[44] In determining the probability of an occurrence, the vulnerability of the person at risk is a critical factor. A risk may have a low probability of occurring when the person is a mature adult of ordinary intelligence. It may have a high probability of occurring when the person at risk is a small child. So action on the part of the risk maker that is reasonably required in one situation may not be required in a different situation. Hence, negligence doctrine will generally impose a higher standard of care on a person who creates or is responsible for a risk of injury to an employee, a prisoner or a school child[8] than it will impose in respect of many persons falling outside those categories. The boredom and familiarity of repetitive work and the fatigue induced by long hours may cause the employee to lose concentration and increase the risk of injury. The restrictions on freedom imposed on the prisoner take away his or her autonomy and lessen the prisoner's capacity to guard against danger. The immaturity of a child - especially a young child - makes the child insensitive to danger to him or herself and other children."
104 The facts of the present case, in the light both of these and other authorities, lead me to conclude that the following answers should be given to the questions posed at par [81] above.
105 I find that the plaintiff had been involved in numerous altercations and disputes with other passengers on the bus over an extended period. Whether or not these were properly to be characterised as bullying or victimisation is to some extent beside the point. The incidents were sufficiently serious for the plaintiff's mother to have brought them to the attention of the school and for the third and/or fourth defendants to have done something about them. There is some suggestion that the plaintiff was a protagonist at times, if not often, and that he gave as much, if not as good, as he got. It resulted in the decision to seat the plaintiff directly behind the driver. So much reveals that the third and fourth defendants recognised that there was a problem that required a solution, which they hoped in that way to provide.
106 I consider that the plaintiff overstated the degree and extent of the conduct of other children on the bus that he saw as aggressive behaviour directed at him. I am not satisfied that the plaintiff was bullied in the sense that he was intimidated and picked on by older of stronger children so that he was physically injured or emotionally overpowered. I was given the distinct impression that the plaintiff was an awkward lad whose disabilities from birth rendered him vulnerable to teasing and that he was teased. No accommodation would appear ever to have been arrived at between him and those who would make fun of him and disruption on an ongoing basis aboard the bus was the chronic result. I find that the third and fourth defendants knew of this and that they took steps to alleviate it in the way described. That it was not wholly successful is evident.
107 I find that the plaintiff was not bullied on the day of the accident. I accept the description given by the fourth defendant of what occurred. The plaintiff would appear to have become embroiled in a minor altercation with the boy sitting next to him. Joshua White gave evidence that there was no significant altercation on the bus on this day. He said it was limited to "some verbal abuse and paying out". Nothing of significance or consequence flowed from what took place in my opinion. Nor do I accept that the plaintiff was visibly, or in any other way, upset or distressed as a result of what occurred. The "evidence" of Ms Long, a passenger on the bus, contained in a statement given by her to an investigator when she was still young, suggesting, in answer to an egregiously leading question, that the plaintiff had been "crying" on the day of the accident, is wholly unreliable and I place no weight upon it at all. Another passenger on the bus, Ms Clement, did not observe that the plaintiff was in any way distressed by the argument he was having with the child seated next to him, who according to her alighted from the bus ten minutes before the plaintiff in any event. There is no other evidence that a significant disturbance occurred on the bus on this day apart from the evidence of the plaintiff, which I reject.
108 There is uncontradicted evidence that the plaintiff was quieter than normal when he boarded the bus. However, if it is suggested that that was something that should in some way have elevated the fourth defendant to a heightened level of concern for the plaintiff above what was usual, I reject it as an unreasonable submission. The suggestion that the fourth defendant should have made some relevant connection between the plaintiff's mood on the day of the accident and the likelihood that he would discard his previous unfaltering pattern of behaviour on every previous afternoon when he alighted from the bus this day is tenuous at best and unsupportable at worst.
109 In particular, it appears to contradict the principal basis upon which the plaintiff seeks to support his case against the third and fourth defendants. The evidence clearly supports the fact that up until the day of the plaintiff's accident he had for over one year invariably adopted a consistent and regular course of conduct when he alighted from the bus. The plaintiff said so and the fourth defendant agreed. This course of conduct or routine was, on the plaintiff's case, one that he had always adopted on all occasions and in all circumstances, including presumably all of the occasions on which, in his words, he had been bullied. There was therefore a reliable and repeated pattern of safe behaviour by the plaintiff, even on occasions when he had been treated in a way that had led to him being seated at the front of the bus.
110 That a child of almost eleven years of age might cross the road in an unsafe manner is uncotroversially foreseeable. It was no doubt a factor that informed the fourth defendant's claimed exhortations to his passengers when they alighted. However, the touchstone of liability is reasonableness. It does not appear to me to be reasonably foreseeable that the plaintiff would have acted in the way that he did on the day in question having regard to the reliably safe way in which he had performed without exception on all previous occasions. As I have emphasised, these occasions must on the plaintiff's own case have included those occasions when he had been bullied or victimised or howsoever it may be appropriate to describe it.
111 Nor were there any other factors that should have led the fourth defendant to act other than in the way that he did. The weather was fine and visibility was good. The plaintiff alighted at a designated bus stop with the safety of which there has been no issue. The traffic was no different to what was normal or usual for a school-day afternoon. The defendant did not observe the plaintiff to be upset and I accept his evidence to that effect. The plaintiff was not in any particular hurry and did not exhibit any signs that he was. The plaintiff was not under any time constraints or burdened with the need to return home hurriedly, as was the young girl in Jarvis (supra). The approach of the second defendant's vehicle was not anything to which the fourth defendant ought reasonably in these circumstances to have had any more particular regard than that which he paid it. Indeed, the second defendant's vehicle would have passed safely and without incident long before the plaintiff attempted to cross the road if the plaintiff had adopted his usual course of conduct in doing so. The fact that there was evidence on a previous occasion some months before this incident of a different child crossing in front of the fourth defendant's bus is no more and no less than an example of the erratic and unpredictable behaviour of young children of which the cases speak, but of which the fourth defendant was, or should have been, aware in any event. The situation may have been different had the incident involved the plaintiff, because it would have raised in the mind of the reasonable driver of a school bus that he had the care and custody of a young passenger upon whose prior conduct when crossing the road it would not necessarily be safe of prudent to rely. This was not such a case.
112 I find that the third and fourth defendants did not do anything that they ought not to have done, and that they did not fail to do anything that they ought to have done, in discharging the plaintiff from their bus on the day of his accident. This would include any alleged failure by the fourth defendant to give his usual warning to the plaintiff, and a clearly causally irrelevant alleged failure by the fourth defendant to sound his horn. Any view of the liability of these defendants favourable to the plaintiff is a view taken "through the prism of hindsight". As will be apparent, even if the plaintiff were, contrary to my finding, visibly upset in a way that the fourth defendant should have noticed, I would reach the same conclusion. The plaintiff was not so concerned that he was not able to retaliate and the incident would appear to have been no more serious, and in my view considerably less serious, than the general range of incidents that the plaintiff sought to establish. The plaintiff had clearly demonstrated himself to be responsible in similar situations in the past and it would be entirely unreasonable to expect the fourth defendant to have acted in any different way on this occasion. The evidence does not in my opinion support the allegation that the plaintiff was not "in a fit state to cross the road safely". I find that he was not visibly upset or agitated as he left the bus.
113 The plaintiff also alleged that there was a failure by the third and fourth defendants to have a sign on the rear of the bus saying "School Bus", contrary to Reg 93 of the Road Transport (Safety and Traffic Management) Act 1999. The bus did not have such a sign. However, even if there were a breach of the regulation, there was no causal connection between the breach and the accident. The second defendant was at all times aware that the bus was a school bus and the plaintiff has not demonstrated that the presence of words describing it as such would meaningfully have added to the information available to the second defendant or that he would have acted differently if he had had it.
114 However, reg 93(7) provides that the regulation does not in any event apply to a vehicle operated in accordance with reg 94. Reg 94 is headed "Warning signs and lights for school buses". It requires a school bus to have a "warning system" attached to the bus. "Warning system" is defined as follows:
" warning system " means a system of signs and flashing lights that is designed to warn motorists of the presence of children on a bus and that complies with the requirements of the technical specification approved by the Authority from time to time for the purposes of this clause.
115 The plaintiff also alleged that there was a failure by the third and fourth defendants to activate the flashing warning lights on the bus at the time when the plaintiff was alighting. I have already found that the lights were activated so that this allegation is not made out.
Contributory negligence
116 The first and second defendants submitted that the "overwhelming responsibility" for the plaintiff's injuries should rest with him. He ran across the road without looking, in front of a stationary bus, contrary to what he had been taught and understood, into the side of the second defendant's car.
117 In Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 the High Court expressed the following opinions: -
"[8] A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v. Macgregor (Owners) (1943) AC 197, at p 201. Such a finding, if made by a judge, is not lightly reviewed. . .