Goldsmith by her tutor the New South Wales Trustee and Guardian v Bisset

Supreme Court of NSW|2014-11-06|Before: Campbell J

[2012] WASCA 212; 43 WAR 383; Verryt v Schoupp [2015] NSWCA 128; Waverley Council v Ferreira [2005] NSWCA 418; Aust. Torts Reports 81 - 818; Wentworth Securities Limited v Jones [1980] AC 74 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 November 1988 at 3833 Category: Principal judgment Parties: Charmayne Louise Goldsmith by her Tutor (The New South Wales Trustee and Guardian) (Plaintiff) Luke Bisset (Defendant) Representation: Counsel: Mr Maconachie QC with Mr Regattieri for the Plaintiff Mr Stitt QC with Mr Ryan for the Defendant

Solicitors: Carol & O'Dea (Plaintiff) Sparke Helmore Lawyers (Defendant) File Number(s): 2006/00298059

The evidence

Charmayne's eldest sister, Ms Kayla Goldsmith was an eyewitness. She is the eldest in her sibship of 5 and Charmayne, the second youngest. Ms Goldsmith was about 13 years old in January 2004 and about to enter Year 7 at James Fallon High School. Hers is the evidence relied upon to make the case that Charmayne was stationary in the kerbside lane when the collision occurred.
Ms Goldsmith said that Charmayne had ridden down Dale Crescent and across Cheyenne Drive from north to south to play with some of her siblings and a friend, who had gone to the school earlier. Ms Goldsmith had followed Charmaye because she was not wearing a bike helmet and had disobeyed Ms Goldsmith's admonition to "go back and get a helmet" (83.25T). Ms Goldsmith stopped by a tree on the corner of Dale and Cheyenne, depicted in the right foreground of Exhibit A5 (84.35T), watching Charmayne. From there Ms Goldsmith could see Charmayne peddling on the southern footpath towards the entrance of the school. As she approached the entrance, the three other Goldsmith children and a friend of theirs came into view within the school grounds (86.20T). Children can be mean sometimes and when they saw Charmayne approaching "they started yelling at her and telling her to go away". Charmayne argued with them "but then it got too much and she got quite upset". "She sat on her bike and started crying" (86.25 - .30T). Ms Goldsmith called out to Charmayne telling her to "turn around and come home and we'd go and do something" (86.45T). I interpolate that Charmayne is a developmentally delayed child with an Intellectual Disability at the lower end of the moderate range.
Ms Goldsmith said that Charmayne turned around, rode back along the footpath "and stopped at the spot that she had crossed before" (86.50T). She turned the bike around on the footpath, rode it down the gutter, into the bike lane and stopped (87.5 - .15T). I think it significant to interpolate that on her way to the school entrance, she had crossed the kerb by getting off the seat of her bike, grabbing it and lifting the handlebars up so it cleared the gutter to get onto the footpath (86.10T). I understood from Ms Goldsmith's description, that Charmayne had her feet on the ground, walking the bike as she did this.
Ms Goldsmith said that when Charmayne stopped in the bike lane she "had hopped off her seat" (87.40T). She was unsure, "but she was either straddling or she was on the side of the bike as she stopped".
Ms Goldsmith called out to Charmaye to "have a look around corners … and as she looked we heard a car coming and [I] told her to wait" (87.30 - .40T).
Ms Goldsmith gave this evidence (at 87.50, and 88.30 - .35T). Q. What did you then see happen? A. As the car had approached the corner and was coming around it I noticed the front wheel had gone over the line. …. Q. Are you able to tell his Honour, and if you can't please say so, are you able to tell his Honour how far the car crossed the line? A. I can't be precise. All I can say is the front wheel had crossed the line. I'm not exactly sure how far by. Q. What happened next? A. As he crossed over the line I told Charmayne to get back just to be on the safe side. But it was too late. By then the car had actually struck her. Q. Ms Goldsmith, did you see the car stop? A. After the impact it had stopped. Ms Goldsmith identified the white line by reference to Exhibit A5 as the unbroken line separating the trafficable westbound lane from the bike or parking lane adjacent to the southern kerb of Cheyenne Drive (88.20T). the "corner" is obviously the righthand curve of the "S" bend. She was not asked any questions to elicit evidence about any further interaction between Charmayne and the vehicle after the point of impact. This may be because Ms Goldsmith, understandably, became visibly upset when describing the accident (88.45 - 89.5T). Ms Goldsmith said that after the accident, Charmayne was laying on the ground "still inside the white line" (89.25T). The bike was "some distance from her".
Ms Goldsmith was not directly challenged in cross-examination about her description of the place of impact. Leaving aside for the moment general questions about Charmayne's capacity which may be relevant to the defence of contributory negligence, the defendant was, with respect, more concerned with temporal and spatial questions relevant to Charmayne's return from the school gate and the detail of her progress to the point of impact.
Speaking of Charmayne's journey to the school gate, Ms Goldsmith said that at the end of Dale Crescent, Charmayne "went straight across … Cheyenne", and up onto the footpath. She agreed that Charmayne "had ridden over the gutter" (93.25 - .40T). I interpolate that I do not understand this evidence that Charmayne "had ridden over the gutter" as a contradiction of Ms Goldsmith's earlier evidence about her straddling her bike and lifting it over the kerb.
When she was on the footpath, Charmayne turned left "to go down to the school to the entrance gate" (93.45T) and she stopped "near the gate" (94.35T). The other children were well inside the school grounds and Charmayne was "extremely upset" by their mean behaviour (95.30T).
When Ms Goldsmith called out to Charmayne, and "after she dried her tears" (96.10T) she turned her bike around and peddled back along the footpath on the southern side of Cheyenne Drive. When she reached the point opposite Ms Goldsmith, Charmayne "stopped and turned sharp right directly across … Cheyenne" (96.35T). Her bike was at right angles to the kerb. Ms Goldsmith said at (96.45T): Q. You told us that she had ridden over the footpath when she was going there. Did she ride over the footpath coming back? A. She had come off the gutter and stopped in the bike lane by the time she was coming across. Q. So she'd ridden over the gutter but stopped in what you call the bike lane? A. Yes. Solid lines. Yeah. Ms Goldsmith heard the Magna's approach "not long after". The Magna "had just come around the bend".
The cross-examination concluded with the following evidence (97.20T - .40T): Q. As you said that she was struck inside the white lane [line]? A. Yes. Q. Which would have been what? A pace from the gutter, one pace, 1 metre? A. It was the solid lines. Cars used to park there when they dropped their kids off. So it was wide enough for a car to drop their kids off. Q. But she was about in the middle of that lane when she was hit, wasn't she? A. Yes. Q. So she was about a metre from the gutter when she was struck. Is that so? A. Yes. Q. You said the bike went somewhere else? A. Yes. Q. Did you see that it was the front left‑hand corner of the car that hit the bike and Charmy? A. It looked more like the passenger side had hit her. Q. The passenger front corner? A. The passenger front side. Yes.

The driver and his passenger

The defendant, Luke Bisset, did not give evidence and his absence is unexplained. He made a signed statement in the attending police officer's notebook, the relevant pages of which were tendered as Exhibit D. He was then 21 years of age. He said that he was driving at "50 kph or less". He provided the following narrative: Between 6 and 6:15 p.m. today, 25 January 2004, I was driving into the sun in Cheyenne Drive, near Dale Crescent. I saw a girl on a bike appear in front of me. I braked, but hit her. I stopped straightaway. I didn't want to touch her, she was face down, she was moaning. She had three-quarter pants and a shirt. No helmet on. I rang an ambulance straight away. I think it important to record that the police officer arrived on the scene at 6:45 pm. Mr Bisset gave no account of Charmayne's further interaction with the Magna after the impact. This may be an important point.
Ms Belinda Browne was a front seat passenger in Mr Bisset's Magna. She was the only other occupant of the vehicle. By January 2004, Ms Browne and Mr Bisset had been going out together for about 18 months. Ms Browne lived in Desmond Street and Mr Bisset in Kestral Street, Lavington. Before the accident, Ms Brown and Mr Bisset were travelling from her home to his in the Magna. Desmond Street runs off Colley Street, a short distance north of Cheyenne Drive.
Ms Browne said that Mr Bisset brought the car to a complete stop at the corner of Colley and Cheyenne (71.50T). They waited for a car on their right to pass. Ms Browne agreed that from the intersection of Colley and Cheyenne there was a view of the intersection of Cheyenne and Dale to the right. I interpolate that this is consistent with my impression from the view. I also noticed that there was a clear view from the intersection into the "S" bend and over to the entrance of the school.
When the road was clear, Mr Bisset pulled out from Colley Street and turned right into Cheyenne Drive. From there Ms Brown said she had a view of the intersection of Cheyenne and Dale Crescent (72.25 - .35T). I repeat, the driver would have had such a view, as well as of the school. For what it is worth, Ms Browne thought that she "would have been looking ahead" (72.40T) rather than to the left or right. She gave the following evidence (72.50 - 73.20T): Q. …. Do you remember passing through the school crossing? A. Yes. Q. That's located on an S‑bend in the road, is it not? A. Yes. Q. Do you remember anything happening shortly after Mr Bisset drove the car through that S‑bend? A. The girl on the bike pulled out in front of us and we struck her. Q. When was the first time you saw that girl? A. When she was in front of the car. Q. Was it as it were an instantaneous event? She was there and then she was struck? A. Yes. Q. Did you speak to a police officer later that day? A. I don't remember. Q. Let me see if I can get this from you. Are you able to tell his Honour whereabouts on the road in relation to any marking on the road or the gutter or any other point of reference where the girl was when you first saw her? A. She was already on the road. I don't recall exactly where in relation to any of the gutterings, trees, anything like that. Ms Browne confirmed she was very upset, shaky, and teary after the event. All this is understandable. She seemed to be somewhat upset giving this evidence.
She said this at 73.45T - 74.5T: Q. Immediately after the collision did you see what happened to the little girl, where she went, where her bike went? A. Not where her bike went. She was lying on the road. I don't remember. I don't remember. Q. Do you remember any impact by the little girl upon the windscreen of the car? A. I don't remember. She was aware that the school grounds were sometimes a popular place for children to gather together and play (74.30T).
In cross-examination, Ms Browne said that the accident happened very rapidly. The girl on the bike was there "and then she was struck" (75.10 - .25T). Ms Browne said that she did not actually see Charmayne "fall to the road or fall on the car" (75.30T). She has no idea of "where she actually went".
Her recollection was that the "front left hand side" of the Magna struck Charmayne. She said, after the accident she saw Charmayne lying on the road. She said (75.45T): It wasn't in the middle. It was closer to the gutter side, but not - you know how there is usually the white line between the gutter and where you're supposed to drive, on that side, she was sort of near the line. Mr Bisset "pulled up immediately" (76.10T). She remembered that Charmayne had a shaved head and was not wearing a helmet.

The evidence of the investigating officer

The former Snr Const. Bowden has retired from the police service. In January 2004, he had been an attested officer for 18 years and had been stationed in Albury since 1991, attached to the Highway Patrol. On 25th January 2004 he was allocated to "the town car", patrolling Albury, Lavington, Thurgona and Jindera (19.15 - .40T).
When assigned to town car duties Snr Const. Bowden would frequently drive past the Hume Public School. He was aware that small groups of children "quite frequently used the school grounds to ride bikes and skateboards and use the oval" (22.25T). Part of his duties involved hunting them out if he noticed them when passing (23.5T). This happened "fairly frequently".
Snr Const. Bowden had a long shift that day, commencing at 7 am on 25th and not ending until 4 am on 26th January 2004.
In circumstances which it is unnecessary to relay, Snr Const. Bowden, working on his own, swapped the task of investigating the accident with the officers originally assigned to it. As I have said, he arrived at the scene at about 6:45 pm.
He was surprised to see the ambulance when he arrived because he had been given to understand that he was to document a minor collision, not an accident involving potentially serious injuries. Charmayne had already been transported to hospital. This ambulance was for Charmayne's mother who collapsed when she arrived and saw her daughter's injuries.
He commenced his investigation by inspecting the white Magna. He noticed that the nearside head light was broken as clearly depicted in photograph Exhibit C4. He said "the windscreen had an indentation on it" (25.5T). Much was made of this later in argument. It is apparently a misdescription given in evidence more than 10 years after the event. However, on p 102 of his notebook (Exhibit D) he made the following record: Damage to nearside headlamp and front bumper bar. And at the foot of the site-sketch he made on p 104 he recorded: Damage also to bonnet and smudge marks on windscreen. I record now that I think nothing turns upon his misdescription.
He identified Mr Bisset as the driver and undertook a breath test which was negative. He then interviewed Mr Bisset and took the statement I have quoted above (see [18]) as recorded on p 103 of the notebook. It is perhaps unfortunate that Snr Const. Bowden did not record whether he asked any questions about the damage to the bonnet and how it came to be there. The police officer then prepared the site-sketch of the accident scene on p 104 of his notebook, which I reproduce below: The x above the circle indicates "the point of collision", estimated by the police officer from the accounts he received from people at the scene (28.25T) and he saw for himself the "glass debris" which I infer came from the broken headlight. The glass was "in the laneway" (28.20 - .40T).
It is worth recording now, that the officer has sketched the area where he saw the glass debris wholly within the westbound traffic lane. From the sketch it can be seen that he has included the unbroken line separating the parking, or bike, lane from the traffic lane. The small oblong to the west of the glass debris, in the parking lane, is a representation of the Magna. Another x is visible on its nearside corner, indicating the area of damage. The circle with lines radiating from it is a representation of the position of the sun at the time of Snr Const. Bowden's inspection.
The police officer was unable to obtain a statement from Ms Browne because she was "clearly in shock" (30.10T). She was unwilling to go near the Magna.
After completing his work at the scene of the accident, Snr Const. Bowden attended the Goldsmith home to inspect Charmayne's bicycle. He identified it by reference to the photographs in Exhibit B. Because of the apparent seriousness of Charmayne's injuries, Snr Const. Bowden made a request that the Forensic Services Group inspect the scene and photograph the bike and car. Charmayne's pushbike was photographed on 22nd February 2004 (see Exhibit M; 34.40T).
The former police officer identified the Magna in evidence from the photographs which are now Exhibit C. When he saw it at the scene he said there were quite visible smear marks not depicted in the photographs "on the windscreen and down the side of the car" (33.10 - .20T). he did not elaborate. He identified the dent or depression on the bonnet and agreed that the photographs "appear to show the condition of the vehicle at the time [he] saw it on the 25th [January 2004]" (33.30T). The evidence does not disclose when the Magna was photographed (34.40T).
On inspecting the Magna, Snr Const. Bowden noticed that the driver's side sun-visor "was up" (36.20T).
In the early hours of 26 January 2004, for the purpose of completing his paper work back at the police station, the police officer drew another site-diagram. This time, he drew it in the conventional cardinal points orientation. He added, diagrammatically, the approaching Magna, heading west and a representation of the bicycle crossing the unbroken line from the parking lane into the traffic lane near his estimation of the point of impact. These features are obviously conclusions or opinions formed by the police officer from the matters he noticed at the time of his inspection and I do not propose to give them any weight: Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352.
In cross-examination Snr Const. Bowden explained that it is a required police practice "that a point of impact has to be recorded in every collision report that [police] do" (53.50T). The point of impact is based upon his best assessment of the objective evidence available to him. When being asked whether the objective evidence included "broken glass and some debris from the vehicle" (54.5T), the police officer volunteered that there was also a small gouge mark on the road where he placed the "X". He said at 54.15T: I just recalled the gouge in the road and that was the point of impact. This is somewhat inconsistent with his earlier evidence that he eatimated the point of impact from witness accounts.
The police officer remembered speaking to Kayla Goldsmith at the scene of the accident, but he took no statement from her (59.40T; 62.35T).
He said what he wanted to represent on the site sketch in his notebook was that the point of impact was directly in line with the eastern kerb line of Dale Crescent. He added (at 62.15T): …The actual point on the road surface, as to whether it was 1, 2 or 3 metres from the kerb, no, I didn't mean that. It was just that's in relation to Dale Crescent.

Other police documents

The full COPS entry completed by the then Snr Const. Bowden was admitted as Exhibit G. It contains a narrative as to what Snr Const. Bowden thought happened under the heading "Crash Summary Details" (Exhibit G, p 5). I have not had regard to that material for the purpose of deciding the case.
As I have already indicated in accordance with the police officer's request, an officer of the Forensic Services Group from Albury carried out some further investigations. I have already referred to the photographs of the bike (Exhibit B) and Magna (Exhibit C). The notes made by that Forensic Services Officer were tendered as Exhibit M. It is apparent that at about 2:05 pm on 12th February 2004, that officer conducted a site inspection of the scene of the accident. He made a note of his observations in Exhibit M. I note that the small gouge mark that fell out during cross-examination of Snr Const. Bowden is not referred to in that document nor is there any mention of such a mark in Exhibit D, E, or G.

The expert evidence - Mr Keirnan and Mr Keramidas

The plaintiff retained Mr Warwick Keirnan, a Consultant Civil Engineer, to investigate and prepare a report concerning the dynamics of the collision. His reports of 16th December 2011 and 29th June 2012 were received in evidence, after objection, and are Exhibits K1 and K2. The defendant retained the services of Mr William Keramidas for the same purpose and his reports of 12th August 2009 and 15th May 2012 were admitted as Exhibits 2 and 4.
Mr Keirnan and Mr Keramidas also conferred in accordance with the rules and prepared a joint report dated 13th October 2014 which was admitted as Exhibit K3. The experts agreed that the "area of impact", they were unable to be precise about a point of impact, was in the westbound lane of Cheyenne Drive, about opposite the eastern kerb alignment of Dale Crescent. This area is represented in survey plans prepared by Mr Keramidas and admitted as Exhibit 1 as a shaded elipsis. I interpolate that essentially that "opinion" depends upon an acceptance of the findings made by Snr Const. Bowden. It is not strictly an expression of expert opinion at all. The experts also agreed that based on the damage to the front forks of Charmayne's bicycle and the damage to the nearside front corner of the Magna, Charmayne's bicycle was at a right angle to the Magna on collision. That is to say, the bicycle was pointing north and the car was heading west.
The experts were unable to agree on whether glare was a factor affecting visibility for the approaching driver. Based upon his own experience of driving through the "S" bend several times, Mr Keirnan excluded sun glare as a factor. He expected the altitude angle of the sun would be well above the windscreen. Mr Keramidas was of the view that Mr Keirnan's Alfa Romeo vehicle could not be equated fully to Mr Bisset's Magna, nor could it be assumed that the seat positions would be the same. He said: "it would not be possible to exclude the potential for direct sun glare as a vehicle traversed the "S" bend and approached the collision location" (Exhibit K3 p 9). Both thought shadowing from a tree about opposite the centre of Dale Crescent may have reduced driver visibility. This tree was on the nature strip of the southern side Cheyenne Drive and its shadow probably covered the area from which Charmayne emerged. Mr Keramidas argued that the shadow combined with direct or indirect sun glare "would have made it more difficult to detect the child on her bicycle."
In their principal reports, each expert agrees that from test results carried out, it is traffic engineering practice to accept that in urban areas a driver should be able to perceive and respond to an unexpected hazard in 1.5 seconds. A number of factors might heighten the driver's alertness, reducing the response time.
Each agreed that the calculation of total stopping distance after perception of a hazard depended upon combining reaction distance with braking distance. Unsurprisingly their calculations were broadly similar, but not identical. At an approach speed of 50 km/h, total stopping distance is about 34 metres, taking 3.5 seconds; at 40 kp/h, 25.7 metres over 3.1 seconds; and at 30 kp/h (only Mr Keramidas calculated this) 17.2 metres. No time is ascribed to this last distance.
Mr Keramidas expresses the following opinion (Exhibit 2 p 31.10 - 20) From the Defendant's account to Police, it appears that he has been able to detect the child far enough away to commence braking but not at a sufficient distance to avoid impact. Assuming that impact occurred at about the same time as braking commenced and that the speed of impact was about 40 to 50 km/h, it means that the child was detected at a range of about 16.7 to 20.8 metres prior to impact. In order for the Defendant to have avoided the collision, having available to him a detection range of 16.7 to 20.8 metres would require that his approach speed be between 29 and 34 km/h.

The oral testimony of Mr Keirnan

In oral evidence Mr Keirnan said that the distribution of debris from a broken headlight or other detritus from a motor vehicle collision will be deposited beyond the actual point of impact (114.45T). The phenomenon is influenced by two factors, being the speed and direction of travel of the vehicle (115.5T). Mr Keirnan also calculated from Mr Keramidas's plan that the distance from the centre of the Colley Street intersection to a point in line with the eastern kerb of Dale Crescent, travelling through the "S" bend, is 100 metres. In cross-examination he agreed that it may be less than 100 metres, but he had scaled it to that figure. He also agreed that the distance between the school gate and the commencement of the area of impact, I understood in a straight line, was 25 metres.
Mr Keirnan was also cross-examined about the assumption he had made for the purpose of his report that Charmayne had been riding in the bicycle lane before turning in front of the car at the point of impact. He agreed that was inconsistent with the evidence of Ms Goldsmith, which he had been in Court to hear, that Charmayne was riding on the footpath.
Mr Keirnan also said that Charmayne had to be travelling faster than a walking pace to retain her seat on the bike. He regarded 3 metres per second as a minimum (124.10T). A range might be 3 to 5 metres.
Mr Keirnan was unable to say whether if it is assumed that Charmayne peddled from a point short of the gate along the footpath then turned north towards Dale Street at its eastern alignment, riding down the gutter through the parking lane and onto the road, the collision was unavoidable from the driver's point of view "because there's too much uncertainty" (133.15T). I understood him to be saying the temporal and spatial assumptions he was being asked to make where too uncertain to admit of a considered response. I have some sympathy with that, but the cross-examiner's purpose was doubtless served by his response.

The oral testimony of Mr Keramidas

Mr Keramidas said that a number of factors can create a higher level of alertness "than would otherwise be the case" which he referred to a "cued response" (140.25 - .30T). He also said that the general 1.5 second reaction time should be increased by .25 of a second for "vehicle latency". This is the time it actually takes for a car to commence slowing after the application of the foot brake. A higher alertness reduces the response time by about .3 of a second (141.30T).(Later I understood him to say by 1/3rd; see [61] below) In his view, alertness is a state when a driver has perceived that there is a potential for something to happen, which he need only respond to when it does (141.40T).
His measurement from the Colley Street intersection to the centre of the area of impact was 95 metres.
Mr Keramidas was asked to deal with two hypotheses arising out of the evidence. The first concerned the evidence of Ms Goldsmith that Charmayne was stationary in the bicycle lane at the point of impact. The second was that she was then riding into the traffic lane. He was asked questions to elicit which he thought more consistent with available objective evidence. He was asked to assume that the Magna approached at a speed of 40 to 50 km/h (156.35T) and he assumed that Charmayne would be peddling at a speed of 3 to 5 seconds per metre. He assumed a maximum distance along the footpath of 25 metres and a distance from the point where Charmayne turned right to cross the road into the area of impact as 5 metres.
There were essentially two factors which made him favour the second hypothesis two over the first. One was the configuration of damage to the bicycle and the car suggesting, in accordance with the joint report that there was a right-angled impact. In particular, there was a definite indentation of the offside front fork, just above the wheel nut on the bicycle which corresponds with the damage to the Magna's bumper bar below the broken headlight. The other is the indentation on the trailing nearside edge of the Magna's bonnet. It was his opinion that this was most probably caused by head impact of Charmayne's head with the bonnet. For this to have occurred, according to Mr keramidas, Charmayne must have had forward momentum at the point of impact, propelling her forward from the saddle of her bike, which had not yet reached the Magna's line of travel. Had she been stationary in the parking lane, in his view, the forces involved in the crash would have ripped the bike out of her hands propelling her eastward parallel to the nearside of the Magna, but not colliding with it. I interpolate that this description of the mechanism of injury is somewhat different from that offered by Dr Henderson, whose report I will deal with next.
Mr Keramidas said (at 158.50T): ….if she was stationary and given how the vehicle and bicycle have interacted, at all points she is behind the front wheel. So if that's the section of the bicycle that's been hit, she's standing behind it and therefore, if the front nearside corner of the vehicle struck that point, the only way she can end up on the bonnet 30 centimetres or so in from the edge of the vehicle, she's got to be moving forward, has to be. So I suppose that's as far as I can probably take that hypothesis, because it's then inconsistent. If I were to exclude the physical evidence, I could say that, yes, she would be at least one bike length onto the roadway. But again I would be doing that purely as an assumption rather than based on my observations of the physical evidence.
He gave detailed evidence about how a gouge mark on the road may have been created in the collision between the Magna and Charmayne's bicycle. He pointed to Exhibit B4 showing scuffing on the outside of a bicycle peddle (163.5T). But in cross-examination it became apparent that that photograph was of the offside, not the nearside, peddle of the bike (169.35 - .50T). And there was no evidence of any damage from the photographs to the nearside peddle (170.25T). Mr Keramidas was of the view that on impact the bicycle would have been knocked left to the ground, falling to its nearside.
Adopting a conservative speed for Charmayne of 3 metres per second, Mr Keramidas estimated that it would take 1.6 seconds from the time she commenced to turn to the right to reach the point of impact (163.50T). He said the commencement of the driver's perception response time required that the hazard be immediate, not potential and "is identified [by the driver] as requiring an emergency response" (165.45T). Applying that consideration to this case, he was of the view that the maximum time available was 1.6 seconds. Allowing the standard 1.5 seconds there was "therefore … a maximum of 0.1 of 1 second" to bring the vehicle to a halt, which was impossible. Mr Keramdias was of the view that the accident was unavoidable. The difficulties for the driver were compounded with what he regarded as the combined effects of sun glare and shade reducing visibility.
In cross-examination Mr Keramidas made it clear that his calculation of 1.6 seconds for Charmayne to turn north and collide with the Magna, involved assumption that she did not stop (181.10 - .15T); he allowed nothing for stopping to turn right or indeed stopping in the parking lane.
Mr Keramidas identified a number of factors in the circumstances of the present case which would "cue" the response of the driver of an approaching vehicle: first, negotiating the "S" bend; secondly, approaching an intersection; thirdly, awareness that the area was frequented by children because the school grounds were an attraction; fourthly, the actual presence of the plaintiff riding a bike on the footpath; and fifthly, a reduction in visibility by sun glare or shade, or a combination of both. However, the various factors do not have a compounding or cumulative effect. If any one of the factors "is in play then it would be expected the ordinary driver to respond about one-third of a reaction time faster" (199.35T).
He agreed, on the first hypothesis, that if Charmayne was struck whilst she was stationary in the parking lane, calculations of time and distance would be largely irrelevant because she could have been avoided by the Magna remaining in the traffic lane (201.20T). He was not of the view that there were any likely circumstances in which a collision with Charmayne stationary in the bike lane could produce the same configuration of physical evidence as appeared in the case. However, I interpolate that in giving this answer it appeared to me (202.10T) Mr Keramidas was accepting the evidence of the presence of a gouge mark as reliable, not as decisive. He agreed that although he thought that the indentation on the bonnet was consistent with a head strike, obviously, he is unable to say from his own information when the dent was made.
In re-examination Mr Keramidas gave the following evidence (204.30T): Q. The only thing I just wanted to ask you was this. His Honour asked you a question about the cued response, bearing in mind the human factors that you talked about in your evidence, the cued response of seeing a child riding on a footpath, and you said that that was a cued response. Is there some particular aspect of that which creates a cued response, and in what way is it cued? A. Yes. It's cued in that it identifies to the driver a potential for the need for some potential action down the track. So essentially this is, if you like, establishing a heightened level of alertness, but the driver at that point doesn't need to respond. The trigger point is when the object is identified as an immediate hazard requiring an emergency response. So it's that turning point or, if the child has turned and stopped, the motion in a northerly direction that generates the start of the perception response process. It may be the standards of traffic engineering are different from the standard of care imposed by the law of negligence. He also said that if Charmayne was stationary in the parking lane, the driver's alertness relaxes and the perception/reaction time reverts to the generally accepted time of 1.5 seconds.

Expert evidence - Dr Michael Henderson

Mr Bisset relied upon the report of Dr Michael Henderson dated 19th October 2006, which was admitted, with supporting documentation, as Exhibit 5. Dr Henderson was not available to give oral testimony. He is a legally qualified medical practitioner, consulting in traffic injury. Dr Henderson is well known in this field. According to his curriculum vitae, he has worked in traffic safety research and injury control since 1970, with special interest and expertise in the causation and prevention of childhood and adult injury in motor vehicle accidents. From 1970 to 1981 he was Director of the Traffic Accident Research Unit of the (then) Department of Motor Transport, and Executive Director of Traffic Safety New South Wales. He has been working as an independent consultant since 1981. Amongst his many research activities he lists undertaking a major review of the effectiveness of bicycle safety helmets published in 1995. This study was undertaken for the Motor Accidents Authority.
He had available to him contemporaneous records of the injuries suffered by the plaintiff, which included superficial injuries involving abrasions and minor lacerations of Charmayne's head and lower leg. She also suffered a significant brain injury, including a "subdural collection" at the right temporo-parietal region of 4 cm and having a depth of 5 mm. A second subdural collection was in the left frontal region, extending for 5 cm and having maximum depth of 3 mm. Dr Henderson regarded the first as the primary injury, it being associated with a linear skull fracture. The second, he regarded as a contra-coup injury. He also had the benefit of the photographs of damage to the Magna and Charmayne's bike.
The main purpose of the tender of Dr Henderson's report was to make good Mr Bisset's case on contributory negligence based upon Charmayne's failure to wear a properly adjusted and compliant safety helmet. However, in my opinion, his views are of more general application to the circumstances of the case. He regarded the most likely course of events as follows (p 8 - 9): Contact was first made between the right side of the bicycle, centred on the front forks, and the front of the Mitsubishi sedan The first contact was probably with the bumper bar cover, and this has scraped some paint away, leaving a black mark. There are some indications that the markings on the bumper extend vertically, which is consistent with a collision with the vertical bicycle folks. Following this first contact the bicycle rotated over towards its right, with some part of its structure smashing the headlight glass. Some part of the bicycle or the body of the girl then indented the cars bonnet panel in its front left comer. This is consistent with the abrasion observed on her right lower leg. It is likely that Charmayne's body then continued up and on to the bonnet of the Mitsubishi, during which time she may well have abraded her right lower ribs. The most likely cause of the indentation in the left rear comer of the bonnet panel is that this was where it was struck by the head of Charmayne. This is consistent with the most likely point of contact on her head, as indicated by the large right posterior occipito-parietal haematoma.
Dr Henderson said that Charmayne's head injury is a mixture of both focal and diffuse mechanisms. The focal injury was a complex of injuries in the right tempero-paretal area. The diffuse injuries included the contra-coup injury "resulting from shock waves that have travelled across the brain tissue from the primary contact point to the opposite side of the head". That Charmayne had a steady lowering in consciousness following the accident was consistent with diffuse inter-cranial damage.
Dr Henderson points out that there are difficulties in extrapolating information from the data "generated by cadaver experiments, dummy development and field accident research". Largely because of the lack of appropriate child anthropomorphic dummies. However, "scaling factors" have been developed for adapting data "from a mid-sized male down to a 6 year old child". In simple terms, in the present case "if the net result of acceleration of her head was below 50g, then injury would be unlikely, and if over 90g, injury would be likely" (Exhibit 5 p 10).
Dr Henderson expressed the view that Charmayne's injuries "are consistent with her failure to wear a helmet". He said that "the acceleration of the plaintiff's skull and cranial tissues would have been a function of the speed of a head strike on the struck surface". He thought the struck surface was likely to be the trailing edge of the bonnet.
He made additional relevant comments derived from scientific studies. They include the consideration that "[a] cyclist's contact with the windscreen of an impacting car was rare (below 10%) of impact speeds below 30 to 40 km/h so the collision was probably below this speed" (emphasis added) (Exhibit 5 p 11). A higher speed is unlikely because of the "lack of reported damage to the windscreen or supporting structures, which is commonly apparent with impacts of high velocities. A low impact speed is also consistent with the minor injuries sustained by other body parts of the plaintiff, including her right leg (a body region which is commonly severely injured when the front of a car strikes the side of a bicycle)". Looking at the degree of deformation at the trailing edge of the Magna's bonnet, Dr Henderson estimates that dynamic deformation as 30 mm and the permanent deformation, after elastic recovery, as about 20 mm. He explains that research has related permanent bonnet panel deformation to the energy of head impact. I will not set out in full his calculations (from Exhibit 5 p 11), but he estimates impact velocity for Charmayne's head at about 13.5 km/h "which goes to confirm that the speed at which Charmayne's head struck the bonnet was probably below 20 km/h". I understand him to be making some allowance for a de-acceleration effect as Charmayne slid along the bonnet of the Magna. If Charmayne's head speed impact was 20 km/h then acceleration at impact would have been in the 50 to 55g range, suggesting "the degree of injury sustained by Charmayne Goldsmith with this impact is consistent with her failure to wear a helmet" (Exhibit 5 p 12). Dr Henderson concludes that a, I infer compliant, properly adjusted, helmet would have reduced Charmayne's head deceleration to an average of about 35g and head and brain injury would have been "very unlikely" (Exhibit 5 p 12).
Dr Henderson refers to studies which show that the risk of upper head injury, including brain injury, is 2.7 times higher among non-helmet wearers than among helmet wearers (Exhibit 5 p 14). To put it another way, Dr Henderson expresses the view "that injuries to the upper middle parts of the head may be reduced by about 65 per cent if a helmet is warn" (Exhibit 5 p 14 -15).

Findings about what happened

Mr Bisset submitted in making my findings of fact, I should be guided by the dictum of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 at 129 [31]. That is to say, especially given that the hearing has been conducted more than 10 years after the event, I should limit my reliance "on the appearance of witnesses and … reason to [my] conclusions, so far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events."
It was submitted that I should not accept Ms Goldsmith's evidence about Charmayne being stationary in the parking lane when the collision occurred. This account was said to be inconsistent with the contemporary materials, being the record made by the then Snr Const. Bowden; and especially with the objectively established facts, including the location of the debris from the collision in the traffic lane, and the pattern of damage to the Magna and Charmayne's pushbike. The apparent logic of events, it was argued, was provided by Mr Keramidas' evidence, especially his opinion that Charmayne had to be moving forward at the point of impact for her unrestrained body to continue that forward momentum onto the bonnet, striking her head on its trailing edge. Considerations of time and space made it much more likely, in those circumstances that the collision occurred in the traffic lane.
For Charmayne, it was argued that there was no reason to reject Ms Goldsmith's evidence when she provided the only eyewitness account of all relevant avents. It was evident that neither Mr Bisset nor Ms Browne saw Charmayne until the last possible moment. The pattern of damage to the bike and the Magna would have been the same if the collision had occurred in the parking lane whilst Charmayne was stationary. There was no affirmative evidence from which I could infer that the indentation on the trailing edge of the bonnet was caused by Charmayne's head. As Mr Bisset was not called, there was no evidence about the condition of the bonnet prior to the collision. Moreover, Ms Browne, who was called, did not mention Charmayne sliding across the bonnet and striking her head. If that had occurred, Ms Browne must have seen it and it is the type of frightening event which would have seared itself into her memory. To these matters, might be added the opinion of Dr Henderson about Charmayne's bike rotating to the right after initial contact, forcing her up onto the bonnet and along it. This did not, it seems to me, depend upon the bike being in motion; such a phenomenon could have occurred if it was stationary. This would have still resulted in the dent in the bonnet, but Dr Henderson's explanation of the dynamics of the crash accommodate that factor in a manner consistent with Charmayne's case.
When resolving these issues of primary fact, I need to bear in mind that Charmayne carries the legal onus of proof on questions of primary liability. Mr Bisset carries the onus of proving facts necessary to establish contributory negligence, if it arises.
I have decided that the collision occurred when Charmayne was riding her bike out of the parking lane and into the traffic lane and that at all times the Magna was in the traffic lane; it did not cross the unbroken white line as Ms Goldsmith now recalls.
I accept that Ms Goldsmith's credit was not impugned. There was no challenge issued to the effect that her evidence about Charmayne being stationary was false, or even merely wrong. But she was not a party, obviously, and the defendant is entitled to argue that her account should be rejected because memories fade and her present recollection is inconsistent with, as I have said contemporary documents, objectively established facts and the apparent logic of events. In arriving at this conclusion, I have decided that Ms Goldsmith's account is the product of honest belief, but it is inconsistent with more reliable evidence.
I formed the impression that Snr Const. Bowden was careful in recording what he saw at the scene of the accident in the site plan he drew in his notebook. I think it is important that he took care to show the area of debris was wholly within the westbound traffic lane on Cheyenne Drive. This was carefully delineated by him drawing the unbroken line separating the traffic lane from the parking lane. It is possible, of course, that in the 40 minutes before he arrived some of the debris may have been spread by other traffic movement in the area. Two ambulances attended. One for the plaintiff and the other for her mother. Some of the debris may have been moved around, but it is hard to understand why the parking lane would have been swept clean.
I should say, however, that I do not accept Snr Const. Bowden's evidence about the gouge mark. I find he is mistaken about that. Given the care with which his site diagram was prepared, had he seen such a mark on the evening of 25th January 2004, I consider he would have made that plain in his notebook. Moreover, as I have said, the forensic services officer, who might be supposed to have some skill in picking up relevant details on site inspections, made no record of having seen such a mark when he attended on 12th February 2004. There is no evidence of any particular mark or damage to the nearside of Charmayne's bike consistent with forcible contact with the road sufficient to make a gauge in the bitumen surface, if the bike, indeed, fell to the left. I am left with the impression that the evidence about the gauge mark, volunteered in cross-examination, was a detail that popped into Snr Const. Bowden's head as he was giving evidence. It is not a reliable recollection. I should add that I am impressed by Dr Henderson's explanation of crash dynamics. Rotation of the bicycle in an anti-clock wise direction after impact seems to me to be consistent with a collision involving the front wheel of the bicycle and the front nearside corner of the Magna. If this occurred, as I think it did, the bike would be moving away from the front of the Magna rather than becoming entangled under it in such a manner as to gouge the road.
I accept that powerful arguments that were presented on behalf of Charmayne as to why I should be slow to find that the dent on the trailing edge of the bonnet was made by Charmayne's head striking it. Doubtless her head injury could have been acquired by her head striking the surface of the road. But it is not obvious that the nature and distribution of the various injuries to her skull and brain would have been produced in exactly the same way by a head strike on the unyielding surface of the road. Likewise I accept Dr henderson's evidence about the distribution of the superficial injuries being consistent with his view of the mechanism of injury. Moreover Mr Bisset's notebook account of Charnayne lying face-down is not consistent with the frontal lobe injury being a contra-coup injury unless her head struck another object before the road.
The failure to call Mr Bisset is unexplained. His absence does not advance his case in this regard. And although it is difficult to work out why Ms Browne failed to notice Charmayne sliding along the bonnet and striking her head on its tail, the evidence of Snr Const. Bowden is that she was patently shocked and upset, having an aversion to approaching the Magna. She was visibly upset in giving her evidence before me. It is not unknown that people would sometimes prefer to forget the distressing details of traumatic events.
That I find that the collision occurred in the traffic lane, and that Charmayne struck her head on the trailing edge of the bonnet. However, this is not the end of the matter. I do not accept the argument that it follows from these two facts that the accident was unavoidable.
As I have said, I was impressed by Dr Henderson's views. They seem to be thoroughly grounded in the available scientific literature and carefully expounded. I was impressed by his explanation that Charmayne's head strike occurred at relatively low velocity, only just over the threshold for causing such apparently serious injuries. He has provided a very persuasive explanation of why the speed of the Magna at impact was probably less than 30 km/h. This, it seems, can be deduced, inter alia, from the consideration that Charmayne's head did not strike the windscreen. I appreciate that Mr Bisset told Snr Const. Bowden that he applied the brake when he first saw Charmayne just before the collision. From the explanation given by Mr Keramidas and Mr Kiernan about reaction times and stopping distance, including vehicle latency, I am satisfied that his attempt to brake at the "last minute" would not have had much effect on the Magna's speed, if any, before impact. His speed at impact was unlikely to be as low as 20 km/h. Charmayne's body speed would have decelerated as she slid across the bonnet before striking her head. Moreover, Mr Bisset said he stopped "straightaway" after the collision which suggests a speed lower than the 40 to 50 km/h range assumed by Mr Kiernan and Mr Keramidas, having regard to their calculations of total stopping distances.
The range of 40 to 50 km/h was indeed an assumption based upon Mr Bisset's account that he was travelling at "50 kph or less". I do not criticise them, but neither Mr Kiernan nor Mr Keramidas undertook a detailed analysis of the objective evidence to arrive at their own estimate of speed at the point of impact. Indeed, neither was able to ascertain the point of impact, but only an area of impact. For the purpose of working out the effect of Charmayne not wearing a helmet, Dr Henderson did undertake that type of detailed analysis which enabled him to express the view, with confidence, that at impact the speed of the Magna was less than 30 - 40 km/h.
In my view, Dr Henderson's estimate was consistent not only with the contemporary materials and objectively established facts about collision damage, but also with the "apparent logic of events". Mr Bisset had to stop at the intersection of Colley and Cheyenne to allow an eastbound vehicle to pass. When he entered Cheyenne Drive to head west, he, more or less immediately, had to negotiate the "S" bend. He was aware of glare. He put his failure to see Charmayne down to glare when he explained what happened to the police officer. He was obviously confident he was not driving very fast, when he said his speed was 50 or less. But obviously neither had he checked the speedometer because he was not so precise. The confluence of these circumstances persuades me that it is more likely, when one takes into account Dr Henderson's opinion, that he approached the point of impact at a speed of around 30 km/h, perhaps slightly less. If this is correct, considerations of time and space suggest that the accident was avoidable for reasons I will shortly explain.
I am also of the view that at all times after Mr Bisset brought his Magna to a halt at the intersection, Charmayne was on the southern footpath of Cheyenne Drive in the vicinity of the school. Probably by then she was around the gate. There was a deal of debate about whether she was at the entrance or near the entrance which might make some difference to considerations of time and space. However, it seems to me for all intents and purposes she probably was very near the entrance at the time the other children were mean to her and Ms Goldsmith called out to her to come home. There was some short time whilst she sat on her bike, as Ms Goldsmith said, drying her eyes. From the time Mr Bisset halted at the intersection, Charmayne was there to be seen other than momentarily when the eastbound car passed. More than likely MS Goldsmith was not visible at any time to Mr Bisset being obscured by the trees on the northside of Cheyenne Drive, the garden of the house on the corner, and by the tree in Dale Crescent near which she was standing.

Findings of fact about the collision

To recapitulate, when Mr Bisset brought his Magna to a halt at the intersection of Colley Street and Cheyenne Drive, Charmayne was very near to the school gate. Had he looked, Mr Bisset would have seen her, I infer he did not. At 30km/h, Mr Bisset's progress to the point of impact would have taken about 8.34 seconds. From the school entrance to the point of impact, a distance of about 30 metres, when one adds the 5 metres from the northern edge of the footpath on the southern side of Cheyenne Drive to the point of impact, travelling at a speed of 4 metres per second, Charmayne's progress would have taken 7.5 seconds. If one adds a couple of seconds to allow for Charmayne stopping to change direction, before proceeding onto the road, her total travelling time was 9.5 seconds during the whole of which she would have been visible to Mr Bisset, if he looked. Given these considerations of time, Mr Bisset must have moved off from his stationary position in Colley Street a second or so after Charmayne moved away from the gate. Her ride to the point at which she stopped to change direction would have taken 6 seconds. However one looks at the evidence, her ride along the footpath should have "cued" Mr Bisset; and her change in direction, on Mr Keramidas evidence, created a hazard requiring an emergency response from Mr Bisset.
When Charmayne started to change direction, Mr Bisset was still 25 metres away from the point of impact, comfortably more than the "detection range of 16.7 metres" Mr Keramidas calculated he would have available to him at a speed of 29 km/h. I say "comfortably more than" because being "cued" the "standard" reaction time would have been reduced by 1/3rd to about 1 second. Had he responded to the hazard when Charmayne started to change direction he could have stopped the Magna around 5 metres short of the ultimate point of impact, permitting Charmayne to cross safely.

Decision on liability

In Manley v Alexander [2005] HCA 79; 80 ALJR 413, Gummow, Kirby and Hayne JJ at 415[11] - [12]: Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path. …. the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the 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.
In Derrick v Cheung [2001] HCA 48; 181 ALR 301 a unanimous High Court said at [13]: 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.
I bear both of these statements of principle in mind when approaching the decision of whether in all the circumstances Mr Bisset was negligent. The question of negligence is to be determined in accordance with the provisions of s 5B Civil Liability Act 2002 (NSW) (CLA), notwithstanding that the matter arises under the Motor Accidents Compensation Act 1999: see s 3B(2) CLA.
Charmayne's case is that Mr Bisset's negligence consisted of his failure to keep a proper lookout. Before turning to the question of the assessment of breach of duty in accordance with the provisions of s 5B CLA, the logically anterior question is the correct identification of the risk of injury. In this case, that risk is that the little girl who was riding her bike on the footpath would ride out onto the roadway into the path of Mr Bisset's oncoming Magna. The question of his negligence depends upon Charmayne proving that that risk was foreseeable in the sense of being neither farfetched nor fanciful; it was not insignificant in terms of its probability of occurrence and the magnitude of the harm that might be caused; and that a reasonable person in the position of Mr Bisset would take the precaution of keeping a proper lookout, applying the brakes to bring his car to a halt when he saw her commence to change direction.
In my view the risk was foreseeable. It is notorious that children are unpredictable and often careless of their own safety. It is not far-fetched that a child forgetting herself may ride out on to road without looking. I do not accept that reasonable care requires nothing of a driver until the risk becomes so real that an emergency response is required. I am also satisfied that the risk was not insignificant. It may not have had a high probability of occurrence until Charmayne started to change direction, but neither was it extremely unlikely to occur. Obviously the consequences could be serious, or even catastrophic, injury.
The question of the response of the reasonable person in the position of Mr Bisset must be determined wholly prospectively without knowledge of the collision that actually occurred, and as though it had not happened. The question must also be answered by application of considerations set out in s 5B(2) CLA together with all other relevant considerations.
Considering the matter in this way, I am satisfied that a reasonable driver in Mr Bisset's position would have taken note of the child riding her bike on the footpath, which along with the other considerations I have referred to above, would have cued his level of alertness. Simultaneously with his other responsibilities in accordance with Manley, he should have kept an eye on her until he was safely past her. The probability of a collision occurring once she stopped and started to change direction was high and the magnitude of the potential harm was very significant given that a motor vehicle can inflict serious, even catastrophic injury on a pedestrian or cyclist. There was no difficulty, inconvenience or expense involved in keeping an eye on Charmayne and applying the brake as soon as she changed direction; nor was there any competing hazard on this suburban street to create an actual conflicting responsibility.
His explanation that he was driving into the sun, and the consideration that he did not, at any time, see Charmayne until it was too late to take any evasive action makes it clear that he was not keeping a proper lookout. Gkare and shade provide no adequate explanation these form part of the natural conditions which all drivers must deal with and adapt their driving accordingly.
I am persuaded on the balance of probabilities that having regard to the content of the driver's duty of care as explained by the High Court in Manley that had he kept a proper lookout, the accident could have been avoided.
I am also satisfied in terms of s 5D CLA that Mr Bisset's negligence was a necessary condition of the personal injury suffered by Charmayne. But for his failure to keep a proper lookout, he did not apply the brakes when Charmayne changed direction, which simple measure would have avoided the collision. Section 5D(1)(b) is not engaged. The obligation of the driver of a motor vehicle to other road users is a well-established category of duty in the law of negligence and there is no reason why Mr Bisset's liability should not extend to the harm caused by his negligence.
I find Mr Bisset negligence in all the circumstances.

Contributory negligence

There are additional facts to recount which may be relevant to the decision for contributory negligence. As I have said at the outset, Charmayne was a developmentally delayed child. In a report dated 25th July 2011 (Exhibit Q), excerpts of which were admitted into evidence, Dr Pauline Langeluddecke recorded that Charmayne "has a history of pervasive developmental delay in childhood and was found to demonstrate an intellectual disability (lower end of the moderate range) and very poor adaptive functioning on psychometric testing conducted when aged 6 years 3 months and 7 years 9 months".
Psychometric testing when aged 6 years and 3 months demonstrated Verbal, Performance and Full Scale IQ's of 45, 45 and 41 points respectively. Assessment of her adaptive behaviour placed her skills within the extremely low range, below the second percentile for her age, across the board.
In November 2002, the same or similar results were achieved on psychometric testing. Moreover, she was said to be uncooperative; related extremely poorly to most adults when a request was made for her to comply with a particular activity or task; there were a lot of parental problems; difficulty understanding instructions; and Charmayne spent a lot of time by herself having difficulty with interactions with her siblings.
Dr John Douglas, a paediatrician, examined Charmayne on 14th January 2004 and recorded a history of developmental delay, and continued enuresis and encopresis.
In 2003 Charmayne was attending a specialist school. Her June 2003 school report indicated very poorly developed numeracy, literacy and conversational skills. "Literacy was limited to an ability to recognise 5 words (I, me, see, a, can) and recall most, (but not all) letters of her name without assistance". She could count to ten "on the majority of occasions". Charmayne was unable to bathe independently at home and required "verbal assistance to dress and undress and had ongoing difficulties with buttons, laces and some clothing" (Exhibit Q).
Her older sister described her as "a bit slow with the way she was born, but she was picking up pretty well". She had just learnt to spell her name which made her happy (79.10 - .15T). Ms Goldsmith said that she struggled to count to 20, and needed assistance to dress herself (79.35T).
In cross-examination Ms Goldsmith said that Charmayne used to ride her bike a lot. Ms Goldsmith said that Charmayne knew that cars would travel on roads and could be dangerous. She said "[Charmayne] knew how to stop and look and check and everything" (91.20T). As I have said Ms Goldsmith had told Charmayne to go back snd get a helmet.

The legal requirements

Section 138 Motor Accidents Compensation Act 1999 is in the following terms, so far as is material: (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. (2) A finding of contributory negligence must be made in the following cases: (a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident, (b) where: (i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and (ii) the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment, unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle, (c) where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a seat belt when required by law to do so, (d) where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so. (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage. … Other "enacted laws" which apply are s 9 Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (LRA) and ss 5R and 5S CLA.
In Davis v Swift [2014] NSWCA 458; 69 MVR 375 at [23], Meagher JA pointed out that s 138(2) and (3) "vary the enacted law; the former by requiring findings of contributory negligence be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility": See also Verryt v Schoupp [2015] NSWCA 128.
At [29], in Davis, Meagher JA said: Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97 ; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence.
It is apparent, however, that like the common law, these statutory provisions accommodate the somewhat special position of children: Waverley Council v Ferreira [2005] NSWCA 418; Aust. Torts Reports 81 - 818 at [86]; Doubleday v Kelly [2005] NSWCA 151 at [24] - [26]. The principles discussed in McHale v Watson [1966] HCA 13; 115 CLR 199 continue to apply in the statutory context (see also Verryt at [56] ).

Failure to wear a protective helmet

Section 138(2), regardless of any other consideration, mandates a finding of contributory negligence in four specified circumstances. Paragraph (d) applies to the circumstance "where the injured person or the deceased person was at the time of the motor accident, not wearing a protective helmet when required by law to do so".
Prima facie paragraph (d) applies to this case. As Mr Maconachie QC, who appears, with Mr Regattieri, for Charmayne acknowledges, the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW) (repealed) "picked up" the Australian Road Rules, which by Cl 6 of the Regulation were required to be "read with, and as if they formed part of, this regulation". Rule 256(1) provided: A rider of a bicycle must wear an approved bicycle helmet, securely fitted and fastened on the rider's head, unless the rider is exempt from wearing a bicycle helmet under another law of his jurisdiction. An approved bicycle helmet means a protective helmet for bicycle a rider that is approved by law.
Some emphasis was put on Rule 17 defining rider in the following terms: (1) A rider is the person who is riding a motor bike, bicycle, animal or animal-drawn vehicle. Note 1. Bicycle and motor bike are defined in the dictionary. Note 2. Ride, for the rider of a motor bike or animal-drawn vehicle, includes be in control of - see the definition in the dictionary. (2) A rider does not include: (a) a passenger, or (b) a person walking beside and pushing a bicycle.
It was said that if Charmayne was astride or beside her pushbike stationary in the parking lane, she was not a rider for the purpose of the rules. On the facts which I have found, it is unnecessary to decide this point. I record that I would have difficulty accepting the argument that a person who has brought her bicycle to a halt to allow competing or conflicting traffic to pass has ceased to be a rider whilst stationary, but resumes being a rider when she moves off. Even if the rider dismounted and stood beside the bicycle waiting for traffic to pass, she would not thereby become "a person walking beside and pushing a bicycle". In my view, at all times, in such circumstances, the person remains a rider.
It follows that I am satisfied that Charmayne was required by law to wear a protective helmet at the time of the motor accident. Prima facie, I am obliged to make a finding of contributory negligence.

Construction of s 138

It is notable that of the four circumstances covered by s 138(2) paragraphs (b) and (c) contain the qualification "(not being a minor)". Paragraphs (a) and (d) are not so qualified. One can understand the absence of the qualification in paragraph (a), an injured person convicted of an alcohol or drug-related offence in relation to the motor accident in which he or she was injured, is very unlikely to be a child of tender years; and, in any event, there is a "proviso" when the alcohol or drug "did not contribute in any way to the accident".
It is more difficult to understand why the qualification in (b) and (c) was omitted in (d). Paragraphs (c) and (d) in particular deal with the failure to wear protective equipment. In each case, children are taught from an early age the importance of applying a seatbelt and wearing a helmet. It is difficult to differentiate the position of minors in each case.
The legislative purpose of s 138(2) seems clear. It preserves the particular protection children receive under the law, except in the case of alcohol or drug offenders. That special protection, of course, does not absolve children from the effect of contributory negligence on compensable damages, it simply assesses their conduct according to a somewhat different standard from adults. A young woman of 17 years and 9 months may not be treated much differently from an adult. The conduct of a girl of only 5 will be assessed according to a standard appropriate to a child of that age.
Section 138 is in substantially the same terms as s 74 Motor Accidents Act 1988 (NSW). Paragraph (c) and (d) of s 74 utilised slightly different language, but were to the same legal effect as paragraphs (c) and (d) of s 138. The same is true of paragraphs (a) and (b) of s 74.
In his second reading speech on the Motor Accident's Bill, the then Attorney General, Mr Dowd simply said (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 November 1988 at 3833): Clauses 74 and 76 emphasise the role laws relating to contributory negligence play under a common law scheme. In future, any actions by the claimant that contributed to the injury, or where the claim had voluntarily assumed the degree of risk, must be taken into account by the Court when assessing damages. This is another significant reform to common law rules, which should have a large impact by placing responsibility for safe conduct on all road users. (Clause 76 was concerned with voluntary assumption of risk; see s 140 of the 1999 Act).
The explanatory memorandum in relation to Cl 74 of the Motor Accidents Bill was in the following terms: Clause 74 requires a court to reduce a plaintiff's damages in accordance with the law of contributory negligence if the victim of the motor accident has been convicted of one of a number of various offences, including offences relating to drunken driving, failure to wear a seatbelt and failure to wear a protective helmet.
Neither the second reading speech nor the explanatory memorandum suggest any different intention, so far as the treatment of children is concerned, amongst paragraphs (b), (c) and (d).
In Wentworth Securities Limited v Jones [1980] AC 74 at 105 - 106, Lord Diplock said: I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] A.C. 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.
This approach to statutory construction has been frequently adopted in Australia: Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; 88 ALJR 473 at [37] - [40]; Newcastle City Council v GIO General Limited [1997] HCA 53; 191 CLR 85 at 116 - 17; In Taylor (at 483 [39]), the majority considered Lord Diplock's approach to "accord with the statements of principle in" Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297. Their Honours also adopted the reformulation of Lord Diplock's third condition by Lord Nicholls of Birkenhead in Inco Europe Limited v First Choice Distribution [2000] 1 WLR 586 at 592. Lord Nicholls considered that "certainty" was sufficiently satisfied if the court was abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted.
Bearing in mind the task is one of construction not legislation, and bearing in mind that satisfaction of Lord Diplock's three conditions may not always be necessary and sufficient (Taylor at [39]), I am nonetheless satisfied that each of his Lordships conditions are satisfied in this case. Considering the provisions of the Act read as a whole, Parliament wish to achieve the purpose of requiring courts to find contributory negligence in motor accident cases where the injured person (not being a minor) had committed or acquiesced in the commission of breaches of motor traffic law enacted for the injured person's safety. It is also apparent that the draftsman, and Parliament, had by inadvertence overlooked, and so admitted to deal with the eventuality required to be dealt with if the purpose of the Act was to be achieved. In particular that purpose included not depriving injured persons who are minors of the protection afforded to them by the common law of contributory negligence. In this case it is possible to state with certainty what were the additional words that Parliament would have inserted had their attention been drawn to the omission before the Bill was passed into law: the insertion of the matter, "(not being a minor)" after the phrase, "where the injured person" in paragraph (d) of s 38(2). Reading paragraph (d) in this way is consistent "with the wording of the provision": Taylor at 483 [39]. In my judgment paragraph (d) should be construed as follows: Where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so. Read this way, the provision does not apply to Charmayne. This does not mean that contributory negligence is not a factor to be considered. It simply means that contributory negligence is to be considered according to the general law, including the principles discussed in McHale v Watson.

Contributory negligence of children

As I have said, s 5R CLA applies and this provision incorporates the principles established by s 5B and 5C into the assessment of whether Charmayne is guilty of contributory negligence: see Verryt at [27], and the cases there cited. As Verryt and Doubleday make clear, the legislative standard of "a reasonable person in the position of" the plaintiff in ss 5R and 5B (1)(c) picks up and applies the previous common law principles.
McHale v Watson was concerned not with the contributory negligence of a child, but with a standard of care to be applied when a child was the alleged tortfeasor. As the various judgments in the High Court acknowledge, the standard of care in cases of contributory negligence was not in doubt. In Joseph v Swallow and Ariell Pty Ltd [1933] HCA 47; 49 CLR 578, Dixon J (as the Chief Justice then was), as McTiernan AJC pointed out in McHale at 207, formulated the standard as "a child is under a duty to exercise such a degree of care for his own and others' safety as might reasonably be expected from one of his age and capacity". McTiernan AJC at 209 seems to have preferred the American approach from Hoyt v Rosenburg (1947) 173 AmLR 883 at 886: There is no dispute as to the general rules of law here applicable. While a minor, like an adult, is required to exercise ordinary care, he is only required to exercise that degree or amount of care that is ordinarily exercised by one of like age, experience and development.
Menzies J, who dissented and thought a different principle applicable to cases where a child was a tortfeasor, said the following of contributory negligence (p 223): Where in an action for negligence by a plaintiff child the defendant raises as a defence the contributory negligence of the plaintiff, it is now established that the defence may fail either because in the circumstances there is nothing upon which a finding could be made that the child was capable of taking care for its own safety … or, where the child is capable of taking such care, it is not established that it failed to take that degree of care for its own safety such as that which could reasonably be expected of such a child … . Where the question concerns the plaintiff's contributory negligence, the law permits a subjective test, and this is so not only in the case of children. Any person under a disability is only required to take such reasonable care for his own safety as his capabilities permit.
Owen J (at p 229) said: It is plain that in dealing with the question of contributory negligence on the part of a child, its age is a relevant fact since the care expected of it is that reasonably to be expected of a child of similar age, intelligence and experience.
Only Kitto J would have adopted a purely objective standard of care. His Honour said (p 213): In so far as "proper" is an apt word to use in this connexion it connotes nothing but conformity with an objective standard of care, namely the care reasonably to be expected in the like circumstances from the normal person exercising reasonable foresight and consideration for the safety of others. Thus a defendant does not escape liability by proving that he is abnormal in some respect which reduces his capacity for foresight or prudence. The principle is of course applicable to a child. The standard of care being objective, it is no answer for him, any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent-minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard.
His Honour (p 215) thought that the same rule applied to contributory negligence. He regarded his review of the authorities as establishing that "the contributory negligence on the part of a child consists in a failure to exercise the care reasonably to be expected of an ordinary child of the same age". His Honour said that this standard of care "is objective".
I accept that the approach of Kitto J may accord with more modern authorities such as Joslyn v Berryman [2003] HCA 34; 214 CLR 552, a case concerned with contributory negligence under s 74 of the 1998 Act. McHugh J referred to Kitto J's judgment, with respect, with approbation: Joslyn at 565 [34]. His Honour referred, like Kitto J to Lynch v Nurdin (1841) 1 QB 29 as, in respect of children, fixing a standard as "that to be expected of an ordinary child of the same age" (565 [35]). McHugh J apparently regarded the case of children as an "exception to the general rule that the test for contributory negligence is an objective test": Joslyn 566 [36]. The other Justices deciding Joslyn did not advert to the special circumstances of the child. Their Honours did not refer to McHale.
In Imbree v McNeilly [2008] HCA 40; 236 CLR 510 it was stated at [69] that the common law recognises many circumstances in which the standard of care expected of a person takes account of some matter that warranted identifying a class of persons or activities as required to exercise a standard of care different, or more particular than, that of some wholly general and "objective community ideal". It was recognised that "the standard of care expected of children is attenuated". Reference was made to McHale. I am of the view that for purposes of contributory negligence of children, the law is as stated in McHale is as expressed by Owen J, which I will repeat: It is plain that in dealing with the question of contributory negligence on the part of a child, its age is a relevant fact since the care expected of it is that reasonably to be expected of a child of similar age, intelligence and experience.
The standard so expressed is objective, but has subjective elements. Mr Stitt QC, who appeared with Mr Ryan for the defendant, accepted that the relevant standard for determining the issue for contributory negligence was whether Charmayne "failed to take the reasonable care for her own safety that is to be expected from a reasonable 9 year old child having such a degree of intellectual handicap". This accords, with respect, with the standard as expressed by Owen J. In these circumstances, it is unnecessary to consider the argument advanced on behalf Charmayne that the judgment of Martin CJ in The Town of Port Headland v Hodder (No 2) [2012] WASCA 212; 43 WAR 383 at [224] - [226] suggests a lesser standard for disabled persons. As counsel concede, on this particular issue Martin CJ did not have the support of McLure P or Murphy JA.

Application of principles

Mr Bisset argues that Charmayne was contributorially negligent in two respects. First, in failing to stop and look to the right and left before attempting to cross the road; and secondly failing to wear a helmet.
If one considers these questions from the standpoint of the ordinary or reasonable 9 year old child of Charmayne's intelligence and experience, difficulties of proof arise for Mr Bisset.
I accept the evidence of Ms Goldsmith that Charmayne "knew how to stop and look and check and everything". However, a 9 year old with Charmayne's degree of developmental delay is really in the position of a much younger child. Joseph was concerned with a child of 5 years and 9 months. Although, making an observation of fact, Dixon J said (p 586): In my opinion there was no evidence of contributory negligence on the part of the child, at any rate after he had been guilty of the initial indiscretion, to which children are so liable, of forgetting or disregarding traffic and starting across the road. This observation is apposite in the present case, that is to say, the reasonable 9 year old having Charmayne's degree of intellectual disability is likely to be as forgetful as a 5 year old.
Turning to the question of contributory negligence for not wearing a helmet, I accept the evidence of Ms Goldsmith that when Charmayne emerged from her home without a helmet, she called out to her, more than once, to go back and get a helmet, and Charmayne got cranky and peddled off (83.25 - .30T). Her cranky response seems consistent with what is contained in the evidence about the nature of her disability. But from this evidence it can be inferred that Charmayne had access to a helmet and, perhaps, could have worn it.
I accept Dr Henderson's evidence that a properly fitted helmet complying with the Australian Standards would have greatly reduced the risk of Charmayne suffering the head and brain injuries she received in the accident. Considering the low speed at which the collision occurred, probably she would not have suffered those injuries had she been wearing an appropriate helmet.
There is, however, no evidence as to the nature and condition of the helmet of which she was possessed. There is no evidence that it was sound, or complied with applicable standards. I do not think that the evidence gives rise to any presumption of regularity in relation to the condition of the helmet. Moreover, having regard to the evidence about Charmayne's difficulty in dressing herself, I am not persuaded that she could be left to her own devices in fitting the helmet.
If s 138 is to be construed as I have found, and if the standard is as I have determined it to be, I am not persuaded that the defendant has proved that Charmayne was guilty of contributory negligence. In arriving at this conclusion, I have borne in mind that although a question of fact, the question of whether a child is guilty of contributory negligence is one determined according to the normative standards of the law of negligence which are solicitous of the interests of children.
On the other hand, if I am wrong about the construction of s 138 and about the appropriate standard of care, I accept that a reasonable 9 year old could be expected to exercise the ordinary care of stopping, looking and listening before crossing the road, at least most of the time. Moreover, assuming the helmet to be in good condition and to comply with Australian Standards, an ordinary 9 year old could be expected to know to wear his or her helmet when riding a bike in a public street. Charmayne was not wearing one. Section 138(2), if I am wrong about its construction, would mandate a finding of contributory negligence on that score.
Section 138(3) requires, when a finding of contributory negligence is made, that the damages recoverable in respect of the motor accident are to be reduced by such percentage as the Court thinks just and equitable in the circumstances of the case. This requires a comparative evaluation of a similar kind to that mandated by the oft-cited passage from Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494; see Davis at [28] . I am also conscious that in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139, Basten JA (Emmett JA agreeing) said that the benign approach to apportionment generally attributed to Pennington v Norris [1956] HCA 26; 96 CLR 10, that the person in control of the potentially dangerous vehicle, as a general rule, should attract a greater share of responsibility for the accident and its consequences, no longer applies, because the requirement that people, including plaintiffs "should take responsibility for their own lives and safety is now reflected in s 5R": Cosmidis at [99]. Even so, it remains the case, ignoring Charmayne's intellectual disability, that, conventionally, the responsibility of a child, vis a vis an adult in control of a potentially dangerous machine is likely to be attenuated.
For the purpose of these contingent findings, I do not think it can be said that the degree of Charmayne's culpability is equal to or greater than Mr Bisset's. In this respect, it is relevant to consider that the law does require less of a child, especially one of only 9 years of age, than of an adult. Considering the relative causal potency of the omissions of each of them, it is true that Charmayne's injuries were probably much more serious because of her failure to wear a helmet. But even a reasonable 9 year old, not suffering Charmayne's intellectual disability would not have the same appreciation of danger, and possible consequences, as a reasonable adult.
Looking at Mr Bisset's conduct, this is not a case like Derrick v Cheung where a toddler wandered without prior warning to the drivers, into a steadily moving stream of traffic in Chatswood on a Saturday morning. From the time Mr Bisset was at the intersection of Colley and Cheyenne, Charmayne was there to be seen and he should have been alert to the possibility that she may act unpredictably including unthinkingly coming out onto the roadway. Mr Bisset was not travelling at an excessive speed, but her presence and what is generally known about the unpredictability of children called for a degree of vigilance on his part. His failure to keep a proper lookout in the circumstances involved much greater culpability, and greater causal potency as it would have been obvious to anyone who saw Charmayne that she was not wearing a protective helmet, than Charmayne's departures from the degree of care to be expected from an ordinary or reasonable 9 year old. If my decision about contributory negligence is wrong, I would otherwise have apportioned responsibility between the plaintiff and the defendant as to 25 per cent to Charmayne, and 75 per cent to Mr Bisset.
My orders are: 1. The questions ordered to be determined separately under Rule 28.2 Uniform Civil Procedure Rules 2005 (NSW) are answered as follows: 2. Question 1: Were the plaintiff's injuries caused by the negligence of the defendant? 3. Answer: Yes. 4. Question 2: Was the plaintiff guilty of contributory negligence? 5. Answer: No. 6. Under Rule 28.3 enter judgment for the plaintiff for damages to be assessed; 7. The defendant to pay the plaintiff's costs of and incidental to the separate question proceedings on the ordinary basis after they have been agreed or assessed; 8. List the matter for directions before the Common Law Registrar at 9 am on Friday, 26th June 2015.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2015

Road Transport (Safety & Traffic Management) (Road Rules) Regulation 1999(NSW)

Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999(NSW)

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