Warth v Lafsky - [2014] NSWCA 94

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Warth v Lafsky [2014] NSWCA 94
Hearing dates: 28 February 2013
Decision date: 01 April 2014
Before: McColl JA at [1], Preston CJ of LEC at [146], Tobias AJA at [147]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed with costs.
(3) Remit the proceedings to the District Court to assess the damages to which the respondent is entitled.
(4) Any application to vary the costs order to be filed and served within 7 days supported by written submissions not to exceed 5 pages.
(5) Any written submissions in response to the application to be filed and served within 7 days of receipt of the application supported by written submissions not to exceed 5 pages.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TORTS - negligence - motor vehicle accident - collision between motor vehicle and child on scooter - where driver driving at excessive speed - whether driver failed to keep proper lookout

TORTS - negligence - motor vehicle accident - causation - whether driver could have stopped vehicle before impact if driving at reasonable speed and keeping proper lookout - whether any negligence on driver's part a necessary condition of occurrence of harm - S 5D Civil Liability Act 2002 (NSW) - whether accident inevitable
PRACTICE - amendment - where appellant sought leave at hearing to amend notice of appeal - whether leave to amend should be granted
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act (NSW) 2005
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Adeels Palace Pty Ltd v Moubarak; [2009] HCA 48; (2009) 239 CLR 420
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Blacktown City Council v Hocking [2008] NSWCA 144
Derrick v Cheung [2001] HCA 48; 181 ALR 301
Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 88 ALJR 76
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Gunning v Fellows (1997) 25 MVR 97
Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 623
Leishman v Thomas (1957) 75 WN(NSW) 173
Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413
Marien v Gardiner [2013] NSWCA 396
Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179
Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Stuart v Walsh [2012] NSWCA 186
Turkmani v Visvalingam [2009] NSWCA 211; (2009) 53 MVR 176
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648
Category: Principal judgment
Parties: Bryn Benjamin Albert Warth - Appellant
Kallan Lafsky by his next friend Clayton Lafsky - Respondent
Representation: Counsel: P J Deakin QC and P Nolan - Appellant
D R Campbell SC and S Longhurst - Respondent
Solicitors: Sparke Helmore Lawyers - Appellant
Slater & Gordon Lawyers - Respondent

File Number(s): 2012/10171 and 2012/73747
Publication restriction: No
Decision under appeal

Citation:

Lafsky by his next friend v Warth (District Court (NSW), Delaney DCJ, 23 February 2012, unrep).

Date of Decision:

2012-02-23 00:00:00

Before:

Delaney DCJ

File Number(s):

DC 2009/79

Judgment

McCOLL JA: Bryn Warth, the appellant, appeals from a decision of Delaney DCJ in which his Honour found him liable in relation to a motor vehicle accident on 18 September 2006 in which Kallan Lafsky, the respondent, was struck by the appellant's car while riding a scooter: Lafsky by his next friend v Warth (District Court (NSW), Delaney DCJ, 23 February 2012, unrep).

The appellant accepts the primary judge's finding that he was in breach of his duty to take reasonable care in driving at an excessive speed when the accident occurred. However he complains that his Honour's finding that he failed to keep a proper lookout was based on an erroneous understanding of the evidence. He contends that his Honour failed to subject the expert evidence sufficiently, or at all, to rational analysis and failed to deal adequately with the issue of causation. He contends that the accident was inevitable and that he acted in the "agony of the moment".

For the reasons that follow, I am of the view that the appeal should be dismissed with costs.

Statement of the case

The respondent, then aged seven years, suffered serious head injuries when a scooter he was riding south down a steep slope collided with the appellant's Mitsubishi Magna sedan near the intersection between Albermarle Street and Stanley Avenue in Farmborourgh Heights. The accident happened on a Monday just after 3 pm.

The appellant's sedan was travelling west on Stanley Avenue. The primary judge accepted (at [1]) that the respondent's scooter did not stop or slow down as it entered Stanley Avenue from Albermarle Street, travelling in an arc which took it in a south easterly direction into Stanley Avenue before impact. The respondent was on the incorrect side of Stanley Avenue at the point of impact, "some metres, 10 metres at most, east of the eastern kerb of Albermarle Street" and "on the incorrect side of the road if the plaintiff intended to travel east in Stanley Avenue": primary judgment at [59], [66]. The impact threw the respondent forward along the line of travel of the appellant's vehicle. He landed against the kerb, just short of where the appellant stopped his vehicle.

The respondent, by his tutor, initiated proceedings in the District Court in 2009 seeking damages to compensate for the injuries he suffered. The action was listed for trial on the issue of liability only, as the respondent's damages claim was unable to be assessed until he was older. The respondent did not give evidence, a matter of which there was no complaint.

Primary judgment

The primary judge conducted a view and described the scene of the accident as follows:

"41. Stanley Avenue is a narrow street. It measured 7.9 m in width from kerb to kerb. If vehicles are parked on the bitumen surface it is difficult for vehicles travelling opposite each other to pass at the same time. On the southern side of Stanley Avenue the houses are slightly below road level and some driveways were angled upwards to the level of Stanley Avenue. These driveways were difficult to see, particularly if vehicles were parked on the bitumen. As one approached Albermarle Street from east to west there was a restricted line of vision into Albermarle Street due to foliage and a fence at number 84 Stanley Avenue."

42. A view of the accident scene was conducted on the morning of the first hearing day. The view showed quite clearly that both streets were narrow and care had to be taken particularly when passing motor vehicles that were parked on the street. It was not easy to see driveways that were angled below the level of Stanley Avenue leading to the houses. There was a restricted view of anyone coming out of Albermarle Street if one was approaching travelling west in Stanley Avenue due to a fence and foliage. Albermarle Street is a steep downhill slope that terminates at Stanley Avenue. Although there was no evidence from the plaintiff as to why he was riding his scooter down Albermarle Street as he did, just viewing the street and its slope produced an understanding why that street might have led to youngsters attempting daredevil activity.

43. Because Stanley Street ran almost directly east west, a car travelling west would be travelling into the sun on a slight uphill grade. ..."

His Honour (at [11]) identified the risk of harm against which it was asserted the appellant should have taken precautions (s 5B(1) Civil Liability Act 2002 (NSW)) as being "that as the defendant approached a terminating street on his right a vehicle ... might appear from that street intending to enter Stanley Avenue, and that a collision might occur even though the defendant had the right of way". The underlying premise of his Honour's statement was that it was also foreseeable in such circumstances that a person such as the respondent might suffer personal injury as defined: s 5B(1)(a) Civil Liability Act.

The primary judge found (at [12]) (and the appellant effectively conceded) that there was a not insignificant risk that a vehicle or person might enter Stanley Avenue from Albermarle Street as the appellant approached the intersection and that injury could be caused if a collision occurred: s 5B(1)(b), Civil Liability Act. Accordingly, he concluded that the appellant had a duty to take reasonable care to avoid that risk by travelling at a speed that was not excessive in the circumstances and by keeping a proper lookout for such persons or vehicles entering Stanley Avenue from Albermarle Street. There is no challenge to this finding.

The primary judge (at [15]) identified the first question to be determined on the issue of breach of duty as whether immediately before the accident, the appellant was travelling at a speed which was reasonable in the circumstances.

There was a controversy about the speed at which the appellant was travelling. The speed the defendant was travelling before impact was important both for reasons going to breach of duty and to causation, because it was relevant to another controversy, namely, the line of sight between the appellant's vehicle and the respondent prior to the accident: primary judgment (at [35]).

The appellant had given two versions of the accident prior to trial, one to the Police who attended the scene and another to his third-party insurer when he reported the accident.

In his statement to the Police who attended the accident, the appellant said (primary judgment (at [26])):

"... I was going a fraction over 50 km per hour ... All of a sudden a kid on a scooter was directly in front of me. He was within 5m of me. He was facing towards the eastern** kerb but angled slightly towards me. I jumped on the brakes as hard as I could. I think the kid hit the bonnet of my car headfirst. There was a cloud of smoke. ...."

** The primary judge concluded (at [23]) that the appellant "was there referring to the southern kerb of Stanley Avenue." This was correct, but, in fact, was what was written rather indecipherably in the Police notebook. His Honour incorrectly interpreted the word "southern" in the Police notebook as "eastern".

A diagram of the accident in the Police notebook showed the respondent's scooter angled towards the kerb and the point of impact with the appellant's vehicle about a third of the distance back on the left side of the scooter and in about the middle of the car's bonnet. It did not show a line of travel for the respondent prior to the impact.

In the appellant's report to his third-party insurer dated 21 January 2007, he gave the following account of the accident (primary judgment (at [27])):

" ...'Driving along road, 50 km speed zone, young boy came out of side road riding a scooter. In line with the side road the boy turned to face my direction and hit the left side front bumper of my car... Under the question 'speed at which the insured driver was travelling prior to impact' the defendant recorded 50 km per hour."

The report included a diagrammatic representation purporting to depict the accident. It showed a line of travel for the respondent from the wrong (i.e. western) side of Albermarle Street into Stanley Avenue and a collision a short distance to the east of the intersection of the two streets at the mid-point of the front of the car, with the respondent's scooter angled in a south-easterly direction towards the kerb.

In a COPS report prepared on the day of the accident, the Constable who took the appellant's statement drew a diagram showing the respondent's line of travel as being more from the east side of Albermarle Street into Stanley Avenue, with the respondent's scooter angled towards the southern kerb of that street. A COPS report apparently dated 30 October 2006 noted a skid mark for the appellant's vehicle of about 18 metres from the point of impact.

The report completed by the ambulance officers who attended the scene recorded that the respondent had been struck by a "vehicle doing 50 - 60 KPH"

The speed limit in Stanley Avenue was 50 km per hour. However, the respondent submitted that his Honour should find that a reasonable speed for Stanley Avenue at that time of day was 40 kilometres per hour: primary judgment (at [14]).

The primary judge rejected the appellant's evidence that he was travelling at "50 km per hour or 52 km per hour as he drove along Stanley Avenue", saying:

"25. The defendant disputed he was travelling in excess of the speed limit. He was an unconvincing, self-serving witness as to his speed and the observations he made of the plaintiff on the day of the accident. I find his evidence unreliable. I find that he reconstructed the speed he was going to avoid responsibility. He also changed his version of the observations he made of the plaintiff as he approached Albermarle Street. He changed from the version he had given to the police at the scene by giving a more expansive version to support his case that the accident was inevitable. Ultimately, he had to substantially recant this amended version."

The primary judge analysed the expert evidence on the issue of speed. Mr Joy, a traffic reconstruction engineer qualified by the respondent, estimated the appellant was driving somewhere in the range of 59- 65 km per hour: primary judgment (at [31]). Mr Keramidas, who was qualified by the appellant, estimated the appellant was driving somewhere in the range of 55 and 60 km per hour: primary judgment (at [34]).

The primary judge concluded (at [36]) that "the weight of the evidence indicates that, more likely than not, immediately before the collision the defendant was travelling in excess of the 50km per hour limit and was probably travelling at approximately 60kph."

The primary judge then considered what speed was reasonable for traffic proceeding west in Stanley Avenue at about 3pm on a Monday. There was a public school a short distance from Stanley Avenue. It was not in dispute that, as a local, Ms Purtell, testified that on a school day school children could be walking or riding bicycles, scooters or skateboards along Stanley Avenue. His Honour took into account the narrowness of Stanley Avenue, the fact that driveways were difficult to see because they were angled upwards and that there was restricted vision into Albermarle Street because of foliage and fencing.

His Honour found:

"45. Because of the width of the road, the restricted view of Albermarle Street when travelling west, the likelihood of children being present in Stanley Avenue, the effect on traffic flow of parked vehicles, together with the evidence of Mr Hutton that he was driving at 40 km per hour, and Ms Purtell that she would regularly drive at 20 to 30 km per hour, I am of the opinion that a speed in excess of 40 km per hour would have been excessive in the circumstances that existed on the day of the accident.

46. In my opinion, a combination of all these factors required a driver at about 3pm on a school day to drive in Stanley Avenue at no more than 40km per hour, and driving at a greater speed was excessive in the circumstances and a breach of duty of care."

The primary judge then considered the issue of keeping a proper lookout. That issue turned on the probable distance between the respondent and the appellant when the latter should have first seen him. His Honour said that determining that issue was difficult "because the speed of the plaintiff's scooter could not be determined, as it entered Stanley Avenue and immediately before impact." He opined (at [47]) that it was "not likely that the plaintiff was going very fast because Mr Fraser first saw him from 88 metres away and the defendant was passing Mr Fraser at that time".

The reference to Mr Fraser was to a statement from a witness whose house was in Stanley Avenue about 85 metres from its intersection with Albermarle Street. Immediately before the accident:

"49. ... [He] was standing outside ... his then place of residence. He had just got out of his motor vehicle and he saw the plaintiff and then the defendant. He said he 'caught a glimpse of a young fellow coming out of the side street. He was riding a scooter I think. At the same time I saw the car coming past me heading west on Stanley Avenue.'"

Mr Fraser was deceased by the time of trial and, accordingly, a statement he had given was tendered. Neither side took issue with the fact that he could not be cross-examined.

The primary judge also referred (at [47]) to evidence from a Mr Hutton, a witness who was driving east in Stanley Avenue immediately prior to the accident at 40 km per hour, who said that he saw the respondent in Albermarle Street when he was 50 metres away from the intersection. There was no suggestion he had slowed down, or needed to stop, to avoid the respondent.

The primary judge concluded (at [49]) from Mr Fraser's evidence "that at that time the defendant was over 70 metres away from the eastern kerb of Albermarle Street the plaintiff was already travelling out of Albermarle Street into Stanley Avenue." He referred (at [50]) to Mr Joy's estimate that Mr Fraser's line of sight from his front lawn to the intersection was 88 metres. He accepted (at [51]) that Mr Fraser had a different angle of vision to the intersection from his front lawn than the appellant sitting in the driver's seat closer to the centre of Stanley Avenue, and who was "at least four or five metres north of Mr Fraser's position".

Mr Joy estimated that, taking into account the reaction time, he assumed for a person driving at 50 kilometres per hour, the appellant should have been able to stop in 38 metres from where he first observed the respondent: primary judgment (at [53]).

His Honour accepted (at [54]) Mr Joy's evidence that the appellant would have been able to see the respondent emerge from Albermarle Street when he was at least 45 metres east of the eastern kerb of that street, and possibly at a greater distance having regard to Mr Fraser's observations.

The primary judge found (at [55]) that:

" ... if the defendant had been travelling at 50 km per hour he would have been able to stop before he reached the plaintiff at the point of impact (about 10 metres east of the eastern kerb of Albermarle Street). On the calculations of Mr Joy, the defendant would have been able to stop in 35 to 38 metres had he kept a proper lookout. The defendant's failure to see the plaintiff until the plaintiff was five metres in front of him was, on Mr Joy's evidence about line of sight, a breach of duty of care by failing to keep a proper lookout."

The primary judge also considered (at [56]), the appellant's evidence at trial (which differed from his statement to the Police) to the effect that "he had seen a flash of something before he saw the plaintiff five metres from where he was seated". His Honour found that the appellant's contemporaneous statement to the Police given immediately after the accident "stated his true observations on the day [and was] more likely to be his real recollection" and that his evidence at trial was a reconstructed invention which he rejected. The appellant does not challenge this conclusion.

However, in the event that that conclusion was erroneous and the appellant had seen the respondent in Albermarle Street before he "came in front of him", the primary judge observed (at [57]) that:

"... on his own admission he took no action to reduce his speed or identify what the flash was doing and therefore failed to take an opportunity to brake to avoid a collision earlier than he did."

His Honour recorded (at [59]) the experts' general agreement that the point of impact was "some metres, 10 at most, east of the eastern kerb of Albermarle Street".

Accordingly, his Honour concluded (at [58]) that on either version the appellant had failed to keep a proper lookout and (at [60]) breached the duty of care he owed the plaintiff by driving at a speed which was excessive in the circumstances and by failing to keep a proper lookout.

The primary judge then turned to the issue of causation. He recognised (at [62]) that that required him to determine whether the appellant's negligence "was a necessary condition of the occurrence of the harm" and that the respondent bore the burden of proving any fact relevant to the issue of causation on the balance of probabilities: s 5D, s 5E Civil Liability Act.

His Honour recorded (at [64]) the appellant's submission that if breach of duty was determined in favour of the respondent on either excessive speed or failure to keep a proper lookout, the breach was not causative of the respondent's injury, but, rather, that the accident was inevitable. That submission was based on the argument that:

"64 ... [a]fter entering Stanley Avenue the plaintiff went in an arc in a partly easterly direction which meant that he was travelling towards the defendant's vehicle and would have continued east down Stanley Avenue. It was submitted that even if the defendant had been travelling at, say, 40 km per hour or had been keeping a proper lookout, the probabilities were that the accident would have occurred in any event because of the direction of travel of the plaintiff."

This submission, as his Honour recognised, required him to consider the respondent's direction of travel immediately before impact. Mr Hutton said that the respondent came from the wrong side of Albermarle Street into Stanley Avenue in an arc. Mr Hutton also said that the respondent emerged from Albermarle Street "in a manner that suggested there would be a head-on collision between the scooter and the defendant's motor vehicle". The respondent argued that the court should not accept that all Mr Hutton's evidence as to his observations was accurate.

The primary judge accepted this submission. He found (at [70]) that Mr Hutton's evidence was neither accurate nor reliable and (at [76]) that it was a reconstruction.

First, his Honour observed (at [72]) that Mr Hutton was giving his evidence from memory almost five years after the event and that, while he said he could recall speed and distances, had made no comment either about the speed of the scooter or the direction it was facing at the point of impact when he gave the respondent's solicitor a statement in April 2010. Further, he had said in the statement that he did not see the appellant apply the brakes, but gave different evidence at trial.

Secondly, his Honour said (at [73]) he formed the distinct impression that Mr Hutton "had reconstructed his recollection of the events of the day with a bias in favour of the defendant and he was not giving evidence from his direct recollection." In his Honour's view Mr Hutton's recollection of the direction and distance of travel of the respondent after his scooter entered Stanley Avenue "was contrary to objective facts and the observations made by the defendant in the short time ... he observed the plaintiff immediately before impact." His Honour listed many aspects of Mr Hutton's evidence which explained his reasons for these conclusions. It is unnecessary to reproduce those examples.

The primary judge (at [94]) rejected as unreliable Mr Hutton's evidence that the respondent's scooter was almost parallel with the Stanley Avenue kerb prior to the impact. He found that:

"...[It was] more likely than not that the plaintiff was angled more towards the south than the east when the collision occurred and therefore, if the defendant had been travelling at 40 km per hour and had kept a proper lookout, then the accident was not inevitable. The probabilities are that before the plaintiff would have reached the point where the defendant should have stopped, the plaintiff would have either gone into a gutter, onto the footpath area or into a driveway."

The primary judge relied upon other evidence which he said reinforced this conclusion. This included (see [97]) first, the diagram in the report the appellant submitted to his insurer showing "the path of travel of the scooter as substantially south-west heading for the nearside front mudguard of [the appellant's] car", rather than parallel to the southern kerb. Secondly, his Honour referred (at [97]) to the fact that the collision caused damage to the left hand front mudguard and the centre of the bonnet of the appellant's car. Thirdly, his Honour referred (at [98]) to the police COPS diagram showing the path of the scooter as "predominantly going south before the collision".

Further, in his evidence-in-chef, the appellant said that at the point of impact the respondent "was heading to the left of my car". The primary judge (at [99]) regarded that answer as being consistent with the diagrams to which he had referred and inconsistent with a finding that the respondent would have continued east and hit the appellant's car "no matter what speed the defendant was travelling or if he had not been keeping a proper lookout."

The primary judge rejected (at [101]) the appellant's evidence that the impact was "slightly more head-on than side [on]" on the basis that the scooter was only two metres away from the front bumper bar immediately before collision. His Honour remarked that if the appellant had "really seen the precise direction of travel of [the respondent] he would have told the police and his diagram in [his report to his insurer] would have been different."

The primary judge also referred (at [102]) to the appellant's evidence that, at the time of impact, his car was one or two feet from the centre of the road, that the respondent was two or three metres on the incorrect side of the road and his car was one and a half metres from the gutter. Having regard to this estimate, the primary judge concluded "the plaintiff had travelled more in a southerly direction than east and had almost reached the southern kerb at the time of the accident."

The primary judge summarised his findings (at [103]) as follows:

"(a) The defendant was driving west in Stanley Avenue at about 3pm on 18 September 2006.

(b) Immediately before impact with the plaintiff's scooter he was travelling in excess of the 50km per hour speed limit applicable to that road.

(c) I find he was travelling at 60km per hour and this speed was excessive in the circumstances and a breach of duty.

(d) I find that to drive in excess of 40km per hour at that time of day on the day of the accident was a breach of duty.

(e) I find that by not seeing the plaintiff until the plaintiff was five metres in front of him the defendant failed to keep a proper lookout.

(f) I find that the defendant breached the duty of care that he owed the plaintiff by travelling at an excessive speed and failing to keep a proper lookout.

(g) On causation I find that but for the breaches of duty the impact between the plaintiff and the defendant would not have occurred. The accident was not inevitable. There is no policy reason to deny the plaintiff recovery.

(h) As to contributory negligence, I find that the plaintiff was too young for a finding that his actions caused or contributed to his injuries. There was no evidence as to how he came to be riding his scooter down Albermarle Street as he did, or what his view was of vehicles in Stanley Avenue."

There is no challenge to his Honour's finding on contributory negligence.

Issues on appeal

The appellant appeals from the whole of the decision below, save for the primary judge's finding that he was in breach of his duty to take reasonable care in driving at an excessive speed.

The Notice of Appeal lists numerous grounds of appeal; however, they can in my view, be encapsulated as two principal complaints. First, that his Honour erred in concluding that the appellant breached his duty of care in failing to keep a proper lookout. Secondly, that his Honour erred in concluding that any negligence on the appellant's part was a necessary condition of the respondent's harm. Underlying those complaints are the appellant's submissions that the primary judge failed to subject the expert and lay evidence sufficiently, or at all, to rational analysis, and failed to deal adequately with the issue of causation in terms required by s 5D of the Civil Liability Act.

The appellant filed a statement in compliance with Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 51.36(2), challenging the following findings of fact:

(1) That the appellant would have been able to see the respondent emerge from Albermarle Street at least 45 metres east of the eastern kerb of Albermarle Street and possibly at a greater distance having regard to Mr Fraser's observations: primary judgement (at [54]).

(2) That it was "not likely that the plaintiff was going very fast" and "the speed of the plaintiff's scooter could not be determined, as it entered Stanley Avenue and immediately before impact" (at [47]) and that "[t]he probabilities are that before [the respondent] would have reached the point where the appellant should have stopped, [the respondent] would have ... gone into a gutter": (at [94]).

(3) His Honour's conclusion that the accident "was not inevitable": (at [94] and [103](g)).

The appellant contended the primary judge should have found that:

(1) The Respondent had insufficient sight distance in which to take any effective action so as to avoid a collision.

(2) That the Respondent's scooter was travelling at least at 20kph and, in all likelihood, 30kph at the time of impact and was not heading towards the southern gutter on Stanley Avenue but, rather, was heading in a generally easterly direction along Stanley Avenue.

(3) That in all of the circumstances, the collision was inevitable.

The appellant also complains that the primary judge erred in failing to conclude that the collision was close to, or almost, head-on and contends that this Court should make such a finding.

Legal principles: driver's duty of care

The appellant did not contest the primary judge's identification (at [11]) of the risk of harm.

The principles concerning the duty of care a driver owes to other road users, and those germane to breach of duty by reference to s 5B of the Civil Liability Act, were recently summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows:

"[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.

[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 - 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).

[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'.

[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."

Notwithstanding the conclusion in Derrick v Cheung Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 (at 418) per Mahoney P; Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 (at [16] - [17]) per Emmett JA (Ward and Gleeson JJA agreeing). A greater standard of care is required of motorists when young children are in the vicinity of a road, or reasonably expected to be in the vicinity: Gunning v Fellows (1997) 25 MVR 97 (at 98) per Beazley JA (with whom Mason P and Cole JA agreed); Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 (at [87]) per McColl JA (Macfarlan JA agreeing). Motorists should "exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections": Turkmani v Visvalingam [2009] NSWCA 211; (2009) 53 MVR 176 (at [28]) per Hodgson JA (Beazley and McColl JJA agreeing).

Legal principles: causation

At the heart of the critical issue as to causation is the question whether it was open to the primary judge to find, in effect, that both the excessive speed at which the appellant travelled and his failure to keep a proper lookout were necessary conditions of the respondent's harm. The appellant also contends on the issue of causation, that it is critical to determine the respondent's line of travel prior to the accident as he argues that, even if he had stopped his vehicle, the respondent would have hit it head on and thus suffered harm. It is for this reason that he challenges the primary judge's finding (at [94]) that but for the appellant's breach of duty, the respondent would have either gone into a gutter, onto the footpath area or into a driveway.

In order to establish that any breach of duty on the appellant's part caused his harm, the respondent had to establish "factual causation" in accordance with s 5D(1)(a) of the Civil Liability Act, that is to say that the appellant's negligence was a necessary condition of the occurrence of that harm. That determination "is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E": Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648 (at [14]). It "involves nothing more or less than the application of a 'but for' test of causation": Wallace v Kam (at [16]); Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [45], [55]); Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 (at [18]) per French CJ, Gummow, Crennan and Bell JJ.

Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred: Strong v Woolworths Ltd (at [32]) per French CJ, Gummow, Crennan and Bell JJ. Causation is "approached by applying common sense to the facts of the particular case": Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 623 (at [43]) per French CJ, Hayne and Kiefel JJ. If factual causation is established, the plaintiff must also establish that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"): s 5D(1)(b) Civil Liability Act. The appellant did not contend that there was any reason why his liability should not so extend if factual causation was established.

Where it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent, that issue is determined subjectively in the light of all relevant circumstances in accordance with s 5D(3)(a) of the Civil Liability Act.

Unlike the issues of duty of care and breach, the causation inquiry "is wholly retrospective [and] ... seeks to identify what happened and why": Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [124]) per Hayne J; see also Wallace v Kam (at [26]). Thus "[t]he proper identification of damage should usually point the way to the acts or omissions which were its cause": Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (at [43]).

Consideration

The debate on appeal focussed on the appellant's complaint that the primary judge failed adequately to consider and deal with the expert and other evidence in the case concerning:

(1) The limited vision available to the appellant of the respondent moving out of Albermarle Street and into Stanley Avenue;

(2) The limited time and distance available to the appellant prior to impact;

(3) The speed of the respondent's scooter; and

(4) The fact that even if the appellant had been able to bring his vehicle to a stop, the forward movement of the scooter would still have resulted in a significant collision with the front of the appellant's vehicle.

The argument before the Court as to line of sight, distance between the appellant's vehicle and the point of impact at critical times and the respondent's actual and likely line of travel was principally conducted by reference to a document labelled "Collision Diagram".

It does not appear that document was shown to either expert witness in the course of their testimony, although it appears to have been an enclosure to Mr Keramidas's report and was referred to in various parts of that document. Rather, to the extent the experts were asked to illustrate distances and lines of sight, it appears they did so by reference to exhibit H which was described as "Photographs from Google of the accident location". However both parties used the Collision Diagram in argument before this Court to illustrate their arguments and, where necessary, I have referred to it to assist in evaluating their submissions.

The Collision Diagram, which was prepared on a scale of 1:150 metres, depicted the intersection, detail of the skid marks drawn from the Police markings, as well as from the Police "scene plan" and other features of the site. It also depicted what Mr Keramidas concluded, by reference to scrape marks on the road appearing in the Police photographs, was the point of impact. Next, it depicted the "possible path of scooter", prepared, according to his report, on the basis of assumptions put to Mr Keramidas (I assume by those instructing him) as well as the appellant's and Mr Hutton's descriptions of the accident. Finally, the diagram sought to illustrate the appellant's line of sight of the respondent, as well as the time to impact, from assumed positions of his vehicle in Stanley Avenue. The line of sight illustration took into consideration what appears to have been the agreed likely position of a caravan usually parked on the northern kerb of Stanley Avenue, approximately 30 metres east of the eastern kerb-line of Albermarle Street and the acceptance that it would have constituted an obstacle to the appellant's line of sight into Albermarle Street.

The Collision Diagram formed a useful point of reference for the objective features of the location of the accident. However, the respondent disputed its reliability particularly insofar as it depicted the "possible path of scooter". I shall deal with that issue when considering that aspect of the appeal. Further, some aspects of the oral evidence departed from the measurements depicted in the Collision Diagram. For example, on the diagram, the point of impact was 10 metres along Stanley Avenue, as the primary judge found, whereas Mr Keramidas said in chief that it was 10.5 metres. That difference may appear marginal, but was clearly significant to the appellant's arguments as to his ability to stop and the inevitability of the accident.

I would also add, that while the Collision Diagram and the photographs to which the experts referred in evidence were useful aids on appeal, they suffer from limitations. I have already referred to disputed facts underlying the diagram. Photographs should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence: Blacktown City Council v Hocking [2008] NSWCA 144 (at [169]) Tobias JA.

Finally, these aids to argument cannot displace the advantage the primary judge had from having conducted a view of the accident scene and the advantage that gave his Honour in determining the factual controversies: Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 (at [14] - [16]).

Before turning to the substantive arguments, it is necessary to deal with a preliminary matter.

The 40 kilometres per hour issue

The respondent's primary written submission was that once it was accepted that it was unreasonable for the appellant to drive faster than 40 kilometres per hour as the primary judge found (a finding he pointed out was not challenged) the appeal must fail as, even on the appellant's evidence, there was no real contest that if he had been driving at that speed, the respondent's injuries would not have occurred. The respondent observed that the appellant's written submissions did not "grapple with this core issue at all", but, rather, appeared "to proceed upon the premise that the accident would still have occurred at the posted speed limit, namely 50 kph, ignoring any consideration as to what the position would have been at, or less than, 40 kph." He argued that the Court should not accept the appellant's submissions regarding stopping time insofar as they were predicated upon the speed at which the appellant was assumed to have been travelling (57.5 kilometres per hour) rather than the speed that the primary judge found to be reasonable in the circumstances, 40 kilometres per hour. The appellant did not file any written submissions in reply.

At the outset of the appeal, the appellant said he accepted that questions of breach and causation could be assessed at the speed at which he should have been travelling but, when it was pointed out that the primary judge had found that speed to have been 40 kilometres per hour, sought leave to amend his notice of appeal to challenge that finding. The respondent opposed that application.

The appellant submitted the challenge to the 40 kilometres per hour finding was an assumption which underpinned his submissions. However, he accepted, that his submissions were posited on the 50 kilometres an hour scenario, that being, he contended, the basis on which the primary judge had determined the issues of breach and causation. He argued that if the primary judge had based his findings on the 40 kilometres per hour finding, he would have challenged it.

The respondent submitted that the appellant had been on notice since his written submissions were filed in January 2013 that he relied on the fact that it was not in issue on appeal that the appellant should have been driving at 40 kilometres per hour and that, at that speed, the accident was entirely avoidable. He argued the appellant should not be permitted to alter his position and contend that that finding was not open to the primary judge.

The Court determined that it would not give the appellant leave to amend his notice of appeal and said it would deliver its reasons in its judgment. My reasons for refusing that application are as follows.

It is incumbent on New South Wales courts "actively [to] engage in case management in order to achieve the purposes of the [Civil Procedure Act (NSW) 2005]": Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 88 ALJR 76 (at [42]) ("Expense Reduction Analysts Group"). While the Civil Procedure Act requires the Court to have regard to a just determination of the proceedings (s 57(1)(a)) and to have regard to the dictates of justice in making any order of a procedural nature (s 58(1)), such resolution does not require "that a party be permitted to raise any arguable case at any point in the proceedings": Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (at [98]).

The dictates of justice referred to in s 58 of the Civil Procedure Act require that in determining what directions or orders should be made in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the Civil Procedure Act can be furthered, together with other relevant matters, including those referred to in s 58(2): Expense Reduction Analysts Group (at [57]).

In my view it would not have been consistent with the overriding purpose in s 56 of the Civil Procedure Act to permit the appellant to raise the issue of the primary judge's 40 kilometres per hour finding for the first time in the course of argument on the appeal.

The appellant has never challenged the primary judge's finding that he was travelling at an excessive speed in the circumstances. Thus he accepted, until the application to amend his grounds of appeal made during the hearing of the appeal, his Honour's finding (at [45], [103](d)) that "a speed in excess of 40 kilometres per hour would have been excessive in the circumstances that existed on the day of the accident". The appellant's case before the primary judge was, in part, based on the submission that even if he had been driving at that speed the accident was inevitable because of the respondent's line of travel: primary judgment (at [64]). The primary judge rejected that submission on the basis that the accident was not inevitable if the appellant had been travelling at 40 kilometres per hour and keeping a proper lookout: primary judgment (at [94]).

The primary judge's finding that the appellant should have been travelling at a speed of 40 kilometres per hour and that, had he been, the accident was not inevitable, was at the heart of his causation finding: primary judgment (at [103](d), [103](g)). The appellant should have appreciated the significance of the 40 kilometres per hour finding when he put on his notice of appeal and the UCPR 51.36(2) statement challenging his Honour's findings of fact.

The respondent put his primary submission about the significance of the 40 kilometres per hour finding at the forefront of its written submissions, a submission the appellant appears to have ignored or failed to appreciate. The Civil Procedure Act imposes a positive duty upon a party and its legal representatives to facilitate the Act's purposes: Expense Reduction Analysts Group (at [64]). Having regard to the respondent's clearly foreshadowed position, the Court was entitled to expect the appellant to comply with that duty and seek to formulate any response to the respondent's primary submission in an amended notice of appeal and UCPR 51.36(2) statement and written submissions formulated well before the hearing of the appeal, to which the respondent could respond. The Court should not have to entertain an entirely new case advanced for the first time in the course of oral argument.

Vision and time available to the appellant

The appellant submitted that the primary judge erred in finding that he failed to keep a proper lookout, in failing to take into account Mr Joy's acceptance in cross-examination that the appellant had only limited vision of traffic emerging out of Albermarle Street until he passed the caravan parked on the northern side of Stanley Avenue. He argued that this was supported by Mr Keramidas' evidence that the appellant's restricted view of Albermarle Street meant that he could not have seen the respondent emerge from Albermarle Street until he was approximately 34.75 metres east of the eastern kerb of Albermarle Street, rather than the 45 metres accepted by the primary judge. Accordingly, he contended that he would not have had time to reduce his speed or bring his car to a halt before the accident even if he had been travelling within the speed limit and keeping a proper lookout.

The appellant also argued that he was entitled to assume, until he saw the respondent crossing in front of his vehicle, that any vehicle turning left out of Albermarle Street would be on its correct side of the road in Stanley Avenue. Accordingly, the unexpected appearance of the respondent created a sudden crisis with which the appellant was required to deal in "the agony of the moment". He contended that the fact that with the benefit of hindsight he may have reacted differently did not mean he acted unreasonably in the circumstances.

As I have said, the primary judge accepted Mr Joy's evidence that the appellant would have been able to see the respondent emerge from Albermarle Street when he was at least 45 metres east of the prolongation of the eastern kerb alignment of that street. Mr Joy's distance of 45 metres was a measurement of the length of a line drawn on a Google photograph (exhibit H, photograph 2) from a point near the centre line on Stanley Avenue past the leading corner of an assumed parked caravan in Stanley Avenue to a red dot in Albermarle Street which was on the prolongation of the eastern kerb of Albermarle Street. The line was at a shallow angle to the westerly direction of travel by the appellant along Stanley Avenue and represented the line of sight from a starting point in Stanley Avenue where the appellant should have been able to first see the respondent emerge in Albermarle Street, to the point where the respondent would first have been seen in Albermarle Street.

However the appellant submitted that in accepting Mr Joy's distance of 45 metres, his Honour failed to have regard to the lesser figure given by Mr Joy in cross-examination which proceeded by reference to the same Google photograph. The cross-examiner first drew Mr Joy's attention to, but did not obtain his agreement with, the assertion that the relevant measurement was not along the diagonal towards Albermarle Street, but rather along Stanley Avenue in the direction in which the appellant was travelling. The cross-examiner then referred Mr Joy to the distance of about 10.5 metres between the red dot in Albermarle Street and the marked point of impact in Stanley Avenue shown on the Google photograph. The cross-examination proceeded:

"Q. And if one were to allow that distance that I've put to you at about 10.5 metres from your red dot at the extension of Albermarle Street to the point of impact, that would leave a distance of about 34.75 metres from your starting point?

A. Yes

Q. in lieu of your 45 metres?

A. Yes

Q. You broadly agree with those mathematics and those calculations?

A. Yes, I generally agree with what you're putting, yeah, that's

straightforward."

The appellant also relied on Mr Keramidas's evidence in chief:

"Q. There are two observations I think you would wish to make in response to Mr Joy's measurements of 45 metres relevant to a vehicle proceeding west in Stanley Avenue is that correct?

A. Yes that's correct?

Q. Can you tell us what those are?

A. Yes certainly. First of all I agree with Mr Joy's estimation of that distance is about 45 metres. However if we were choosing to apply this to a westbound driver to assess indeed what distance is available to that driver to respond we need to make some corrections to the angle sight line that we have on that figure two. First of all obviously the distance available to a westbound driver is indeed along a westerly direction and not on an angle as we see it in figure 2. We next need to make an adjustment for the fact that the point of collision occurred about ten and a half metres east of eastern kerb alignment of Albermarle and therefore that further foreshortens the distance, if you like, in the horizontal plane as we look at figure 2. And finally the position of the two dots which are visible in figure 2 identify eye to eye position for the two parties involved, which means that the actual point of collision is about 2 metres forward of the driver's eye identification in that figure. Which means we need to further foreshorten the distance by about 2 metres.

Q. Well now making those adjustments to Mr Joy's 45 metre distance what do you say is the correct distance to allow for

from that plan and measurement?

A. It's just over 30 metres, 30.5.

Q. So that all that one could have done in that sort of distance is an expiry of the perception response time with nothing being able to be achieved to actually decelerate the vehicle?

A. Correct." (emphasis added)

The appellant submitted that Mr Keramidas's last answer was consistent with Mr Joy's evidence as follows:

"Q. What is the distance that was required to bring him to a halt assuming the same reaction time and everything else?

A. Yes well assuming a 1.5 second reaction time again the reaction time alone the vehicle covers a distance of 29 metres."

The appellant also referred to Mr Keramidas's evidence as follows:

"Q. Mr Keramidas I think you accept based on the assumptions that you were asked to make that the boy on the scooter would have been visible to the driver at a distance of up to about 31 metres, is that right?

A. Correct, yes."

The appellant also relied on the Police estimate, apparently of a line of sight distance, of 23.9 metres and the statement in Mr Keramidas's report that:

"...detection of the child is likely to have occurred somewhere between 24 and 31.9 metres prior to impact. These two positions are diagrammatically depicted in the enclosed Collision Diagram, as well as the sight-line created from a driver's perspective at those points on the roadway".

The respondent submitted that the primary judge's finding (at [54]) that the respondent ought to have been visible to the appellant when he was at least 45 metres away was clearly available in the light of Mr Joy's evidence. He contended that Mr Joy was not seriously challenged on this issue.

Furthermore, the respondent submitted that if the appellant had been travelling at the speed limit (50 kph) and had kept a proper lookout, he would have been able to stop his vehicle before it reached the point of impact. He contended the position was a fortiori had the appellant been driving at 40 kilometres per hour as the primary judge found he should have been.

Vision and time available to the appellant: conclusion

Brief reference should be made to some other evidence. According to the police investigation report, the appellant's vehicle left skid marks for about 18 metres from the point of impact. That indicates that the appellant did not apply his brakes until that point. The point of impact was about 10 metres east of the prolongation of the eastern kerb-line of Albermarle Street according to Mr Keramidas's report or 10.5 metres as he said at trial. It was about half to two-thirds of the way across the appellant's vehicle from the driver's side and 2.5 metres north of the southern kerb-line on Stanley Avenue.

Secondly, Mr Fraser saw the respondent from the front lawn of his property which was about 85 metres from its intersection with Albermarle Street.

The Collision Diagram showed the appellant's car at a position approximately opposite 95 Stanley Avenue (a couple of houses to the west of Mr Fraser's house) with an assumed line of sight to the respondent of approximately 47 metres measured from the driver's seat. This was 2 metres longer than Mr Joy had measured on the Google photograph (exhibit H, photograph 2) because the position of the respondent at the intersection of the line representing the possible path of scooter and the line of sight drawn on the Collision Diagram was 2 metres further to the west than the position where the red dot on the line of sight was marked on the Google photograph.

The Police estimate of the appellant's line of sight of 23.9 metres does not appear to have taken into account the significance of Mr Fraser's observation of the respondents, when standing some 85 or so metres away from the intersection. Neither expert referred to that observation in their reports because, despite its clear significance, according to the undisputed assertion of the respondent's counsel at trial, the appellant did not disclose Mr Fraser's statement to the respondent's legal representatives until he served it under cover of a notice pursuant to s 67 of the Evidence Act 1995 (NSW); nor was it provided to Mr Keramidas for the purposes of his report. It was first provided to the experts on the morning the trial commenced.

Mr Joy then gave evidence, by reference to Mr Fraser's statement but taking into account the appellant's position closer to the centre of Stanley Avenue in the driver's seat and the parked caravan, that he calculated the appellant's line of sight to the respondent at 45 metres. The appellant put certain deductions to Mr Joy in cross-examination. Unsurprisingly, he agreed with the arithmetic. The appellant, however, as I have outlined, sought to rely upon that agreement to argue that the line of sight available to him was the foreshortened distance of 34.75 metres.

However the appellant's cross-examination of Mr Joy and his submission that the distance of the line of sight was 34.75 metres were based on a fallacy. The cross-examination was directed to having Mr Joy agree that his distance of 45 metres would be reduced if, first, it was measured in the direction of travel along Stanley Avenue rather than the diagonal towards Albermarle Street and, secondly, a deduction was made for the distance from the point in Albermarle Street where Mr Joy assumed the respondent would become visible to the point of impact with the bonnet of the appellant's vehicle (around 10.5 metres). Unlike the examination of Mr Keramidas, the cross-examiner did not also seek a further reduction of around 2 metres to account for the distance from the front of the bonnet to the driver's seat. Arithmetically, that reduced the distance from 45 metres to 34.75 metres. This figure of 34.75 metres simply represented the distance along Stanley Avenue between where Mr Joy said the appellant should first have seen the respondent and where the accident ultimately happened. However the calculated distance of 34.75 metres did not challenge Mr Joy's starting point of where along Stanley Avenue the appellant should have first observed the respondent, taking into account Mr Fraser's observations and the assumed position of the caravan as a vehicle obstacle, or the distance from this starting point to the point in Albermarle Street where the respondent should first have been seen.

As will be apparent (see [ REF _Ref383277380 \r \h \* MERGEFORMAT 85] above), Mr Keramidas agreed with Mr Joy's 45 metres line of sight estimate. Indeed, the position Mr Joy identified on one of the Google photographs and from which he calculated the appellant's position when he should first have seen the respondent coincided closely with the position Mr Keramidas had drawn on his Collision Diagram without the benefit of Mr Fraser's statement. Mr Keramidas positioned the respondent 2 metres further west, but this extended the distance to where the appellant would have first seen the respondent.

Mr Keramidas's agreement was qualified as is apparent from the transcript ([ REF _Ref383277380 \r \h \* MERGEFORMAT 85] above) because of the distinction he drew between the distance along the appellant's line of sight to the respondent and the distance available to the appellant to bring his vehicle to a halt having regard to the distance along the direction of travel on Stanley Avenue rather than the angle sight line to Albermarle Street, that the respondent's line of travel prior to the impact took him about 10.5 metres into Stanley Avenue and that the front of his vehicle was about 2 metres in front of the driver's seat. However, again, these qualifications did not alter the position on Stanley Avenue where the appellant should first have seen the respondent in Albermarle Street or the measurement of the distance from that starting position to the position of the respondent in Albermarle Street where he would have first been seen.

In my view the primary judge did not err in concluding that the line of sight available to the appellant was 45 metres and that, in failing to see the respondent until he was about 5 metres in front of his vehicle, he failed to keep a proper lookout in that he omitted to pay "reasonable attention to all that [was] happening on and near the roadway that may present a source of danger": Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 (at [11]) per Gummow, Kirby and Hayne JJ.

That conclusion does not, however, answer the question of what the appellant could have done in the time available from when he should have seen the respondent, that is to say the question whether the appellant's negligence was a necessary condition of the occurrence of the respondent's harm: s 5D(1)(a), Civil Liability Act. This question has been approached by both parties as depending on whether the appellant could have brought his car to a halt prior to the point of impact and, even if he had, whether the respondent would nevertheless have collided with his vehicle.

The primary judge appears to have extrapolated from his line of sight conclusion to his finding (at [55]) that if travelling at 50 kilometres per hour, the appellant should have been able to stop his vehicle within 35 to 38 metres. While that may have been correct arithmetically it did not, with respect, appear to reflect the experts' calculations taking into account that the point of impact was approximately 10.5 metres to the east of the prolongation of the eastern kerb of Albermarle Street. Indeed, it is not clear why his Honour undertook this calculation at an assumed speed of 50 kilometres per hour, having regard to his earlier conclusion (at [45]) that the appellant should not have been driving at more than 40 kilometres per hour, and his conclusion (at [94]) when dealing with causation, that the accident was not inevitable at that speed.

Both experts agreed that the appellant's reaction time once he saw the respondent was 1.5 seconds. Accepting Mr Keramidas's foreshortening calculations, he had 30.5 metres in which to stop from the position where he first should have seen the respondent to the point of impact.

According to the evidence, the distance covered by a motor vehicle travelling at 40 kilometres per hour is 11.11 metres per second, at 50 kilometres per hour it is 13.88 metres per second and at 60 kilometres per hour it is 16.67 metres per second.

Allowing for a reaction time of 1.5 seconds, then at approximately 60 kilometres per hour according to Mr Joy's evidence, the appellant's vehicle would have taken approximately 50 metres to stop (29 metres in the reaction time and 21 metres to stop).

Had the appellant been travelling at 50 kilometres per hour and had he first observed the respondent when he was 45 metres away, Mr Joy calculated it would have taken him between 35 metres and 32 metres to stop depending on the friction co-efficient value used (35 metres for 0.7 co-efficient and 32 metres for 0.9 co-efficient).

Mr Keramidas's evidence was that, assuming a pre-braking speed of 40 kilometres per hour and a reaction time of 1.5 seconds (which he accepted was the benchmark), the appellant's vehicle would have stopped in 26.6 metres, a time which allowed for him to travel 16.67 metres during his reaction time and, as Mr Keramidas also calculated at that speed, to stop within 10 metres of the point of impact. He also accepted that the accident was avoidable on those assumptions.

Had he stopped within 26.6 metres of first observing the respondent, the appellant would have been approximately 3.9 metres further to the east of the point of impact (again assuming Mr Keramidas's foreshortened figure of 30.5 metres) and, significantly, approximately in line with the eastern point of the driveway in the southern kerb.

This conclusion does not finally answer the question of factual causation because of the appellant's submission that even if he had stopped his vehicle some distance east of the point of impact, the respondent's line of travel meant that he would have collided with him in any event. To that issue I now turn.

Respondent's direction of travel

The appellant submitted that the primary judge erred in finding (at [94]) that the direction of travel of the respondent's scooter meant that before he reached the point where the appellant's vehicle should have stopped, he would have either "gone into a gutter, onto the footpath area or into a driveway".

The appellant further submitted that there was "overwhelming evidence that the respondent was not heading toward the southern gutter of Stanley Avenue but had performed an arc motion and was effectively heading east on the wrong side of the road into the path of the appellant's approaching vehicle". It is convenient to consider this issue with the appellant's submission that the primary judge ought to have found that the collision was close to or almost head-on as both concern the respondent's line of travel.

The appellant's evidence was that the impact between his car and the scooter was "slightly more head on than side".

The appellant also relied on Mr Hutton's observation that he saw the respondent coming from the "wrong side of the road in Albermarle Street", in "a sweeping arc ... moving out and into oncoming traffic" and heading "towards the east" and his description of the angle of impact as "very close to head on" and his agreement with the statement that the scooter was travelling "parallel with the kerb that is travelling in a direct east/west direction". Mr Keramidas depicted this line of travel on the Collision Diagram.

Mr Joy referred in his report to "a possibility that the respondent had the aim of entering the southern footpath of Stanley Avenue". In cross examination he conceded that that statement was speculation, albeit that he added:

"...there's no evidence to say that that's what happened, it's really a matter of quite simply what would someone on a scooter being trying to do if they were going faster than they could get around the corner.

Mr Keramidas did not agree with Mr Joy's opinion that the respondent was heading in a southerly direction. In his report he opined that the damage to the appellant's vehicle:

" ...tends to suggest that the impact configuration between the scooter and Mitsubishi was at a relatively shallow angle, or in other words nearly head-on [and] is not consistent with the rider moving perpendicular to the vehicle's path, as the damage observed would be expected to extend over a wider area to the front of the vehicle."

Mr Keramidas explained this part of his report at trial as based "partly" on the fact that the respondent was "heading towards you in part as well as heading partly across you" as well as the fact that he was travelling in a "curved path".

The respondent submitted that the appellant's submissions were based on an incomplete reference to the evidence.

First, insofar as Mr Hutton's evidence was concerned, he pointed out that the primary judge rejected his evidence concerning the direction of the scooter as neither accurate nor reliable and, indeed, found that it constituted a reconstruction with a bias in favour of the appellant: primary judgment (at [70], [73]). The respondent submitted that the primary judge's assessment of Mr Hutton's evidence was clearly open to him, reasoned and based on a careful analysis.

Secondly, the respondent referred to Mr Hutton's earlier statement given in April 2010 in which he said the respondent "was attempting to turn left into Stanley Avenue but he was travelling too fast on the scooter and could not make the turn". The respondent contended that that evidence was inconsistent with Mr Hutton's evidence at trial that he was travelling almost parallel to the southern kerb of that street.

Thirdly, the respondent drew attention to the inconsistency between the proposition for which the appellant contended on appeal and his statement to the Police on the day of the accident that the respondent was "facing towards the southern kerb but angled slightly towards me", a statement consistent with the drawing of the accident in the police notebook. The appellant had also drawn the respondent as travelling in that direction in his accident report diagram. Further, in his evidence-in-chief the appellant said, as the primary judge quoted (at [99]), that at the point of impact the respondent was "heading to the left of my car" adding "it would have been slightly more head on than side", "slightly more towards me than it was a glancing sort of hit".

Finally, the respondent submitted that neither expert could usefully add to this issue as both depended upon assumptions made from the witnesses' observations and the latter supported the primary judge's findings. Accordingly, the respondent argued that the issue was for the primary judge to resolve depending on which of the witnesses' observations he accepted.

I would reject the appellant's submissions. The most powerful evidence, in my view, is the statement the appellant made to the Police on the day of the accident and the diagram which the police officer drew to give pictorial representation to what he was told. That depicted the respondent moving, as the appellant told the police officer, in a southerly direction, albeit slightly towards the east. The Police substantially reproduced that line of travel in the diagram included in their COPS report prepared on the day of the accident as did the appellant in his report to his insurer in January 2007. The line of travel the appellant later relied upon, and on the basis of which Mr Keramidas formed his opinion at least in part, was sourced to Mr Hutton's rejected evidence.

Accepting that one is seeking to extrapolate from meagre facts, the locale also supports the proposition that there was a degree of logic in the respondent heading towards the southern kerb because, just opposite the point of impact on that kerb, there was a driveway with a grass verge on either side. Even if one assumes (which in my view is not a necessary assumption) that the respondent had failed to make a left hand turn into Stanley Avenue, it would be an entirely sensible alternative for him to have aimed to go up onto the southern kerb, possibly to bring himself to a halt on that grass verge.

The appellant sought to resist that proposition on the basis that the driveway was angled to the west, but that begs the point. That might have presented a problem for a car seeking to approach parking on the concrete apron of the driveway from Albermarle Street (in which case it would have had to turn somewhat to the west), but not, as I would infer, for a young boy looking for a soft landing at the bottom of the hill.

In my view, the appellant has not demonstrated error in the primary judge's finding as to the respondent's probable direction of travel had the accident not occurred.

Respondent's speed

The appellant then submitted that the primary judge erred in concluding (at [47]) that the speed of the respondent's scooter was not very fast and/or could not be determined. The speed at which the respondent was travelling was relevant to the time the appellant had to react. The appellant argued that the "overwhelming" evidence supported the conclusion that the respondent's scooter was travelling at least at 20 kilometres per hour and, in all likelihood, at approximately 30 kilometres per hour. He relied on the oral evidence of Mr Hutton, Mr Keramidas and Mr Joy to support this finding.

The appellant relied, first, on the topography of the intersection, a subject addressed in Mr Keramidas's report, the figures for which, on this subject, were substantially the same as Mr Joy's.

Mr Keramidas described the grade of Stanley Avenue as "uphill to the west and averag[ing] about 4% in the vicinity of the Albermarle Street intersection" and Albermarle Street as averaging "9.5% from the crest of the hill through to the intersection with Stanley Avenue. Mr Joy's figures were substantially the same. He did not average the uphill grade in Stanley Avenue which he said in the "immediate vicinity of the accident site" was "approximately 3% increasing gradually to about 5% just west of Albermarle Street. He said that the gradient of Albermarle Street approaching the intersection was "approximately 10% down towards the south".

Secondly, the appellant relied on Mr Hutton's evidence that the respondent "was attempting to turn left into Stanley Avenue but he was travelling too fast on the scooter and could not make the turn", that he was "moving quite quickly" and that his speed was "[u]p towards I guess 30 kilometres an hour".

Thirdly, the appellant pointed to Mr Keramidas's estimate of the respondent's speed as "30.6 kilometres per hour" based on an estimate of "a speed of 8.5 metres per second" and possibly higher if his upper estimate of the respondent's speed at 9.1 metres a second was accepted. On that basis, and using a conversion factor of 3.6, the respondent's speed would have been 32.76 kilometres per hour. When Mr Keramidas's estimate of 30 kilometres per hour was put to Mr Joy, he could not say it was "impossible" but did say it seemed "high".

Finally, the appellant referred to his own estimate at trial of the respondent's speed as like "a grown man sprinting as fast as he can".

The respondent submitted that the material the appellant relied upon was incomplete and misleading.

First, he pointed out that the primary judge did not accept Mr Hutton's evidence as to speed (and distance), finding (at [72], [73]) it was "improbable" and a result of reconstruction and (at [47]) that it was "no more than a guess". The respondent submitted that his Honour's findings in this respect substantially reflected the cross-examination of Mr Hutton on this issue which was to the effect that he could not make any meaningful estimate of the speed of either party to the proceedings. The respondent contended that the primary judge's rejection of Mr Hutton's evidence was clearly open to him and that the appellant had not identified any error in his Honour's reasoning which would warrant this Court forming a different view of it.

Secondly, the respondent relied on the fact that the primary judge (at [25]) described the appellant's evidence as to observations he made of the respondent as "unconvincing [and] self serving" and (at [56]) rejected it on the basis that his observations were "invented ... [and] reconstructed" as he had not seen the respondent until he was in front of him.

Thirdly, the respondent pointed out that both Mr Keramidas and Mr Joy had acknowledged the speculative nature of making any assessments of the respondent's speed in the absence of sufficient objective evidence. Mr Keramidas said in his report that there was "very little in terms of physical evidence" which could be relied upon to "generate a likely speed for the scooter at the point of collision" and had based his estimate on the appellant and Mr Hutton's statements. Accordingly, the respondent submitted that once the primary judge rejected their evidence as to speed, there was no basis for Mr Keramidas's estimate.

Finally, the respondent relied upon the fact that the appellant failed to refer to Mr Fraser's statement that he saw the respondent on his scooter and "at the same time ... saw the car come past me heading west on Stanley Avenue". On the basis of that observation, Mr Keramidas said:

"[the appellant's car] would have to be travelling at a very fast speed and the scooter would have to be travelling at a very slow speed for them to meet [at] that point."

It was in part on the basis of Mr Fraser's statement that the primary judge concluded (at [47]) that it was not likely the respondent was going very fast.

In my view the appellant has not demonstrated any error in the primary judge's conclusion as to the respondent's probable speed prior to impact. Mr Fraser's statement was a powerful observation of the position of the respondent immediately prior to the accident viewed from the direction in which the appellant was travelling. Mr Keramidas's assessment of the respondent's probable speed in that light provided ample support for the inference his Honour drew.

Whether the accident was inevitable

Finally, the appellant submitted that the primary judge failed to adequately consider evidence relevant to his conclusion that the accident was not inevitable. This submission depended on him persuading the Court that the appellant could not have stopped in time and that the respondent was accelerating into the path of his vehicle, leaving him no reasonable opportunity to avoid a collision. Those submissions have been rejected.

However, the appellant also argues that his negligence was not a necessary condition of the respondent's harm because he would have been injured even if he had hit the gutter.

In my view this submission invites speculation on the Court's part. There was no evidence that the respondent would have suffered any harm, let alone harm to the extent he did, if he had stopped at the gutter or on the footpath or driveway.

As the respondent submitted, the dynamics of what would have occurred may have been entirely different if the respondent had not been facing a vehicle speeding towards him at almost 60 kilometres per hour.

Finally, I would observe that the appellant's agony of the moment submissions fail to engage with the content of the appellant's duty of care in the circumstances. The "so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved": Leishman v Thomas (1957) 75 WN(NSW) 173 (at 175) per Street CJ; quoted with approval in Stuart v Walsh [2012] NSWCA 186 (at [61]) per Tobias AJA (Bathurst CJ and Basten JA agreeing).

The appellant was driving at an excessive speed in an area and at a time when, as the primary judge found (at [40]), the presence of children could be anticipated. On the line of sight findings, if travelling at 40 kilometres per hour, a speed appropriate to those circumstances, he should have been able to bring his vehicle to a halt.

Orders

The respondent asked the Court to reserve the issue of costs in the event it determined to dismiss the appeal. It is appropriate in my view to make the cost order which would generally follow consequent upon the dismissal of the appeal, but to establish a short timetable for the exchange of written submissions concerning any application to vary that order, such application to be dealt with on the papers unless there is objection to that course.

I propose the following orders:

(1) Grant leave to appeal.

(2) Appeal dismissed with costs.

(3) Remit the proceedings to the District Court to assess the damages to which the respondent is entitled.

(4) Any application to vary the costs order to be filed and served within 7 days supported by written submissions not to exceed 5 pages.

(5) Any written submissions in response to the application to be filed and served within 7 days of receipt of the application supported by written submissions not to exceed 5 pages.

PRESTON CJ of LEC: I agree with McColl JA.

TOBIAS AJA: I agree with the orders proposed by McColl JA for the reasons she has expressed.

**********

Amendments

03 April 2014 - File number 2012/10171 and order granting leave to appeal inserted pursuant to UCPR 36.17

Amended paragraphs: Coversheet

Decision last updated: 03 April 2014

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Citations

Warth v Lafsky [2014] NSWCA 94

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Medium Neutral Citation:	Warth v Lafsky [2014] NSWCA 94
Hearing dates:	28 February 2013
Decision date:	01 April 2014
Before:	McColl JA at [1], Preston CJ of LEC at [146], Tobias AJA at [147]
Decision:	(1) Grant leave to appeal. (2) Appeal dismissed with costs. (3) Remit the proceedings to the District Court to assess the damages to which the respondent is entitled. (4) Any application to vary the costs order to be filed and served within 7 days supported by written submissions not to exceed 5 pages. (5) Any written submissions in response to the application to be filed and served within 7 days of receipt of the application supported by written submissions not to exceed 5 pages. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - motor vehicle accident - collision between motor vehicle and child on scooter - where driver driving at excessive speed - whether driver failed to keep proper lookout TORTS - negligence - motor vehicle accident - causation - whether driver could have stopped vehicle before impact if driving at reasonable speed and keeping proper lookout - whether any negligence on driver's part a necessary condition of occurrence of harm - S 5D Civil Liability Act 2002 (NSW) - whether accident inevitable PRACTICE - amendment - where appellant sought leave at hearing to amend notice of appeal - whether leave to amend should be granted
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act (NSW) 2005 Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adeels Palace Pty Ltd v Moubarak; [2009] HCA 48; (2009) 239 CLR 420 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Blacktown City Council v Hocking [2008] NSWCA 144 Derrick v Cheung [2001] HCA 48; 181 ALR 301 Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 88 ALJR 76 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Gunning v Fellows (1997) 25 MVR 97 Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 623 Leishman v Thomas (1957) 75 WN(NSW) 173 Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Stuart v Walsh [2012] NSWCA 186 Turkmani v Visvalingam [2009] NSWCA 211; (2009) 53 MVR 176 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648
Category:	Principal judgment
Parties:	Bryn Benjamin Albert Warth - Appellant Kallan Lafsky by his next friend Clayton Lafsky - Respondent
Representation:	Counsel: P J Deakin QC and P Nolan - Appellant D R Campbell SC and S Longhurst - Respondent Solicitors: Sparke Helmore Lawyers - Appellant Slater & Gordon Lawyers - Respondent
File Number(s):	2012/10171 and 2012/73747
Publication restriction:	No
Decision under appeal	Citation: Lafsky by his next friend v Warth (District Court (NSW), Delaney DCJ, 23 February 2012, unrep). Date of Decision: 2012-02-23 00:00:00 Before: Delaney DCJ File Number(s): DC 2009/79