Kain v Mobbs [2008] NSWSC 383 | Case summary

Kain v Mobbs [2008] NSWSC 383 | Case summary | Zoe

[10]

JUDGMENT 1 The plaintiff was born on 2 August 1990. On 5 April 2001 he was ten years and eight months old and a student in year four at Lakeside Christian College. He regularly travelled to and from school on a school bus owned and operated by the third defendant. Each afternoon the plaintiff would alight at a bus stop situated on the eastern side of Kingscliff Street, Kingscliff after a journey south from his school in the north. Kingscliff Street was a main road in the area running effectively north/south. The plaintiff's home was located in a street on the western side of Kingscliff Street, so that it was necessary for him to cross that street every day when he alighted from the bus. 2 On 5 April 2001 the plaintiff travelled home from school on the bus as usual. It was regularly driven on this journey by the fourth defendant, who was in fact driving the bus on this day. The bus arrived at the plaintiff's stop at somewhere between 3.35pm and 3.45pm. The plaintiff alighted from the front door of the bus with another boy, Tim Paine, onto the footpath on the eastern kerb. Shortly thereafter, but before the bus moved off, the plaintiff ran across the road at an angle of about 30° south of due west from a position on the footpath approximately one metre south of the front of the bus, where he collided with the side of a motor vehicle owned by the first defendant and then being driven past the bus in a southerly direction by the second defendant. As a result of this collision the plaintiff was severely injured. 3 The plaintiff sued the defendants in negligence claiming damages for his injuries. His case against the first and second defendants as a group was different to his case against the third and fourth defendants as a group. No internal distinction, however, is drawn between the plaintiff's case against the first defendant and second defendant, or between the third defendant and fourth defendant. 4 The plaintiff's case against the first and second defendants is limited to a consideration of the physical circumstances of the accident, involving as it does the collision between a pedestrian and a motor vehicle on a public street. The plaintiff's case against the third and fourth defendants, however, whilst necessarily based upon the same accident, extends as well to a consideration of the relationship between the plaintiff and the third and fourth defendants arising out of the plaintiff's travel on school buses over a period of about a year and events that are said to have occurred within the bus on many of those occasions. In brief, the plaintiff alleges that the third and fourth defendants came under a duty to him that had to be formulated by reference to his particular needs and in the light of a knowledge of his physical, emotional and behavioural propensities. In addition, the plaintiff alleges that the fourth defendant breached his duty of care to the plaintiff, in both the circumstances and the way in which he allowed or permitted the plaintiff to alight from the bus on the day of the accident. 5 The case against the third and fourth defendants necessarily involves and requires a consideration of all of the facts giving rise to the case against the first and second defendants but, with some minor factual exceptions, the reverse is not true. (These exceptions relate to the physical condition of the bus, whether its amber warning lights were activated, what words or signs were written or displayed on the back of the bus, and whether or not the fourth defendant sounded his horn or activated his trafficator in preparation for leaving the kerb. There may be others as well). Because of this, it becomes convenient to deal with the plaintiff's case against each group of defendants separately. The case against the first and second defendants 6 The plaintiff had no recollection of the accident and was accordingly unable to give evidence about it. None of the passengers in the bus, who were all school children of various ages, was able to give a relevant account of what happened outside the bus. Tim Paine was a passenger who alighted at the bus stop with the plaintiff but he could not be found. The first, second and fourth defendants gave eyewitness accounts of what occurred. There was, in addition, one other eyewitness, Mr Cottrell, who observed what occurred from a position on the western side of Kingscliff Street approximately opposite the bus stop. What follows is a description of the accident according to accounts given by them. 7 Exhibit 5 was a statement given to police by the first defendant on the day of the accident. She said that on that day she was in the front passenger seat of her car then being driven by her son, the second defendant, in a southerly direction in Kingscliff Street at Kingscliff. She said the second defendant "was driving at a speed of about 30 to 40 km per hour". As the car approached the intersection of Ocean Street, there was a school bus stopped against the left-hand side of the road. She said the second defendant "slowly continued to drive past the bus". As they came level with the front of the bus, "a little boy was running full pelt and [ran] into the side of [the] car". The child's head shattered the left side of the windscreen and also broke the left-hand side mirror of the vehicle. 8 Paragraph 8 of the first defendant's statement was rejected by me and did not become evidence in the proceedings. 9 The first defendant confirmed what she had said in her statement about the speed of the vehicle prior to the collision in her evidence in chief in answer to questions from Mr Deakin of Queen's Counsel who, with Mr Nolan of counsel, appeared for the first and second defendants. That evidence was as follows: "Q. As the vehicle approached the rear of the bus can you recall what speed it was doing? A. It was doing about 30 to 40.

[13]

Q. At what angle, if any, to the kerb did he travel? A. 45 degrees - " 12 She gave the following evidence about the plaintiff's speed of travel: "Q. Can you indicate to us how fast he was moving? A. Yes, he seemed to be moving very quickly." She did not observe the second defendant to swerve away from the plaintiff prior to the impact. 13 The first defendant also said that by the time she got anywhere near the rear of the bus it was obvious to her it was a school bus as distinct from a bus on another route and that the (40 km/h) speed sign on the rear of the bus was obvious to her before she reached the rear of it. She thought that there was about a metre between the passenger side of her vehicle and the driver's side of the bus. She had no recollection of hearing a horn sounding at any time. Nor did she recall seeing amber lights flashing at the rear of the bus. 14 Exhibit B was a statement given to police by the second defendant on the day of the accident. He was then 16 years of age and had been learning to drive for the previous four months. The first defendant is his mother and was teaching him to drive when the accident occurred. 15 The second defendant said that at about 3.15pm he commenced to drive from Palm Beach High School in Kingscliff. As he was driving along Wommin Bay Road he noticed that there was a school bus behind him. He stopped to let his sister out for hockey practice and recommenced driving south along Kingscliff Street at about 3.40pm. The bus went past. He subsequently noticed that the bus that had been behind him had pulled over in Kingscliff Street ahead of him. He commenced to overtake the bus "making sure it was safe to do so". 16 The second defendant said that as he was at the front of the bus he saw a green flash to his left hand side. He swerved away from it but it still hit the passenger side of the car. The second defendant said that he was a little confused about what happened and thought he had "just clipped someone, but wasn't sure". The first defendant told him to pull over, which he did. He noticed that the windscreen had been smashed and that the nearside external mirror was broken. He got out of his car ran back towards the bus. He saw a young person on the ground. The second defendant estimated his speed prior to the accident at 40 km/h. The road was dry and it was daylight. He said "I did not see this young person until he ran into the side of the car". 17 The second defendant said that his first recollection of seeing the bus after it had overtaken him was when it stopped at the bus stop. Although he had been travelling at approximately 60 km/h further north in Kingscliff Street, by the time he reached the rear of the bus he had slowed to a speed of 40 km/h. He gave the following evidence in chief: "Q. What was the state of your knowledge as a driver at that time in relation to any requirements binding on you as the driver of a vehicle overtaking a school bus with appropriate signage and warning on? What was your understanding of that? A. That there would be kids around and that, well, I was taught that they would cross behind a bus.

[38]

Q. And what I suggest to you is that one of those situations is one where you know children are being let off and you have not been able to see them so you don't know what they are doing. You would agree with that, wouldn't you? A. Yeah." 23 Finally, for present purposes, the second defendant was asked the following question: "Q. Being a driver who did not have a lot of experience and who was still learning skills, don't you agree you should have travelled at less than 40 kilometres per hour when you went past this bus? A. No." 24 The fourth defendant had been a bus driver employed by the third defendant, or its predecessor, since approximately 1993 or 1994 and ceased that employment in approximately 2004. He gave evidence that by April 2001 he had been driving the plaintiff's afternoon bus route for something in the order of two and a half to three years. His shift commenced at 2.40pm. The plaintiff got off at the same bus stop each day and did so in accordance with his normal pattern on the day of the accident. 25 On that day the plaintiff alighted from the bus with Tim Paine. Before doing so he had been seated directly behind the fourth defendant in a seat that had been assigned to him in circumstances that are referred to in more detail later in these reasons. The plaintiff was still seated when the bus came to a stop and the doors opened. The plaintiff then picked up his bag and went to the side of the seat in the aisle. The fourth defendant said, "Wait until the bus drives off and watch the road". The plaintiff then "stomped off the bus", although this was at what the fourth defendant described as "just the normal speed". He stepped onto the grass verge, turned to the right and started to walk south. As he walked away from the bus, the fourth defendant closed the door. 26 At this point the fourth defendant checked his mirror and saw a car coming up on the right-hand side of the bus from behind. He said, "I was in a position not to pull out because the car was too close so I had decided at that point to let the car go past". He then gave the following evidence: "A. The flashing lights were still going, my right-hand blinker was going and as the car drew almost level with the front, the front of the car was - oh, sorry. The front of the car was almost level with the mirror. . . I saw the car go past and at the same time I saw [the plaintiff] fold [sic "bolt"] across the road and I put on the air horn and at the same time he hit the car. I seen this kid flying through the road, through the air. I immediately picked up the radio and called "base run 144, emergency, emergency, I need an ambulance at Kingscliff and Surf Street immediately. Repeat immediately." I dropped the, I dropped the radio and opened the doors and ran out to try and assist [him]." He later said that the horn sounded "instantaneously", clearly intending by that expression to convey that it occurred simultaneously with the collision. 27 The fourth defendant gave evidence about his observation of the plaintiff's journey after he left the footpath. Part of that evidence was as follows: "Q. You said you saw Cosmo bolt from the kerb? A. Yes.

[60]

Q. Do you remember how far in front of the bus he was when he started to adopt that 45 degree approach? A. A metre, about a metre I'd say." 35 This evidence compares favourably with a version of what this witness said he saw that he related to a policeman not long after the accident. That version contained the following description: "I stood on the edge of the footpath and was waiting for a bus to go until I crossed the roadway. It was a Surfside bus and I saw [the plaintiff] get off the bus, walk a short distance on the grass towards Ocean Street. Then he went in a slow jog across the front of the bus on to the roadway. I saw [the plaintiff] walk into the side of a white small car that was travelling towards Ocean Street." 36 With the exception of the second defendant's car, Mr Cottrell had no recollection of other cars travelling in either direction at that time, although a little later he agreed that there would have been. He agreed that everything happened fairly quickly. He had no recollection of the plaintiff stepping off the bus but he did have a recollection of him standing on the kerb. The plaintiff was about a metre in front of the bus when he stepped off the kerb. He described the plaintiff's movement as "jogging" but not a full run. He moved at an angle to the kerb. He described the time that it took in the following evidence: "Q. Do you agree that it was a split second or a second or so between the time he stepped off the kerb and when he came into the side of the car? A. Yeah, pretty much a split second, yeah, as far as it takes to travel across the front of the bus sort of thing, so a second or so." 37 Mr Cottrell said he saw the plaintiff flip into the air a couple of times and land on the road. He did not hear any noise before the accident happened. He was asked whether or not he observed the second defendant's car to slow down as it came to a position level with the bus. He replied, "No, I believe it was going the same speed". He agreed that, "everything appeared normal until [the plaintiff] accelerated off the kerb". 38 He was asked further questions about his observations of the speed of the second defendant's vehicle. That evidence was as follows: "Q. Although you did not have a licence at the time you thought it was about 50. Do you agree it might have been 40 kilometres an hour? A. Yes, it could have been.

[61]

Q. And it may have even been a bit less than that? A. Anything under 50 kilometres I'm assuming." 39 Having regard to this evidence, the first and second defendants submitted that a trigonometric calculation drawing upon distances that were capable of being derived from it, demonstrated that the point of impact between the plaintiff and the second defendant's car was 3.14 metres from the front of the stationary bus. This was arrived at taking a starting point for the plaintiff on the eastern kerb one metre south of the front of the bus and an angle of travel of 30 degrees, together with an assumed straight line distance from the nearside of that vehicle to the eastern kerb of somewhere between 3.6 metres (according to Mr Griffiths) and 3.8 metres (according to Mr Johnston), or approximately 3.7 metres. This calculation appears roughly, but reasonably, to conform to the eyewitness observations of distance and time over which and within which the plaintiff travelled on the roadway. It is also broadly consistent with evidence given by Sen Const Kelly, whose measurements from an identified power pole produced a point of impact in the order of 2.7 metres from the front of the bus. Mr Johnston, in contrast, estimated that distance to be approximately 4.8 metres. 40 The plaintiff's pleaded case against the first and second defendants alleged a failure to keep the motor vehicle under control, or to sound any warning of its approach. It was also alleged that the second defendant failed to apply the brakes in time to avoid impact with the plaintiff, to steer or control the motor vehicle so as to avoid the collision or to observe the presence and position of the plaintiff on the roadway. The principal allegations of negligence, however, were that the second defendant drove at a speed that was excessive in the circumstances and that he failed to keep a proper lookout. 41 It was submitted on behalf of these defendants that I should find that the second defendant was not driving in excess of 40 km/h. It was submitted that the approximate speed of the vehicle was 30 to 40 km/h and that there was no evidence to support a conclusion of a speed greater than that. The former range is derived from the evidence of the first defendant referred to above. The fourth defendant agreed with this estimate. The second defendant recalled that he "had to be going" 40 km/h. Mr Cottrell estimated that the speed might have been as high as 50 km/h. The plaintiff submitted, "the best evidence on the issue [was] the representation of the driver, [namely] approximately 40 km/h". The reference to "approximately" is presumably a reference to that word used in the last question quoted at par [17] above, with which the second defendant did not specifically disagree. It also accommodates the evidence of both the first defendant and Mr Cottrell, although the latter was only 12 years old at the time with no obvious experience to inform a reliable estimate of speed. Mr Deakin emphasised that it was not put to the second defendant that he was, or might have been, travelling faster than the speed limit. 42 The defendants submitted that the allegation of a failure by the second defendant to keep a proper lookout should be rejected out of hand because it was never put to either the first or second defendant that they should have seen the plaintiff at an earlier time and reacted to him. If the plaintiff was to allege that the second defendant failed to keep a proper lookout or failed to observe the plaintiff earlier than he did, it was incumbent upon the plaintiff to put the proposition squarely to the owner and driver of the vehicle who were present at the scene in order that they could in fairness deal with the allegations: Browne v Dunn (1893) 6 R 67. A breach of the rule has been held to preclude a party from putting forward a case inconsistent with the unchallenged evidence in cases such as Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362; Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 at 225 and 236; Payless Super Barn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 556. For the reasons discussed below, it is unnecessary to resolve this particular controversy. 43 In my opinion the evidence compels a finding that the second defendant was travelling at approximately 40 km/h at the time of the collision. He gave evidence that he was driving at that speed and was not moved from that position in cross-examination. In addition, he was extremely, and consistently, candid in his responses to questions put to him in cross-examination, tending to my observation to suggest truthfulness in all other respects. Whether or not he was travelling in excess of that speed or less than that speed, as falling within the approximation, is impossible to say. It does not make a difference if the speed of the vehicle was so close to that speed that no minor variation from it either way is demonstrably significant to the outcome. No evidence, expert or otherwise, attempted an analysis of reaction times in less than 10 km/h gradations. I am satisfied that he was not travelling at 50 km/h, as the only evidence to suggest such a speed is in my view inherently unreliable. I am also satisfied that he was not travelling at 30 km/h as only the first defendant suggested such a possibility and then only as part of a range that included 40 km/h. The fourth defendant's acceptance of that range is to my mind of little significance having regard to the fact that he was observing the speed of the vehicle as part of a relatively complex, if arguably habitual and automatic, series of actions that he described, but more importantly he was doing so through his side rear view mirror. His view was to that extent restricted and he did not have the advantages otherwise available to witnesses with a direct view. 44 There was in the end no significant dispute that emerged in the course of submissions about the speed, so that a consensus, if not an actual agreement, appeared to have been reached. In any event, the plaintiff did not put his case upon the basis that the second defendant was exceeding the speed limit, relying instead upon a submission that even that speed was too fast in the circumstances. Moreover, the first and second defendants did not seek refuge from the plaintiff's principal argument (i.e. that there was a particular perceivable risk that the first defendant should have taken into account but did not) behind an assertion that the speed of their vehicle was so far below 40 km/h theoretically to have taken account of that particular perceivable risk. In that sense the relevant protagonists unambiguously put their respective eggs in the same 40 km/h basket. 45 The first and second defendants relied as a starting point upon what the High Court had to say in Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at par [13] as follows: "[13] . . .Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. 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." 46 In addition, the first and second defendants drew attention to what was said by Heydon JA in Knight v Maclean [2002] NSWCA 314 at pars [61] to [69]: "[61] It is tempting but erroneous to compare closely the facts of cases decided in the past with the facts of the case calling for decision. In Tidy v Battman [1934] 1 KB 319 at 322 Lord Wright said: "It is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied in deciding other cases on other sets of facts." In Teubner v Humble (1963) 108 CLR 491 at 503 Windeyer J said:

[71]

[69] The plaintiff bore the burden of proving negligence on the part of the defendant. This meant that in substance the plaintiff bore the burden of proving that the defendant failed to keep a proper lookout and of proving that if he had kept a proper lookout, he would have seen the plaintiff in sufficient time to avoid the collision. These burdens could not be discharged by the mere fact of the collision. To the extent that the nature of the locality at the time of the accident called on the defendant for an explanation as a practical matter, an acceptable explanation consistent with keeping a proper lookout, for the defendant seeing the plaintiff only at the last moment may be inferred from the circumstances. The circumstances supporting that inference include the absence of anything in particular to put the defendant on notice of the need to guard against pedestrians suddenly crossing the road, the nature of Parramatta Road as a busy main road calling for close attention to the behaviour of vehicles in front, and the character and speed of the defendant's driving, in relation to other vehicles, as appropriate to the traffic conditions." 47 In Dennis v Keep [2002] NSWCA 227, Foster AJA (with whom Heydon JA and Bergin J agreed) said at par [18]: "[18] . . . Indeed in the recent decision of the High Court in Derrick v Cheung . . . it is indicated, in my view, that, in cases of this kind, a common sense overall appraisal of the situation confronting a motorist, travelling within the appropriate speed limits, when a pedestrian enters his or her line of travel, is required, rather than an over-meticulous evaluation of what might have occurred if he or she had been driving at a lesser speed. 48 Finally on this point I was referred to the words of Hayne J in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [126] in the following terms: "[126] When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury." 49 The plaintiff relied upon a line of cases in support of the contention that there was a perceivable risk that young children might be in the vicinity of the school bus and that the second defendant was aware of that risk but failed in the circumstances to adjust his speed in order to take account of it. 50 The first case relied upon was Mye v Peters and Another (1967) 68 SR (NSW) 298. That was a case in which the plaintiff was aged five years and eight months at the time of the accident. He was injured when he dashed across the road after alighting from a school bus and was hit by the defendant's vehicle. The skid marks left by the latter on the bitumen of the road measured some sixty-six feet. The driver was aware that the bus was a school bus and that it had stopped to allow children to alight. The trial judge held that the defendant was negligent and that the plaintiff was not guilty of contributory negligence. He found a verdict for the plaintiff. 51 Herron CJ said this at 300: "However, the learned trial judge summed up the matter by alluding to the fact that the semi-trailer driver knew for a considerable distance back from the scene of the accident, some eight hundred yards or more, that this bus was approaching a bus stop, that it was a school bus, that it was the time for bringing the children home from school and the place where the accident happened was a small country centre known as Kingscliff near Murwillumbah and in all the circumstances the semi-trailer driver must have been aware of the foreseeable risk of the emergency arising when this school bus stopped to decant its juvenile passengers. In point of fact the plaintiff was only five years and eight months old at the time of the accident and the learned trial judge said that he was satisfied after an exhaustive analysis of the evidence, that in the circumstances, knowing the bus was a school bus which had stopped to discharge children, the driver failed to exercise reasonable care and skill in passing the bus in that he was travelling too fast; in that he failed to sound the horn as a warning to children whom he knew, in the nature of things, were likely to scamper across the road; in that he failed to reduce his speed at all, or sufficiently, to enable him to keep an eye for and cope with any such emergency, and in that he was quite unaware of even the approximate distance in which he could pull up with safety with all his breaks in any emergency. The learned trial judge came to the conclusion that by reason of all the above circumstances he failed to keep his vehicle under proper control and any lookout by him was not in the circumstances proper or adequate."

[79]

". . .That principle is founded not on the mere sympathy of judges for injured children. It is based on knowledge of the well-known propensities of children which the law attributes to drivers. It is also based, as Mahoney JA stressed in Settree (set out above) that it is the driver who is generally in a better situation to anticipate and control events. He or she tends to be much older and more experienced in the ways of the traffic-way. Furthermore, he or she is in charge of a fast moving object with a large potential to cause grave injury and even loss of life, including to children who are pedestrians or otherwise near the highway. It is this disproportion of responsibility, control and experience, as well as knowledge of the occasional irresponsible behaviour attributed to children and known by the motoring public, that has led to the development of the approach to which an unbroken series of decisions in this court has given effect." 55 In Stocks v Baldwin (1996) 24 MVR 416, a pedestrian was struck down by the defendant who was driving his car at about 40 km/h when, after crossing the median strip, she moved through banked up vehicles in the middle lane into the kerbside lane. The street was busy having three lanes on each side of the median strip some 40 metres from traffic lights. The defendant stopped about four metres from the impact. The trial judge found that the defendant was negligent because he was travelling at excessive speed in the circumstances. He reduced the plaintiff's damages by 40 per cent for her own contributory negligence upon the basis that she did not check or did not check adequately to see whether it was safe to proceed from the middle lane into the kerbside lane. The defendant driver unsuccessfully appealed to the Court of Appeal. Mahoney P said this at 419: ". . . If he had been travelling more slowly, it is likely that he would have stopped in time. But, however that be, I think that the possibility of a pedestrian doing what the plaintiff did was such that a reasonable person would have accepted that he should drive more slowly, at such a speed as to be able to cope with such an emergency if it arose.

[81]

Having regard to the fact that a motor vehicle, of its nature, is able to inflict a greater injury than is a bike and, taking into account the fact that the very duty including the standard of care which is imposed on the appellant so as to recognise that children often act suddenly, impulsively and without thought, or perhaps to adopt the language of senior counsel for the appellant, stupidly and illogically, I am of the opinion that the Master's assessment of contributory negligence was within an appropriate range having regard to the circumstances. Accordingly, in my opinion the appeal should be dismissed with costs." 58 Next, in Rowes Bus Service Pty Ltd v Cowan [1999] NSWCA 268, the plaintiff/respondent was travelling home from school on a Rowes' bus along Richmond Road, Blacktown at approximately 3.30 pm. The road ran east-west and consisted of a four lane dual carriageway in two directions that was divided by a median strip. The respondent lived in Tallanganda Drive, on the northern side of Richmond Road. The bus service terminated on the southern side of Richmond Road, near Hill End Road. When the bus reached its final stop in Richmond Road, all passengers alighted at what was an unmarked stop. A number of adults and school children went to the rear of the stationary bus, intending to cross over Richmond Road. The respondent moved to the front of the bus, which occupied the first lane of traffic. She crossed in front of the bus and, upon entering the second lane of traffic, was hit by a motor vehicle driven by Mr Sufong. She suffered brain damage and a broken collarbone. She was seventeen years of age at the time of the accident. 59 The trial judge found both appellants liable in negligence and apportioned liability equally between them. He assessed the respondent's contributory negligence at 20 per cent, concluding that she was walking in front of the bus and not running as argued by the appellants. A verdict for the respondent in the sum of $989,600 was entered. 60 Stein JA dealt with the matter at pars [36] to [40] as follows: "[36] The trial judge's finding of negligence by Mr Sufong was confined to his proceeding at a speed which was too fast in the circumstances. His Honour found that the van driver reduced his speed from 70 to 80 kph to 40 kph when he saw the bus stationary at the side of the road some 100 m distant. He maintained that speed until the plaintiff ran out in front of the stationary bus, when he applied his brakes. When this occurred the plaintiff was obviously too close for the accident to be avoided. There was evidence that the van would have had to slow to 15 kph (if the plaintiff was walking) or 5 kph (if the plaintiff was running) for Mr Sufong to avoid colliding with her.

[89]

[40] In my opinion, the trial judge was entitled to find on the evidence that 40 kph was a speed which was too fast in the circumstances. Travelling at such a speed meant that Mr Sufong could not stop in time to avoid colliding with any child running across the road from either end of the bus. He said as much in his evidence, see Black Appeal Book 239 L - N. Moreover, Mr Sufong made it plain that he believed that the setting down of passengers by the bus at this particular spot created a dangerous situation for pedestrians (including school children) and for motorists alike. Clearly he appreciated the risk of people, perhaps children, coming out suddenly into his path. In arriving at the conclusion that his Honour's finding was one which was open on the evidence, I take particular account of the factors relevant to the balancing process mentioned by Mahoney P in Stocks v Baldwin ." 61 The plaintiff sought to distinguish Knight v Maclean (supra) upon the basis that the appearance of the plaintiff in that case at a fast walk was not a particular risk or danger that was perceivable, observable or apparent. He also embraced what was said by the High Court in Derrick v Cheung (supra) at par [11] as follows: "[11] . . . Nor was it a case where the incident occurred near to a school or bus stop or other place where reducing speed or special caution in driving might be required or prudent." 62 The plaintiff also relied upon several passages appearing in the judgment of McColl JA in Tobin v Worland [2005] NSWCA 188 at pars [40] to [46] as follows: "[40] The qualification expressed in Derrick v Cheung (at [11]) that the incident in that case did not occur "near to a school or a bus stop or other place where reducing speed or special caution in driving might be required or prudent" reflected the long established proposition that "when young children are in the vicinity of a road or reasonably to be expected to be in the vicinity, a greater standard of care and caution is demanded of motorists": Gunning v Fellows (1997) 25 MVR 97 at 98 per Beazley JA (with whom Mason P and Cole JA agreed). The greater standard of care and caution demanded of motorists in such circumstances recognises the "well known propensity" of children to "move suddenly out onto the road": Settree v Roberts (per Hope JA in a passage which does not appear in the report of the case at [1982] 1 NSWLR 649 but was quoted by Clarke JA in Lolomanaia v Rush (at 133)).

[96]

[46] In my view, the primary judge's conclusion that had the appellant kept the area to the rear of the Holden under observation she could not have failed to see the respondent as he emerged from behind that vehicle was entirely open to him. It must be borne in mind that prior to the point of impact the respondent had crossed the oncoming traffic lane as well as the lane in which the appellant was driving and nearly reached the other side of the road. It was easy to understand, in such circumstances, why the appellant was unable to offer any explanation for not seeing the respondent earlier than she did. This was not a case where the circumstances of the accident afforded the appellant an acceptable explanation for not seeing the respondent consistent with keeping a proper lookout: cf Knight v Maclean at [69]." 63 A very significant factor at play in the present case is the acknowledgment by the second defendant that he was aware of the need to take special care in an area where it might reasonably be anticipated that young children may be present. He travelled on the street in question on most days at that time. He had seen school buses with children on them frequently. He knew that school buses pulled over to let children off. He knew that the bus that he saw on this day was in all likelihood doing just that. And he knew that there were likely to be children around the bus. 64 He had been taught that children could do unpredictable things. He agreed that he was concerned about where the children were who were getting off the bus. He agreed that he was particularly looking to see where these children were. The second defendant also agreed that although 40 km/h was the prevailing maximum speed to pass a stationary school bus, there were situations where it was appropriate to go at some speed less than that. He specifically agreed that one of those situations was where he knew young children were being let off a bus but where he had not been able to see them and so did not know what they were doing. He did not, however, agree, in the circumstances as they presented to him on this day, that he should have travelled at less than the speed limit when he went past the bus. 65 Not only was there a clearly perceivable risk; the second defendant actually perceived it. However, this is not a case in which the relevant failure in the light of the perceived risk can be said to be a failure to keep a proper lookout. Indeed, there is a clear explanation for the failure of the second defendant to see the plaintiff until he did so. Whatever adjective one retrieves from the evidence about the plaintiff's speed of travel, he emerged at a rapid pace, somewhere between a fast walk and a jog, from behind the bus that wholly obscured him until almost the very instant that he collided with the car. The first that the second defendant knew of either the presence of the plaintiff on the road or of him being anywhere near the car was for all practical intents and purposes the same moment that the collision took place. In the events that occurred, the plaintiff would appear only ever to have entered the second defendant's peripheral vision. The point of impact on the side of the car and the second defendant's description of observing a green flash appearing very quickly combine to support such a conclusion. As he said, he did not see the plaintiff "until he ran into the side of the car". There is no dispute on the evidence that the plaintiff was never in front of the car. The plaintiff was never visible in front through the car windscreen at any stage. The first defendant's evidence of there being nothing until she saw a face in her side window is to a similar effect. It was, in her words, "immediate". In my view, the plaintiff has not established that the second defendant failed to see anything that he should have seen. I find that the second defendant did not fail to keep a proper lookout. 66 The plaintiff's case was effectively limited to a proposition that the second defendant was driving at an excessive speed in the circumstances. Those circumstances include the existence of a perceivable risk that children such as the plaintiff might unexpectedly emerge from behind the cover of the bus and the second defendant's acknowledgment that he was aware of it. In such a case, so the plaintiff argued, the second defendant should have reduced his speed to below the prevailing speed limit of 40 km/h so as to ensure that in the event of the sudden emergence of a pedestrian in the way that occurred he would have been able to stop or otherwise avoid a collision. The evidence was that the accident was unavoidable at 40 km/h. The plaintiff's expert engineer Mr Johnston agreed that this was so in the following question and answer: "Q. I put to you that this was an unavoidable accident. You agree with that proposition if the vehicle was travelling at 40 kilometres per hour, don't you? A. Yes, pretty much." 67 In my view the plaintiff was travelling at an excessive speed in the circumstances. I consider that this is a case in which the relevant failure in the light of the perceived risk can be said to be a failure to drive at a speed less than the applicable limit. There are a number of reasons for this. First, it is accepted that a driver must exhibit special care or drive defensively in the presence of pedestrians, especially children. This would have included reducing speed to less than the applicable limit. Secondly, there was present at the time a clear "disproportion of responsibility, control and experience, as well as knowledge of the occasional irresponsible behaviour attributed to children and known by the motoring public". Thirdly, there was at least the significant, and recognised, possibility of the existence of children beside the road that should have stimulated the second defendant to take precautions which were neither likely to delay the traffic nor cause any other risk. Fourthly, the second defendant "nevertheless proceeded at 40 kph past the bus knowing and admitting that there was a possibility that children could emerge from the front of the bus". Fifthly, this is "a case where the incident occurred near to a . . .bus stop or other place where reducing speed or special caution in driving might be required or prudent". Sixthly, this is also a case "when young children [were] in the vicinity of a road or reasonably to be expected to be in the vicinity, [so that] a greater standard of care and caution [was] demanded of [the second defendant]". Seventhly, the second defendant in fact realised that there was a possibility that a young child might run onto the roadway. 68 As the second defendant approached the bus from some distance behind after the bus had stopped, he had an uninterrupted view of the street and the footpath. It was effectively "a quiet residential street" as described in Tobin v Worland (supra). The bus was parked only 30cm from the kerb and there was no other traffic of significance travelling upon the road in either direction. The only area of which the second defendant had no view was that area obscured by the bus itself. The fourth defendant had activated his flashing lights (see below) and the second defendant had slowed his vehicle in response to the fact that he knew, as the result of his own observations of a number of factors, that he was about to pass a school bus. The only thing that the second defendant did not know for certain was whether or not any passengers had alighted from the bus. 69 However, the fact that the bus had stopped at all was itself an unambiguous cue that it had either picked up or set down passengers at that stop. The former was unlikely given that it was in the afternoon. The latter was highly likely, as the bus would not ordinarily be expected to stop for any other reason at that time. Mr Cottrell thought that it had been stationary for between 30 and 40 seconds. The first defendant said that it was stationary the whole time that it was in her vision. This would all appear to accord with the fourth defendant's description of having to wait after his passengers alighted for the second defendant's car to pass. All factors pointed towards the need to proceed at a speed that would have permitted the second defendant to stop if the plaintiff had emerged from behind the bus in the way that he did. Given the absence of other countervailing factors of any kind, such as the need to keep up with busy traffic on a six lane arterial road in Sydney, or the need to watch for another, or other, possible sources of danger, such as oncoming traffic that may have veered onto his side of the road, or pedestrians coming from the west, the second defendant was actually confronted with only one imperative. That was the need to anticipate the distinct possibility that an infant pedestrian might attempt to cross the road as the plaintiff did. This was a clearly perceivable - indeed, perceived - risk that the second defendant did not take proper or adequate precautions to avoid. In my view, the second defendant drove at a speed that was excessive in the circumstances. 70 I consider that this is a case in which, as Mahoney P said in Stocks v Baldwin (supra), if the second defendant "had been travelling more slowly, it is likely that he would have stopped in time" and "I am [also] not satisfied that, had the [second] defendant been driving at a speed appropriate to the circumstances, he could not have avoided striking [the plaintiff]". Like Stein JA in Rowes Bus Service v Cowan (supra), I have also taken "particular account of the factors relevant to the balancing process mentioned by Mahoney P in Stocks v Baldwin". 71 An issue arose in the proceedings concerning whether or not the fourth defendant had activated the amber flashing lights at the rear of his bus. He said that he did. No witness said that the lights were not activated although several witnesses were unable to recall whether they were on or off. For example, part of the first defendant's evidence was as follows: "Q. You didn't see any amber lights flashing on the top of the bus? A. I don't recall no, seeing it." 72 The fourth defendant gave evidence of how the lights were activated: "Q. Can you tell us about the operation of the flashing lights? Firstly, how was the flashing light system activated? A. As soon as the doors were opened, as soon as you hit the switch for the doors to open the lights would automatically come on.

[104]

Q. Did you touch the toggle switch which turned on and off the flashing light system at any time between leaving the depot and the subsequent arrival of an RTA inspector? A. No." 74 Finally, in cross examination, he gave this evidence: "Q. It couldn't be the case, could it, that you forgot to turn the safety lights on on the day of this accident? A. Everything was turned on." 75 In my opinion, the evidence establishes that the lights were activated at the time of the accident and at all times after the bus stopped as the second defendant's vehicle approached it from behind. However, even if the lights had not been on, I would still find that the second defendant was negligent for driving at an excessive speed. This is because there were several other indicators that the bus was a school bus stopped at a bus stop. The second defendant's own evidence establishes that he had all of this information, and more, even without the benefit of the flashing lights. 76 The signage at the rear of the bus is not in dispute. It consisted of a sign with the number "40" enclosed in a red circle with the adjacent words "when lights flash". This is shown in photographs of the bus tendered in evidence. It is otherwise agreed. 77 I am unable to be satisfied one way or the other whether or not the fourth defendant sounded his horn. He said he did but no other witness had a recollection of hearing it. It is to my mind unimportant. The horn was sounded according to the fourth defendant as the collision occurred. It could not, and in my opinion would not, have made any difference at all to the outcome. 78 The fourth defendant said that his right side indicator had been activated. No allegation of negligence is made about this. His description of the ritual he followed when preparing to leave the kerb included the activation of his indicator. If it were relevant I would find that he did so on this occasion as he prepared to pull out when the second defendant had passed. The case against the third and fourth defendants 79 The plaintiff alleged that by reason of a history of bullying that had occurred on the bus over a period of approximately two years, there arose a duty on the part of the third and fourth defendants in effect to take special care to observe and to guard against the likelihood that the plaintiff may do something irrational or unexpected as a result. The breach of their duty was therefore alleged to consist in failures to heed warnings that the plaintiff had been subjected to bullying on the bus and to take steps to prevent or control such behaviour. That this type of allegation was sufficient to articulate a cause of action in the circumstances of this case is open to debate. 80 However, perhaps in recognition of difficulties with these formulations, the plaintiff's further amended statement of claim particularised the alleged breaches by these defendants as a failure to observe that the plaintiff was in a distressed and agitated state prior to, and at, the time that he alighted from the bus and that in these circumstances that they failed to take steps to ensure that the plaintiff was in a fit state to cross the road safely. It was also alleged that the fourth defendant failed to check whether or not there was traffic coming from behind and that if he had done so he would not, or should not, have opened the doors of the bus until the second defendant's car had passed. The plaintiff also alleged that the fourth defendant accordingly failed to warn him that there was in fact traffic coming from behind and to take care before allowing him to alight. 81 In these circumstances, a consideration of the liability of the third and fourth defendants gives rise to a series of questions. For example, had the plaintiff been bullied on the bus in the past? If so, did the third and fourth defendants know of this or should they have known of this? If they knew or ought to have known, what if anything should they have done about it? Had the plaintiff been bullied on the day of the accident? Whether or not the plaintiff had been bullied on the day of the accident, was he in a distressed and agitated state prior to alighting from the bus? If the plaintiff was in a distressed and agitated state prior to alighting from the bus, should this have been noticed by the fourth defendant? If it should have been noticed by the fourth defendant, what, if anything, could and should he have done that he failed to do? 82 There seems to be little doubt that the plaintiff had been involved in a series of incidents on the bus in the past, that he described as bullying, and that the third and fourth defendants knew of this. The plaintiff gave the following evidence: "Q. Can you tell the court what problems you had on the school bus? A. I was often bashed by other kids by their school bags. I was punched. One particular day I was sitting up the back with my friends, Josh, Nathan and Benjamin, Caleb and Nicky, and this was on the way home from school and we had stopped at St Joseph's High School and I would have been 10 years old at the time, around 10 years old, and this kid who was like 6 foot tall, much taller than I was, said he wanted that seat and I said, "No, I am sitting here with my friends", and he continued to say that he wanted that seat and he picked me up off the seat and threw me in the aisle. Physically he picked me up and threw me in the aisle.

[216]

Q. That there had been an incident or incidents of some kind during the course of the journey on that day. You knew that, didn't you? A. No." 92 The fourth defendant reaffirmed his earlier evidence that it was his invariable practice to give warnings to every child or group of children as they left the bus. Former pupils who had travelled on his bus gave evidence that they had no recollection of hearing him give any warnings of the type he said he gave, either as a matter of regular practice or at all. It is convenient at this point to record that I am not persuaded that the fourth defendant invariably gave the warnings that he said he gave. No former pupils who travelled on his bus recalled that he did so. The fourth defendant's insistence that he did so is difficult to accept given the fact that such unfailingly regimented behaviour is inconsistent with human experience. I am not able definitely to find that the fourth defendant did not warn the plaintiff as he waited to step off the bus but I am also unable to find that he did. The expression of a preference on the basis of the evidence would be capricious. However, I am not satisfied that a failure to give warnings would attract a liability on the part of the third or fourth defendants in any event. The third defendant's "School Travel Policy" that required bus drivers "constantly" to remind students leaving the bus to remain on the footpath until the bus had departed the stop was anyway different to the warnings that the fourth defendant said he gave and on one view did not in terms anticipate the giving of a warning on every occasion. Nor is there any demonstrated causal connection between the plaintiff's conduct and the failure to give a warning, if that is what occurred, given the plaintiff's evidence that he knew in any event what to do. 93 I have had regard to the comments of Muir J in Jarvis & Surfside Bus Lines Pty Ltd v Scrase [1998] QCA 441 at par [30] to the following effect: "[30] . . .It is unlikely that the driver of a school bus would be obliged, as a matter of course, to issue warnings to be careful to children leaving the bus. The driver would surely be entitled to have regard to the high degree of probability of tuition in road safety at school and at home as well as to prior warnings which he or she may have given to or in the presence of a student passenger".

[231]

[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. . .

[254]

'It is important to note that applying the same standard of care to contributory negligence as to negligence does not entail ignoring the identity of the plaintiff or the nature of the relationship between the plaintiff and the defendant. If, for instance, the defendant was an adult and the plaintiff was a child, applying the same standard of care to the plaintiff as to the defendant would not entail treating the plaintiff as an adult (any more than it would entail treating the defendant as a child). Again, if the defendant was a teacher and the plaintiff was a pupil … it would be perfectly consistent with applying the same standard of care to both parties to take account of the fact (for instance) that there is a relationship of authority between teacher and child … The requirement to apply the same standard of care in dealing with the issue of contributory negligence as is applied in dealing with that of negligence means only that the plaintiff should not be treated differently from the defendant merely because the plaintiff is the person who has suffered harm.' The remarks of Bryson JA are in accord with these observations. 134 Historically, contributory negligence was said to be evaluated by reference to an objective test "independent of the idiosyncrasies of the particular person whose conduct is in question": see Glasgow Corporation v Muir [1943] AC 448 at 457. Childhood was however not necessarily seen to be, or to be regarded as, an idiosyncrasy. 135 The plaintiff submitted that given the terms of s138 (3) and s 5R, a question must arise as to the correct formulation of the test for determining contributory negligence, particularly in the circumstances prevailing in the present case. Moreover, even before those provisions were enacted, the rule was not absolute. For example, in Daly v Liverpool Corporation [1939] 2 All ER 142 at 143, Stable J said: "The plaintiff in this case is an elderly woman. She was trying to cross the road, and I think that she was doing her best. For one of that age, I do not think that it was at all a bad best, but it was not good enough. Although her inability to see the bus and to think as quickly as younger people could have done, and to take the necessary action, would not occur in younger men and women, what she actually did was the best she could. I cannot believe that the law is quite so absurd as to say that, if a pedestrian happens to be old and slow and a little stupid, and does not posses the skill of the hypothetical pedestrian, he or she can only walk about his or her native country at his or her own risk. One must take people as one finds them. There is no hypothetical standard of care. We must all do our reasonable best when we are walking about". 136 Additionally, speaking in the context of contributory negligence of children, Sir Frederick Jordan said in Cotton v Commissioner For Road Transport and Tramways (1942) 43 SR (NSW) 66 at 69: "But even children are expected to exercise such capacity as they possess…. contributory negligence in the sense in which it is now being considered occurs only when a person fails to take all such reasonable care as he is in fact capable of. I am not aware of any case in which a person has been held to be guilty of contributory negligence through the application of some arbitrary general standard.… The capacity to neglect is a question of fact in the individual case…having regard to his youth and general intelligence". 137 McHugh J criticised this approach in Joslyn v Berryman (supra) at [32]. No other member of the Court did likewise and the observations (at least to the extent that they are referrable to children) have not been overruled. Indeed, they were expressly endorsed by Menzies J in McHale v Watson (1966) 115 CLR 199 at 223-224. The approach of McHugh J was however adopted (without any consideration of the issue) by Bryson JA in Doubleday at [25]. 138 In McHale v Watson (1966) 115 CLR 119, McTiernan ACJ said at 205: "There is ample authority for the proposition that in cases dealing with alleged contributory negligence on the part of young children they are expected to exercise the degree of care one would expect, not of the average reasonable man, but of a child of the same age and experience". 139 In the same case Kitto J, whose judgment was the only one that McHugh J made reference to in Joslyn, appeared to reject subjective considerations from the inquiry: see 214-215. Menzies J appears to have gone even further stating at 223-224 that: "Where a 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 added at 229-230 that "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. That has been laid down again and again". 140 McHale v Watson concerned the question of the liability of a child for negligence. No issue of contributory negligence arose in that case. It was simply discussed by the Court as an aid to the fixing of a standard for the establishment of tortious liability in infants. 141 In Mye v Peters (supra), Sugerman JA dealt expressly with the question of contributory negligence on the part of children (in circumstances remarkably similar to the present case) in the terms already referred to in these reasons at par [52] above. 142 Underwood J, having considered the authorities, gave detailed consideration to the issue of contributory negligence by children in road accident cases in Bullock v Miller (1987) 5 MVR 55 at 59: "The standard of care is not fixed solely by reference to the knowledge of the dangers of the risk of injury possessed by an average child of equivalent age. It takes into account the fact that young children have limited perception, foresight and ability to make a reasoned judgment. Young children lack the capacity to recall and apply previously gained knowledge so as to avoid injury. Impulsiveness, selfishness and single-mindedness are idiosyncratic behavioural characteristics of childhood. The extent to which they govern behaviour in situations involving the risk of injury, gradually diminish with maturity. The circumstances in which the duty to take care arises is relevant. If they are complex, the limitations of childhood will more readily deprive the child of the appreciation of the need to avoid the risk of injury and the ability to select and take the appropriate steps to avoid such risk. If they are simple, such limitations will less readily inhibit the ability to appreciate the risk of injury and the ability to recall and apply learned behaviour to avoid injury. In short, the standard is simply that which a reasonable jury would expect of an ordinary child of similar years and in similar circumstances". 143 In Humphrey v Hansen (1997) 25 MVR 402 at 406, Murray J dealt with the conduct of a 9 year old girl and said: "Because she might have been expected to take care to look that the road was clear before crossing in an ordinary situation which presented fewer distractions and less stressful and frustrating circumstances, does not mean that on the occasion in question she should be held to be contributorily negligent to any degree in the circumstances with which she was presented." 144 The plaintiff submitted that the "circumstances" in the present case must necessarily include his age, intelligence, and experience. "The younger the child the less the capacity until a stage is reached at which there is none": Cotton (supra) at 69. See also Beazley JA in Gunning v Fellows (supra) at par [57] above. 145 As to whether it is permissible to go beyond the mere chronological age of a child and take into account his or her intelligence and experience (or any other circumstance referrable to them such as disability and the like) Campbell JA observed in Manly Council v Byrne [2004] NSWCA 123 at [113] that "there is some tension in the authorities about whether, as well as the age of a child, the intelligence and experience of the particular child can be taken into account or whether, because the test for contributory negligence is an objective one, such factors personal to the individual plaintiff should not be taken into account". In the result his Honour was not called upon to wrestle with that tension. Further, the case involved a diving mishap and so did not call for a consideration of s 138(3). 146 His Honour went on at par [114] to consider as a relevant circumstance the fact that the failures of the child occurred in a very brief moment of time, whereas the defendant's conduct had occurred over a longer time and necessarily involved more than a mere momentary lapse of concentration or attention.

[255]

147 It was therefore submitted on behalf of the plaintiff, particularly in the absence of any authority where the contributory negligence of a child of 10 or less has been considered and had resulted in a reduction of greater than 10 per cent, independently of considerations of experience and intelligence and the broader circumstances, that it would be just and equitable in all the circumstances of this case not to make any, or at worst only a notional, reduction by way of apportionment on account of contributory negligence. Consideration 148 Although the second defendant was still only a learner driver, he was older than the plaintiff in the sense discussed in Mitchell (supra). He was presumably more experienced in the ways of traffic. He was certainly in charge of a fast moving object but by no means travelling above the relevant speed limit. However, even at that speed his vehicle was capable of causing grave injury and even loss of life. This is what occurred in fact. There was certainly present a "disproportion of responsibility, control and experience", although it was not of the most marked kind. Moreover, the negligence that I have found on the part of the second defendant was limited in its nature, extent and degree. Nevertheless, the accident was avoidable by the exercise of proper care, which in the circumstances of this case the second defendant failed to demonstrate. The second defendant failed adequately to heed the perceived risk that young children might act impulsively, carelessly and irrationally, and that such behaviour could extend to their conduct when crossing the road upon which he was then driving. 149 The plaintiff was almost eleven years old. He had been taught road safety by his mother and his teachers and understood the rules of the road when crossing. He had apparently observed these rules at all times in the past, including occasions when he had alighted from the bus following incidents that he described as upsetting to him. He was not walking at the time of his collision with the second defendant's car but moving somewhat faster in a slow jog. He was not looking where he was going but had his head down looking at the road surface. He emerged from behind the screen created by the bus, to travel over the short distance that he could have been in the view of the second defendant, in "a (green) flash". The ability of the second defendant to avoid the collision was significantly lessened by the fact that the plaintiff was not walking at a normal pace and was not keeping a proper lookout for approaching traffic. The fact that he walked in front of the bus was itself a contributing factor to the accident. The plaintiff collided with the side of the second defendant's car and not the front, thereby further limiting or restricting the second defendant's ability to reduce the impact of the collision upon the plaintiff. 150 The plaintiff was not doing his best, even having regard to his age and experience. In other words, having regard to his youth and general intelligence, the plaintiff was not performing in a way that he was capable of performing. He did not exercise that level of reasonable care that he was capable of exercising. He did not exercise that degree of care that one would expect from a child of the same age and experience. 151 However, if "impulsiveness, selfishness and single-mindedness are idiosyncratic behavioural characteristics of childhood", they were as such an important part of the perceivable risk that confronted the second defendant. He was driving towards the point of impact with the knowledge that he would, or may be required, to pass by a stationary school bus. This possibility blossomed slowly and predictably into a certainty some distance before his vehicle reached the rear of the bus and had occurred over a reasonably long period of time. He said that the bus was several hundred metres in front of him when he first saw it and that it took about 30 seconds to reach it. It caused him at least to slow his speed by as much as 20 km/h. He was unrestricted in his vision of the unfolding scene and under no pressure or other constraints from collateral activity. He had ample time and ample room to do something. In contrast, the negligent activity on the part of the plaintiff erupted in the space of no more than a couple of seconds. The plaintiff's contribution was literally no more than a momentary lapse in concentration, whereas the second defendant was presented with relevant cues to which he failed adequately to respond over a much longer time. This is significant when one considers the relative importance of the acts of the parties causing the damage. 152 In my opinion the second defendant's contribution to the accident was greater than that of the plaintiff for all of these reasons. I consider that, in a comparison of the culpability of the plaintiff and the second defendant, having regard to their respective shares in the responsibility for the damage, it is just and equitable in the circumstances of the case that the plaintiff's damages be reduced by 15 per cent by reason of his own fault and contributory negligence. Orders 153 This matter proceeded before me for determination of the questions of liability and contributory negligence only. In the circumstances, therefore, I make the following orders:

Kain v Mobbs

At a glance

Court

Decision date

Before

Source

Judgment (261 paragraphs)

Parties

Cases Cited (40)

Cited By (3)