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[2001] HCA 48
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...
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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.
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2,734 words · generated 24/04/2026
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.
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.
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.
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.
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.
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.
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.
On appeal from the Supreme Court of New South Wales
J D Hislop QC with P J Gormly for the appellant (instructed by Henry Davis York)
S L Walmsley SC with P C See for the respondent (instructed by Beston Macken McManis)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
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.
"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."
"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."
"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."
Another of the passages to which the Court of Appeal referred was as follows[4]:
"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."
"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.
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.
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.
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.
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]."
"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."
Derrick
Cheung
(1999) 29 MVR 351
(1996) 24 MVR 416
(1980) 146 CLR 40
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.