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 20224/00TOBIAS JA
McCOLL JA
BASTEN JATuesday, 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
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- AGLC
- Tobin v Worland [2005] NSWCA 188
- Case
- [2005] NSWCA 188
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the appellant driver's speed, although within the prescribed speed limit, was nevertheless excessive in the circumstances, rendering it beyond the driver's capacity to avoid a collision with a child who suddenly emerged onto the roadway from between parked vehicles. This required the court to consider the standard of care expected of a reasonable driver, particularly in relation to the propensity for pedestrians, including children, to act unpredictably.
The Court of Appeal considered the principles established in *Derrick v Cheung*, which involved a similar scenario. The court acknowledged that while driving within the speed limit and in conformity with traffic flow is ordinarily reasonable, a prudent driver must take account of the possibility of pedestrians acting carelessly. The court noted that speed directly impacts a driver's ability to react and take evasive action. Applying these principles, the court found that the trial judge had properly appreciated the relevant considerations and made a value judgment regarding the breach of duty of care that did not warrant appellate intervention.
The appeal was dismissed with costs.
Orders
Orders of the court
(1) Leave to appeal allowed. (2) Notice of appeal to be filed within 7 days. (3) Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.