Tobin v Worland

[2005] HCATrans 665

[2005] HCATrans 665

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S318 of 2005

B e t w e e n -

TERESA MARY TOBIN

Applicant

and

ZACHARY LUCAS WORLAND BHT JOHN WORLAND

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 2.37 PM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   I appear with MR J.C. SHELLER for the applicant.  (instructed by Carroll & O’Dea)

MR R.J. BURBIDGE, QC:   May it please the Court, appear with my learned friend, MR D.J. PRICE, for the respondent.  (instructed by Stacks – The Law Firm)

KIRBY J:   Yes, Mr Maconachie.

MR MACONACHIE:   This application is put to the Court on both bases, that is, that there is the question of general importance and, secondly, that there is a miscarriage of justice in the particular case.  The point of general importance is the question of reasonableness and how it is applied to a not uncommon situation ‑ ‑ ‑

KIRBY J:   That is a very factual sort of question.  It has gone through two levels of the court system now.

MR MACONACHIE:   Indeed, your Honour.

KIRBY J:   If it came to us we might ever so rarely have disagreements as to what is reasonable, but it would not be adding much to the jurisprudence of the nation. 

MR MACONACHIE:   Well, it would be because the question of whether or not something is or is not in the particular circumstances of the case reasonable has to be approached with one’s eye firmly on the advice and direction that has been given by this Court in cases such as Derrick v Cheung and in particular, cases like Derrick v Cheung ‑ ‑ ‑

KIRBY J:   But if that advice and direction has been given, what is the point of restating it for the courts of Australia?

MR MACONACHIE:   Because it has been misapplied, in our respectful submission.

KIRBY J:   We cannot become a court for every misapplication.  It is not feasible.

MR MACONACHIE:   No, you cannot, your Honour.

KIRBY J:   I was a party to Derrick v Cheung and I know what it said and I support what it said but this case had some particular factual features that persuaded the courts below to find for the plaintiff.

MR MACONACHIE:   Indeed, your Honour, but that was done, we would respectfully submit, by a descent, and I hope that is not taken to be impertinent, into an analysis of yards and inches, metres and centimetres, seconds of elapsed time, which is the antithesis of what this Court said, we would respectfully submit, is the proper approach in Derrick v Cheung.  It is best put, with respect, or it is succinctly put by Justice Foster speaking for the Court of Appeal when Justice Heydon was a member of it in a case called Dennis v Keep.  It is referred to in paragraph 21 of our written submission.  The Court of Appeal fell into error by making an over‑meticulous evaluation of the situation rather than making a commonsense overall appraisal of the situation confronting a motorist travelling well within appropriate speed limits when a pedestrian, albeit a child, enters his or her line of travel.

This is a case, your Honour, in which that which occurred, occurred within, on any view, about 2.3 seconds.  It occurred in a quiet suburban street when a young woman, a mother herself, was driving very slowly, less than 20 kilometres an hour until she satisfied herself that the child, Courtney, who could be seen, was not going to do anything.  She observed that child over 90 to 95 metres - one cannot be precise about when she ceased to observe the child, it would be over‑meticulous to attempt to do so.

Having watched that child for as long as she did with there being on her left‑hand side obstructions in the form of a utility which was further from her than the back of the vehicle where Courtney was standing and a bush and with the expectation or at least need to be careful for the presence of other children, not only on Courtney’s side of the road but on the other side of the road, having satisfied herself that Courtney would not move, not seeing any other child there, she looked away from Courtney, as we respectfully submit, she was bound to do having regard to the fact that she had been paying attention to Courtney for such a period of time that elsewhere in her area of responsibility her eyes needed to be cast to ensure that her responsibilities to other persons were properly discharged. 

In the Lolomanaia Case, your Honour, Justice Clarke – it is referred to in our written submission, I do not want to take you to it in any length – just the opposite, a factual situation presented the driver in that case.  Children playing on one side of the road and another child comes from the other side of the road.  The holding of the Court of Appeal in that case was that there were obligations owed to the child who came unexpectedly from the left‑hand side of the road.  In this very case, for some period of time in the preparation of the case it was thought that the young lad had come from the left‑hand side of the road rather than the right‑hand side of the road. 

The short point, and I accept, your Honour, it is a very short point, is that the trial judge and the judges in the Court of Appeal failed to pay attention to the Derrick v Cheung direction that one should not become over‑meticulous.  One should look at the situation confronting the motorist and apply a commonsense overall evaluation to determine whether that which was done was reasonable.

We know, sadly, that it was, with the benefit of hindsight, wrong.  But less than 20 kilometres an hour, having identified an area of concern, the little girl standing behind the Holden on the right-hand side of the road, very great care, we would submit, having been taken to keep that child under observation until the driver was satisfied that she would not move, having achieved that degree of satisfaction she looked elsewhere.

My learned friend will say, “She looked straight down the road, that’s the finding” et cetera, and that is what she said in her statement in July some time after the incident.  But she looked away from the child.  Her judgment about the behaviour of the child that could be seen was correct.  She could not proceed on the basis, we would respectfully submit, reasonably, without ensuring that her other areas of responsibility were also checked and paid attention to.

The reasoning of both the trial judge and the Court of Appeal proceed on the unstated proposition, we respectfully submit, that if the driver had done something different – that is, kept her eye on Courtney – then she would have seen the little boy run out and then the accident would not have occurred.  But that is using hindsight, and it is denying to the defendant the standard of reasonableness.

No, your Honours, you cannot hear every case that comes before the courts below in which the construct of reasonableness is applied and a particular view is taken, but in this Court in October Manley v Alexander will be heard in Perth.  It is a case which has received a grant of special leave, a case in which a man was lying in the middle of the road at night and the attention of the driver was taken to somebody on the side of the road.  Some 19 seconds or more were available to see the person who unexpectedly was lying in the middle of the road.  That is a very unusual case and a very long period of time.

This is a very usual case – suburban street, a dart-out type of problem, all involving about 2.3 seconds, and a little boy who was, on any view of it, must have been below the level of the front of the vehicle until he was – just a tuft of hair was seen.  We submit, your Honour, as we have put in our written submissions, particularly at paragraph 16, page 70 of the application book, the principal error made by the Court of Appeal is at 47 in Justice McColl’s judgment.  Her Honour erred in failing to detect within the evidence summarised in paragraph 39 of her Honour’s judgment, that the applicant did look to the left as, it is submitted, reasonable care required of her.

Can I take Your Honour to that, page 55, at line 20.  Her Honour is extracting evidence from the trial.  It is at about line 15, I will start, your Honours:

That’s right, but I was still cautious ‑

This is the defendant speaking –

about where I was, still cautious and careful about the situation I was in, having cars parked on both sides of the road.  I was cautious of the young girl, I did not see anybody standing with the young girl, no‑one there –

and importantly, your Honours –

and no‑one on my left‑hand side that I could see -

That can only mean that she did look to her left‑hand side because she was able to tell us that she could not see anyone.  The trial judge proceeded on the basis, and Justice McColl proceeded on the basis, that she did not look to her left, that she looked somewhere else, straight down the road, and that ought to have put her in a position whereby reasonable care being taken she would have seen the child dart out from behind his sister or behind the Holden.

It is a very short point, Your Honours.  We appreciate that it is only in the exceptional case that this Court will interfere in circumstances such as this, but it is a very common kind of, regrettably, incident.

KIRBY J:   It terrifies me.

MR MACONACHIE:   Indeed, Your Honour.  It is a very sad case, they all are.  It is a very common problem ‑ ‑ ‑

KIRBY J:   No, but I mean the fact that these are common problems.  We have to ultimately trust the trial courts, having said what the Court said in Derrick v Cheung.

MR MACONACHIE:   Yes.  But when it becomes apparent, Your Honour, that that advice and guidance by this Court is not being applied or not being properly applied, then it is incumbent upon this Court to again speak because otherwise, as is the case in New South Wales, you have inconsistent decisions – one Lolomanaia and the other this case.

KIRBY J:   What is the relevance of Alexander v Manley?  I think Justice McHugh raised that on the application for expedition, but when you actually look at it, it does not seem to have much to do with this case.

MR MACONACHIE:   Yes, it does.  The similarities are greater than the differences.  The essence of both cases ‑ ‑ ‑

KIRBY J:   That was a case of intoxication, was it not?

MR MACONACHIE:   It was intoxication on the part of the man lying on the road, but not the driver.

KIRBY J:   Yes, it is not a children’s case.

MR MACONACHIE:   No, it is not a children’s case, but it is a case in which a driver is confronted by a danger on the side of the road - in the Manley v Alexander case‑ someone who appeared to be intoxicated and in respect of whom the driver was required to be careful to ensure that that person did not do something that was unpredictable because there was, as I understand the facts of the case, an understanding by the driver that the person standing on the side of the road was in a diminished state of alertness.  It puts it into the same general category as a child standing beside the road who is unpredictable, someone who is intoxicated or otherwise less than alert is unpredictable and then there is another problem that arises because another area of responsibility for the driver unpredictably presents another problem. 

It is a question of the conflicting responsibilities in the Shirt v Wyong Shire Council calculus determining whether or not that which is or is not done is reasonable and we would submit that this case will give greater and better guidance to the trial courts and intermediate appellate courts than will Manley v Alexander because the facts of this case are more common and because the reasoning – both the trial judge and in particular the Court of Appeal proceeds on the basis that the defendant did not look to her left.  There is more than a suggestion of error, we would submit, and more than a suggestion that the considerations informing reasonableness have not been properly applied and for those reasons this Court should grant leave.

KIRBY J:   Yes, thank you, Mr Maconachie.  The Court does not need your assistance, Mr Burbidge, pleasurable though it always is to have that assistance.

MR BURBIDGE:   I was looking forward to it, your Honour.

KIRBY J:   Well, if you want to start?

MR BURBIDGE:   Well, I think I could go for 20 minutes, your Honour.

KIRBY J:   This application concerns another case of a small child struck by a motor vehicle, the child soon thereafter bringing a claim framed in negligence.  The trial judge upheld the claim against the applicant, holding that she had not kept a proper lookout when driving the vehicle.

The Court of Appeal of New South Wales, constituted by Justices McColl, Tobias and Basten agreeing, dismissed the appeal.  Now, the matter is before us on this application. 

The case, in our view, turned on its own facts.  The applicant, in a statement giving her account of the accident, acknowledged that she was aware that there were a number of children living in the street where the collision occurred and that they played on the road.  This concession enlivened the line of authority discussed by Justice Sugerman, President of the New South Wales Court of Appeal, in Mye v Peters (1967) 68 SR (NSW) 298 and in the later Court of Appeal decision in Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369.

The applicant said that once having seen a child she looked back to the road and “applied my full attention to the road ahead”.  The use made of this expression has been criticised.  However, whilst we understand the criticism, the interpretation of the concession made by the applicant in the circumstances was a matter primarily for the trial judge and for reconsideration of the facts by the Court of Appeal.

In these circumstances, and in the other circumstances elaborated in the evidence, the conclusion in favour of the respondent was, in our view, open to the courts below.  No special point of general principle is involved.  The issues of legal principle were expressed, relevantly to this case, in this Court’s recent decision of Derrick v Cheung (2001) 181 ALR 301.

The applicant asked that the case be linked with another, Alexander v Manley (2004) 29 WAR 194 in respect of which special leave to appeal has been granted. That appeal is listed to be heard in Perth in October 2005. However, were we to accede to that request we would be elevating suggested factual similarities in the cases to points of alleged legal principle. This cannot be done as Justice Hayne pointed out in Joslyn v Berryman (2003) 77 ALJR 1233 at 1262, paragraph [158].

Accordingly, special leave to appeal is refused.  It must be refused with costs.

Adjourn the Court.

AT 2.59 PM THE MATTER WAS CONCLUDED