Was negligence established?
100 The overturning of some of the findings below does not in itself establish negligence. This Court has to grapple with the corrected data. If that data is unclear in significant respects there may need to be a new trial.
101 A number of cases have addressed issues of negligence involving driving in an area where the presence of children is known or ought to be known. There are statements are about a "greater standard of care and caution" being required in those circumstances (see eg Tobin v Worland [2005] NSWCA 188). Of course, the standard remains conceptually that of reasonable care, but what is reasonable must be decided in the particular context. The issue remains one of fact.
102 Scientific accuracy is unattainable in this matter because key factors are incapable of exact proof. The law requires no more or less than satisfaction on the balance of probabilities.
103 As indicated, the trial judge restricted himself to the question whether the driver was negligent in not stopping without striking the appellant (Red 28-9, 35Q). Yet the appellant's claim went further than this. Causative negligence is most easily established on the basis of failure to swerve and/or brake earlier and I shall therefore concentrate on this scenario. It will be seen that I also conclude that the driver ought to have stopped and that she could have done so in all the circumstances.
104 The falsification of the primary data assumed by Mr Keramidas destroys the 18m line of sight calculation he derived from it. The distance must be adjusted upwards, although by exactly how much cannot clearly be established, in part because the mathematics of Mr Keramidas' conclusions as to stopping times remains undisclosed. The calculations of stopping times were not clearly exposed in the testimony of the experts. And there was objection in this Court as to the propriety of us looking at the tables in Leslie & Britts, Motor Vehicle Law.
105 The main adjustment needing to be factored into Mr Keramidas' calculations and conclusions is locating the standing child closer to beyond the line of the offside of the parked car than was allowed for by him, or even beyond it. The appellant stood in a position where the full length of her body was visible to Mr Hopkins. Indeed, the respondent had an even better opportunity to see her because she was further out on the road than Mr Hopkins. She had a better sight line than he did at that distance from the accident scene. It is of course necessary for the appellant to establish that the respondent's line of sight extended further given the need for her to have had adequate opportunity to brake and/or swerve.
106 The necessary adjustment based on the location of the standing child has a dual impact on the calculations of the experts. It would extend the driver's line of sight and it would marginally reduce the assumed 1.5 seconds reaction time, given that the presence of the child waiting to cross ought at least to have led the driver to cover her brakes in case the child ran out.
107 Dr Henderson said that there was certainly sufficient distance to stop to avoid the collision or strike the appellant if the respondent was driving at about 30 kph, if there was a sight distance of 25m and over and if the child had taken between two and three seconds to get to where she was before being hit (Black 161T). I do not understand Mr Keramidas to have suggested otherwise.
108 Mr Keramidas said that the driver would need 17.2m to come to a stop from a speed of 30 kph (Black 255, 256), allowing for a 1.5 seconds reaction time. He expressed himself in terms of the matter being "too close to call" if the assumed speed were 25 kph and the line of sight were 18m.
109 Mr Keramidas conceded that his 18m line of sight would extend to 25m if the stationary appellant was located 2m from the eastern kerbline, a position he described as "basically half beyond the car and half behind the car. Same as Dr Henderson" (Black 251).
110 In my view, Mr Hopkins' evidence placed the appellant further out from the kerb than 2m and at a position not accurately described as "half beyond the car and half behind the car". For the appellant to have been visible to Mr Hopkins, she must have been standing referable to the four-wheel drive in a position that could not be described as "half behind" that vehicle. It is more likely than not that the four-wheel drive vehicle would have been parked so that its nearside wheels would have been slightly out from the kerb itself.
111 Mr Keramidas calculated the line of sight available to the respondent if the appellant was standing 2.5m out from the kerb. It was 34.5m, a distance that would require a slight adjustment upwards if in fact the vehicle were travelling closer to the centre line of the road than assumed in the witness' plan (Blue 344). The 2.5m distance may or may not have been further from the kerb than the offside of the four-wheel drive vehicle whose estimated width was between 1.8m and 2m and which was probably parked some little distance out from the kerb. But even if one moved back to a position 2m from the kerb, again involving the child's body not being obscured by the bonnet, the estimated Keramidas' sightline was 25m.
112 A car travelling at a constant speed of 25 kph covers 18m in about 2.6 seconds. At a constant speed of 30 kph the time is about 2.2 seconds.
113 In my view, and in light of the adjusted data as to sight lines, there are several pointers which reinforce a conclusion that negligence was established, even allowing for necessary elements of imprecision and not overlooking where the onus of proof lies.
114 If, as I have held, the appellant was standing at or beyond the line of the parked cars so that the whole or at least the full length of her body was visible to a motorist driving south then this ought to have triggered extra precautions once the driver could see her standing there. A child standing in that position must be indicating to a high degree of probability that her intention is to cross the road. A careful driver would not necessarily be expected to brake upon such a stimulus, but in my view, he or she ought to take the foot off the accelerator and cover the brakes in readiness for the possibility that the child might dash out. Drivers and pedestrians share the roadway.
115 The respondent did not react in this way. Had she done so, something less than 1.5 seconds is allowable for a reasonable reaction time to the further stimulus of the child starting to move.
116 If, as I have held, the appellant was struck on the driver's side of the front of the respondent's car, then the assessment of breach of duty must proceed on the basis that the driver had a significantly greater time to see the child as she walked across the roadway than allowed for by the trial judge.
117 There must have been some distance between the line of parked cars and the nearside of the respondent's car. Given that the road splays and curves to the left and given the eventual position of the injured child near the marked centre of the road it seems likely that the gap was not an inconsiderable one. Whatever it was, the appellant must have crossed it and more than half of the front of the respondent's car before being struck - and crossed it at a walking pace.
118 The experts discussed the walking speed of a child of the appellant's age. To arrive at the point of contact she must have walked at least two thirds of the width of the car, plus the space between the parked car and the nearside of the respondent's car. That space depends on how far out the respondent was driving. Mr Keramidas assumed she was approximately one car width out (Blue 344) and this may be what the respondent was saying when she referred to the child being "about a car width out plus half my car" before she was spotted. Mr Keramidas conceded that the appellant could have been further out still. As indicated, there are about three car widths available space between the parked cars and the broken centre line.
119 Mr Keramidas thought that it would have taken the appellant between 1.5 and three seconds to have walked out to the point of impact (Black 234-5). It appears that this calculation was done on the basis that the child started from the position within the line of cars that the expert also used for his line of sight calculations. It is not at all clear as to his assumed point of impact on the vehicle, which I have held to be at the driver's side of the front of the respondent's car. The vehicle itself was also assumed to be in the middle of the trafficable carriageway. The time difference is marginal, but I think it probable that around three seconds elapsed between the appellant commencing to walk and her being struck, bearing in mind that on the respondent's statement there was a time when "the small child appeared to stop in front of my vehicle, and we appeared to look at each other".
120 Whatever the calculation in terms of seconds for the appellant to have walked that far out, the significant fact is that she almost got beyond the respondent's car. Mr Keramidas clearly saw the matter as "too close to call" if the assumed speed were 25 kph. "She either would've just hit or just missed" (Black 256). This too was the judge's conclusion. The same finding, turned on its head, shows that (at that speed) the judge's error about the point of impact and his failure to address the alternative case based on failure to swerve were significant. In my opinion, negligence on this basis was established if the speed were 25 kph.
121 I am also of the view that negligence was established if the respondent was driving at the higher speed of 30 kph. The respondent had time to slow, swerve and miss. It seems probable that she also had time to come to a complete halt. That is because the probabilities indicate that the available sight line was at least 25m. As indicated above that distance allowed a sufficient time to stop to a driver travelling at that speed. A fortiori, time to slow and swerve.