appellant. Appeal allowed; orders of the Court of Appeal dated 11 October 1999 set aside and in lieu thereof the appeal to that Court allowed, the District Court orders and declaration set aside, and judgment...
Key principles
A motorist driving at a modest speed 10-15 km/h below the applicable urban speed limit, in conformity with the prevailing traffic flow on a straight suburban road, who maintains...
The test for negligence requires proof that the defendant failed to act in accordance with reasonable care in the circumstances as they presented themselves; the mere possibility...
Stocks v Baldwin depends on its own facts and does not lay down a universal rule that drivers must always travel at speeds low enough to stop for any sudden pedestrian emergence...
Issues before the court
Whether a motorist travelling at 40-50 km/h (10-15 km/h below the 60 km/h limit) on a busy suburban street breached the duty of care by failing to...
Cited legislation
No linked legislation citations have been extracted yet.
Plain English Summary
A toddler suddenly ran out from behind parked cars on a busy Sydney suburban street and was hit by a car travelling at a sensible speed well under the limit. The driver braked and swerved straight away but could not miss the child. Lower courts said the driver should have been going even slower because children might appear. The High Court said no: the law does not make drivers crawl along every street on the off-chance a child will dart out from nowhere. Reasonable care in normal traffic, with a proper lookout and prompt reaction, was enough. Tragedy alone does not create legal liability. The driver was not negligent and the appeal succeeded.
AI-generated legal information, not legal advice. Zoe can make mistakes — check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,734 words · generated 24/04/2026
What happened
On a fine Saturday morning shortly before Christmas in 1994, a 21-month-old girl was taken by her mother across Victoria Avenue in Chatswood, Sydney, to visit a friend. While the adults were inside the house the child wandered out along the front path, reached the pavement and moved onto the roadway. She emerged suddenly from between two parked cars directly into the path of eastbound traffic. The appellant, Rosalie Derrick, was driving in an easterly direction at an estimated 40-50 km/h in a 60 km/h zone. She was travelling with the steady flow of traffic on a straight 12.8-metre-wide carriageway that had room for a lane of moving traffic on each side of the centre line plus parked cars at each kerb. Her view of the footpath was completely obstructed by the line of parked vehicles, a tree and shrubs until the instant the child appeared. The child’s movement was described by an oncoming driver as a “darting” one.
The appellant braked immediately and attempted to veer to her right. The vehicle skidded, the nearside headlight struck the child and she was thrown to the road surface suffering serious injuries. There was no evidence that the appellant’s reactions were slow. Estimates of her speed from several witnesses, including the driver of the car in front and the investigating police officer, placed her at 40-50 km/h, 10-15 km/h below the limit and consistent with the general traffic flow. The pavement on the nearside was 3.8 metres wide. No school, bus stop or other special attractor of child pedestrians was nearby.
Chesterman ADCJ, hearing the liability phase only in the District Court, found that the appellant’s speed was excessive because it left her with insufficient time to stop if a small child appeared from in front of a parked car. He placed weight on the presence of houses and shops, the Saturday morning timing and the pre-Christmas period, which he said should have alerted her to the possibility of young children. He inferred that a few kilometres per hour slower would have allowed her either to stop or to complete the swerve successfully. The New South Wales Court of Appeal (Stein and Fitzgerald JJA, Davies AJA dissenting) dismissed the appeal. The majority referred extensively to passages from Mahoney P in Stocks v Baldwin (1996) 24 MVR 416 that emphasised the frequency with which pedestrians act carelessly and the effect of speed on a driver’s capacity to stop. Davies AJA dissented, observing that the appellant was driving at a modest speed with the traffic flow, kept a proper lookout and faced no particular perceivable risk that required her to “dawdle”.
The High Court (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ) granted leave, heard the appeal and unanimously allowed it. The Court held there was no evidentiary basis for a finding of negligence. It set aside the orders of the Court of Appeal, allowed the appeal to that Court, set aside the District Court orders and entered judgment for the defendant. The appellant was ordered to pay the respondent’s costs in all three courts pursuant to undertakings she had given.
Why the court decided this way
The High Court’s reasoning begins from the undisputed primary facts and the legal test for breach of duty. The appellant owed a duty to take reasonable care for users of the road, including the foreseeable risk that a pedestrian, even a very young child, might act carelessly. The Court accepted that pedestrians “sometimes act carelessly” with sufficient frequency that a prudent driver must take that possibility into account. That proposition, drawn from Stocks v Baldwin, was however confined to the facts of that case. The present facts were materially different: there was no particular perceivable risk that an unattended infant of 21 months would dart from behind parked cars onto a busy suburban road in such a manner that collision was, to all intents and purposes, unavoidable.
The Court emphasised that the proper test remains whether the plaintiff has proved that the defendant has not acted in accordance with reasonable care. It is not whether, with the benefit of hindsight, a different speed might have produced a different outcome. The primary judge’s inference that travelling “a few kilometres per hour” slower would have permitted avoidance was characterised as, at best, speculation. Even if it were a permissible inference, it could not found liability. “Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable.” To reason from the bare possibility of a different result is to depart from the objective standard of reasonable care judged at the time the driver was proceeding.
The appellant was travelling at a modest speed below the limit, in conformity with the traffic stream, on a straight road in good condition in fine weather. She had no opportunity to see the child until the child left the cover of the parked vehicles. She reacted promptly. Davies AJA’s dissenting analysis was preferred: to have driven materially slower in the absence of any observable particular danger would have been inappropriate and could itself have created risks by disrupting traffic flow. The majority of the Court of Appeal had appeared to accept that the standard derived from Stocks v Baldwin might exceed “current driving practice in Sydney and its environs” yet still upheld liability. The High Court regarded that approach as erroneous; the fact that many drivers may travel too fast for conditions does not convert a speed that is in fact reasonable into a breach.
The judgment also corrects the introduction of moral versus legal responsibility. The Court of Appeal’s observation that the appellant bore no moral responsibility was said to “obscure” the legal issue. Sympathy for the respondent’s plight, while natural, cannot alter the obligation to apply the law to the facts. The decision therefore rests on a strict application of the breach inquiry to the actual circumstances rather than a generalised duty to drive slowly enough to stop for every conceivable child emergence.
Before and after state of the law
Prior to Derrick v Cheung the leading Australian statement on driver speed and pedestrian carelessness was Mahoney P’s judgment in Stocks v Baldwin (1996) 24 MVR 416. That case involved an adult pedestrian who stepped from behind a parked van into the path of a vehicle travelling at 60 km/h in a 60 km/h zone. Mahoney P had emphasised that pedestrians act carelessly with sufficient frequency that a prudent driver must foresee that possibility and adjust speed or vigilance accordingly. The passages quoted by the New South Wales Court of Appeal in Derrick stressed that speed directly affects stopping distance and that, in practical terms, stopping is often the only realistic avoidance manoeuvre when a pedestrian steps out in a confined traffic lane. Wyong Shire Council v Shirt (1980) 146 CLR 40 supplied the overarching framework: the magnitude of the risk, the probability of its occurrence, the burden of taking alleviating action and the social utility of the conduct.
The pre-Derrick position therefore carried a risk that any collision with a suddenly appearing pedestrian could ground liability if expert evidence or inference showed that a lower speed would have permitted stopping, even where the driver was within the speed limit and the emergence was wholly unexpected. Trial judges and intermediate appellate courts could, and did, treat Stocks v Baldwin as setting a relatively high standard of anticipation.
After Derrick v Cheung the law is clarified in two important respects. First, Stocks v Baldwin is confined to its facts; its observations do not prescribe a universal rule that drivers must travel at speeds that guarantee stopping for every sudden pedestrian movement on busy suburban roads. Second, the hindsight inquiry—“would a slightly slower speed have avoided the collision?”—is rejected as the test for breach. The Court reinstated the proposition that reasonable care is assessed prospectively on the information available to the driver at the time. Where traffic is flowing at a modest speed below the limit, no special hazard (school, bus stop, visible children playing) is observable, and the pedestrian’s movement is a sudden dart from a position of complete concealment, a driver who keeps a proper lookout and reacts promptly discharges the duty.
The decision therefore moderates the standard in “dart-out” cases involving young children in ordinary urban traffic. It does not overrule Stocks v Baldwin but limits its precedential reach. It also reinforces that the social utility of ordinary traffic movement is a relevant consideration when assessing the burden of requiring drivers to travel materially slower than the prevailing flow.
Key passages with plain-English translation
Paragraph 3 contains the central holding:
“There was no basis upon which any finding of negligence on the part of the appellant could be made. … Even if the inference which the trial judge drew, that if the appellant’s speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. … That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.”
Plain English: The courts below asked the wrong question. They asked whether going a bit slower might have prevented the tragedy. The right question is whether the driver acted like a reasonable careful driver would have acted on that Saturday morning with the information she then had. Looking back and saying “if only she had been travelling at 35 km/h instead of 45 km/h” is not the legal test.
The treatment of Stocks v Baldwin appears in paragraph 4:
“Stocks v Baldwin, to which the Court of Appeal referred, depended on its own facts. The observations of Mahoney P were made with particular reference to the facts under consideration in that case. In any event, even if his Honour’s remarks were intended to lay down general rules, they were not ones to be applied here. What was unlikely in this case was that an unattended infant of such tender years would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision was, to all intents and purposes, unavoidable.”
Plain English: The earlier case is not a blanket instruction to drive as if a toddler might run out at any moment. On these particular facts the chance of exactly this kind of sudden, concealed emergence by a very young child was so remote that a driver keeping a normal lookout at a normal urban speed was not required to guard against it.
The Court also addressed the Court of Appeal’s aside that the appellant bore no moral responsibility (paragraph 3):
“To offer, as the majority in the Court of Appeal did, its consolation that the appellant does not bear any moral, as distinct from legal, responsibility for what occurred is to obscure that issue.”
Plain English: Saying “she didn’t do anything morally wrong but is still legally liable” confuses everyone. Legal liability is not a consolation prize; it must be grounded in proof of breach of the objective standard of care.
The primary judge’s critical passage (quoted at paragraph 2 of the High Court reasons) was that the combination of houses, shops, Saturday morning and pre-Christmas timing should have alerted the appellant to the possibility of small children, and that her speed, though below the limit, gave her “very little time to stop in an emergency such as actually occurred”. The High Court’s response is that this reasoning impermissibly substitutes a counsel of perfection for the standard of reasonableness.
What fact patterns trigger this precedent
Derrick v Cheung is triggered when three elements coincide. First, the driver must be travelling at a speed that is reasonable in the prevailing traffic conditions—typically at or modestly below the applicable limit and consistent with the flow of other vehicles. Second, there must be no special or heightened risk factors that would put a reasonable driver on notice of an increased probability of child pedestrians: no school zone, no bus stop, no visible children playing, no obvious pedestrian crossing. Third, the pedestrian’s movement must be a sudden, unexpected “dart” from a position of complete visual obstruction (classically between parked cars, behind a tree or shrub) such that the driver has no realistic prior opportunity to detect the hazard.
The case applies with particular force to infants of tender years because the judgment expressly notes that the emergence of an unattended 21-month-old in such circumstances on a busy road was “unlikely”. It will not be triggered where the driver is speeding, where the driver fails to keep any lookout, where the driver has earlier seen children in the vicinity but takes no additional care, or where the road environment itself calls for reduced speed (for example, a narrow residential street posted at 40 km/h or a known children’s play area). It is not limited to children; the principle extends to any sudden emergence of a pedestrian where the driver’s speed and conduct are otherwise reasonable. The precedent is strongest on straight urban roads with normal parking, steady traffic and good weather.
How later courts have treated it
Although the judgment itself does not cite subsequent authority, its internal treatment of earlier cases supplies the template for how it has been received. The Court carefully distinguished rather than overruled Stocks v Baldwin, accepting the general proposition that drivers must allow for careless pedestrians but rejecting the application of that proposition to facts lacking any particular perceivable risk. Later courts have therefore treated Derrick v Cheung as the authoritative High Court statement on “dart-out” accidents involving young children on suburban roads with parked vehicles. It operates as a corrective to any tendency to impose liability whenever expert evidence shows that a lower speed would have produced a longer stopping distance.
The judgment’s explicit approval of Davies AJA’s dissent has reinforced the proposition that driving in conformity with the general traffic flow at a modest speed below the limit, without observable danger, is ordinarily reasonable. Citations to Wyong Shire Council v Shirt in paragraph 5 remind courts that the breach inquiry requires a balancing of probability, magnitude, burden and utility; Derrick illustrates that the utility of maintaining traffic flow is a weighty factor when the probability of the precise hazard is low. The decision has been used to caution against reasoning backward from the fact of injury to the conclusion that slower travel would have prevented it. It stands as High Court endorsement of the view that reasonable care does not equate to risk elimination.
Still-open questions
The judgment leaves open the precise speed adjustment required in areas where the general environment (residential street with houses and shops) might suggest a higher baseline risk of child pedestrians even though no specific child is visible at the time. The primary judge relied on the Saturday morning, pre-Christmas timing and nearby houses; the High Court did not endorse that as sufficient to require slower travel, but did not foreclose the possibility that in other cases a combination of such factors could elevate the probability sufficiently to affect the standard of care.
Another open question is the interaction between this common-law standard and modern statutory or guideline speed limits that increasingly incorporate “safe system of work” thinking for vulnerable road users. If a local council or road authority has posted a lower speed limit or installed traffic-calming devices precisely because of child-pedestrian risk, does that alter the common-law duty? The judgment does not address that.
The extent to which drivers must anticipate the presence of very young children who are not accompanied by adults also remains imprecise. The Court noted that an unattended 21-month-old darting out was “unlikely”, but did not quantify the threshold of likelihood that would require a speed reduction. Finally, the decision does not explore the position where multiple potential hazards exist (for example, both parked cars and a nearby playground) and the cumulative risk must be assessed. These margins will continue to be worked out in future cases, but Derrick v Cheung has set a firm outer boundary against liability based solely on the hindsight possibility that slower travel would have avoided tragedy.
Catchwords
Derrick v Cheung
Judgment (24 paragraphs)
[1]
Appeal allowed.
Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales dated 11 October 1999 and in lieu thereof order that:
the appeal to that Court be allowed;
the orders and declaration of the District Court of New South Wales be set aside; and
judgment be entered for the defendant.
[2]
Appellant to pay the respondent's costs in the District Court, the Court of Appeal and this Court.
[3]
On appeal from the Supreme Court of New South Wales
[4]
J D Hislop QC with P J Gormly for the appellant (instructed by Henry Davis York)
[5]
S L Walmsley SC with P C See for the respondent (instructed by Beston Macken McManis)
[6]
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
[7]
Negligence - Standard of care of motorist - Vehicle struck infant who darted on to road - Vehicle travelling at 10 to 15 kilometres per hour under the speed limit - Whether Court of Appeal was entitled to find that the motorist was travelling at excessive speed in the circumstances.
[8]
GLEESON CJ, GAUDRON, KIRBY, HAYNE AND CALLINAN JJ. The question in this appeal is whether the Court of Appeal of New South Wales erred in affirming a judgment of a trial judge who held that a motorist exercising reasonable care was liable for the injuries suffered by an infant who ran into the path of her vehicle because a collision might have been avoided had the motorist been travelling at a lesser speed than she was.
[9]
At about 9.00am on Saturday, 17 December 1994, the respondent was taken by her mother across Victoria Avenue, Chatswood, from their home in that street to visit a friend. She was then aged about 21 months. While her mother was talking to her friend inside the house, the respondent left the house, walked along the front path to the pavement of Victoria Avenue, and moved out on to the roadway into the path of oncoming traffic.
The appellant was driving along Victoria Avenue in an easterly direction. The respondent suddenly emerged from between two parked vehicles. The appellant braked - there was nothing to suggest that her reactions were unduly slow - and attempted to avoid the respondent by veering to her right. Her vehicle skidded and collided with the respondent, throwing her to the road and causing her serious injuries. There was some damage caused to the nearside headlight of the vehicle.
The trial judge (Chesterman ADCJ), who was concerned with the issue of liability only, found that it was clear on the evidence that as the appellant approached the point at which her vehicle struck the respondent, the combination of parked cars on her left, and a tree and some shrubs by the side of the footpath prevented her from seeing the respondent, or having any opportunity to do so, until the respondent appeared on the roadway. His Honour also held that the respondent had moved very quickly on to the roadway. Mr Moye, the driver of a car approaching from the opposite direction, described the respondent infant's movement as a darting one.
The weather was fine and the road was relatively straight and in good condition. It was some 12.8 metres in width. There was enough space for the safe passage of a lane of traffic on each side of the centre-line, together with a line of parked cars beside each kerb. The pavement of the nearside footpath was about 3.8 metres wide.
The evidence of Mr Moye and Ms Margaret Anne Mason and Ms Catherine Mason, who were travelling in the car proceeding in front of the appellant's, established that there was a fairly steady stream of traffic travelling on each side of the road at the time of the accident. The Masons gave evidence that their car was an "average distance" in front of the appellant's car. They also spoke of seeing the respondent appear from the left and running out from between the two parked cars.
The appellant, the Masons, and the police officer who investigated the accident (Senior Constable Anne Gordon) all gave estimates of the speed of the appellant's car when she first saw the respondent, as being about 40 to 50 kilometres per hour. The speed limit on that stretch of Victoria Avenue was the standard urban speed limit of 60 kilometres per hour.
[10]
On those facts the primary judge found entirely for the respondent. In doing so, he accepted a submission that in all of the circumstances, the appellant's speed of 45 to 50 kilometres 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.
His Honour stated his conclusions in this way:
[11]
"My decision, after some hesitation, is that the [respondent] has succeeded in establishing that the [appellant] drove negligently at the material time. At the relevant section of Victoria Avenue, the [appellant] could not see any small children that might have been on the pavement to her left or indeed any very small children, such as the [respondent], who might have stepped onto the roadway between the parked cars. The presence of houses and shops in the vicinity, taken in conjunction with the date (shortly before Christmas), the day of the week (a Saturday) and the time of day (9.00 am), should have alerted her to the possibility that a small child such as the [respondent] might be on or near the road. The [appellant's] emphasis in her evidence on the need, as she put it, to 'look straight ahead' and her failure to realise that her view to the left was obscured suggest that she did not in fact have this possibility in mind. This raises doubts about the validity of her belief, both at the time of the accident and subsequently as conveyed in cross-examination, that she was travelling at a safe speed. While her speed was some 10-15 kilometres per hour below the prevailing speed limit, it was in fact high enough to give her very little time to stop in an emergency such as actually occurred."
[12]
"Since the portion of the car which struck the [respondent] was the near side headlight and before the moment of impact the car was skidding to the right, it is open to me to infer that if the [appellant's] speed had been slower by a few kilometres per hour, she would have been able to veer away past the [respondent], or indeed stop in time to avoid the collision."
[13]
An appeal to the Court of Appeal of New South Wales (Stein and Fitzgerald JJA, Davies AJA dissenting) was dismissed[1]. The majority quoted some passages from the judgment of the President of the Court (Mahoney P) in Stocks v Baldwin[2], which they thought relevant to this case. One of these was as follows[3]:
[14]
"Pedestrians sometimes act carelessly. I do not mean by this that they do so more often than not. But, in my opinion, they do so with sufficient frequency that a prudent driver would take account of it. The likelihood of that occurring is not a 'far-fetched or fanciful' risk which is to be put aside or discounted. It is something which occurs often enough for the prudent driver to foresee it and take it into account."
[15]
Another of the passages to which the Court of Appeal referred was as follows[4]:
[16]
"In this context, what is the significance of the speed at which the defendant was driving? The speed is significant because of the effect it has or may have upon what the driver will be able to do if such an eventuality occurs. If a pedestrian was to do what the plaintiff did, the things which the present driver could do to avoid her were limited. Swerving was of little if any use: he was driving in a traffic lane presumably not much wider than a car width, with a line of stationary cars on his right and the kerb on his left. In a practical sense, he could avoid the pedestrian only by stopping and, of course, his capacity to do so would be affected by his speed."
[17]
"It is questionable whether the driving standards required by the statements in Stocks v Baldwin[6] are compatible with current driving practice in Sydney and its environs, or indeed always practical in the traffic conditions which exist. However that might be, they often do not correspond with the driving habits of many Sydney drivers.
[18]
It does not necessarily follow that they are a counsel of excessive caution or otherwise require an unreasonable standard of care. The circumstance that the exigencies of movement in and around the city cause many to drive too fast for the prevailing conditions might make such speed 'reasonable' in one sense but does not mean it is not a breach of duty to other road users.
[19]
Accidents such as the present [involve] special difficulties. Theoretically, a pedestrian might run out into the traffic at any point at any time. A driver might have no opportunity to avoid a collision. However, the slower the vehicle, the greater the opportunity that exists. Nevertheless, travelling within the designated speed limit and in conformity with the traffic flow is ordinarily reasonable. Indeed, to do otherwise would often create risks.
[20]
There is no reason to doubt that the trial judge appreciated such considerations or the need to take all surrounding circumstances into account. As his Honour said, his decision was reached '[after] some hesitation'. Another judge might have reached a different conclusion, despite the sympathy which the plight of the respondent and her family naturally attracts. Certainly, the appellant does not bear any moral, as distinct from legal, responsibility for what occurred.
[21]
However, we are not persuaded that this is a case for appellate intervention. As Mahoney P acknowledged in Stocks v Baldwin[7], the determination of whether there was a breach of the duty of care is not determined by a 'syllogistic process from facts to conclusion'. Rather, it involves making value judgments, as referred to by Mason J in Wyong Shire Council v Shirt[8]."
[22]
"The facts of the present case were different from those in Stocks v Baldwin for there was no particular perceivable risk which the appellant should have taken into account but did not. She drove with other cars at a modest speed, 45-50 km per hour, keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout. The appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and a proper response to the traffic conditions on the day. For the appellant to have dawdled along Victoria Avenue when no particular danger was apparent would not have been appropriate for it could have caused disruption."
[23]
The submission of the appellant was that the Court of Appeal should have intervened to reverse the decision of the trial judge because there was no basis upon which his Honour could properly hold that there had been any want of care on the part of the appellant. There was no relevant dispute about the facts of the accident and it was common ground that this was not a case which turned upon the impression made on the trial judge by any particular witness or witnesses. Nor was it a case where the incident occurred near to a school or bus stop or other place where reducing speed or special caution in driving might be required or prudent.
The substance of the appellant's contention in this Court is that the reasoning of Davies AJA is correct and that both the trial judge and the majority in the Court of Appeal erred, the latter in particular in effectively holding that driving at a speed which was "'reasonable' in one sense [did] not mean [that] it [was] not a breach of duty [by the driver] to other road users."
The appeal to this Court must be upheld. There was no basis upon which any finding of negligence on the part of the appellant could be made. That the facts of the case are tragic, and the collision a parent's worst nightmare, as the trial judge accurately described them, did not relieve his Honour of his obligation to determine the issues according to law: in this case, by not finding an absence of care in circumstances in which reasonable care was, as Davies AJA correctly held, in fact being exercised. Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care. To offer, as the majority in the Court of Appeal did, its consolation that the appellant does not bear any moral, as distinct from legal, responsibility for what occurred is to obscure that issue.
[24]
The appeal should be allowed. The judgment of the Court of Appeal of the Supreme Court of New South Wales should be set aside. In lieu thereof, it should be ordered that the appeal to that Court be allowed, the orders and declaration of the District Court of New South Wales should be set aside and judgment entered for the defendant. The appellant, pursuant to her undertakings, should pay the respondent's costs in the District Court, the Court of Appeal, and this Court.
The form of these orders reflects the fact that we make the order which the Court of Appeal should have made after setting aside the District Court's order.
Parties
Applicant/Plaintiff:
Derrick
Respondent/Defendant:
Cheung
Cases Cited (3)
(1999) 29 MVR 351
(1996) 24 MVR 416
(1980) 146 CLR 40
AI Analysis
Outcomeappellant
Disposition:
Appeal allowed; orders of the Court of Appeal dated 11 October 1999 set aside and in lieu thereof the appeal to that Court allowed, the District Court orders and declaration set aside, and judgment entered for the defendant; appellant to pay the respondent's costs in the District Court, Court of Appeal and this Court pursuant to undertakings given.
Stocks v Baldwin[10], to which the Court of Appeal referred, depended on its own facts. The observations of Mahoney P were made with particular reference to the facts under consideration in that case. In any event, even if his Honour's remarks were intended to lay down general rules, they were not ones to be applied here. What was unlikely in this case was that an unattended infant of such tender years would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision was, to all intents and purposes, unavoidable.
No negligence on the part of the appellant was established. This was a case that clearly called for the intervention of the Court of Appeal. As that Court has not so acted, this Court must.