Court of Appeal (WA)|2010-06-28|Before: Newnes JA, Lure P, Martin J

WENSINK -v- MARSHALL [2010] WASCA 117 (28 June 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WENSINK -v- MARSHALL [2010] WASCA 117

TRISTAN JAMES MARSHALL by next friend SIAN RHONDA ROBERTS

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : MARSHALL by his next friend SIAN RHONDA ROBERTS & ANOR -v- WENSINK [2009] WADC 34

Negligence - Motor vehicle accident - Appellant (driver) travelling below speed limit on continuing road - Respondent emerged suddenly from side street on bicycle and collided with side of appellant's vehicle - Appellant's view up side street as he approached it obscured by shrubbery and fence - Whether appellant negligent by travelling at excessive speed and failing to keep proper lookout - Whether causation established - Turns on own facts

First Respondent : Mr C L Zelestis QC & Mr D J Bayly

Second Respondent : Mr C L Zelestis QC & Mr D J Bayly

Gunning v Fellows (1997) 25 MVR 97

Knight v Maclean [2002] NSWCA 314

Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228

Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369

Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341

Purcell v Watson (1979) 26 ALR 235

South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113

Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317

Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

1 McLURE P: I agree with Newnes JA that the appeal should be allowed, the decision of the primary judge set aside and the claim of the respondent (plaintiff) dismissed. These are my reasons for that conclusion.

2 The respondent was successful in his claim for damages for personal injury suffered when the bicycle he was riding collided with the appellant's Toyota land cruiser in Brand Avenue, Bunbury in the early afternoon of 22 July 2000.

3 The respondent, who was then aged 6, his older brother Corey and older sister Michaela were riding down Monger Court which runs from west to east and intersects at a T-junction with Brand Avenue, which runs north-south. The respondent and Corey travelled from Monger Court through the intersection at around 30 km per hour.

4 The appellant was driving in a northerly direction on Brand Avenue. The respondent hit the appellant's vehicle on the left hand side behind the rear tyre.

5 The material facts found by the trial judge were in dispute at the hearing of the appeal. In particular, it was contended on behalf of the respondent that the trial judge found that prior to the accident the appellant looked but did not see Corey, notwithstanding that Corey was in the appellant's field of vision. That is, on the primary facts found by the trial judge the appellant should have been aware of Corey's presence prior to the accident. In order to understand the basis for the submission, it is necessary to refer in detail to the trial judge's findings.

6 The appellant was driving his vehicle along Brand Avenue towards the T-junction with Monger Court at a speed of somewhere between 40 km and 45 km per hour. On the southern corner of the T-junction there was shrubbery about 1.5 m high and behind the shrubbery was a fence approximately 2 m high.

7 As the appellant proceeded to drive north along Brand Avenue towards the T-junction with Monger Court, he was not looking to his left or to his right but was focussed on the road ahead which was relatively straight. The speed limit in the area was 60 km per hour and the driving conditions (weather and road surface) were good.

8 The appellant did not see any children on Brand Avenue or at the T-junction as he approached Monger Court, although he did not take issue with the suggestion that it was likely that there would be children in the area because there were new houses under construction [140], [141].

9 The trial judge found that the appellant did not look to his left towards or up Monger Court until he was halfway across the intersection, a split second before his vehicle was struck by the respondent [142]. He also found as follows:

I found the evidence of the [appellant] to have been given in a forthright and candid manner doing the best he could to recollect these events. I did not find the [appellant] to have given evidence in a way that was most beneficial to him. I find that the [appellant] did not see a child ride across the front of his vehicle before the impact from the [respondent's] bicycle [144].

10 The trial judge was satisfied that both Corey and the respondent were riding their bikes at or about 30 km per hour down Monger Court towards the T-junction with Brand Avenue. The front of the appellant's vehicle was in the centre of the T-junction when the collision occurred and the respondent was on the southern side of Monger Court and on the incorrect side of that road as he proceeded into Brand Avenue. The trial judge found that Corey came down on the correct (northern) side of Monger Court.

11 The trial judge did not accept the evidence of Ms Armstrong, who was driving up Monger Court when she was passed by the respondent, Corey and Michaela, that the respondent was the first to reach the T-junction, the others being three or four metres to the rear of the respondent. The trial judge found that Corey was the first of the children to reach the T-junction [153].

12 However, the trial judge did not accept Corey's evidence that at the time he crossed over Brand Avenue, the appellant's vehicle was 15 m to 20 m to the south of his bicycle. He said:

If that was the case, given that I have found that the [appellant] was focused ahead of his vehicle when driving towards the intersection with Monger Court, the [appellant] could not possibly have missed seeing Corey on his bike. As I have said, I do not find that the [appellant] saw Corey on his bike riding across Brand Avenue in front of the path of his vehicle [152].

13 The respondent relies on the following paragraphs in support of his contention that the appellant 'looked but did not see' Corey:

I accept Corey's evidence that he did ride his bike across Brand Avenue, ahead of the [appellant's] vehicle, but I consider it likely that that manoeuvre must have occurred at or about the same time as the [appellant's] attention was drawn to the impact between the [respondent's] bike and the left hand rear of his vehicle.

Support for that finding comes from Corey's evidence that he reached the other side of the road when he heard the collision and as a consequence that could only have occurred almost contemporaneously with the collision happening [155] - [156].

14 There is no finding in [156], only an explanation for the findings in [155]. The trial judge accepted the appellant's evidence that he first became aware of the children after his vehicle was halfway through the T-junction [158].

[A]ll of a sudden, out of the corner of my left eye, I glimpsed a movement, saw the child, and slammed on the brakes.
What can you describe who you observed, or what you observed?
All I saw was - and instantly was these - maybe three to four young kids on bicycles, just out of the corner of my eye.
And then when you saw the child, what did you do?
I immediately hit the brakes because he was coming down the southern side of Monger Court.
And when you first saw the child and you then applied your brakes, what response time do you estimate you had?
Only a split second.

16 The trial judge concluded that the appellant had breached his duty of care in two ways; first, by driving at a speed which was in the circumstances excessive and second, by failing to look to his left until he was in the centre of the T-junction which constituted a failure to keep a proper lookout. On the failure to keep a proper lookout and causation, the trial judge said:

Had [the appellant] looked to his left towards Monger Court earlier then he did, whilst he may not have immediately seen the [respondent] he would have seen at least Corey and perhaps Michaela who were riding down Monger Court on the northern side of that road and that would then have enabled him to brake much earlier then he did and allowed him more time to take evasive action [182].

17 The same facts were relied on to establish both breaches namely that there was a substantial obstruction to the appellant's line of sight into Monger Court caused by the shrubbery and the 2 m fence and that the appellant was aware that children may be on the road in the vicinity in which he was driving, including Monger Court.

Whilst it is the case that the [respondent] was riding his bicycle at about 30 kilometres per hour, on the incorrect side of Monger Court approaching the T-junction, the failure as I have found on the part of the [appellant] to keep a proper lookout and to drive at a speed which, in all of the circumstances, was a safe speed approaching this T-junction, prevented the [appellant] from braking in a timely way and/or taking other evasive action so as to avoid the collision [189].

19 The trial judge did not make findings concerning the width of Monger Court, the width of Brand Avenue, how much of the northern part of Monger Court was visible at or before entry into the T-intersection, the specific position of Corey on the northern side of Monger Court just before entry into the intersection (seemingly somewhere between the middle of Monger Court and the northern edge of that road), how far Corey was in front of the respondent when they entered Brand Avenue or the speed at which the collision could have been avoided. The failure to make such detailed findings was a consequence of the way the parties conducted the trial. Thus, the scope and meaning of the trial judge's findings has to be determined in the context of the general findings as a whole.

20 When read as a whole, it is clear the trial judge found that at no stage until the collision with the respondent was unavoidable, was Corey within the appellant's field of vision, the appellant not having looked to the left until a split second before the respondent struck his vehicle. That is, the appellant's failure to keep a proper lookout is confined to his failure to look left up Monger Court earlier than he did.

21 The findings at [155], when read with [156], [182], [183] and [189] do not compel a contrary construction. The trial judge's finding that Corey reached the other side of Brand Avenue in front of the appellant's car without being seen, is explained by the trial judge on the basis that it occurred when the appellant's attention was drawn to the respondent from the split second before the accident ([141], [156]).

22 The effect of the findings by the trial judge is that at no time before the appellant first became aware of the children when he was in the middle of the intersection a split second before the accident, were any of them within his field of vision, including his peripheral vision.

23 The first four grounds of appeal, which are set out in the judgment of Newnes JA, are in substance a challenge to the finding that the appellant breached his duty of care to the respondent. In deciding whether there has been a breach of a duty of care, the court must first ask itself whether a reasonable person in the defendant/appellant's position would have foreseen that his conduct involved a risk of injury to the plaintiff/respondent or to a class of persons including the respondent: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 per Mason J. If the answer to that question is in the affirmative, it is for the court to determine what a reasonable person would do by way of response to the risk which calls for a consideration of the magnitude of the risk, the degree of the probability of its occurrence, together with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have: Wyong (47 - 48) (Mason J).

24 However, a failure to eliminate a risk that is reasonably foreseeable and reasonably preventable does not establish breach: Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341; Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317; Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [36] - [37].

25 The factual judgment of what is a reasonable response to a foreseeable risk depends on all the circumstances. The question in this case is what a reasonable driver would in the circumstances do by way of response to a foreseeable risk of children entering onto Brand Avenue unexpectedly from a side street. I accept that where the risk involves children, there can be no assumption or expectation that they will exercise reasonable care for their own safety.

26 The appellant was driving at significantly under the speed limit on a continuing road that had right of way. The presence of an obstruction interfering with line of sight up an intersecting road is commonplace in suburbia. Based on what the appellant knew or ought reasonably to have known, there was nothing in the surrounding circumstances to suggest that the risk of children entering onto Brand Avenue unexpectedly was other than the background level of risk that applies when driving in any suburban area, whether established or new. The presence of such a background risk can satisfy the test of reasonable foreseeability (not far-fetched or fanciful) but is not at such a level as to require a driver to take particular or special precautions, such as by reducing the speed of the vehicle to something below 40 km per hour.

27 It is implicit in the trial judge's reasons that a reasonable speed is that which would allow a driver to see up Monger Court (and all other intersections) so as to be able to take appropriate evasive action in the event of a child entering onto Brand Avenue. On that basis, the speed on entering the intersection would have to be significantly less than 40 km - 45 km per hour. Such a course is neither reasonable nor practicable and has all the hallmarks of a hindsight analysis.

28 The only reasonable inference from the facts found by the trial judge is that the appellant did not breach his duty of care to the respondent.

29 At the hearing of the appeal, the appellant sought leave to rely on supplementary written submissions on the issue of causation. The appellant relied on mathematical calculations as to the likely factual scenarios one second, one and a half seconds and two seconds before impact, relying on a combination of factual findings made by the trial judge and measurements and estimates from photographs tendered in evidence. The calculations descended to a level of particularity well beyond anything supported or supportable by the trial judge's findings. Indeed, in one material respect (where Corey was one, one and half and two seconds before impact) it was inconsistent with the trial judge's findings. The respondent opposed the grant of leave for these reasons.

30 In the end, the submissions were relied on by the appellant to make the general point that in the circumstances of this case, causation had to be established by the respondent proving the speed at which the accident might have been avoided. I am not persuaded of the correctness of that submission. As previously noted, on my reading of the trial judge's reasons, the findings of breach are interdependent. That is, what a reasonable speed was that required in order for the appellant to see up Monger Court before proceeding through the intersection. The findings of breach were intended to facilitate a finding of causation.

31 I would uphold grounds of appeal 1, 2, 3 and 4 and dismiss ground 5.

32 NEWNES JA: This is an appeal against a decision of Scott DCJ in the District Court in which his Honour found the appellant liable in negligence for personal injury suffered by the first respondent (Tristan) when Tristan's bicycle collided with the appellant's Toyota LandCruiser: Marshall by his next friend Sian Rhonda Roberts & Anor v Wensink [2009] WADC 34. The trial before his Honour was on the issue of liability only.

33 The material facts as found by the primary judge were not in dispute on the appeal.

34 In the early afternoon of 22 July 2000, Tristan (then aged 6), his older brother Corey (then aged 11) and his sister Michaela (then aged 9) rode their bicycles from their home in Tobin Place to Monger Court in Bunbury.

35 Monger Court runs from west to east. At its eastern end it has a downhill gradient and terminates in a T-junction with Brand Avenue, which runs north-south. The speed limit on Brand Avenue is 60 km per hour. To the east of Brand Avenue (opposite the intersection with Monger Court) there was at the time of the collision vacant land on which there were hills which were used by children in the area as BMX bike humps.

36 The children rode down Monger Court towards Brand Avenue with the intention of crossing Brand Avenue so that they could ride their bikes over the bike humps.

37 The appellant was driving a Toyota LandCruiser which had a tray back. He had delivered a load of wood to his brother-in-law's home in Yardley Court, which is to the south of and parallel to Monger Court. After unloading the wood, the appellant intended to drive home. He travelled east along Yardley Court, turned left into Brand Avenue and then proceeded in a northerly direction on Brand Avenue, intending to continue along Brand Avenue through the T-junction with Monger Court. He was travelling along Brand Avenue at 40 - 45 km per hour.

38 As the appellant's vehicle approached Monger Court, a white Holden Gemini being driven by Ms Casey Armstrong in a southerly direction along Brand Avenue, towards the appellant's vehicle, turned right into Monger Court. The distance between the appellant's vehicle and the intersection with Monger Court was 50 m or thereabouts when Ms Armstrong executed the turn.

39 After turning into Monger Court, Ms Armstrong saw the three children riding down Monger Court towards her. She stopped her vehicle on Monger Court, approximately 37 m from Brand Avenue. She had to brake because of the proximity of the three children. Tristan rode past the passenger side of her vehicle, approximately 1 m from the southern curb, to avoid her. The other children passed her vehicle on the driver's side. At that point, Corey and Michaela were in or about the centre of the road or marginally on their correct side of the road. Tristan was on the incorrect side of the road. Ms Armstrong had driven another 10 m or so when in her rear vision mirror she saw Tristan collide with the appellant's vehicle.

40 Tristan and Corey were travelling down Monger Court at 30 km per hour (8.33 m per second). No finding as to the speed at which Michaela was travelling was able to be made by the primary judge. Corey reached the T-junction first and rode across Brand Avenue in front of the appellant's vehicle. The primary judge found that at or about the same time Tristan's bicycle collided with the left hand rear of his vehicle, behind the back wheels. At the point of impact, Tristan was on the southern side of Monger Court, on the incorrect side of the road. His Honour found that the appellant did not see Corey cross his path because at that instant the appellant's attention was drawn to the collision with Tristan.

41 The appellant could see approximately 600 m along Brand Avenue as he travelled towards the junction with Monger Court. There were no vehicles in front of him. The appellant was not aware there were any BMX-type facilities on the eastern side of Brand Avenue. The defendant was aware that there were new houses under construction in the area and that it was likely there would be children in the vicinity. He did not, however, see any children as he approached Monger Court.

42 Because of some shrubbery and a two metre high fence on the south-west corner of the T-junction, Tristan would not have been visible to a driver travelling north along Brand Avenue until the driver was very close to or had entered the T-junction. Corey, who was on the northern side of Monger Court would have been visible earlier, but the primary judge did not make any finding as to how much earlier. The appellant was focused on the road ahead and did not look to his left towards or up Monger Court until after he had entered the intersection, when his bonnet was at about the middle of the T-junction. That was around the time of the collision

43 Tristan was seriously injured in the accident and, by his next friend, brought proceedings for negligence against the appellant.

44 The respondent alleged that the appellant was negligent in:

failing to stop or slow down on the entry of the first bicycle onto the junction;
failing to heed the risk that another cyclist may enter the junction;

failing to steer, manoeuvre or otherwise control his vehicle to avoid colliding with the respondent.

45 The primary judge found that the appellant was negligent in two respects. His Honour found that in the circumstances the appellant was negligent in travelling at an excessive speed and in failing to keep a proper lookout. In relation to the appellant's speed, his Honour said:

[The appellant], as I have found, knew or ought to have known that there might be young children in the vicinity and that young children may be riding bikes on the roads and as a consequence, it was necessary for him to take special care in the manner described in Mitchell v Government Insurance Office (NSW)...

[The appellant] knew that Monger Court intersected with Brand Avenue and he knew that his view into Monger Court was significantly obstructed by shrubbery and a two metre fence. In view of the likelihood of children riding on the roadway and the substantial obscurity to his vision into the T-junction I am of the view that a speed of 40 - 45 kilometres per hour into this T-junction was in these circumstances, excessive, and resulted in a failure to properly cater for the risk of a child riding in Monger Court into the T-junction [177] - [178].

46 In relation to his finding that the appellant had failed to keep a proper lookout, the primary judge referred to his finding that the appellant did not look to his left towards Monger Court until the bonnet of his vehicle had reached the centre of the T-junction. His Honour observed that as the appellant approached the T-junction he had a view of part of the northern side of Monger Court and his line of vision up Monger Court would have improved as he approached the T-junction. Had he looked towards Monger Court earlier, he would have seen Corey, and perhaps Michaela, and that would have allowed him to brake much earlier than he did and take evasive action.

47 His Honour found that as the appellant's line of vision up Monger Court, as he approached it, was obstructed by the shrubbery and the fence, and as the appellant was aware that children may be on roads in the vicinity, he was obliged to display a special degree of caution so as to be aware of what traffic may be on Monger Court as he drove into the intersection. His failure to look to his left until he was in the centre of the T-junction amounted to a failure to keep a proper look out.

48 The primary judge distinguished the decision of the High Court in Derrick v Cheung [2001] HCA 48; [2001] HCA 48; (2001) 181 ALR 301, relied upon by the appellant, on the facts. In that case, the driver of a motor vehicle who was driving within the speed limit in suburban Sydney collided with a small child who emerged from between two parked cars into the path of the vehicle. A claim of negligence against the driver was dismissed by the High Court. The primary judge considered that the distinguishing feature in the present case was that the appellant was aware that the shrubbery and fence on the corner of the T-junction substantially obscured his vision into Monger Court and, accordingly, he should have taken reasonable steps to ensure he was able to take evasive action should the need arise. His failure to reduce his speed and to keep a proper lookout meant that he had not exercised reasonable care.

49 The primary judge found that while Tristan had ridden his bicycle at about 30 km down Monger Court on the wrong side of the road, the failure of the appellant to drive at a safe speed and to keep a proper lookout had prevented the appellant from braking or taking other evasive action earlier so as to avoid the collision. The negligence of the appellant was therefore a material cause of the accident.

50 The appellant relied upon the following grounds of appeal:

The learned trial judge erred in law in finding that the appellant was under a special duty of care to anticipate and guard against the risk that there may be an unseen child on a bicycle riding towards Brand Avenue on Monger Court and that such a child might fail to give way to him.
The learned trial judge erred in fact and law in finding that the appellant's duty of care required him to drive at a speed less than 40-45 kmph and to check Monger Court for traffic before entering the intersection.
The learned trial judge erred in law by approaching the issue of breach on the basis that had the appellant driven at a lower speed and kept a better lookout the collision would have been avoided, without considering what a prudent driver would reasonably have done, or not done, in the same circumstances.
The learned trial judge erred in fact in finding that the appellant breached his duty of care by driving at 40-45 kmph and failing to see [Tristan] before the collision and in time to avoid it, and should have found that the speed at which the appellant was driving was reasonable and that the appellant could not reasonably have observed [Tristan] any earlier than he did.
The learned trial judge erred in fact, in terms of causation, in finding, implicitly, that had the appellant driven more slowly and kept a better lookout the collision would have been avoided, and should have found that the collision was, in all the circumstances, unavoidable.

51 The first ground of appeal is not entirely clear. The appellant's written submissions in relation to it were ambiguous and it was not touched upon in oral argument. If it was intended to challenge a finding that the appellant owed, not a duty to exercise reasonable care, but some other, special duty of care, I would not allow it. There was no such finding. While his Honour found that it was necessary for the appellant to take 'special care' in circumstances where he was aware or should have been aware that children may be riding bicycles on the road [177], it is clear that his Honour was not referring to a 'special duty of care' but meant simply that in such circumstances the exercise of reasonable care may call for greater care than would ordinarily be the case [164]. I consider, however, that for the reasons set out in [55], there was nothing in the circumstances of this case which called for greater than usual care.

52 The second, third and fourth grounds of appeal challenge, in substance, the findings of the primary judge that, in the circumstances, the appellant was travelling at an excessive speed and failed to keep a proper lookout. The appeal was effectively argued on the basis that these grounds are to be considered together and I propose to deal with them in that way.

53 The appellant was required to exercise reasonable care in driving his vehicle. The exercise of reasonable care requires a driver to take into account that other road users will not always take due care: Purcell v Watson (1979) 26 ALR 235, 240; Knight v Maclean [ 2002] NSWCA 314 [44]. As the High Court pointed out in Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228 [11] - [12], a driver must pay reasonable attention to all that is happening on and near the roadway that may present a source of danger. The exercise of reasonable care requires a driver to control the speed and direction of their vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events. Where a driver knows or ought reasonably to know that children may be on or near the road the exercise of reasonable care may call for greater than usual caution in light of the propensity of children to act in unexpected ways: Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369; Gunning v Fellows (1997) 25 MVR 97, 98.

54 On the other hand, it is clear that the exercise of reasonable care does not require a driver to drive in such a way as to be in a position at all times to anticipate anything that a pedestrian or another motorist might do, or to be in a position to reduce the speed of their vehicle to a level which will avoid any risk of collision: Knight v MacLean [68].

55 In this case, the appellant could not have been expected to anticipate that a child might emerge suddenly from Monger Court on a bicycle and cross Brand Avenue. The appellant acknowledged that there were new houses in the area and that he knew there may be children in the vicinity. However, the presence of children could reasonably be expected in many, if not all, residential parts of the metropolitan area. There was nothing to suggest that this location had some special attribute in that respect. The appellant had not seen any children in the area before the collision occurred and he was not aware that south of Brand Avenue at that point there was an area attractive to children. It was not suggested that he ought to have been aware of that. There was nothing to alert the appellant to the possibility that there might be children in Monger Court who would seek to cross Brand Avenue to gain access to the vacant land on the other side. And as appears from the findings of the trial judge, none of Tristan, Corey or Michaela was within the appellant's field of vision until an instant before the collision [155], [156]. Those findings are discussed below [62] - [66].

56 The appellant was travelling at a modest speed, significantly below the speed limit, and was focused on the road ahead. In my view, with respect, the primary judge erred in finding that the appellant should have slowed down as he approached the T-junction and should have looked up Monger Court for possible hazards sooner than he did. There was nothing which suggested that someone might emerge suddenly from Monger Court into the intersection or that for any other reason the appellant should pay greater attention to Monger Court. There was nothing which reasonably called for him to exercise particular caution in passing through the intersection; there was 'no particular perceivable risk which [the appellant] should have taken into account but did not': South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 [60]. The mere fact that the appellant's view up Monger Court was obscured by shrubbery and a fence until he reached the intersection did not mean that it was incumbent upon him to slow down further and look up Monger Court to check for any hazards before proceeding through the intersection. That would be to impose an unreasonable obligation on a motorist using Brand Avenue, or any other continuing road in a residential area where the view along an intersecting road was obscured.

57 In my view, the primary judge was in error in finding that the appellant was negligent.

58 Ground 5 of the grounds of appeal challenges the finding of the primary judge that the appellant's negligence was a material cause of the accident. In light of my finding that the appellant was not negligent, it is, strictly speaking, unnecessary to consider this ground, but as the matter was fully argued it is appropriate to say something about it.

59 It was submitted on behalf of the appellant that on the facts as found by the primary judge the appellant had no reasonable opportunity of avoiding the accident. Tristan was travelling down Monger Court on the southern (or incorrect) side of that road at 30 km per hour. He collided with the left side of the appellant's vehicle behind the rear wheels at a time when the vehicle was close to the southern side of Monger Court. That indicated that even if the appellant had braked when he was first able to see Corey, he could not have stopped in time to prevent Tristan colliding with his vehicle.

60 It was also submitted that there was no finding by the primary judge as to the speed at which the appellant should have been travelling or the point at which he should, in the exercise of reasonable care, have seen the children, and therefore there was no basis for a finding that he would have been able to avoid the collision.

61 The respondent submitted that on the findings of the primary judge, had the appellant been travelling at a reduced speed and looked left towards Monger Court, he would have seen Corey, at least, sooner than he did and, so alerted to the presence of the children, would been able to stop or take evasive action. It was argued that, on the findings of fact made by the primary judge, it is to be inferred that Corey was in the appellant's field of vision in sufficient time for the appellant to avoid the collision, but the appellant simply failed to see him. I do not accept that submission.

62 The primary judge found that the appellant would not have been able to see Tristan, who was on the southern side of Monger Court, until the appellant was very close to or had entered the intersection [158]. But his Honour found that the appellant would have been able to see Corey, who was on the northern side of Monger Court, 'earlier than he did' and that would have allowed the appellant to brake much earlier than he did and given him more time to take evasive action [182].

63 As I have said, his Honour did not make any finding as to how much earlier the appellant would have been able to see Corey if the appellant had been looking to his left. That, no doubt, was because the evidence was not sufficient to enable such a finding to be made. While some photographs of the location were admitted into evidence (exhibits B, C) they were of little use in that respect. If anything, they tended to indicate that a driver's view of even the northern side of Monger Court was quite limited until the driver was very close to the intersection. No other relevant evidence was led.

64 There was also no evidence as to driver reaction times, of the braking distances of the appellant's vehicle at particular speeds, or of the length of the appellant's vehicle (bearing in mind that Tristan collided with the side of the vehicle toward the back). Nor did the trial judge make any finding as to the speed at which a reasonably careful driver would have approached the intersection.

65 It is evident, however, from the photographs of the location and the findings of fact of the primary judge that the period between the time at which the appellant would first have been able to see Corey and the time at which the accident occurred is likely to have been very short. In that connection, it is significant that his Honour considered Corey was mistaken in his evidence that when he crossed Brand Avenue the appellant's vehicle was 15 or 20 m to the south of him. His Honour observed that if that had been the case the appellant could not have missed seeing him, whereas his Honour found that the appellant did not see Corey passing in front of his vehicle.

I accept Corey's evidence that he did ride his bike across Brand Avenue, ahead of the defendant's vehicle, but I consider it likely that that manoeuvre must have occurred at or about the same time as the defendant's attention was drawn to the impact between the first plaintiff's bike and the left hand rear of his vehicle.

Support for that finding comes from Corey's evidence that he reached the other side of the road when he heard the collision and as a consequence that could only have occurred almost contemporaneously with the collision happening.

It is common ground, and I accept, that the front of the defendant's vehicle was in the centre of the T-junction when the collision occurred and that being the case, I find that at the point of the collision, the first plaintiff was on the southern side of Monger Court and on the incorrect side of that road [155] - [157]. (emphasis added)

66 As I understand his Honour's finding, the appellant did not see Corey pass in front of him because at the instant that occurred the appellant was distracted by the collision. As his Honour found that Corey was the first of the children to enter the intersection [153], it is not easy to see how the events could have occurred precisely in that order, albeit his Honour does not say how far Corey was in front of Tristan. But I do not understand his Honour to have sought to make a precise finding. What sufficiently emerges is that the two events were virtually simultaneous. In the circumstances, bearing in mind that Corey and Tristan were travelling at approximately 30 km per hour, it is far from clear that the appellant would have been able to avoid the accident. On the limited evidence at trial, it seems likely that unless he was travelling at a snail-pace, even if he had been looking to his left the appellant would have seen Corey only a few seconds, at most, before the collision and not in sufficient time to avoid Tristan colliding with his vehicle at some point along its length.

67 In the circumstances, in my respectful view, it was not possible on the state of the evidence for the primary judge to conclude that the accident was caused by the negligence of the appellant. I would uphold this ground of appeal.

68 I would allow the appeal, set aside the decision of the primary judge and substitute an order dismissing the claim against the appellant.

69 KENNETH MARTIN J: I agree with McLure P and Newnes JA that grounds 2, 3 and 4 of the appeal have been made out and on that basis, the appeal must be allowed.

70 For the reasons expressed by Newnes JA, I would dismiss ground 1 of the appeal.

71 On this basis the appeal must be allowed, so it is unnecessary to resolve ground 5 which raises an independent challenge against the trial judge's implicit conclusions as to causation being established had the appellant driven at an even slower speed (ie lower than 40 to 45 kph in a 60 kph zone, as the trial judge found).

72 A key difficulty in addressing the causation aspect of the appeal is that the findings of the trial judge upon the discrete issues of breach and causation, appear to be rolled together by an inseparable linkage. When it comes to assessing the prospect of this tragic collision being avoided, it is simply not possible on the trial evidence, to reliably assess what difference (if any) in collision outcome, an hypothesised speed of say 30 - 40 kph may have delivered, had that lesser speed been implemented by the appellant.

73 Accordingly, I prefer not to express a concluded view upon the causation ground, other than to observe that in future collision trials, I would expect that in the typical case a plaintiff would prove by empirical evidence, all alternative outcomes said to result as regards the avoidance of a collision, by reason of quantitative alterations in speed that are attributed (on hypothesis) to the participants in the collision event.

Derrick v Cheung

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (102 paragraphs)

WENSINK -v- MARSHALL [2010] WASCA 117 (28 June 2010)

Parties

Cases Cited (10)