the High Court of this question. Suffice to say that I think it permissible to approach this case on the basis expressed by Kirby J in Pyrenees Shire Council v Day (1998) 192 CLR 330 at 419. According to his Honour, three questions are to be asked in deciding whether a duty of care exists, viz:

1. Was it reasonably foreseeable to the alleged wrong-doer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage or a person in the same position?
2. Does there exist between the alleged wrong-doer and such person a relationship characterised by the law as one of “proximity” or “neighbourhood”?
3. If so, is it fair, just and reasonable that the law should impose a duty of a given scope upon the alleged wrong-doer for the benefit of such person?

34    On the facts of this case, I would answer each question in the affirmative. A positive answer to the first two issues is dictated by the evidence. I cannot see why it would not be just and reasonable for the law to impose a duty of such a scope as I have mentioned upon the alleged tortfeasor. In my view, the bus company should not have required all of its passengers to alight at the unauthorised stop with the knowledge of the dangerous situation brought home to it by its drivers. It chose to ignore their advice and not to avail itself of reasonably available alternative options, which would have reduced or eliminated the risk. There was a foreseeable risk of injury to its passengers which the bus company knew about, but took no steps to address. It was a real risk, as shown by the drivers’ reports, and not a mere possibility. It was a risk of injury which was clearly within the concept of reasonable foreseeability. 35    In my opinion, Hughes ADCJ was correct to find the bus company in breach of its duty of care to the plaintiff.

Was the van driver in breach of his duty of care?

36    The trial judge’s finding of negligence by Mr Sufong was confined to his proceeding at a speed which was too fast in the circumstances. His Honour found that the van driver reduced his speed from 70 to 80 kph to 40 kph when he saw the bus stationary at the side of the road some 100 m distant. He maintained that speed until the plaintiff ran out in front of the stationary bus, when he applied his brakes. When this occurred the plaintiff was obviously too close for the accident to be avoided. There was evidence that the van would have had to slow to 15 kph (if the plaintiff was walking) or 5 kph (if the plaintiff was running) for Mr Sufong to avoid colliding with her. 37    It must, of course, be accepted that a driver must exhibit special care or drive defensively in the presence of pedestrians, especially children, see Stocks v Baldwin (1996) 24 MVR 416; Yu v Yu (1998) 26 MVR 509 and Mitchell v GIO (1992) 15 MVR 369. 38 Stocks v Baldwin in particular provides a helpful discussion on the obligation of drivers to pedestrians who may suddenly step out from behind a stationary vehicle into the path of an oncoming vehicle. Mahoney P said:

In the “balancing” process to which Mason J referred, [in Wyong Shire Council v Shirt ] at least four things are to be borne in mind: the extent of the damage that may be done by a driver to a pedestrian; the degree of likelihood that a pedestrian will suddenly come into the path of an ongoing vehicle; the consequent extent of the precautions which a driver must take against that vehicle; the consequent extent of the precautions which a driver must take against that eventuality; and the extent of what a driver is able to do when confronted with such a danger.

The damage which a driver may do to a pedestrian is great: the injuries suffered by the present plaintiff show this. This is an important matter when deciding what a driver must do. The inconvenience of driving slower is to be measured against, inter alia, what may be done to a pedestrian if the driver’s estimate of the risk is wrong.
Pedestrians sometimes act carelessly. I do not mean by this that they do so more often than not. But, in my opinion, they do so with sufficient frequency that a prudent driver would take account of it. The likelihood of that occurring is not a “far-fetched or fanciful risk” which is to be put aside or discounted. It is something which occurs often enough for the prudent driver to foresee it and take it into account.
Mr Maconachie QC not merely submitted that a prudent driver may so drive that there are risks of injury; he submitted that the court should accept that a prudent driver may determine what he should do upon the assumption that pedestrians will obey the law and will take sufficient care for their own safety. In my opinion that puts the matter too high in favour of the defendant driver.

39    As I have said, the trial judge found that Mr Sufong reduced his speed to 40 kph upon seeing people, including school children, on the roadway at the rear of the bus. It must have been obvious to him that they were waiting for the opportunity to cross the road. If one of them ran out in front of his vehicle an accident was inevitable. This was because at 40 kph he could not have stopped in time so as to avoid an accident. His Honour was correct to observe that having seen the children and mothers gathered behind the bus Mr Sufong ‘nevertheless proceeded at 40 kph past the bus knowing and admitting that there was a possibility that children could emerge from the front of the bus’.

40    In my opinion, the trial judge was entitled to find on the evidence that 40 kph was a speed which was too fast in the circumstances. Travelling at such a speed meant that Mr Sufong could not stop in time to avoid colliding with any child running across the road from either end of the bus. He said as much in his evidence, see Black Appeal Book 239 L - N. Moreover, Mr Sufong made it plain that he believed that the setting down of passengers by the bus at this particular spot created a dangerous situation for pedestrians (including school children) and for motorists alike. Clearly he appreciated the risk of people, perhaps children, coming out suddenly into his path. In arriving at the conclusion that his Honour’s finding was one which was open on the evidence, I take particular account of the factors relevant to the balancing process mentioned by Mahoney P in Stocks v Baldwin.

Apportionment

41    The trial judge acknowledged that apportioning responsibility between the appellants was not easy. He said that he found it difficult to separate them as to who should bear the greater proportion of the blame. This led him to equally apportion liability between them. Both appellants contest this finding. 42    A trial judge is invested with a very wide discretion in making an apportionment. In Macquarie Pathology Services Pty Ltd v Sullivan (unreported, Court of Appeal, 28 March 1995) Clarke JA said that a trial judge must be allowed much latitude in arriving at a judgment of what is just and equitable. The onus cast on an appellant seeking to disturb an apportionment is a high one, Pennington v Norris (1956) 96 CLR 1. 43 Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 has reaffirmed not only the need to compare the culpability of the parties (in causative terms) but also the whole conduct of each negligent party. I am not satisfied that it is appropriate to disturb his Honour’s finding of equal responsibility of the appellants under s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946. Examining all of the matters relevant to the apportionment exercise, it cannot be concluded that the discretion of the trial judge miscarried. Plainly his conclusion was within the discretionary range.

Contributory negligence

44    His Honour found that the plaintiff was guilty of contributory negligence which he assessed at 20 per cent on her part. There is no doubt that the plaintiff failed to take reasonable care for her own safety. The plaintiff seeks to support the assessment by reference to the range of discretion and the court’s reluctance to interfere with such apportionments (Pennington v Norris at 16 and Podreberserk v AI&S (1985) 59 ALJR 492). 45 A number of factors have convinced me that an assessment of 20% is unsustainable and outside the discretion of the trial judge. The plaintiff was 17 ½ years old, in her final year at school and had her learners’ permit. She was of above average intelligence and knew of the dangers of crossing where she did. Rather than walk to the back of the bus, as did the other passengers intending to cross, she attempted to cross in front of it. It would have been obvious that the bus would have hidden her presence from oncoming vehicles until she travelled past the offside of the bus. Moreover, her vision of oncoming traffic was obstructed by the stationary bus until she was past it. There was nothing to stop her walking further to the west to remove or minimise the impediment to her vision which the bus provided. This would have also increased the visibility of oncoming traffic to her presence. The plaintiff proceeded to cross an 80 kph speed limited busy road without looking. Although the trial judge found that she was walking, I think that the evidence is overwhelming that she was running. 46 I would assess her degree of culpability at 40 per cent.

Damages

47    Encompassing the cross-appeal and the appeals of the appellants, three items of damage are in dispute

Past care

48 After the first 6 months of care, in respect of which no allowance is made under s 72 of the Motor Accidents Act 1988, his Honour allowed $13,520 for the next 6 months to 24 June 1992. This was calculated at 40 hours per week at $13 per hour. His Honour then allowed $3,360 for the next 26 weeks to 24 December 1992. No reasons were stated but by simple arithmetic it seems to be on the basis of 10 hours per week at $13 per hour. His Honour gave no reasons for making no allowance after 24 December 1992. It may be that his Honour inferentially found that the plaintiff’s need was less than 6 hours per week and accordingly did not rise above the threshold. 49 The plaintiff had claimed 10 hours per week from 25 June 1992 right through to the hearing in 1998, initially at $13 per hour increasing to $15 per hour from 26 June 1995. In my view, a consideration of the evidence of the plaintiff in relation to her carrying out of domestic activities, her living away from home during her marriage and de facto relationship and the evidence of her mother, combine to support a finding that an assessment of need for care assistance of less than 6 hours per week after 25 December 1992 was open to the trial judge.

Nanny care

50    His Honour allowed the costs of a full-time nanny for the first 12 months after the birth of the plaintiff’s child ($43,680). Thereafter, it is not clear what he did. He said that he was allowing a part-time nanny ‘till the child is aged twelve of $126,349’. He disallowed any nanny after that time. 51    The plaintiff had claimed $126,349 for nanny care for the child for 4 years to age 5 at $25 per hour. Since this figure is exactly what his Honour allowed, it is reasonable to assume that his Honour meant that he was allowing a part-time nanny until the child was aged 5 years, in accordance with the plaintiff’s claim, but to disallow her claim after that time. This makes sense because the plaintiff was making no claim for part-time nanny care after her child had turned 12 years of age. His Honour clearly thought that part-time nanny care of 3 hours per day after the child turned 5 was unwarranted. Despite Dr Jungfer’s evidence, this was open to his Honour and finds support in the report of Professor Jones.

Future transport expenses

52    His Honour noted that the plaintiff claimed $100,320 for taxi and transport needs. He accepted the claim in principle but clearly thought the sum claimed was too high. Accordingly, he halved it, awarding $50,000. This is challenged by the plaintiff in her cross-appeal and also by the appellants. The evidence was sparse and did not support the plaintiff’s claim in its fullness. I would have thought that his Honour’s assessment was, in the circumstance, a reasonable one and consistent with the plaintiff’s likely need for additional transport costs over that which she would otherwise have incurred. I would not disturb the award. 53    I conclude that those portions of the appellants’ grounds of appeal on damages fail, as does the plaintiff’s cross-appeal. 54    It follows that his Honour’s assessment of damages of $1,167,275 should not be disturbed. However, 40 per cent should be deducted for contributory negligence leaving the sum of $700,365, to which is to be added a management fee of $59,780 which is undisputed. Accordingly, the substituted judgment should be $760,145. 55    The result is as follows. Both appeals should be dismissed on liability, upheld on contributory negligence and dismissed on damages. The apportionment should not be disturbed. It follows that the appeals are successful as to part only. I have reached the conclusion that it is appropriate that the appellants pay the plaintiff’s costs of the appeals. The cross-appeal should be dismissed. Since both of the damages appeals and the cross-appeal have failed, I think that the appropriate costs order on the cross-appeal is that each party bears its and their own costs. Although no party complained the District Court appears to have entered verdicts against each appellant for the sum equivalent to one-half the net damages. If this be the case it was incorrect, see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448. The plaintiff is entitled to a judgment in the full sum against the appellants who, in turn, are entitled to recover one-half from the other. The orders have been drafted accordingly.

Orders

Appeal Nos. CA 40924 of 1998; 40946 of 1998

1. Each appeal upheld in part.

2. Judgment for the plaintiff in the sum of $989,600 be set aside and a judgment against the appellants in the sum of $760,145 be substituted.

3. The order of the District Court that the appellants pay the costs of the trial be confirmed.

4. The appellants pay the costs of the appeal.

5. The amount of contribution as between the appellants, in respect of their liability to the plaintiff under the judgment and for costs, shall be, as to the appellant, Rowes Bus Service Pty Ltd, 50 per cent, and as to the appellant, Robert Sufong, 50 per cent thereof.

6. Cross-appeal dismissed with no order as to costs.

56    COLE AJA: I have had the advantage of reading, in draft, the judgment of Stein JA in which the factual circumstances surrounding the plaintiff's accident, and the bases upon which each appellant was held liable, are set forth. I adopt Stein JA's statement of facts subject to the following additional matters:

(1) The plaintiff was 17 years 7 months old at the date of the accident.
(2) The plaintiff's usual mode of going to school was to catch a bus from the street in which she lived, Tallangandra Drive, to Blacktown Station and then walk the 10 minutes required to Blacktown High School. In the afternoons, school ceasing at 3pm, she would reverse the journey normally catching the 3.10 pm bus alighting in Tallangandra Drive. If she missed that bus she would normally wait until the next bus leaving at about 3.40 pm which again allowed her to alight in Tallangandra Drive. She had done this for some years. That journey did not involve any need to cross the busy Richmond Road. On the day of the accident, she missed the 3.10 pm bus, saw a girl whom she knew catching the subject bus and decided also to catch that bus. She had taken this alternate route approximately monthly. There was thus available to the plaintiff a safe, convenient alternative route to the bus that she caught on the day of the accident which did not involve her in crossing the busy four lane Richmond Road. On some other occasions she caught a second alternative bus described as the Doonside Station Bus, alighting from that in Hill End Road near the Richmond Road intersection. Either of these two bus routes, other than that which travelled to Tallangandra Drive, required her to cross Richmond Road. She sometimes caught the Doonside Station bus because she wanted to go to the shops, presumably near Doonside Station. This bus was sometimes caught by the plaintiff because of her having employment after school.
(3) On travelling west along Richmond Road on the route the subject bus took, there were nine marked bus stops apart from the unmarked stop where the subject bus terminated its route. At two only of the nine bus stops were there pedestrian crossings to facilitate persons leaving the bus crossing Richmond Road. At each of the remaining seven marked bus stops, and the unmarked stop, pedestrians wishing to cross to the northern side of Richmond Road either had to walk to one of the two marked pedestrian crossings, or take the risks associated with crossing the four lanes of Richmond Road. The plaintiff knew that in catching the bus she did she would have to cross Richmond Road.
(4) On all occasions when the plaintiff previously had alighted from a bus, whether at the subject stop or any other stop, she had never run out in front of the stopped bus because she knew it would be a stupid thing to do as there might well be traffic overtaking the bus and she could thus be hit.
(5) The plaintiff knew that whether she alighted at the terminating spot as she did, or whether she alighted in Hill End Road if the bus proceeded into that road, as an alternate route did, she would be alighting at an unmarked bus stop, and would, in each instance, have to cross Richmond Road to get to her home.
(6) The plaintiff was the only alighting passenger wishing to cross Richmond Road who did not go to the back of the bus to make that crossing.
(7) The journey from Blacktown Station to the terminating stop of the subject bus took about 12 to 15 minutes. To have extended that trip to travel along Hill End Road would have extended the journey by a further five to seven minutes. The period around 3 to 4 pm was described as the "flat out" time of the day for bus services.
(8) The evidence of Mr Brown, the other bus driver, was that in the past children had run in front of his bus whether it was stopped at a designated or non-designated stop. Whilst he had adopted the alternative of dropping people on the northern side of Richmond Road on his return journey to Blacktown rather than drop them at the non-designated stop, he continued to drop children wishing to go to the northern side of Richmond Road when he dropped them at a designated stop. This was so even though there was no pedestrian crossing. There was thus no established practice or recommendation that persons, be they adults or children, wishing to go the northern side of Richmond Road should be dropped there on the return journey to Blacktown Station to avoid their having to cross Richmond Road. Apart from Mr Brown, it was the normal practice for the buses returning to Blacktown Station not to stop on the return journey.
(9) There was no evidence from the plaintiff that, had she been offered the option of remaining on the bus whilst it drove either into Hill End Road, or around the roundabout to return to Blacktown Station, so as to be dropped in Hill End Road or on the northern side of Richmond Road, she would have taken that option.
(10) One expert, Mr Vaughan, regarded the circumstance that the accident occurred near a non-designated as distinct from a designated bus stop as a "matter of irrelevance". The other expert, Mr Johnson, did not "necessarily agree" that the accident was just as likely to have occurred at a designated as distinct from a non-designated bus stop. The reason why he "did not necessarily so agree" was because of a hypothetical proposition that "the presence of a left horizontal curve on approach with limited sight distance has perhaps been a partial or causal factors (sic) of the incident. "

Mr Johnson was referring to the parked bus being a possible cause of motor vehicles changing lanes to avoid the stopped bus. It was not explained why the necessity for vehicles to change lanes varied when a bus stopped at either a designated or non-designated stop. There was no suggestion in the evidence that at the other nine bus stops on Richmond Road, the road was any wider than where the bus in fact stopped, or that there were bus stopping bays set into the verge and out of the two lines of traffic.

Duty of care of bus company

57    I agree with Stein JA that as a general proposition a bus company's duty of care to a passenger ceases when the passenger is deposited safely on the footpath. An example of failure to comply with this duty is found in Urban Transit Authority v Ruz-Canales (1995) 22 MVR 249 where the bus company permitted a passenger to alight away from the footpath by opening a door permitting him to step down into a stream of traffic. I also agree that, in rare circumstances, particular facts may indicate that, prior to a passenger alighting on to the footpath, a bus company may breach its duty to that passenger, although the damage is suffered after the passenger so alights. Jarvis v Scrase Unreported Queensland CA 22 December 1998 is such an example. There the bus driver had control over children within the bus, and breached its duty to the child injured by permitting the child to alight with knowledge that the young child would cross a road in circumstances where it was plainly not safe to do so. Jarvis v Scrase was a special case involving a school bus where the driver had authority and control over the young children who were his passengers. However, subject to such rare circumstances as illustrated by Jarvis v Scrase, the duty of care owed by a bus company to its passengers to transport them safely to the point at which they are to alight terminates on their leaving the bus by stepping on to the safety of the footpath. The reason why the duty then terminates is because, from that time onwards, the bus company and its driver have no control over and cannot influence the decision of the alighting passenger regarding his conduct. Once the passenger has alighted, he is free to do as he wishes and there is nothing which the bus driver, or the bus company, can do to regulate or restrain the actions of the departed passenger. The passenger is a free agent entitled to take such risks as the passenger regards as appropriate. Once the passenger has alighted from the bus the relationship between the passenger and the bus company and its driver ceases. There is thereafter no contractual or tortious relationship. 58    It is important, in my view, to recognise that the contractual obligation or tortious duty which a bus company undertakes by accepting a passenger on to the bus is not to ensure that the passenger arrives safely at his ultimate destination. It is to act reasonably and without negligence in the conveying of that passenger to the point at which the passenger alights on to a footpath, normally at a designated bus stop. The bus company does not contract with the passenger or undertake any duty to thereafter assist the departed passenger safely to arrive at his next destination. The passenger may go in any direction he wishes, and may go directly or indirectly to his ultimate destination. He may take such time as he regards as appropriate in so doing. 59    There are strong reasons of public policy why a bus company, and its driver, should not have imposed upon them any duty to the departed passenger after the time when that passenger has been safely deposited on the footpath. Those policy considerations include the freedom of the individual to act as he wishes once he has been safely released from the temporary custody of the bus company during the transporting operation. There is no basis in principle on which the bus company should be entitled to regulate that individual's freedom of action. From the bus company's point of view there are sound reasons of policy why it should not be obliged to take responsibility for the actions of the departed passenger once he has alighted from the bus because the bus company has no power to control, or authority over, either the departed passenger or his actions. 60    It follows, in my view, that it will be the exceptional case in which it can be held that liability in tort attaches to the bus company or its driver arising from independent actions of a departed passenger.

Foreseeability

61    In accordance with the principles enunciated in Wyong Shire Council v Shirt (1980) 146 CLR 40 in particular per Mason J at 47-48 it is foreseeable that a person, be he an adult or a child, may act in a manner in disregard of his own safety. This may arise from carelessness, inattention, stupidity or the excitement of the moment. Children not infrequently do so act. However, the foreseeability being addressed in Shirt was the foreseeability that "the conduct" of the defendant may involve "a risk of injury to the plaintiff or to a class of person including the plaintiff". In the present instance, the only relevant act or "conduct" of the defendant bus company or its driver was to allow the plaintiff to alight on to the footpath. That is a different aspect of foreseeability to the foreseeability that a passenger, once alighted and thus becoming a pedestrian, may act with absence of care for his own safety. Once the passenger has alighted, there is no relevant act or conduct on the part of the bus company or its driver which can cause a foreseeable risk of injury to the plaintiff in his capacity as a passenger. Once the passenger alights from the bus, a new relationship of proximity may arise, that being the relationship of the owner and driver of a motor vehicle to a pedestrian. In that relationship there may be a foreseeable risk of injury to the pedestrian should the bus move and strike him. It is difficult to contemplate any foreseeable risk of injury to the departed passenger in his character as a pedestrian whilst ever, as here, the bus remains stationary

Conduct

62    It necessarily follows that in considering the question of foreseeability of risk of injury to the plaintiff, the conduct of the defendant bus company or its driver said to give rise to the foreseeable risk of injury must be identified. Such conduct may be either an act or an omission. Of necessity, the conduct must be an act or omission at or prior to the time at which the plaintiff passenger alighted from the bus. 63    There are only three possible acts or omissions of the bus company or its driver which might conceivably give rise to a foreseeable risk of injury to the departing passenger. The first is stopping the bus where the driver did stop. The second is permitting the passenger to alight at the place where the bus was stopped. The third is failure to warn the departing passenger to be careful for her own safety after she had alighted from the bus. 64    In my judgment none of those three aspects of conduct could give rise to a foreseeable risk of injury to the departing passenger. 65    Regarding the first, there was no material which could support any finding that stopping the bus where the driver did gave rise to a foreseeable risk of injury to a departing passenger. The driver stopped adjacent to the kerb in a two-lane roadway where there were no stopping restrictions. Any vehicle was entitled to stop where the bus did. The terminating place was no different to any of the preceding nine marked bus stops which were the points on the verge of the same two-lane road. There was no danger to passengers in the bus once the bus was stopped where it did. One expert accepted entirely and the other in a qualified form that the fact of the stopping place not being a designated bus stop was immaterial. To my mind common sense makes it plain that was so. Buses stopped in the two-lane roadway at various points in Richmond Road. Buses servicing that area must stop somewhere on Richmond Road which was a continuous two-lane road. There was no danger or risk of injury in stepping on to the adjacent footpath.. 66    Regarding the second, there was no foreseeable risk of injury to departing passengers by allowing them to descend on to the footpath. The footpath or verge was a place safe from traffic hazards. Quite apart from that, the bus company and its driver had no right to refuse to permit passengers, be they adults or children, to alight from the bus once it had terminated, provided that the place to which the passengers were to alight was a safe place. The footpath was. 67    Regarding the third, there is no duty on a bus company or its driver to warn departing passengers to take care for their own safety once they have left the bus. The reason why that is so is that once the bus company and its driver have safely deposited passengers in a safe place on the footpath, the passengers cease to be in any relationship with the bus company and its driver and are entitled to act in such manner as they choose. A bus company and its driver undertake to act with care in the conduct of passengers from the point of pickup to the point of deposit: by accepting a passenger neither the company nor the driver undertakes any obligations to warn passengers regarding their own independent conduct after they have been deposited. The reason why that is so is because of the limited nature of the relationship established between a passenger and the bus company by the company agreeing to transport the passenger. The relationship is limited to conveying the passenger from the point of pickup to the point of deposit. Bus drivers may give departing passengers warnings, or bus companies may display signs warning departing passengers to be careful for their own safety, but this is a gratuitous act, and failure to give such warnings does not ground tortious responsibility. 68    Persons wishing to go to a destination on the northern side of Richmond Road, such as the respondent, had the option of catching a bus which avoided the need to cross Richmond Road. Alternatively such persons could catch a bus along a known route which involved crossing that road. If they chose the latter alternative, having alighted from the bus on to the footpath, such persons could decide to go to the rear of the bus and await a break in the traffic when it was safe to cross. This all passengers except the respondent did. Alighting passengers might decide to defer crossing the road for the purpose of visiting shops or friends, crossing at a later point of time when it was safe to do so. Such persons might decide, as the respondent did, to run in front of the bus into the stream of traffic without looking. Each of these decisions is the independent act of the alighted passenger. They are not within the purview or proper interest of the bus company. Further, the decision of the alighted passenger is for her alone, and is not within the control of the bus company. 69    I can see no reason why a bus company should be obliged, at risk of tortious responsibility, to warn departing passengers of an obvious danger, as crossing Richmond Road was, which was known to the departing passenger, as the respondent admitted, to be careful in relation to her future actions or conduct, which were beyond the concern or control of the bus company. 70    It is apparent that crossing a four-lane roadway, including a median strip, at a busy time of high traffic flow at a point not being a marked or controlled pedestrian crossing involves risk of injury to the pedestrian wishing to cross. Any person so crossing is properly characterised as a pedestrian: the fact that that pedestrian may have alighted from a bus, or may have come from a nearby shop or house or playing field is irrelevant to the risk that the pedestrian undertakes in crossing a busy road. 71    Such danger can be entirely averted by the pedestrian taking care for his own safety. 72    If, however, it is sought to impose some duty or obligation upon a bus company depositing a passenger on to a footpath, such passenger being one who might wish to cross the busy road adjacent to a bus stop, be it marked or unmarked, complex problems involving issues of policy arise. Some questions which would require attention include:

1. Is the bus company obliged to inquire of each entering passenger whether he wishes to cross the road adjacent to the footpath on which he is to be set down?
2. Is the passenger obliged to provide that information? What consequences flow if he declines?
3. If the passenger is so obliged, and provides that information to the bus company or its driver, does the bus company thereby undertake an obligation only to set down the passenger on the side of the road to which he wishes to cross?
4. If not, in what circumstances may the bus company permit the passenger to alight on to the footpath not being the footpath to which he wishes to ultimately go to?
5. To what extent is the bus company obliged to amend its route and timetable to accommodate one or more passengers wishing to cross the road from the point of normal deposit?
6. Is the bus company entitled, for instance, by not opening the door, to decline to permit a passenger, be he adult or child, to alight otherwise than on the footpath on the side of the road where his ultimate destination lies?
7. Is the obligation of the bus company different in relation to an adult or a child?
8. If the passenger changes his mind during the trip, is the bus company and its driver obliged to make further inquiry regarding the passenger's ultimate destination?

73    No doubt there are many other issues which would arise, but the above are sufficient to indicate that the imposition of any such duty on the bus company is to change entirely the character of the arrangement which a bus company normally undertakes by agreeing to accept a passenger. The arrangement suggested goes far beyond the obligations normally undertaken by a bus company to act with care in transporting a passenger from the point of pickup to the point of deposit. The reality is that it is no concern, nor should it be a concern, of the bus company what the passenger has done before entering the bus, nor intends to do after alighting from the bus. 74    It is to be remembered that bus companies drive known and scheduled routes with regular stopping places. That is known not only to the bus company, but to the passengers entering the bus. The expectation of passengers so entering, be they adult or child, is that they will be transported in safety to a known point at which they wish to alight. Bus companies do not run a service, equivalent to that of a taxi, transporting people to their ultimate destination. 75    I can see no basis in principle or policy why the duty of a bus company, or its driver, should be greater than the obligation to act with care in the transport of accepted passengers from the point of pickup to the point of deposit, including the obligation to deposit passengers on to a safe place. At that point the bus company's obligation ends. A necessary concomitant is that the bus company has no obligation to warn departing passengers regarding their conduct or activities after they have alighted.

76    It follows, in my view, that in the present instance the bus company owed no duty of care to the departing respondent either to take action to prevent her crossing Richmond Road, to drive her to the other side of Richmond Road, or to warn her to be careful when she crossed Richmond Road even if it be assumed, there being no evidence of this, that the bus company was aware before she alighted that she wished to cross Richmond Road.

77    Stein JA has referred in his judgment to the statement by Kirby J in Pyrenees Shire Council v Day (1998) 192 CLR 330 at 419 enunciating three questions to be asked in deciding whether a duty of care exists. Those three questions are:

"1 Was it reasonably foreseeable to the alleged wrong-doer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage or a person in the same position?
2. Does there exist between the alleged wrong-doer and such person a relationship characterised by the law as one of 'proximity' or 'neighbourhood'?
3. If so, is it fair, just and reasonable that the law should impose a duty of a given scope upon the alleged wrong-doer for the benefit of such person."

78    In this case I would answer each question in the negative. Question 1 is answered negatively because there was no conduct or omission on the part of the bus company likely to cause harm to the respondent, or other departing passengers. Question 2 is answered negatively because the relationship between the departed passenger and the bus company has ceased. And Question 3 is answered negatively because I can find no basis in principle or policy for imposing a duty upon a bus company or its driver in relation to the conduct of a departed passenger. I find it not possible sensibly to define the scope of any such duty, even if it were appropriate to impose one.

The plaintiff

79    It will be apparent from what I have said that as I am of the view that a bus company owes no duty to a passenger once that passenger has alighted, it makes no difference whether that alighting passenger is an adult or a child. It is unnecessary finally to determine whether any different approach should be adopted in relation to a school bus, although my preliminary view is that it should not. It is the responsibility of parents, not bus companies, to ensure that once children are deposited safely on to a footpath at a recognised point of deposit that the children are either met, or sufficiently instructed in safety measures safely to return to their homes. 80    Be that as it may, the plaintiff is not to be regarded as a child. It is true she had not reached the age of 18 years and thus had no legal capacity to contract either commercially or in marriage. However, the aspect presently being considered is the manner in which she should be regarded in relation to road traffic safety. She was 17 years 7 months of age at accident. She held a learner's permit to drive, whilst accompanied by a licensed driver. She must be deemed to know the rules of the road and she had no doubt received instruction in matters of safety from her parents and others. She knew it was a "stupid thing" to cross in front of a bus into heavy traffic. She was a person in her Higher School Certificate year of above intelligence. I do not think that a person of her age, intelligence, and experience, being a person who has asserted a right to obtain a licence to drive a motor vehicle whilst accompanied, is entitled to seek refuge in the inexperience or immaturity of childhood.

Failure to blow the horn

81    It is not clear whether the trial judge found the bus driver was negligent in not sounding his horn as a warning to the plaintiff when she was in front of the bus attempting to cross the road. I agree with Stein JA that any failure to do so could not be negligent in the circumstances. The reason why that is so is because the driver was under no duty so to warn the plaintiff. There is no duty on a driver sitting in a stationary vehicle, be it bus, truck or motor car to warn a pedestrian crossing in front of him of prospective danger in stepping out into traffic in front of his vehicle. That is because there is no relationship of proximity between the pedestrian and the seated driver. Nor is there any obligation on the seated driver to check his rear vision mirror continually to see if there is approaching traffic which might cause danger to any such pedestrian. To impose any such duty would not be a sensible act of policy. 82    Of course, a driver so seated, who observed approaching traffic which might be a hazard to a crossing pedestrian, may choose to make some warning sign or gesture. However, failure to do so does not ground a tortious liability. There may be many circumstances in which to give such a warning sign may be creative of danger to the pedestrian or others rather than diminishing it.

Was the van driver in breach of his duty

83 In my judgment he was not. 84 Undoubtedly the van driver owed a duty of care to persons who might cross the road. As Stein JA points out, a driver must exhibit special care, and in certain circumstances drive defensively, in the presence of pedestrians, especially children. See Stocks v Baldwin (1996) 24 MVR; Yu v Yu (1998) 26 MVR 509 and Mitchell v GIO (1992) 15 MVR 369 The reasons why, as a matter of policy, such a heavy duty is imposed upon drivers in the presence of pedestrians, especially children, is discussed in Stocks v Baldwin, in the passage quoted by Stein JA. 85    In addition, the Legislature has, by regulation, introduced requirements that when motorists are approaching schools they reduce speed to 40 kilometres per hour, and school buses now bear indications that when buses stop and lights on the rear of the bus flash, motorists should reduce speed to 40 kilometres per hour. See Regulation 54A and 136A Motor Traffic Regulations 1935 as amended Although those regulations had not been introduced at the time of this accident, that is precisely what Mr Sufong did. 86    But it is said that was not enough. He saw a group of adults and some children waiting at the rear of the bus, obviously wishing to cross the road. He watched those persons and safely passed them at 40 kilometres per hour. However, it is said that if one person, be he adult or child, were to run out in front of the bus, such person being hidden from his view until the time he emerged into the second lane, at 40 kilometres per hour Mr Sufong could not avoid hitting that person. It is said that he should have travelled at such a speed as to enable him to stop so as to avoid hitting a person so running. That speed was calculated by the two experts at either 4 or 5 kilometres per hour. 87    Mr Sufong was able to see the respondent running while she crossed for a distance of approximately 1 metre before she collided with the near front mudguard of his vehicle. There was nothing he could do to avoid the accident which was entirely caused by the plaintiff running out, without looking, into a slowly moving stream of traffic. The obligation on Mr Sufong was to drive in a reasonable manner in the circumstances. Does that involve him driving in a manner so that, in all circumstances, he could avoid a collision with a running pedestrian coming into his vision for a split second whilst she traversed about one metre before colliding with his car? Put another way, is it the obligation on a driver seeing pedestrians, including children, at the rear of a bus, to travel at a speed of 4 or 5 kilometres past that bus on a busy main four-lane road?

88    The trial judge said:

"It was put to me that it would be unreasonable to expect a driver to slow down to 15 kilometres an hour to avoid a walking school child emerging from the front of the bus or 5 kilometres an hour if the school child was running. If that is the speed it was necessary to prevent a foreseeable danger, then that is the speed at which the second defendant should have been travelling. He knew of the danger, he gave evidence that he thought the bus stopping there was dangerous and that it was a foreseeable risk that he should have slowed down in the circumstances."

I find that he was proceeding at a speed which was too fast in all the circumstances."

89    Stein JA has said:

"In my opinion, the trial judge was entitled to find on the evidence that 40 kph was a speed which was too fast in the circumstances. Travelling at such a speed meant that Mr Sufong could not stop in time to avoid colliding with any child running across the road from either end of the bus".

90    With great respect, to impose an obligation on a driver to drive at such a speed that an accident can, in all circumstances be avoided, is to impose absolute liability on a driver. This accident would have occurred had the driver been travelling at any speed above 5 kilometres per hour. Above that speed the accident was inevitable, not because of the speed of the vehicle, but because the plaintiff was running and came into the view of the driver for approximately 1 metre. Accepting that there is a foreseeable risk of injury which a motorist should appreciate to a person running out from in front of a bus when other persons, both adults and children are observed near the rear of a bus, the question is: "What is a reasonable response to that foreseeable risk?" If the response is the driver must slow and proceed at a speed of no more than 5 kilometres per hour so that, in all circumstances, the driver can stop to avoid such an accident, that involves the imposition of absolute liability on the driver which liability is established by the very fact of the collision. 91    In my judgment that is not the present law. It is not the response given by the Legislature as to areas of perceived danger of injury to school children or pedestrians alighting from buses, that requirement being to slow to 40 kilometres per hour. Nor does such a response, namely a requirement to slow to 5 kilometres per hour, have regard to the surrounding circumstances that Richmond Road is a major four-lane highway, heavily trafficked. In my view the response of Mr Sufong of slowing to 40 kilometres per hour, keeping a proper lookout, keeping his foot over the brake pedal "riding the brake" and proceeding "with as much caution as I could considering the traffic", the traffic banking up behind him because of his reduction in speed, was a reasonable response to the slight possibility that a person, with complete disregard for her own safety, might run out, without pausing or looking, into his vehicle. In my opinion it is not the law that either generally or in these particular circumstances, which it is always possible might be repeated when a bus is stopped, and a driver is obliged to travel past the bus at not more than 5 kilometres per hour.

Conclusion

92    In my judgment there ought to have been a verdict for each of the defendants. Accordingly I would favour the following orders in each matter:

(1) Appeal upheld
(2) Judgment and orders of Hughes A/DCJ dated 30 October 1998 set aside.
(3) In lieu thereof there be a verdict for the defendant/appellant.
(4) The respondent to pay the appellant's costs of the appeal and of the proceedings before Hughes A/DCJ but to have, in respect of the appeal, if qualified, a certificate under the Suitors Fund Act 1951.

93    FOSTER AJA: I agree with Stein AJA that both appeals on liability should be dismissed. I am satisfied, for the reasons advanced by his Honour, that the first appellant (the bus company) owed a duty of care to the plaintiff in the circumstances of this case and that the duty was breached, resulting in damage to her. I am also satisfied, again agreeing with his Honour, that the second appellant (Mr Sufong) was in breach of his duty of care to the plaintiff. 94    Were I deciding the matter for myself, I should have made a different apportionment, attributing greater culpability to the bus company. However, I am not prepared to find that the apportionment made by the trial judge fell outside the area of a proper exercise of discretion. Accordingly, I agree with Stein JA that that apportionment should not be disturbed. 95    I agree that the trial judge’s finding as to the percentage to be deducted from the plaintiff’s verdict on account of her contributory negligence fell outside the area of proper exercise of discretion. It did not adequately reflect the plaintiff’s responsibility for her own harm. It failed to pay sufficient regard to the factors enumerated in the judgment of Stein JA. I am satisfied that the trial judge’s finding in this regard should be set aside and that a percentage deduction of 40 per cent be substituted. 96    I am also satisfied that the cross appeal should be dismissed for the reasons given by his Honour. 97    Accordingly, I concur with the orders proposed by Stein JA for the disposal of this appeal.

oOo