Tobin v Worland - [2005] NSWCA 188

NEW SOUTH WALES COURT OF APPEAL

CITATION: Tobin v Worland by his tutor John Worland [2005] NSWCA 188

FILE NUMBER(S):
40908/04

HEARING DATE(S): 25/05/05

JUDGMENT DATE: 31/05/2005

PARTIES:
Teresa Mary Tobin (Appellant)
Zachary Lucas Worland by his tutor John Worland (Respondent)

JUDGMENT OF: Tobias JA McColl JA Basten JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20224/00

LOWER COURT JUDICIAL OFFICER: Hislop J

COUNSEL:
J E Maconachie QC/J C Sheller (Appellant)
R J Burbidge QC/D J Price (Respondent)

SOLICITORS:
Carroll & O'Dea Solicitors (Appellant)
Stacks - The Law Firm (Respondent)

CATCHWORDS:
NEGLIGENCE - standard of care - collision between motor vehicle and infant pedestrian - whether driver negligent - whether accident avoidable if driver maintained proper lookout - EVIDENCE - use of expert evidence (D)

LEGISLATION CITED:
Supreme Court Rules 1970

DECISION:
(1) Leave to appeal allowed. (2) Notice of appeal to be filed within 7 days. (3) Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40908/04
SC 20224/00
TOBIAS JA
McCOLL JA
BASTEN JA
Tuesday, 31 May 2005

Teresa Mary TOBIN v Zachary Lucas WORLAND by his tutor John WORLAND

The respondent, (then aged 2 years 2 months) was injured when struck by the appellant’s motor vehicle. The accident took place in a residential street at about midday on a fine Sunday. The appellant was aware that there was a very young child (albeit not the respondent) on the roadside as she drove along it. The respondent ran from the area where that young child was standing. He ran almost completely across the road before being struck by the appellant’s motor vehicle. At a trial limited to liability the primary judge found the appellant had failed to keep a proper lookout, and had she done so, the accident could have been avoided. The appellant sought leave to appeal.

HELD per McColl JA (Tobias JA and Basten JA agreeing) granting leave to appeal and dismissing the appeal.

Drivers owe a duty of care to drive reasonably in the circumstances in which they find themselves.

Derrick v Cheung [2000] HCA 48; (2001) 181 ALR 301; Dennis v Keep [2002] NSWCA 227; Knight v Maclean [2002] NSWCA 314 applied.

Drivers who perceive a risk of children being present on a roadway must exercise particular care and caution having regard to the propensity of children to behave unpredictably, with extreme disregard for their own safety.
Mye v Peters (1967) 68 SR (NSW) 298; Settree v Roberts [1982] 1 NSWLR 649; Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369; Lolomanaia v Rush (1996) 24 MVR 128; Gunning v Fellows (1997) 25 MVR 97 referred to.

The appellant failed adequately to take into account the perceivable risk posed by the presence of the young child on the roadway as well as the risk that another child may emerge from the same area.

Derrick v Cheung [2000] HCA 48; (2001) 181 ALR 301; Knight v Maclean [2002] NSWCA 314 referred to.

The primary judge did not err in finding that the appellant had been negligent in failing to observe the respondent earlier than she did.

Knight v Maclean [2002] NSWCA 314 referred to.

The primary judge was entitled to rely on expert calculations which supported the respondent’s contention that if the appellant kept a proper lookout the accident was avoidable. Such calculations assist in the reconstruction of the accident and resolution of the issues.

Orders

Leave to appeal allowed.
Notice of appeal to be filed within 7 days.
Appeal dismissed with costs.
************

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40908/04
SC 20224/00
TOBIAS JA
McCOLL JA
BASTEN JA
Tuesday, 31 May 2005

Teresa Mary TOBIN v Zachary Lucas WORLAND by his tutor John WORLAND

Judgment

TOBIAS JA: I agree with McColl JA.
McCOLL JA: The claimant seeks leave to appeal from a decision of Hislop J in which his Honour determined, in a separate trial of the issue of liability pursuant to SCR Pt 31 r 2, that the claimant had been negligent in failing to keep a proper lookout while driving her motor vehicle which struck the opponent (then aged two years and two months) when he ran across Adjin Street in Wagga Wagga: Worland v Tobin [2004] NSWSC 113. As I am of the view that leave to appeal should be granted I shall refer to the parties as appellant and respondent respectively.
Statement of the case
The following facts recorded by the primary judge were either the subject of express agreement or not in dispute:
“1 On 1 December 1991 the plaintiff sustained personal injuries when, whilst crossing Adjin Street Wagga Wagga, he was struck by a car driven by the defendant. The plaintiff was then aged two years and two months (date of birth: 1 October 1989).
…
3 Adjin Street is a residential street in Wagga Wagga. At the time of the accident the relevant section of the street was straight and level and ran north/south, it had a bitumen surface and was kerbed and guttered with the distance from kerb to kerb measuring 8.95 metres. There were no lane markings. The speed limit was 60 kilometres per hour.
4 The plaintiff and his sister, Courtney, who was then approximately four and a half years old (date of birth: 10 May 1987) had stayed overnight at number 36 Adjin Street which was situated on the western side of the street. On the morning of 1 December 1991 the plaintiff’s parents came to pick up the children from that address. They parked their vehicle, a 1983 Holden Commodore sedan, some metres south of the driveway of number 31 on the eastern side of Adjin Street, facing south. A utility was parked on the western side of the street. The vehicles were parked virtually opposite each other, the front of the utility being a little north of the rear of the Holden.
5 The parents entered the house and remained there for some time. At about 12.45 pm the plaintiff and Courtney left number 36 and crossed Adjin Street to the Holden. The weather conditions were dry and sunny. The children were unaccompanied. The Holden was locked. The children did not have the keys to it.
6 Meanwhile the defendant (date of birth: 29 November 1967) had reversed her husband’s car, a 1985 Magna sedan, out of the driveway of her home at number 53 Adjin Street and was driving north along that street. She was alone in the car. The plaintiff ran out from behind the rear of the Holden and was struck by the Magna. He impacted the front of that vehicle about 0.4 metres from the nearside.”
The primary judge noted that there were principally two issues for determination. First, whether the appellant was negligent in failing to observe the respondent earlier than she did, and secondly, whether if she had seen the respondent earlier, the collision could have been avoided.
His Honour directed himself (at [11]) that the first issue turned upon whether the respondent had proved that the appellant had not acted in accordance with her duty of reasonable care: Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13]. He referred to Tsuji v Metromix Pty Ltd (1998) 28 MVR 401 at 403 where Priestley JA held that the driver’s duty of care is to drive reasonably in the circumstances in which they find themselves.
He noted (at [12]) that while the standard of care is always that of the reasonably prudent driver, particular circumstances might call upon that driver to exercise greater care and caution than usual. One of those circumstances is the presence of young children on or near the road which fact should put a prudent driver on notice, not only of the risk that the observed children may run out upon the road, but also of the possibility of the presence of unobserved children who may do likewise: Lolomanaia v Rush (1996) 24 MVR 128.
His Honour also observed (at [14]) that while a driver might be entitled to take into account “that persons with the appearance of normal adults will take normal precautions for their own safety unless there is something to indicate to the contrary and that it is reasonable for a driver to conclude that a person with the appearance of a normal adult who has stopped and who is looking straight at the driver’s vehicle is fully aware of the presence of the vehicle and has stopped to wait to permit the vehicle to proceed (Ma v Keane (2003) 38 MVR 212 at [26], [27]) this is not the case in respect of very young children who tend to act unpredictably, a propensity well known to drivers (Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 at 374, 384) and admittedly known to the defendant”.
The primary judge recorded the following evidence given by the appellant:
“9 The defendant gave evidence her vehicle speed was about thirty to forty kilometres per hour when, about three house blocks from her home, she observed a very young girl (Courtney) standing on the road about half a metre or less from the rear of the Holden. On observing Courtney she initially slowed down, but then, having formed the impression Courtney was going to stay where she was, perhaps because Courtney was looking her way, the defendant slowly accelerated. She had observed no person other than Courtney until she saw a “tuft of hair” “on my bonnet” approximately level with the left hand headlight. She had continued to accelerate slowly up to the time she became aware of the presence of the plaintiff. I accept this evidence, subject to the possibility the defendant may have travelled a little more than three house blocks before first seeing Courtney.
…
13 The defendant was unable to offer any explanation for not seeing the plaintiff earlier than she did. She conceded there was no difficulty in terms of vision, no oncoming vehicles to be contended with, no one on her left hand side and that the area in which Courtney was located was a primary area of concern not only because the actions of a child as young as Courtney were unpredictable but also because her presence might mean other children were also present but unseen. The defendant, in evidence, said she did not recall if she had looked away after observing Courtney though in a statement made on 22 July 1992 she said she had looked back to the road.”
Insofar as the first issue is concerned his Honour held:
“15 In my opinion, reasonable care required the defendant to continue to keep Courtney and the area at the rear of the Holden under observation until she had passed the area of possible conflict. There was no reason on the evidence why this could not have been done. In my opinion, the inference is inescapable that the defendant failed to keep Courtney and the area at the rear of the Holden under observation when reasonable care required she should have done so. If she had done so she could not have failed to see the plaintiff as he emerged from behind the rear of the Holden. I find the plaintiff has established there was a lack of reasonable care on the part of the defendant.”
Dealing with the second issue, the primary judge referred to the expert evidence called by the respondent of a consulting traffic engineer, Mr Stuart-Smith. Mr Stuart-Smith opined that at speeds from twenty to forty kilometres per hour the appellant, had she observed the respondent when he became fully visible, would have had sufficient time either to stop before hitting him or to slow sufficiently to enable him to clear the last 0.4 metres of the front of the vehicle.
His Honour concluded (at [18]) that the lateral position of the appellant’s Magna was that it “was on the left hand side of the road at the relevant time.” He observed that “[t]his would accord with what one might expect where a child of tender years had been observed on the opposite side of the road.” The appellant does not challenge this finding.
His Honour then referred to Mr Stuart-Smith’s evidence concerning the typical running speed for boys aged two to three years and the appellant’s probable (albeit conservative) perception/reaction time of 1.5 seconds and held:
“21 I accept the opinion of Mr Stuart-Smith and find that had the defendant been keeping a proper lookout she would have had sufficient time either to stop before impacting the plaintiff or to slow sufficiently to enable the plaintiff to clear her vehicle before impact.”
His Honour was also assisted in reaching this conclusion by the appellant’s expert witnesses as to whom he observed:
“22 I also accept the conclusion of Mr Griffiths, a road safety researcher qualified on behalf of the defendant, that had the defendant been observing Courtney as she approached her she would have seen the plaintiff in time to stop. I prefer the evidence of Mr Stuart-Smith and the conclusion of Mr Griffiths to the opinion of Mr Jamieson, a consulting forensic engineer, who, whilst challenging the assumptions made by Mr Stuart-Smith, accepted that the information available to him did not exclude the possibility the accident was avoidable.”
The respondent had also argued that the appellant had been negligent by travelling at a speed which was excessive in the circumstances. His Honour dealt with that argument as follows:
“24 The speed at which the Magna was travelling after Courtney was seen was not established with certainty. However Mr Stuart-Smith accepted in cross-examination that the evidence supported the conclusion that the probability was that the speed of the Magna was in the order of 20 kilometres per hour or a little more and that this was more likely than a speed of 30 or 40 kilometres per hour. As a speed of 20 kilometres per hour or a little more was such that the defendant could have avoided collision with the plaintiff had she been keeping a proper lookout I find the plaintiff has not established the defendant’s speed was excessive.”
His Honour was also of the opinion (at [25]) that the appellant was in breach of her duty in accelerating before reaching Courtney and that she should have had her foot hovering over the brake rather than on the accelerator. However as he had found the appellant could have avoided the collision if she had been keeping a proper lookout, he concluded that this breach was not causative of the respondent’s injuries.
Arguments on appeal
Mr J Maconachie QC, who appeared for the appellant with Mr J Sheller on appeal but not at trial, submitted that the primary judge fell into error by concluding that the appellant was required “to continue to keep Courtney and the area at the rear of the Holden under observation until she had passed the area of possible conflict.” In another submission which he acknowledged overlapped with his first proposition, Mr Maconachie contended that the primary judge was also in error in considering the issue of breach of duty in failing to recognise, in accordance with Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, the conflicting responsibilities the appellant had to keep other areas of the road under observation. He contended that the primary judge “as good as denied” the appellant’s obligation in this respect. As I understand Mr Maconachie’s argument, he contended that it was an available inference that the appellant looked momentarily to her left during which time the respondent ran across the road and was hit by her car.
Mr Maconachie argued that the primary judge’s conclusion that there was no reason on the evidence why the appellant could not have continued to keep Courtney and the area to the rear of the Holden under observation exposed serious error in the following respects:
(a)the appellant had Courtney under observation for 100 metres or more;
(b)she was aware that it was not uncommon for children to play in the street;
(c)she satisfied herself that Courtney would remain stationary, and that conclusion proved to be correct;
(d)her motor vehicle was positioned with the offside wheel of her motor vehicle either upon or slightly to the left-hand side of the hypothetical centre-line;
(e)accordingly, the left-hand side of her vehicle was significantly closer to the off-side of the utility parked on the western, or left-hand, side of the street than was the off-side of her vehicle to the Holden parked on the eastern, or right-hand side of the street;
(f)therefore, another, and equally if not more important, area of responsibility for her was the area in front of, and to the north of, the utility where there was a tree and a driveway, an area which she could not have had under observation for some considerable time because her attention had been focused on Courtney;
(g)Mr Stuart-Smith testified that “We generally accept that drivers are aware of up to 10° either side of a central line of vision”. Accordingly, if the appellant looked to her left to check the area of the utility, the rear of the Holden was out of view.
Mr Maconachie sought to support his argument by reference to a passage in Clarke JA’s judgment in Lolomanaia v Rush (at 134) where his Honour observed that the defendant, who was aware of the presence of children on the right hand side of the road, ought also have been “wary of the left because, as she could see, the eastern footpath opposite the place where the children were was obscured to her and she could not exclude the possibility that there were also children there”. Clarke JA concluded that the defendant was required, in exercising reasonable care, to proceed carefully, particularly as she approached the point at which the children were.
Although as originally formulated, Mr Maconachie’s argument appeared to be that the primary judge had, in effect, concluded that the appellant was required to keep the area behind the Holden under continuous observation at the expense of keeping her eye on the road ahead, he conceded that the judgement could not be read that way. Rather, the primary judge was to be understood as having concluded that, consistent with her obligation to observe the road ahead, the appellant was required to pay particular attention to the area behind the Holden where she was already aware there was one very young child.
Mr Maconachie’s third argument was that the primary judge erred by making an over-meticulous evaluation, rather than 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. He relied upon Derrick v Cheung (at [14]) and Dennis v Keep [2002] NSWCA 227 at [18].
He contended that the primary judge only reached his conclusion that the appellant had failed to keep a proper lookout by impermissibly relying upon Mr Stuart-Smith’s evidence as to running, reaction and stopping times.
Mr Maconachie’s written submissions advanced a number of criticisms of the assumptions upon which Mr Stuart-Smith relied to reach his conclusion that the appellant should have been able both to see the respondent and stop in time to avoid a collision. He argued that:
“… [G]iven that an extremely short time, on any view of the matter, was available to the appellant to observe the respondent between the time he became visible from behind the Holden motorcar and/or Courtney until the time he was in a position in front of the right-hand side of the appellant’s motor vehicle, and then react, any attempt by calculation to determine what the appellant ought not, to have observed is a triumph of form over substance.”
The respondent’s principal response to the appellant’s first two arguments was that that was not how the appellant had conducted her case before the primary judge and, in particular, to observe that the appellant had not given any evidence that she was looking to the left at the time of impact. Nor, the respondent contended, did the argument deal with factual findings by the primary judge which “stood in its way”. These included, in summary, the fact that the appellant first saw Courtney when about 3 house blocks from her home and that she was unable to offer any explanation for her failure to see the respondent as he crossed from the right hand side of the road, all but reaching the passenger side of the appellant’s vehicle before she struck him.

Mr R Burbidge QC, who appeared for the respondent with Mr D Price, argued that the case fundamentally turned upon the appellant’s ability to see to the left and right without losing sight of her vision of the road ahead.
He also pointed out in his written submissions that Mr Stuart-Smith’s assumptions as to the lateral position of the appellant’s car on the road, the speed at which the respondent was running and the appellant’s perception/reaction time were shared by the appellant’s road safety researcher and were supported by the evidence.
Consideration
In Derrick v Cheung the respondent was injured when she moved suddenly out on to the roadway in Victoria Avenue, Chatswood into the path of oncoming traffic and was struck by the appellant’s car. When she emerged from between two parked vehicles the appellant braked and tried to avoid the respondent by veering to her right. There was nothing to suggest that her reactions were unduly slow. Her vehicle skidded and collided with the respondent, throwing her to the road and causing her serious injuries. The accident took place on a Saturday morning at about 9.00 am. There was a fairly steady stream of traffic travelling on each side of the road at the time of the accident. The estimates of the speed of the appellant's car when she first saw the respondent was about 40 to 50 kilometres per hour. The speed limit on that stretch of Victoria Avenue was 60 kilometres per hour.
The primary judge found for the respondent accepting a submission that, “in all of the circumstances, the appellant's speed of 45 to 50 kilometers per hour (despite being well within the prescribed speed limit) was excessive, because, his Honour said, at that speed 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”: Derrick v Cheung at [8].
An appeal to the Court of Appeal (Stein and Fitzgerald JJA, Davies AJA dissenting) was dismissed: Derrick v Cheung [1999] NSWCA 341; (1999) 29 MVR 351. The majority referred to passages in Mahoney JA’s judgment in Stocks v Baldwin (1996) 24 MVR 416 at 418 in which his Honour observed that the propensity of pedestrians sometimes to act carelessly occurred with sufficient frequency to require a prudent driver to take account of it. Their Honours also referred to his Honour’s remarks (at 419) concerning the effect speed “has or may have upon what the driver will be able to do if such an eventuality occurs”. While their Honours accepted (at [5]) that it was “questionable whether the driving standards required by the statements in Stocks v Baldwin are compatible with current driving practice in Sydney and its environs, or indeed always practical in the traffic conditions which exist”, they held (at [6]) that “[i]t does not necessarily follow that they are a counsel of excessive caution or otherwise require an unreasonable standard of care”. They accepted (at [7]) that “the slower the vehicle, the greater the opportunity that exists [to avoid colliding with a pedestrian]” and acknowledged that “travelling within the designated speed limit and in conformity with the traffic flow is ordinarily reasonable [and that] to do otherwise would often create risks”. They were of the view that the trial judge appreciated these considerations, and that, in the circumstances of making the value judgment involved in the finding of a breach of duty of care (Stocks v Baldwin at 420), the case did not warrant appellate intervention.
In dissent Davies AJA said:
“16 The facts of the present case were different from those in Stocks v Baldwin for there was no particular perceivable risk which the appellant should have taken into account but did not. She drove with other cars at a modest speed, 45-50km/h, keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout. The appellant’s driving was appropriate in the circumstances. For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and a proper response to the traffic conditions on the day. For the appellant to have dawdled along Victoria Avenue when no particular danger was apparent would not have been appropriate for it could have caused disruption.”
In the High Court Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ in their joint judgment referred (at [10]) to these passages from the Court of Appeal’s judgment and said:
“11The submission of the appellant was that the Court of Appeal should have intervened to reverse the decision of the trial judge because there was no basis upon which his Honour could properly hold that there had been any want of care on the part of the appellant. There was no relevant dispute about the facts of the accident and it was common ground that this was not a case which turned upon the impression made on the trial judge by any particular witness or witnesses. Nor was it a case where the incident occurred near to a school or bus stop or other place where reducing speed or special caution in driving might be required or prudent.
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.
14Stocks v Baldwin (1996) 24 MVR 416, to which the Court of Appeal referred, depended on its own facts. The observations of Mahoney P were made with particular reference to the facts under consideration in that case. In any event, even if his Honour's remarks were intended to lay down general rules, they were not ones to be applied here. What was unlikely in this case was that an unattended infant of such tender years would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision was, to all intents and purposes, unavoidable.
15No negligence on the part of the appellant was established.” (emphasis added)
In Dennis v Keep (at [18]) Foster AJA (with whom Heydon JA and Bergin J agreed) referred to Derrick v Cheung as indicating that in cases involving collisions between motor vehicles and pedestrians, “a common sense overall appraisal of the situation confronting a motorist, travelling within the appropriate speed limits, when a pedestrian enters his or her line of travel, is required, rather than an over-meticulous evaluation of what might have occurred if he or she had been driving at a lesser speed”.
In Knight v Maclean [2002] NSWCA 314 Heydon JA (with whom Meagher JA and Young CJ in Eq agreed) allowed an appeal from a judgment for a plaintiff who sustained physical injuries when she was struck in lane three of Parramatta Road (the lane nearest to the median strip) by the defendant’s motor car as the defendant drove along the road which the plaintiff was attempting to cross on foot. The accident occurred at about 9.10pm about twenty metres to the east of an intersection. The trial judge had held that the appellant was negligent because (inter alia) “[t]he long experience of mankind [is] that intersections are places where one is more likely to encounter pedestrians” and he should “drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue”: Knight v Maclean at [11].
The respondent in Knight had sought to extract from Sibley v Cais [1967] HCA 43; (1967) 118 CLR 424 at 427 the proposition that “reasonable care requires a driver as he approaches an intersection or place where it is reasonably foreseeable that pedestrians may encroach on the road from either side to keep his vehicle so far in hand that he can bring it to a halt or otherwise avoid an impact where it may reasonably be concluded that if this is not done the converging paths of vehicle and pedestrian are such that a collision may be expected”: Knight v Maclean at [57]. After referring to Derrick v Cheung, Heydon JA dealt with that submission as follows:
“68 It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge’s test would entail that duty.
69 The plaintiff bore the burden of proving negligence on the part of the defendant. This meant that in substance the plaintiff bore the burden of proving that the defendant failed to keep a proper lookout and of proving that if he had kept a proper lookout, he would have seen the plaintiff in sufficient time to avoid the collision. These burdens could not be discharged by the mere fact of the collision. To the extent that the nature of the locality at the time of the accident called on the defendant for an explanation as a practical matter, an acceptable explanation consistent with keeping a proper lookout, for the defendant seeing the plaintiff only at the last moment may be inferred from the circumstances. The circumstances supporting that inference include the absence of anything in particular to put the defendant on notice of the need to guard against pedestrians suddenly crossing the road, the nature of Parramatta Road as a busy main road calling for close attention to the behaviour of vehicles in front, and the character and speed of the defendant’s driving, in relation to other vehicles, as appropriate to the traffic conditions.” (emphasis added)
In statements made by the appellant in March and July 1992, at a time when she accepted her recollection was better than at the time of trial, the appellant gave her account of the accident. In her July 1992 statement she said (inter alia):
“At about 12.30 in the afternoon of Sunday 1/12/91 … I left my address … I was alone in vehicle COZ 330 … I reversed out of the driveway and the rear of the car went to the right and I then just drove straight ahead … I accelerated slowly, I was aware there were a number of children living in the street and that they played on the roads.
I had only gone about three house blocks and my speed would have been only about 30 to 40 kilometres per hour. I noticed a young girl on the road between two parked cars which were on the right hand side of the road. I was not sure if the girl was going to stay where she was so I watched her and applied the brakes lightly. I slowed to 10 to 20 kilometres. I then realised that the girl was not moving so I then looked back to the road and applied my full attention to the road ahead.
I took my foot off the brake and placed it back on the accelerator and a very short time, I would say at the most one second later, I saw a tuff of blond hair just to the left of the centre of the car. The tuff of hair appeared to be right on the bonnet. I put my foot back on the brake. As I got my foot on the brake I heard a thump. I applied the brake and brought the vehicle to a stop. I believe that I stopped in about a metre. As far as I recall the brakes did not lock up.” (emphasis added)
In her March 1992 statement the appellant gave substantially the same version as in her July 1992 statement save that she said she had slowed her car down “in case [the small girl] ran across the road” and she made no reference to having looked back to the road after she formed the opinion that the small girl was not going to move.
By the time the matter came to trial it appears to have been common ground that there was, in fact, no other vehicle in front or behind the appellant or that was coming towards her and which would or could have diverted her attention from the area of the road behind the Holden.
Before the primary judge the appellant gave the following evidence in chief:
“A.         … As I drove down I noticed a young girl to the right of me.
Q.           Pausing there, can you remember now where she was?
A.She was actually standing on the road to the rear of a motor vehicle.
Q.           Anything else you can remember about her?
A.I noticed that she was really young, no, I can’t recall anything else.
Q.           Did you notice anyone with you?
A.           Absolutely not.
Q.           What did you do?
A.I slowed down, almost right down and while I watched her just to see what she was going to do, whether she was going to step out or not and when I saw she had acknowledged me and I had seen her, that it was safe.
Q.When you say she acknowledged you, what do you mean? What happened?
A.The young girl, it was like in a split second, acknowledged that she was going to stay where she was.
Q.           What happened, what did you see?
A.           I saw her face.
Q.You saw her face, and did you form some opinion as a result of seeing her face?
A.I formed the opinion that she was going to stay where she was.” (emphasis added)
In cross-examination the appellant accepted that the two statements she had made in 1992 appeared to set out what had occurred in 1991.
She then gave the following evidence:
“Q.Now, would you agree that the most dangerous time in travelling along Adjin Street occurred when passing between two parked cars opposite each other on either side of the road?
A.           Yes, that would be a more worrisome time to travel.
Q.Would that be because of the possibility of a child of the kind that you have acknowledged to be present might come out from behind one or other or both cars?
A.           Yes.
Q.           Right. And this was something that you were aware of?
A.           Yes.
Q.And the presence of one child would alert you, would it not, to the possibility of other children?
A.           Absolutely.
Q.Right. Now, you looked at the child on the right-hand side of the road?
A.           Yes.
Q.And you made a decision that the child was not going to run across the road in front of you?
A.           That’s right.
Q.It was something that you assessed as a matter of driver decision-making, was it?
A.           Yes.
Q.All right. And the child, you would accept, was about four years of age?
A.She was young, I didn’t know her age at the time but she was very young.
Q.And of course such a child could not be relied upon to act rationally, you would agree?
A.           Yes.
Q.And as the mother of small children yourself you would know that children put their head down and run across roads?
A.           Yes.”
…
Q.Well now, if I have followed you correctly you have told us that you looked at the child but you did not tell us whether you looked away. Did you look away after that or not, or do you not remember?
A.           I don’t recall.
…
Q.Then you made the decision that the child was apparently not moving and you thought was not going to move, correct?
A.           Yes.
…
Q.           So you accelerated from your speed?
A.I had slowed at that time and then I accelerated because there was acknowledgment there between myself and the young child that she had seen her and I acknowledged that she saw me, that she wasn’t going to move out on to the road.
Q.           You have told us that is why you made the decision?
A.           That’s right.
Q.           That she did not pose an immediate danger, correct?
A.           Yes.
…
Q.And of course she was a young child who was unpredictable. Do we agree on that?
A.           Yes.
Q.All right. But in any event you thought that it was safe, so far as her presence was concerned, to accelerate your car, is that so?
A.           That’s right, that’s right.
Q.But you would recognise that the presence of one child might mean that there are other children present, do you agree?
A.           Yes, yes I do.
Q.But you accelerated into the position between the two parked vehicles, did you not?
A.           Yes, I did.
Q.You heard Courtney, the girl in question, say that her brother ran across the road after leaving her from an east to west direction, correct?
A.           Yes.
Q.Well now, you would accept, would you not, that if that evidence is to be accepted then the child ran right the way across the face of your vehicle at least almost to the other side. Do you agree?
A.           Yes, yes.
Q.           And you never saw the child?
A.I did not see the child, at all. At all. The only time I saw the child was the tuft of hair on my bonnet. That was it. I did not see the child.
Q.You said that you were slowly accelerating, does that mean that you were building up speed?
A.That’s right, but I was still cautious 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 no-one on my left-hand side that I could see, so I accelerated, but slowly to go through. I was still cautious for the young girl there especially because of that behaviour, unpredictable behaviour. So it was very cautious.
Q.So do we understand that you made a decision that there was nobody on the left-hand side of the road?
A.           That’s right.
Q.I see. Well then, a primary area of concern as a prudent driver was, was it not, that area in which the child was located, the known child?
A.           Yes, that’s right.
Q.All right. Well then you would accept, would you not, that looking at that child you would also have had vision of the roadway directly in front of you?
A.           That’s right.
Q.And if one accepts the evidence of Courtney, her brother was at that very time crossing the road immediately in front of your motor vehicle, correct?
A.           That would be correct.
…
Q.And of course, the fact of the matter is that the only vision that you ever had of the child was when he had reached approximately the left-hand headlight of your car?
A.           That’s right.
Q.You indeed had no impression whether he was travelling left to right or right to left, simply no idea where the child had come from?
A.           No idea where the child came from.
Q.Do you accept on the evidence of Courtney the child must have passed right across your vision?
A.           No, I don’t.
Q.Well then, where did he come from?
A.           I don’t know.
Q.He was there, there is no doubt about that, is there?
A.           No, there is no doubt.
Q.You must have anxiously examined the situation in your own mind over a considerable period of time?
A.           Absolutely.
Q.Well then, did you ever come up with an answer as to where the child came from?
A.Only in my mind. I, I don’t know, I do not know where the child came from. I did not see. The only person on the street at that time when I was driving the car was the young girl.
Q.But that is not true, is it?
A.In my mind the only person I saw on the street was the young girl. I did not see anybody else.
Q.Well, nobody is querying that, we understand you did not see the child. What I’m asking you to accept is that the child was obviously there?
A.I accept that the child was obviously there. The accident has happened and I accept that.
Q.Let me be as blunt as possible. Can you offer any explanation for a child passing across the front of your vehicle without you seeing him?
A.           No, I cannot.” (emphasis added)

The qualification expressed in Derrick v Cheung (at [11]) that the incident in that case did not occur “near to a school or a bus stop or other place where reducing speed or special caution in driving might be required or prudent” reflected the long established proposition that “when young children are in the vicinity of a road or reasonably to be expected to be in the vicinity, a greater standard of care and caution is demanded of motorists”: Gunning v Fellows (1997) 25 MVR 97 at 98 per Beazley JA (with whom Mason P and Cole JA agreed). The greater standard of care and caution demanded of motorists in such circumstances recognises the “well known propensity” of children to “move suddenly out onto the road”: Settree v Roberts (per Hope JA in a passage which does not appear in the report of the case at [1982] 1 NSWLR 649 but was quoted by Clarke JA in Lolomanaia v Rush (at 133)).
As Kirby P said in Mitchell v Government Insurance Office of New South Wales at 372 the special care drivers are required to take when they know, or should know, that children are near the highway “has been explained in terms of imputed knowledge of the tendency of children to act in ways which adults might regard as irresponsible”.
Both these passages were cited by Clarke JA in Lolomanaia v Rush (at 133) where his Honour also referred to Sugerman P’s judgment in Mye v Peters (1967) 68 SR (NSW) 298 which, his Honour observed, emphasised:
“[t]he knowledge that adult people have of the behaviour of children, including the propensity of young children to act with extreme disregard for their own safety.”
The High Court’s approval in Derrick v Cheung of Davies AJA’s dissenting judgment in the Court of Appeal accepted, as Heydon JA noted in Knight v Maclean (at [63] – [64]), the significance in cases concerning collisions between motorists and pedestrians of there being a “perceivable risk” which the motorist was required to take into account but did not. In such circumstances, it was appropriate for the High Court to conclude that although the motorist in that case was looking straight ahead and did not realise that the view to her left was obscured so that she was unable to see the plaintiff emerging through a row of parked cars adjoining the lane along which the defendant was driving, that conduct was not unreasonable in the circumstances.
The facts in this case are entirely different. The appellant was driving along a quiet residential street at midday on a Sunday. The weather was fine. She was aware that children played in the area, frequently on the roads. Moreover, before she had travelled very far along her journey she saw a small child standing on the road behind a car. She was aware that that child’s presence might mean that other children were present but unseen. She was also aware of the propensity of very young children to act unpredictably. There was no other traffic which required her attention.
It is clear from her 1992 statements as well as the extracts from her evidence at trial which I have set out, that there was a “perceivable risk” which the appellant was required to take into account, but apparently did not, that not only Courtney, but also another child might emerge from the area behind the Holden. She was also required to be aware that such a child might behave in the unpredictable and irresponsible manner to which children’s youth and immaturity impels them. In such circumstances, unlike in Derrick v Cheung, it was not reasonable conduct on her part to focus her “full attention” on the road ahead, as she said she did in her statement in July 1992. Rather, as the primary judge found, it was in my view incumbent upon her to pay particular regard to the area where Courtney was standing and to be alert to the risk that a child, whether it be Courtney or some other child which she accepted might be in the vicinity but unseen, might suddenly emerge into a position of danger.
In my view, the primary judge’s conclusion that had the appellant kept the area to the rear of the Holden under observation she could not have failed to see the respondent as he emerged from behind that vehicle was entirely open to him. It must be borne in mind that prior to the point of impact the respondent had crossed the oncoming traffic lane as well as the lane in which the appellant was driving and nearly reached the other side of the road. It was easy to understand, in such circumstances, why the appellant was unable to offer any explanation for not seeing the respondent earlier than she did. This was not a case where the circumstances of the accident afforded the appellant an acceptable explanation for not seeing the respondent consistent with keeping a proper lookout: cf Knight v Maclean at [69]
It might be accepted, as Mr Maconachie submitted, that the appellant was also required to be alert to the possibility that a child might equally have emerged from the opposite side of the road to that from which the respondent ran. In cross-examination she said that there was “no one on my left hand side that I could see”. It was suggested by Mr Maconachie that to be able to say that, she must have looked to her left which was consistent with her responsibility to be so alert and that it was at that moment (when she was looking to her left) that the accident occurred. However, it was not the appellant’s case that she must have or, indeed, did look away from the “full” attention which, according to her July 1992 statements, she was applying to the road ahead. The only evidence she did give was that she did not see the respondent until he was at about the nearside headlight of her vehicle.
In my view the primary judge did not err in concluding that the appellant had been negligent in failing to observe the respondent earlier than she did.
I turn to the appellant’s second complaint. Mr Maconachie’s argument that the primary judge misused Mr Stuart-Smith’s evidence at the expense of a common sense appraisal of the situation confronting the appellant does not appear to reflect the approach taken at trial. The appellant locked horns enthusiastically with Mr Stuart-Smith’s opinion. Her legal representatives engaged two experts, Mr Griffith and Mr Jamieson. As the primary judge observed (at [22]), Mr Griffith accepted that had the appellant being observing Courtney as she approached her she would have seen the respondent in time to stop. Mr Jamieson at least accepted that on the information available to him he could not exclude the possibility that the accident was avoidable.
Mr Maconachie appeared, at times, to submit that Derrick v Cheung and Dennis v Keep required the primary judge to eschew reference to calculations such as those which Mr Stuart-Smith (and, as I have said, the appellant’s own experts) carried out. Leaving aside the fact that the appellant did not object to Mr Stuart-Smith’s evidence, I can see nothing in those decisions which would support this submission. Such calculations are commonly used in motor vehicle cases and provide an invaluable aid to the reconstruction of the accident and the resolution of the issues.
I can see no error in the primary judge’s reliance upon Mr Stuart-Smith’s calculations in reaching his conclusion that had the appellant been keeping a proper lookout she would have had sufficient time either to stop before hitting the respondent or to slow sufficiently to enable him to clear her vehicle before impact. The primary judge, having observed Mr Stuart-Smith giving his evidence during which he was cross-examined as to his assumptions, concluded (at [17]) that those assumptions were both open to him and appropriate. The appellant pointed to passages in the transcript where she contended that Mr Stuart-Smith had made concessions which demonstrated the “brittleness and the indecision of the data on which he made his calculations”, but did not elaborate on that proposition either in written submissions or orally. His Honour must have been fully aware of those concessions but rejected them or, at least, found that they did not deprive Mr Stuart-Smith’s evidence of weight. This is hardly surprising if, as the respondent asserts and the appellant does not gainsay, one of the appellant’s experts made the same assumptions and, in any event, ultimately expressed the same opinion as Mr Stuart-Smith.
In my view the primary judge was entitled to rely upon Mr Stuart-Smith’s evidence and conclude that had the appellant been keeping a proper lookout the accident could have been avoided.
Orders
I propose the following orders:

(1)          Leave to appeal allowed.
(2)          Notice of appeal to be filed within 7 days.
(3)          Appeal dismissed with costs.

BASTEN JA: I agree with the orders proposed by McColl JA and with her Honour’s reasons.
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LAST UPDATED: 16/06/2005