Consideration
37 Fundamental to his Honour's conclusions was that the claimant was at least 50 metres from the pedestrian crossing at a time when the opponent was standing behind the chevron sign and Ms Floyd was at the edge of the footpath and looking backwards. As indicated, that conclusion was based on an incorrect reading of the evidence of Ms Brown in the police proceedings. On the correct reading of that evidence, the claimant would have been about 35-40 metres away from the crossing when Ms Brown first observed Ms Floyd.
38 Ms Brown's evidence was that when she first saw Ms Floyd she was about 15-20 metres from the crossing and Ms Floyd was coming off the crossing. She did not observe Ms Floyd to look back. Ms Floyd's evidence was that she commenced to look back while she was still in the crossing. That discrepancy was not resolved by his Honour.
39 If the observation of Ms Brown is correct, then Ms Floyd looked back some time after she was first seen by Ms Brown and therefore at a point in time when the claimant was closer to the crossing than 35-40 metres. It was, of course, the looking back over the shoulder by Ms Floyd which was the unusual feature which attracted the attention of the claimant and upon which the finding of negligence is primarily based.
40 It was the evidence of Ms Floyd that she completed the crossing still looking over her shoulder, applied the brake on the pram and then turned around preparatory to walking back across the crossing. That evidence is different to that of the claimant. According to the claimant Ms Floyd was stationary on the orange ramp on the kerb with the pram facing forwards but looking backwards when first seen by her. She did not see Ms Floyd turn around to recross the crossing at any time. This difference was not resolved by his Honour.
41 It is clear from the diagrams and plans that, subject to vehicles being double parked, from 50 metres away the claimant would have had a relatively unobstructed view of the crossing. On the evidence of Ms Brown there would have been nothing unusual about the crossing at that time except that Ms Floyd would have been pushing the pram past the chevron on the eastern side of the road. There was no evidence as to the speed at which Ms Floyd moved through the crossing. Subject to whether the opponent could be seen behind the western chevron from that distance, there was nothing in that scenario which should have caused the claimant to take any particular action. Consistent with the evidence of Ms Brown, the claimant would have been much closer to the crossing at the time when Ms Floyd first looked over her shoulder. It should also be kept in mind that every second the claimant's vehicle would travel 11 metres closer to the crossing.
42 It follows that there was no basis for his Honour's finding that when the claimant was at least 50 metres from the pedestrian crossing Ms Floyd was at the edge of the footpath and looking back over her shoulder. For his Honour to make such a finding he had to reject the evidence of Ms Brown on this point and also that of the claimant. No such finding was made nor is there any obvious basis for such a finding.
43 His Honour rejected the claimant's estimate that she was about 13 metres from the crossing when she first observed Ms Floyd. He did so on the basis that her evidence was inconsistent with her police statements. His Honour did not identify the inconsistency. The claimant agreed that the estimate was an approximation and that she was not good with distances. There is, however, nothing in the police statements which would justify a finding that the claimant first observed Ms Floyd looking back over her shoulder at a distance of 50 metres from the crossing. On the contrary, in her statement recorded in the police notebook on the day of the accident, the following was recorded:
"I said "What distance from the crossing were you when you first saw the lady with the pram and trike?"
She said "Probably back to where the double yellow lines are whatever that would be. But the pram was facing eastward not as if she was about to come back on the road."
I said "When you say probably back to where the double yellow lines are do you mean where the lines commence?" She said "Yes she was standing over there I could see her quite clearly."
44 The plan, exhibit K, made it clear that the double yellow lines commenced 30 metres away from the crossing. This statement of the claimant is therefore fully consistent with the evidence of Ms Brown and the conclusions in paras [38] - [40] hereof. Accordingly, his Honour was justified in rejecting the claimant's estimate of 13 metres but there was no proper basis identified for replacing that estimate with a figure of 50 metres.
45 His Honour found that had the claimant been keeping a proper lookout she would have been able to observe the opponent standing behind the chevron sign. His Honour did not identify at what distance from the pedestrian crossing this observation should have been made but implicit in his finding is the premise that such an observation should have been made at a distance of greater than 25 metres from the crossing since it was accepted that at 40kph a minimum distance of 25 metres was required to bring the claimant's vehicle to a stop.
46 His Honour's conclusion in this regard seems to be based upon his Honour's own interpretation of the police photographs. In the absence of a view this, it seems to me, is a somewhat dangerous approach in that the photographs depict a static situation whereas that which confronted the claimant was dynamic, involving not only the control and management of her vehicle but the observation of other vehicles and pedestrians. It also assumes the existence of a reason why the claimant would direct her attention specifically to the western chevron sign as distinct from those in the middle of the crossing, or any other part of the crossing or its approaches.
47 Even following that approach and with particular reference to police photograph number 7, which it was agreed was taken from a distance of between 25 and 30 metres from the crossing, I am far from persuaded that the opponent should have been visible and detectable to the claimant at a distance of 25 metres or greater from the crossing. This is particularly so when there was no evidence as to how far from the chevron sign the opponent was standing. My assessment of that photo in particular and of others taken from a greater distance is that the opponent would not have been visible and detectable at a distance of 25 metres or more from the crossing. I find the evidence of Mr Keramidas on this issue logical and persuasive. (See paras [26] and [27])
48 It is also of significance that Ms Brown did not see the opponent until she was actually in the intersection. This is despite the fact that Ms Brown's vision was not obstructed by the chevron sign since from her direction the opponent was in front of it, albeit on the other side of the road. This provides support for how difficult it must have been for a driver on this road at this time of day to detect such a diminutive figure when there were a number of other distractions (including Ms Floyd) and when the opponent was obscured by a significant obstruction.
49 In my opinion his Honour was not entitled to find that the opponent should have been visible to the claimant at a distance of 25 metres or more from the crossing and that the claimant failed to keep a proper lookout in that she failed to observe the opponent's presence behind the western chevron sign.
50 An important part of his Honour's reasoning was that when the claimant observed Ms Floyd looking back towards the crossing, pushing a pram and holding a trike, she should have been on notice that a child was somewhere in the vicinity and should have immediately braked. I have difficulty with that line of reasoning. I do not think that the presence of a child was reasonably foreseeable.
51 The holding of a trike by Ms Floyd was sufficiently explained by the presence of the pram, ie the trike belonged to the child in the pram. It would also be most unusual for a mother to be separated from a child of tender years while crossing a busy road. The fact that Ms Floyd was looking over her shoulder towards the crossing was indicative of no more than that she was looking for something or someone, either on the crossing or on the other side of the road. The claimant's response was to take her foot off the accelerator and scan the crossing. When she saw nothing on the crossing, she continued. To require in those circumstances an emergency braking response is unreasonable and based on hindsight.
52 Such an approach involves the error referred to by the High Court in Vairy v Wyong Shire Council (2005) 80 ALJR 1:
"In his reasons in this appeal, Hayne J explains why an examination of the causes of an accident that has occurred does not assist, and may confuse, in the assessment of what the reasonable person ought to have done to discharge the anterior duty of care. Moreover an assessment of what ought to have been done but was not done, critical to the breach issue, too easily is transmuted into an answer to the question of what if anything had to be done, a duty of care issue." (61 Gummow J)
"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." [126 Hayne J]
53 In accordance with that guidance it seems to me that a driver in the position of the claimant, having been alerted to the possibility of something or someone on the crossing, or across the road, who then carefully looks at the crossing and cannot identify any person who might be at risk should the vehicle continue, is entitled to do exactly what the claimant did, ie take her foot off the accelerator and drive through the crossing. This is particularly so when the evidence establishes a somewhat extraordinary combination of circumstances, ie a 23 month old child separated from her mother by a significant distance while crossing a busy road and whose presence is almost entirely obscured by a chevron sign.
54 The situation is analogous to that described by Davies AJA in the passage approved by the High Court in Derrick v Cheung (2001) 181 ALR 301:
"The facts of the present case were different from those in Stocks v Baldwin for there was no particular perceivable risk which the appellant should have taken into account but did not. She drove with other cars at a modest speed, 45-50 km per hour, keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout. The appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and a proper response to the traffic conditions on the day. For the appellant to have dawdled along Victoria Avenue when no particular danger was apparent would not have been appropriate for it could have caused disruption."
55 A similar statement of principle was made by Heydon JA in Knight v Maclean [2002] NSWCA 314:
"[68] It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge's test would entail that duty.
[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."
56 In the course of argument before this Court but not before his Honour the proposition was ventilated that it was not necessary for the claimant to engage in emergency braking but merely to reduce the speed of her vehicle which might have enabled the opponent to pass through the western side of the crossing thereby avoiding the accident. As was recognised in this Court, in the absence of that matter being specifically raised and dealt with at trial, too much speculation would be involved in this Court attempting to apply such an approach.
57 It seems to me, however, that a more complete answer to such an approach being taken by this Court is provided in Derrick v Cheung:
"[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 a care, has not acted in accordance with reasonable care…"
58 Applying that test I am of the opinion that the claimant did act reasonably in the way in which she responded to her observation of Ms Floyd looking over her shoulder towards the pedestrian crossing, ie in taking her foot off the accelerator and checking the crossing in case there was some person on it who might be at risk if the vehicle continued.
59 Neither on the day of the accident nor subsequently could the claimant offer any explanation as to how she failed to see the opponent once the opponent had emerged from behind the western chevron sign. In that regard his Honour's conclusion that having checked the intersection the claimant's attention was mainly focused on Ms Floyd seems to be correct. This is consistent with the statements of the claimant. It provides an obvious explanation for why the claimant did not see the opponent when the opponent would have been visible for approximately 1.8 seconds before impact.
60 The dilemma facing the claimant is obvious. In the absence of any other source of risk or danger, she appears to have focused on Ms Floyd rather than on the pedestrian crossing immediately in front of her. Yet in Tobin v Worland [2005] NSWCA 188 a failure to so focus was found to constitute negligence. Nevertheless, in the circumstances of this case the actions of Ms Floyd were not so imminently threatening as to absolve the claimant from her primary obligation of looking to her front and in that regard the claimant failed to keep a proper lookout.
61 This does not end the matter. Even if the claimant had been keeping a proper lookout to her front and had observed the opponent as soon as she emerged from behind the western chevron sign, at 40kph there was insufficient time for her to react and brake so as to avoid impact. It follows that although breach of duty has been established in respect of this issue, it was not causative of the opponent's injuries.
62 When dealing with this matter, his Honour suggested as an alternative to braking, that the claimant could have veered slightly to the right and that if she had done so she would have avoided impact with the opponent, although this would have involved her vehicle driving over a portion of the traffic island. This alternative was never raised or explored at trial and appears for the first time in his Honour's judgment. As to whether impact with the opponent would have been avoided by such a manoeuvre is entirely speculative.
63 The suggestion gives rise to another difficulty. Ms Brown could not remember whether there were vehicles behind her but both she and the claimant stressed the busy nature of this road, a fact which is amply demonstrated by the police photographs. A manoeuvre such as that described by his Honour, which would probably have involved the claimant's car running over the central traffic island, if it were feasible, may well have brought about a different sort of danger insofar as oncoming traffic was concerned.
64 I do not regard the swerve to the right as a realistic alternative so as to solve the causation problem for the opponent to which I have referred.