Mobbs v Kain

CATCHWORDS: TORTS - negligence - motor vehicle accident - collision between child pedestrian and motor vehicle in front of school bus - driver driving at statutory speed limit - whether driver negligent - TORTS - negligence - motor vehicle accident - causation - whether speed at which motor vehicle travelling necessary condition of occurrence of the harm - s 5D, Civil Liability Act 2002 (NSW) - TORTS - negligence - motor vehicle accident - contributory negligence - appellate review

Civil Liability Act 2002 (NSW) Civil Liability Amendment (personal Responsibility) Act 2002 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Amendment Act 2000 (NSW) Motor Accidents Act 1988 (NSW) Motor Accidents Compensation Act 1999 (NSW) Motor Traffic Regulations 1935 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

ACQ Pty Ltd v Cook [2009] HCA 28;(2009) 83 ALJR 986 Albert v Nominal Defendant [1999] NSWCA 73; (1999) 29 MVR 107 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256; (2005) 148 FCR 68 Bullock v Miller (1987) 5 MVR 55 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Clarke v Freund [1999] NSWCA 197; (1999) 29 MVR 361 Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR (NSW) 66 Dennis v Keep [2002] NSWCA 227 Derrick v Cheung [1999] NSWCA 341; (1999) 29 MVR 351 Derrick v Cheung [2001] HCA 48; (2001) 33 MVR 393 Faulkner v Keffalinos (1971) 45 ALJR 80 Flounders v Millar [2007] NSWCA 238 Fogarty v Creasey [2002] NSWCA 318 Gunning v Fellows (1997) 25 MVR 97 Hamshere v Favelle [2009] NSWCA 4 Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523 Knight v Maclean [2002] NSWCA 314 CASES CITED: Lieng v Delvers [2002] NSWCA 170; (2002) 36 MVR 401 Liverpool City Council v Estephan [2009] NSWCA 161 March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 Mousa v Marsh [2001] NSWCA 317 Mye v Peters (1967) 68 SR (NSW) 298 New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 Nicholson v Nicholson (1994) 35 NSWLR 308 Penrith Rugby League Club Ltd trading as Cardiff Pathers v Elliot [2009] NSWCA 247 Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited [2001] NSWCA 461; (2001) 53 NSWLR 626 Rowes Bus Service Pty Ltd v Cowan [1999] NSWCA 268 Seers v Turrell [1997] NSWCA 279 Stocks v Baldwin (1996) 24 MVR 416 Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 267 Tsuji v Metromix Pty Ltd (1998) 28 MVR 401 Turkmani v Visvalingam [2009] NSWCA 211 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Rep 81-818 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Trindade and Cane, The Law of Torts in Australia, 3rd ed. (1999) Oxford University Press TEXTS CITED: Glanville Williams, Joint Torts and Contributory Negligence, (1951) Stevens Hart and Honoré, Causation in the Law, 2nd ed. (1985) Clarendon Press

Janette Mobbs (First Appellant) PARTIES: Nicholas Mobbs (Second Appellant) Cosmo Joel Kain by his tutor Shirlee Kain (Respondent)

COUNSEL: P J Deakin QC with P J Nolan (First and Second Appellants) D R Campbell SC with I A McGillicuddy (Respondent)

SOLICITORS: Sparke Helmore (First and Second Appellants) Stacks Goudkamp (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT DATE OF DECISION: 29 April 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Kain v Mobbs [2008] NSWSC 383

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40223/08 SC 20077/03

GILES JA McCOLL JA MACFARLAN JA

Janette & Nicholas Mobbs v Cosmo Joel Kain by his tutor Shirlee Kain Judgment 1 GILES JA: I have had the considerable advantage of reading the reasons of McColl JA in draft. I agree generally with her Honour's reasons, but with a qualification and different path to the orders she proposes. With the benefit of her Honour's reasons, I briefly explain that path. 2 The trial judge did not find a particular speed at which, in the exercise of reasonable care, the second appellant should have been travelling when passing the bus. He found at [69] that the second appellant drove at a speed which was excessive in the circumstances. By this I understand him to have meant the speed to which he had referred earlier in that paragraph as "a speed which would have permitted the second defendant to stop if the plaintiff had emerged from behind the bus in the way he did". 3 There is a problem with a finding so expressed. It is self-fulfilling as to breach of duty - because there was an accident, the speed was too great. More important, it does not fit the facts as found. The respondent collided with the side of the second appellant's motor vehicle, and this occurred although the second appellant was keeping a proper lookout. A speed which would have permitted the second appellant to stop if the respondent emerged had no causal relationship with the occurrence of the accident. 4 In any event, as McColl JA explains, it is not the law that a driver must drive at such speed as to be able to avoid any risk of an accident if a pedestrian suddenly emerges, nor was this a case in which the possibility that a child might emerge from in front of the bus meant that the second appellant had to slow down to such speed that he could in any circumstances stop and avoid an accident. As her Honour observes, the reasonable care required by the trial judge would mean absolute or strict liability rather than taking reasonable care, and involved looking backward to identify what would have avoided the accident. Hence breach of duty as found by the trial judge cannot stand. 5 On the basis on which the trial judge came to his decision, whether there was causation from failing to drive at a particular speed below 40 kilometres per hour did not arise. The measure of a reasonable speed taken by his Honour was not a particular speed, or a speed related to 40 kilometres per hour. The measure taken was self-fulfilling also as to causation: the breach of duty as found necessarily brought causation. That no doubt explains why his Honour did not address causation beyond saying at [70], using passages cited from Stocks v Baldwin (1996) 24 MVR 416, that if the second appellant had been driving more slowly he could have stopped in time and could have avoided "striking the plaintiff" (although it was not a case of striking the respondent). That, indeed, points to the error of looking backward to identify what would have avoided the accident. 6 The second appellant drove at 40 kilometres per hour. The respondent submitted on appeal that the exercise of reasonable care required the second appellant to drive below 40 kilometres per hour, although not necessarily at such speed that he could stop if the respondent emerged from behind the bus in the way he did. This raised the related questions of what speed, measured not as the speed which would have avoided the accident, and whether that speed would have avoided the accident. 7 The qualification to my general agreement with the reasons of McColl JA is that I refrain from deciding that the exercise of reasonable care did not require that the second appellant drive at less than 40 kilometres an hour. So far as her Honour considers that the legislation had prescribed 40 kilometres per hour as a speed limit and it was necessary to find matters which took the case outside that as a reasonable speed, I respectfully depart from her. In my view, it is inappropriate to start with a speed limit and look for matters calling for a lesser speed. The prescribed speed limit was a maximum, not the measure of a reasonable speed, and in the relatively quiet suburban street and with no passengers visible having alighted from the school bus a reasonable speed could have been less than 40 kilometres per hour. 8 What lesser speed was not decided by the trial judge, other than in the manner I have indicated, or urged with particularity on appeal. That may well have been because of the causation difficulty once a speed was nominated. For the reasons that follow, in the manner the accident occurred any breach of duty in failing to drive at a particular speed less than 40 kilometres per hour was not shown to have caused the respondent's injury. 9 To repeat, the respondent collided with the side of the second appellant's motor vehicle, and the second appellant was keeping a proper lookout. Stopping from a speed did not matter in the manner the accident occurred. As McColl JA has noted, the respondent effectively abandoned reliance on Mr Johnson's calculations. If the motor vehicle was there, the respondent would have suffered his injury whether the motor vehicle was travelling at the time at (say) 20 kilometres per hour or at 40 kilometres per hour. Hence the respondent argued that, had the second appellant slowed below 40 kilometres per hour before reaching and while passing the bus, his motor vehicle would not have been where it was at the time the respondent ran out, and so the respondent would not have collided with the motor vehicle and been injured. 10 In my opinion, causation is not made out in this way. It is not enough that, had the second appellant driven more slowly, his motor vehicle would not have been there for the respondent to collide with its side. 11 In March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 the High Court rejected a "but for" test as the exclusive test of factual causation. As was said by Mason CJ and Deane and Toohey JJ in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 412-3 - "In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense [ Fitzgerald v Penn (1954), 91 CLR 268, at pp 277-278 , per Dixon CJ, Fullagar and Kitto JJ; March v Stramare (E & MH) Pty Ltd (1991), 171 CLR 506, at p 515, per Mason CJ; pp 522-523, per Deane J]. In resolving that question, the 'but for' test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude [ March v Stramare (E & MH) Pty Ltd ]." 12 The difficulties in the notion of common sense causation have been recognised, see Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 at [96]-[97] per Gummow, Hayne and Heydon JJ and the observation in ACQ Pty Ltd v Cook [2009] HCA 28; (2009) 83 ALJR 986 at [27] (French CJ and Gummow, Heydon, Crennan and Bell JJ) that "[n]ot every lawyer has found the analysis of causation in March v Stramare helpful". The entry of policy considerations does not make causation into a question of whether the defendant ought to be held liable to compensate for the injury, see Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 267 at 643 per Gummow and Hayne JJ (but note s 5D of the Civil Liability Act 2002). It remains, however, that "but for" causation may not suffice. 13 The well-known illustration given by Lord Hoffmann in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 at 213, although given in a different context, illustrates where "but for" causation falls down - "A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee." 14 His Lordship considered that the doctor was not liable. He put it in the terms that "[t]he injury has not been caused by the doctor's bad advice because it would have occurred even if the advice had been correct". Since the climber would not have gone on the expedition if the doctor had given good advice, Lord Hoffmann meant that the "but for" of not going on the expedition if the doctor's advice had been correct was insufficient, so that the occurrence of the injury was not causally related to the doctor's bad advice. 15 It is well recognised that answers to questions of causation may differ according to the purpose for which the question is asked. The question is asked in the present case for the purpose of attributing legal responsibility for the injury to the respondent, according to the law of negligence whereby the risk against which the second appellant was obliged to take care by driving at a reasonable speed was the risk that his motor vehicle would run into a person emerging from in front of the bus. The mountaineering illustration given by Lord Hoffmann can also be put in terms that the risk against which the doctor was obliged properly to examine the knee was the risk of continued injury to, or injury by reason of unfitness of, the knee. Had the climber's knee given way on the expedition, causing injury, there may have been causation. The risk of the climber being swept away by an avalanche, because he went on the expedition, was not the doctor's concern. The risk of a pedestrian running into the side of a motor vehicle, because the motor vehicle is there, is ordinarily not the driver's concern. 16 To similar effect is Windeyer J in Faulkner v Keffalinos (1971) 45 ALJR 80. The plaintiff was injured in a motor vehicle accident, and before trial was injured in a second motor vehicle accident which would independently have been incapacitating. His Honour said at 86 - "The consequences that flow from the second accident cannot I think be regarded as caused, in any relevant sense, by the defendants' tort. I realise that philosophers and casuists may see these as indirect consequences. But for the first accident, the respondent might still have been employed by the appellants, and therefore not where he was when the second accident happened: but lawyers must eschew this kind of "but for" or sine quo non reasoning about cause and consequence". 17 The Full Federal Court (Tamberlin, Mansfield and Allsop JJ) in Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256; (2005) 148 FCR 68 was concerned with damage to a coal loader when a bulk carrier struck a bulk coal berth at the point where the loader happened to be parked. It was alleged that the owner of the loader had been contributorily negligent in parking it where it was. Upholding the trial judge (Hely J), the Full Court considered that there was no causal relationship between the alleged negligence and the damage to the loader because (in the trial judge's encapsulation, (2004) 140 FCR 445 at [479]) the circumstances in which the carrier collided with the berth "were outside the class of risk against which a sound strategy for loader placement is designed to afford protection". Although the loader would not have been damaged had it been parked elsewhere, "in the circumstances of this case that is entirely fortuitous" (Hely J at [498]). 18 The passages from the trial judge's reasons set out by the Full Court at [223] included an example from Trindade and Cane, The Law of Torts in Australia, 3rd ed. (1999) at 565 - "In Jones v Livox Quarries [1952] 2 QB 608] Denning LJ said [at 616] that the negligence of the plaintiff in riding on the tow-bar of a vehicle would be a cause of injury to P whether P was thrown off the tow-bar or crushed when another vehicle collided with it. But there would be no (attributive) causal link between P's injuries and P's negligence if P was shot by a negligent sportsman, and the bullet would not have hit P if P had been in the cab rather than on the tow-bar." 19 The Full Court observed at [230] that the relationship of the conduct to the nature of the rule is fundamental to causation, referring to the High Court authority and also to Glanville Williams, Joint Torts and Contributory Negligence, (1951) at 365-7. There the learned author said that the (former) defence of contributory negligence only avails if the damage was contributed to by that feature of the plaintiff's conduct that is regarded as negligent, and continued - "Another way of putting this rule is to say that the plaintiff's failure to exercise reasonable care for his own safety does not raise the defence unless his injury results from the particular risk to which his conduct has exposed him. The rule has received less attention in England than in America, where it was settled as a result of the Connecticut case of Smithwick v Hall & Upson Co (1890) [59 Conn 26, 21 Atl 924, 12 LRA 279, 21 Am St Rep 104], There the plaintiff, a workman employed by the defendant, had been instructed not to stand on a certain platform because of the absence of a guard rail. He nevertheless used the platform, and while he was there part of the wall above him, which through the negligence of the defendant was in bad repair, fell on him. It was held that although the workman was guilty of negligence in using the unguarded platform, he was not for that reason barred from recovering, because the injury had no connection with the lack of a guard. The reason why it was negligent to work on the unprotected platform was the risk that the plaintiff might fall from it, not the risk that bricks might fall upon him from above. The negligent act of using the platform did not put the plaintiff beyond the protection of the law as regards an injury that had nothing to do with the negligent quality of his act. A more frequent illustration as applied to original negligence would be as follows. D is driving a vehicle without keeping a proper lookout. P, driving negligently, collides with him. The facts are such that even if D had been keeping a proper lookout he could not have avoided P, and the accident would have happened just the same. Here D's driving the vehicle is a cause of the accident, for had he not been at that spot at that time the accident would not have happened. But D's negligent failure to keep a proper look-out cannot be assigned as a cause of the accident. Therefore there is no negligence on the part of D causing the accident and an action by P against D must fail, whether before or after the Contributory Negligence Act". 20 Other illustrations were given. The illustration as applied to original negligence, while not identical to the present case, is pertinent. D being at the spot at the time was not in law a cause of the accident. Even if the second appellant had been driving more slowly, the respondent would have collided with the side of his motor vehicle. Driving at 40 kilometres per hour was a "but for" cause, whereby the second appellant's motor vehicle was where it was. But any negligence in driving at an excessive speed "cannot be assigned as a cause of the accident". 21 One may postulate that the second appellant had driven at an unsafe speed fifteen minutes earlier, or had driven contrary to a red light at an intersection a few kilometres before coming up to the bus, and that his motor vehicle would not have been where it was but for the failure to drive reasonably. I do not think it could be suggested that there would be causation in law. Indeed, the second appellant's motor vehicle would not have been where it was had he sped past the bus at 100 kilometres per hour: cf Draxton v Katzmarck (1938) 280 NW 288 (Minn), cited in Hart and Honoré, Causation in the Law, 2nd ed. (1985) at 122 in considering the American courts' rejection of causation where the accident would not have happened but for earlier speeding. So in the present case, the fact that the second appellant's motor vehicle would not have been where it was at the time the respondent ran out, had he slowed to below 40 kilometres per hour before reaching and while passing the bus did not, in the present case, make out causation in law. 22 I agree with the orders proposed by McColl JA. 23 McCOLL JA: The respondent, Cosmo Joel Kain (then aged 10), was injured on 5 April 2001, when he alighted from, and crossed the road in front of, a stationary school bus and was struck by a motor vehicle owned by the first appellant, Janette Mobbs, and driven by her son, the second appellant, Nicholas Mobbs. 24 The respondent's mother, Shirley Kain, brought proceedings as his tutor against the first and second appellants as the owner and driver of the motor vehicle, and also against the owner and operator of the school bus and its driver. 25 The matter was heard by Harrison J on the issue of liability alone. His Honour found that the appellants were negligent, on the basis that at the time of the accident the second appellant was travelling at an excessive speed in the circumstances. His Honour apportioned 15 per cent contributory negligence to the respondent. He dismissed the respondent's claim against the owner and operator of the school bus and its driver: Kain v Mobbs [2008] NSWSC 383. There is no appeal from that part of the decision. 26 The appellants originally filed an appeal as of right, but realised that as Harrison J did not make final orders, leave to appeal was required. The respondent did not oppose leave being granted. 27 The appellants challenge the primary judge's findings on liability. In the alternative, they argue that the primary judge erred in apportioning only 15 per cent contributory negligence to the respondent.

Statutory framework 28 At the time of the accident, cl 40 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (the "1999 Regulation") relevantly provided: " 40 Passing school bus displaying 40 km/h speed limit sign

(1) The driver of a motor vehicle approaching from the rear a bus (whether stationary or in motion) on which is displayed a sign in a form similar to the form illustrated at the end of this clause must not pass the bus on a road at a speed of more than 40 km/h if the warning system of the bus is activated.

Penalty and disqualification: a person who contravenes this subclause is guilty of an offence and is liable to a maximum penalty and a period of disqualification (if any) determined in accordance with clause 154.

(3) In this clause: warning system of a bus means the warning system referred to in clause 94.

" 29 Clause 94 relevantly provided: " 94 Warning signs and lights for school buses (cf MTR, r 136A) (1) In this clause: 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. 30 Divisions 1 - 4 and 8 of Part 1A (Negligence) of the Civil Liability Act 2002 (NSW) applied to the respondent's action by virtue of s 3B(2)(a) of that Act and also because, although his accident occurred on 5 April 2001, his proceedings were commenced on 28 March 2003 after the commencement of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW): Civil Liability Act, Schedule 1, Pt 3, cl 6. 31 Thus the question whether the appellants breached their duty of care to the respondent turned, relevantly, on the matters referred to in s 5B(2), which reflects the content of the common law test for when a duty of care is owed and the test posed by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47 - 48) concerning breach of duty: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Rep ¶81-818 [45]) per Ipp JA (Spigelman CJ and Tobias JA agreeing). 32 Pursuant to s 5C, the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done. 33 Sections 5D and 5E are relevant to the issue of causation. They relevantly provide: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( 'factual causation'), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( 'scope of liability'). … (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. " 34 None of these provisions of the Civil Liability Act were considered at trial, nor did counsel refer to them in their written submissions. This was even though they appreciated that s 5R of the Civil Liability Act which also applies by operation of s 3B(2), was relevant to determining the issue of contributory negligence. While in the present case the operation of these provisions does not substantially affect the principles to be applied in determining the issues of breach and causation, such issues should always be considered in the context of the operative statutory framework. 35 A number of statutory provisions appear relevant to the issue of contributory negligence. They are s 138 of the Motor Accidents Compensation Act 1999 (NSW), s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), as amended by the Law Reform (Miscellaneous Provisions) Amendment Act 2000 (NSW) and, as I have said, s 5R of the Civil Liability Act. The primary judge undertook a detailed analysis of the interaction of those provisions which neither party challenged. It is unnecessary to re-visit his Honour's analysis. Statement of the case 36 The primary judge's findings as to the circumstances of the accident (at [1] - [2]) were uncontroversial: "[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 St, Kingscliff after a journey south from his school in the north. Kingscliff St 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 St, 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 3.35 pm and 3.45 pm. 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." 37 The bus from which the respondent alighted was bright yellow. It bore the warning system referred to in cl 40 of the 1999 Regulation, namely a sign with the number "40" in a red circle with the words "when lights flash" on the rear: primary judgment (at [76]). The primary judge found (at [75]) 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. There is no challenge to that finding. 38 The primary judge found (at [68]) that Kingscliff Street was "effectively 'a quiet residential street'" and that at the time of the accident "there was no other traffic of significance travelling upon the road in either direction". There is no challenge to those findings. It is apparent from plans which formed parts of the expert evidence that the street was single lane in two directions, with a broken dividing line. On the east side, on which the accident occurred, the single lane was wide enough to accommodate the bus being stopped at the kerb and being passed by vehicles travelling within their correct lane. There was unchallenged evidence, not referred to in the judgment, from an eyewitness, Mr Cottrell. He was 12 years old on the day of the accident and observed what occurred from a position on the western side of Kingscliff Street approximately opposite the bus stop. He said that at the time of the accident there was traffic travelling both north and south, most of which was travelling north. 39 At trial, the principal allegations of negligence were that the second appellant drove at a speed that was excessive in the circumstances and that he failed to keep a proper lookout: primary judgment (at [40]). The key allegation of contributory negligence was that the respondent 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 appellant's car: primary judgment (at [116]). 40 The second appellant had been travelling at approximately 60 km/h further north in Kingscliff Street, but said that by the time he reached the rear of the bus he had slowed to a speed of 40 km/h: primary judgment (at [17]). 41 There were several accounts of the speed at which the respondent emerged in front of the bus. The primary judge concluded that 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. He also held "[t]he 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". It was common ground that the respondent was never in front of the appellants' car, nor visible through the windscreen. It was for these reasons that the primary judge held the second appellant did not fail to keep a proper lookout: primary judgment (at [65]). There is no challenge to that finding. 42 The primary judge found (at [43]) that the second appellant was travelling at approximately 40 km/h at the time of the collision. There is no challenge to that finding. Indeed, as the primary judge observed (at [44]), there was no significant dispute at trial about the speed at which the second appellant was travelling nor that he was complying with the statutory speed limit for passing a school bus. Rather, the respondent submitted that travelling even at that speed was too fast in the circumstances. 43 The respondent contended that those circumstances included the existence of a perceivable risk that children might unexpectedly emerge from behind the bus and the second appellant's acknowledgment that he was aware of that risk. Accordingly, the respondent argued, the second appellant should have reduced his speed below 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: primary judgment (at [66]). 44 The primary judge considered (at [63] - [65]) that a significant factor in determining the negligence issue was the second appellant's acknowledgment 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 considered that issue in the context of his consideration of the two issues of negligence - proper lookout and excessive speed: "63 … 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." (emphasis added) 45 The primary judge accepted (at [66]) the evidence of the respondent's expert engineer, that the accident was unavoidable at 40 km/h. He held that the second appellant was negligent in the light of the perceived risk in failing to drive at a speed less than the applicable limit. He gave the following reasons for reaching that conclusion (at [67] - [69]): "67 … 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 [2005] NSWCA 188. 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 … 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." (emphasis in original) 46 The primary judge concluded (at [70]) (applying Mahoney P's statement in Stocks v Baldwin (1996) 24 MVR 416 (at 419)) that the present case was one in which, "if the second defendant 'had been travelling more slowly, it is likely that he would have stopped in time'". He also was not satisfied "that, had the [second] defendant been driving at a speed appropriate to the circumstances, he could not have avoided striking [the plaintiff]." In so holding, his Honour noted that he took "particular account of the factors relevant to the balancing process mentioned by Mahoney P in Stocks v Baldwin." 47 Apart from his general statements (at [67]) that "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" and (at [69]) that "[a]ll 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", his Honour did not identify any speed at which, in his view, the second appellant should have been driving.

Primary judgment: contributory negligence 48 As I have said, the appellants submitted at trial that that the respondent bore the "overwhelming responsibility" for his injuries because he ran across the road without looking, in front of a stationary bus, contrary to what he had been taught and understood: primary judgment (at [116]). 49 The primary judge first considered (at [120] - [121]) the respondent's road safety awareness, finding that his mother had taught him "very good traffic sense". The respondent admitted that he was aware on the day of his accident that he should wait for the bus to leave before stepping onto the road, that under no circumstances was he to run across the road and that he was to look both ways before crossing. 50 His Honour had regard (at [122] - [147]) to the approach to apportioning liability under s 138 of the Motor Accidents Compensation Act 1999 (NSW). Under s 138(3), the relevant principle required a reduction for contributory negligence "by such percentage as the court thinks just and equitable in the circumstances of the case". However, as the primary judge noted, s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 provides that the damages recoverable in respect of a wrong are "to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage" (emphasis added). 51 His Honour noted the difference in wording between the two provisions, and referred (at [124] - [125]) to the Court of Appeal's comments relating to the predecessor to s 138(3) (s 74(3), Motor Accidents Act 1988 (NSW)) in Nicholson v Nicholson (1994) 35 NSWLR 308 (at 333F - 334B): "The formula chosen for the purposes of s 74(3) ('such percentage as the court thinks just and equitable in the circumstances of the case') differs from that ordinarily applicable in cases of contributory negligence under the general law: ('having regard to the claimant's share in the responsibility for the damage'). It may be that the former was used in place of the latter to enable the Court, in examples of the kinds to which I have referred, to recognise that, there being no contribution by the deemed contributory negligence, it would be unjust and inequitable to reduce the damages otherwise recoverable". 52 The primary judge noted (at [129]) that the standard of contributory negligence is defined by s 5R of the Civil Liability Act and (at [131]) that there had been little judicial consideration of s 5R and "none dealing with contributory negligence on the part of children involving the use of motor vehicles or respecting their conduct on or near roadways". 53 The primary judge then reviewed the authorities dealing with contributory negligence in relation to the conduct of children on or near roadways: primary judgment (at [135]). He referred to the comments of Sir Frederick Jordan in Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR (NSW) 66 (at 69) that "even children are expected to exercise such capacity as they possess…. The capacity to neglect is a question of fact in the individual case…having regard to his youth and general intelligence". However, his Honour noted that 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": Bullock v Miller (1987) 5 MVR 55 (at 59) per Underwood J. In that case, Underwood J (at 59 - 60) made the following observations about the standard of care in relation to young children: "… 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". 54 Applying these principles, the primary judge made the following assessment of the relative culpability of the respondent and the second appellant (at [148] - [149]): "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." 55 His Honour (at [152]) held that the second appellant's contribution to the accident was greater than that of the respondent. Nonetheless, he found that, it was "just and equitable" in the circumstances of the case that the respondent's damages be reduced by 15 per cent by reason of his contributory negligence. He concluded (at [150] - [151]): "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." (emphasis added)

56 The primary judge ordered a verdict for the respondent against the appellants with costs. His Honour dismissed the respondent's case against the third and fourth defendants with costs and ordered the appellants to indemnify the respondent in respect of the costs payable by the respondent to those defendants: (at [153]). The latter order was originally the subject of the seventh ground of appeal. However the appellants and the respondent agreed that it should be set aside - a course the beneficiaries of the order - the third and fourth defendants below - did not oppose.

Issues on appeal 57 The notice of appeal contained the following grounds:

The primary judge erred in finding the appellants liable to the respondent based upon a finding of excessive speed on the part of the second appellant. ( Ground 1)

The primary judge erred in failing to find that the second appellant had adjusted his speed appropriately to allow for the bus from which the respondent was alighted. ( Ground 2)

The primary judge erred in adopting and applying principles derived from the judgment of Mahoney P in Stocks v Baldwin which do not represent the proper test for the law of negligence. ( Ground 3)

The primary judge erred in failing to deal with the issue of causation. ( Ground 4)

The primary judge erred in failing to find that any breach of duty on the part of the appellants was not causative of the respondent's injuries. ( Ground 5)

Alternatively, in the event of the judgment in favour of the respondent being upheld, his Honour erred in apportioning only 15 per cent contributory negligence to the respondent. (Ground 6)

Consideration 58 In oral argument, Mr P Deakin of Queen's Counsel, who appeared with Mr P Nolan for the appellants at trial and on appeal, identified the key issues on liability as being whether the primary judge erred in the reliance he placed (at [70]) on Stocks v Baldwin, whether he also erred in concluding that the second appellant was travelling at an excessive speed in the circumstances and whether he erred in respect of the causation issue. The first and second issues can conveniently be considered together. 59 In Stocks v Baldwin, the Court of Appeal held that a driver driving at about 40 km/h who struck a pedestrian was negligent because he was travelling at excessive speed. The pedestrian was crossing a busy street with three lanes on each side of a median strip about 40 metres from traffic lights. It was raining, cloudy and overcast, "with some component of reduced visibility". After crossing the median strip, she moved through banked up vehicles in the middle lane into the kerbside lane without apparently looking for oncoming traffic and was struck by the defendant's vehicle. The defendant who was driving in that lane stopped about 4 metres from the point of impact. The trial judge held the defendant was negligent in that he was driving his car at a speed which was excessive in all the circumstances and that that negligence was a cause of the accident. The Court of Appeal dismissed his appeal from that finding. 60 Simos AJA (Sheller JA agreeing) held (at 425) that while it is "generally correct that the [driver] was entitled to assume that a person in the position of the plaintiff would take reasonable care for his or her own safety", "it would still, in my opinion, have been reasonably foreseeable that a person in the position of the plaintiff, more especially in the prevailing conditions at the time, might not take reasonable care for his or her own safety and act as did the plaintiff in the present case". 61 Simos AJA held (at 425) applying Wyong Shire Council v Shirt (at 47 - 48), that if the appellant had been travelling at less than 25 miles per hour, he may well have been able to stop his vehicle after the time when he should first have seen the plaintiff and before colliding with the plaintiff. As the appellant was travelling at a speed in excess of the speed which would have enabled him to do that, his Honour concluded that the primary judge was entitled to find that the appellant was driving at an excessive speed in the circumstances. 62 Mahoney P (at 418) added in relation to the Shirt "balancing process": "… at least four things are to be borne in mind: the extent of the damage that may be done by a driver to a pedestrian; the degree of likelihood that a pedestrian will suddenly come into the path of an ongoing vehicle; the consequent extent of the precautions which a driver must take against that eventuality; and the extent of what a driver is able to do when confronted with such a danger. The damage which a driver may do to a pedestrian is great: the injuries suffered by the present plaintiff show this. This is an important matter when deciding what a driver must do. The inconvenience of driving slower is to be measured against, inter alia, what may be done to a pedestrian if the driver's estimate of the risk is wrong." 63 After referring to the majority's statement in McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 (at 311) that " [t]he standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others". Mahoney P said (at 419) "In this context, what is the significance of the speed at which the defendant was driving? The speed is significant because of the effect it has or may have upon what the driver will be able to do if such an eventuality occurs. If a pedestrian was to do what the plaintiff did, the things which the present driver could do to avoid her were limited. Swerving was of little if any use: he was driving in a traffic lane presumably not much wider than a car width, with a line of stationary cars on his right and the kerb on his left. In a practical sense, he could avoid the pedestrian only by stopping and, of course, his capacity to do so would be affected by his speed. 64 His Honour concluded (at 419) in the passage applied by the primary judge (at [55]): ". . . 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 . (c) It follows from what I have said that speed contributed to the occurrence of the accident. Mr Maconachie's submission was, I think, essentially that it is what the plaintiff did which caused the accident and that, whatever the defendant's speed, the accident would have occurred. The trial judge did not form that conclusion. What the plaintiff did was foolish. But I am not satisfied that, had the defendant been driving at a speed appropriate to the circumstances, he could not have avoided striking her. And, for the reasons to which I have referred, it was because of the speed at which he was travelling that he was not able to stop in time." (emphasis added) 65 The Court did not explicitly identify the circumstances which persuaded it that the defendant ought reasonably to have foreseen the plaintiff's foolish behaviour. However I would infer their Honours were referring to the inclement weather and the inference that pedestrians would be hurrying to a drier place. Quite why the driver should have foreseen such behaviour when there was a set of traffic lights only 40 metres away where pedestrians could presumably have crossed the six-lane road under controlled conditions was not addressed. 66 Mahoney P's remarks in Stocks v Baldwin concerning the necessity for drivers to take into account the possibility of unpredictable pedestrian behaviour were referred to with approval in Clarke v Freund [1999] NSWCA 197; (1999) 29 MVR 361 (at [15]) and Seers v Turrell [1997] NSWCA 279. 67 In Rowes Bus Service Pty Ltd v Cowan [1999] NSWCA 268 (to which the primary judge referred (at [58] - [60])) Stein JA (Foster AJA agreeing, Cole AJA dissenting) upheld the trial judge's finding that a driver was driving too fast in the circumstances where, as he was approaching a school bus, he reduced his speed to 40 kph upon seeing people, including school children, on the roadway at the rear of the bus "knowing and admitting that there was a possibility that children could emerge from the front of the bus". Stein JA concluded (at [39]) that it "must have been obvious to him that they were waiting for the opportunity to cross the road [and] [i]If one of them ran out in front of his vehicle an accident was inevitable … because at 40 kph he could not have stopped in time so as to avoid an accident". 68 Cole AJA accepted (at [84]) "that a driver must exhibit special care, and in certain circumstances drive defensively, in the presence of pedestrians, especially children". He referred to the legislative requirements then found in Regulation 54A and 136A of the Motor Traffic Regulations 1935 (NSW) as amended (regulation 136A being in substance in the same terms as cl 94 of the 1999 Regulation) and observed (at [85]) that "[a]lthough those regulations had not been introduced at the time of this accident, that is precisely what [the driver] did". His Honour then said: "87 Mr Sufong [the driver] was able to see the respondent running while she crossed for a distance of approximately 1 metre before she collided with the near front mudguard of his vehicle. There was nothing he could do to avoid the accident which was entirely caused by the plaintiff running out, without looking, into a slowly moving stream of traffic. The obligation on Mr Sufong was to drive in a reasonable manner in the circumstances. Does that involve him driving in a manner so that, in all circumstances, he could avoid a collision with a running pedestrian coming into his vision for a split second whilst she traversed about one metre before colliding with his car? Put another way, is it the obligation on a driver seeing pedestrians, including children, at the rear of a bus, to travel at a speed of 4 or 5 kilometres past that bus on a busy main four-lane road?"

After referring to the trial judge and Stein JA's conclusions that the driver was travelling too fast in the circumstances, Cole AJA said: "90 With great respect, to impose an obligation on a driver to drive at such a speed that an accident can, in all circumstances be avoided, is to impose absolute liability on a driver. This accident would have occurred had the driver been travelling at any speed above 5 kilometres per hour. Above that speed the accident was inevitable, not because of the speed of the vehicle, but because the plaintiff was running and came into the view of the driver for approximately 1 metre. Accepting that there is a foreseeable risk of injury which a motorist should appreciate to a person running out from in front of a bus when other persons, both adults and children are observed near the rear of a bus, the question is: 'What is a reasonable response to that foreseeable risk?' If the response is the driver must slow and proceed at a speed of no more than 5 kilometres per hour so that, in all circumstances, the driver can stop to avoid such an accident, that involves the imposition of absolute liability on the driver which liability is established by the very fact of the collision. 91 In my judgment that is not the present law. It is not the response given by the Legislature as to areas of perceived danger of injury to school children or pedestrians alighting from buses, that requirement being to slow to 40 kilometres per hour. Nor does such a response, namely a requirement to slow to 5 kilometres per hour, have regard to the surrounding circumstances that Richmond Road is a major four-lane highway, heavily trafficked. In my view the response of Mr Sufong of slowing to 40 kilometres per hour, keeping a proper lookout, keeping his foot over the brake pedal 'riding the brake' and proceeding 'with as much caution as I could considering the traffic', the traffic banking up behind him because of his reduction in speed, was a reasonable response to the slight possibility that a person, with complete disregard for her own safety, might run out, without pausing or looking, into his vehicle. In my opinion it is not the law that either generally or in these particular circumstances, which it is always possible might be repeated when a bus is stopped, and a driver is obliged to travel past the bus at not more than 5 kilometres per hour." 69 In Tsuji v Metromix Pty Ltd (1998) 28 MVR 401 (at 403 - 404), Priestley JA, Mason P and Beazley JA agreeing) said that "the approach required by cases such as Stocks v Baldwin, is one which does not place such emphasis on the entitlement of drivers but more upon their duty, being in charge of frequently lethal machines, to drive reasonably in the circumstances in which they find themselves." Accordingly he concluded (at 404) that the defendant, who had seen the plaintiff and her daughter running on the side of the road as he drove along it, and who had sounded his horn and touched his footbrake to slow his truck down as he approached, "should have been more alert to the possibility of foolish behaviour on the part of the plaintiff and either sounded his horn earlier and more decisively, or slowed more markedly, or both". The plaintiff's damages were reduced by 60 per cent for contributory negligence. 70 In his ex tempore judgment in Albert v Nominal Defendant [1999] NSWSCA 73; (1999) 29 MVR 107 (at [6]) Priestley JA (Powell JA and Sheppard AJA agreeing) expressed the view that the bulk of cases such as Stocks deal with situations where a motorist has had some reason, because of the surrounding circumstances, to be aware that pedestrians are likely to behave carelessly and where, although the motorist was driving at a pace and in a place which was lawful, the motorist was "on notice by conduct which the motorist did see or should have seen, that a pedestrian might act in such a way as to put that pedestrian in danger from the motorist."

Derrick v Cheung and subsequent authorities 71 The application of Stocks v Baldwin reasoning was considered in Derrick v Cheung [2001] HCA 48; (2001) 33 MVR 393 and in Knight v Maclean [2002] NSWCA 314, both of which were referred to by the primary judge. 72 In Derrick a toddler, aged about 21 months, ran out of a yard while her mother was talking to a friend, onto the footpath and then between parked cars onto a busy road. The defendant driver was driving at about 45 - 50 km/h, keeping up with traffic, in a stretch of road where the speed limit was 60 km/h. She did not see the child until she appeared on the roadway in front of her car. She braked and swerved but was unable to avoid hitting the child. The primary judge found the defendant negligent, a finding upheld by a majority of the Court of Appeal (Derrick v Cheung [1999] NSWCA 341; (1999) 29 MVR 351 (Stein and Fitzgerald JJA; Davies AJA dissenting). The High Court (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ) unanimously allowed the defendant's appeal, finding (at [13]) that although the facts of the case were "tragic", the defendant had exercised reasonable care in the circumstances. 73 In the Court of Appeal, Stein and Fitzgerald JJA had said of Stocks v Baldwin: "5 It is questionable whether the driving standards required by the statements in Stocks v Baldwin 24 MVR 416 are compatible with current driving practice in Sydney and its environs, or indeed always practical in the traffic conditions which exist. However that might be, they often do not correspond with the driving habits of many Sydney drivers. 6 It does not necessarily follow that they are a counsel of excessive caution or otherwise require an unreasonable standard of care. The circumstance that the exigencies of movement in and around the city cause many to drive too fast for the prevailing conditions might make such speed 'reasonable' in one sense but does not mean it is not a breach of duty to other road users. 7 Accidents such as the present involves special difficulties. Theoretically, a pedestrian might run out into the traffic at any point at any time. A driver might have no opportunity to avoid a collision. However, the slower the vehicle, the greater the opportunity that exists. Nevertheless, travelling within the designated speed limit and in conformity with the traffic flow is ordinarily reasonable. Indeed, to do otherwise would often create risks. 8 There is no reason to doubt that the trial judge appreciated such considerations or the need to take all surrounding circumstances into account. As his Honour said, his decision was reached "often some hesitation". Another judge might have reached a different conclusion, despite the sympathy which the plight of the respondent and her family naturally attracts. Certainly, the appellant does not bear any moral, as distinct from legal, responsibility for what occurred. 9 However, we are not persuaded that this is a case for appellate intervention. As Mahoney P acknowledged in Stocks v Baldwin, 24 MVR 416, at 420. the determination of whether there was a breach of the duty of care is not determined by a 'syllogistic process from facts to conclusion'. Rather, it involves making value judgments, as referred to by Mason J in Shirt v Wyong Shire Council (1980) 146 CLR 40." 74 Davies AJA said in his dissenting judgment: "16 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 the traffic, when the traffic was travelling at a moderate 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." 75 The High Court referred (at [10]) to the statements by both the majority and Davies AJA. They noted (at [11]) the appellant's submissions (on which the respondent in this case placed particular emphasis at trial) that Derrick was not 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." 76 In allowing the appeal, the High Court said (at [13]): "[13] … There was no basis upon which any finding of negligence on the part of the appellant could be made. That the facts of the case are tragic, and the collision a parent's worst nightmare, as the trial judge accurately described them, did not relieve his Honour of his obligation to determine the issues according to law: in this case, by not finding an absence of care in circumstances in which reasonable care was, as Davies AJA correctly held, in fact being exercised. 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." (emphasis added) 77 The High Court (at [14]) distinguished Stocks v Baldwin, as depending "on its own facts". Their Honours noted that even if Mahoney P's remarks were intended to lay down general rules, "they were not ones to be applied … [in circumstances where it was unlikely] that an unattended infant of such tender years would dart in front of a relatively slow moving vehicle on a busy road in such a way that a collision was, to all intents and purposes, unavoidable." 78 In Dennis v Keep [2002] NSWCA 227 (at [18]) Foster AJA (with whom Heydon JA and Bergin J agreed) referred to Derrick v Cheung as indicating that in cases involving collisions between motor vehicles and pedestrians, "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". 79 In Lieng v Delvers [2002] NSWCA 170; (2002) 36 MVR 401 (at [4]) Meagher JA (Foster and Ipp AJJA agreeing) said that Derrick v Cheung "reaffirmed that it is not enough in order to make a finding of negligence against a defendant to see that the accident in question was possible. One must go further than that, one must say not only would the danger be possible but also that it would be so reasonably foreseeable as to require a reasonably prudent person to carry out his/her activities in such a manner as to be able to avoid such danger." 80 In Knight v Maclean [2002] NSWCA 314 Heydon JA (with whom Meagher JA and Young CJ in Eq agreed) allowed an appeal from a judgment for a plaintiff who sustained physical injuries when she was struck in lane three of Parramatta Road (the lane nearest to the median strip) by the defendant's motor car as the defendant drove along the road which the plaintiff was attempting to cross on foot. The accident occurred at about 9.10pm about twenty metres to the east of an intersection. The trial judge had held that the appellant was negligent because (inter alia) "[t]he long experience of mankind [is] that intersections are places where one is more likely to encounter pedestrians" and he should "drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue": Knight v Maclean (at [11]). 81 Heydon JA observed (at [62]) that "[i]n Derrick v Cheung it was reasonably foreseeable, in the sense that it was a possibility, that a small child might be on or near the road. The trial judge found that the location (near shops and houses) and time (9am on Saturday 17 December, shortly before Christmas) 'should have alerted [the defendant] to the possibility that a small child such as [the plaintiff] might be on or near the road' ". 82 After referring to the High Court's approval of Davies AJA's approach in Derrick v Cheung, Heydon JA noted (at [64]) that that approach: "… in part centred on the fact that though the appearance of a child may have been reasonably foreseeable, there was 'no particular perceivable risk which the [defendant] should have taken into account but did not', 'no particular danger was observable', and 'no particular danger was apparent'. In this case, too, the movement of pedestrians at some speed across the road was reasonably foreseeable, but the appearance of the plaintiff at a fast walk was not a particular risk or danger which was perceivable, observable or apparent." 83 Heydon JA also noted (at [65]) that another theme in Davies AJA's reasoning which was adopted by the High Court, was "the fact that the defendant's driving satisfied conventional criteria for safe driving - a modest speed, a keeping up with the general flow of traffic which was itself at a modest speed, the maintenance of a reasonable distance from the vehicle in front, and the keeping of a proper lookout". 84 His Honour concluded (at [70]) that the trial judge had imposed too high a standard of care on the defendant, a conclusion reached after the following passage, to which the primary judge also referred (at [46]): "66 So here, the defendant's driving was intrinsically careful. He was not exceeding the speed limit; he was moving with the traffic flow; there is no suggestion he was not keeping a proper distance from the car in front; if he did not see the start of the plaintiff's journey through a failure to look to the left, or a failure to appreciate the extent to which his view might be blocked, he was in no worse a position than the defendant in Derrick v Cheung , and indeed in a better position because of the existence of lane two to his left. He was entitled to drive with his eyes ahead of him until he noticed something to the left which called for greater concentration on the left. There was nothing on the left calling for greater concentration until the sudden emergence of the plaintiff, and that was too late to give the defendant any opportunity to avoid the collision . A finding that the defendant was liable would be to create a form of strict liability, not to recognise a form of liability in negligence. 67 The trial judge's conclusion of liability in this case rested on the proposition that the defendant was obliged to 'drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue'. That would have called for a very low speed indeed. Indeed, if the defendant was obliged to drive in anticipation of the emergence of pedestrians like the plaintiff at a fast walk, he would also have been obliged to drive in anticipation of pedestrians emerging at a run, which would call for a lower speed still. Speeds of such slowness are incompatible with the reasonable use by motorists of Parramatta Road, which is a substantial highway between the centre of the city of Sydney and the city of Parramatta. 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." (emphasis added) 85 In Hamshere v Favelle [2009] NSWCA 4 (at [21]) Macfarlan JA (Hodgson and Campbell JJA agreeing) noted that Derrick v Cheung emphasised that the question to be addressed in negligence cases is not whether "different conduct on the part of those involved" in occurrences would have produced a different result but "whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care". 86 The primary judge referred to the principal cases to which I have referred. In the final analysis his finding that the second appellant was driving too fast turned on the distinction he drew between cases such as Derrick and Knight and the line of cases for which the respondent contended which support the contention that there was a perceivable risk that young children might be in the vicinity of the school bus and that the second appellant was aware of that risk but failed in the circumstances to adjust his speed in order to take account of it: see primary judgment (at [49]). His Honour undertook a careful analysis of the "perceivable risk" class of decisions. I intend no disservice to that analysis by not referring to it in like detail. 87 After noting (at [61]) that the respondent sought to distinguish Knight v Maclean on 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 and also relied on the apparent distinction drawn in Derrick v Cheung (at [11]) between the facts in that case and "… 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", his Honour referred to the passages from Tobin v Worland [2005] NSWCA 188 (at [40] - [43]) in which (with Tobias and Basten JJA's concurrence), I summarised the relevant principles touching upon the qualification 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". As I said, that qualification (expressed at [11] in Derrick as a submission, but apparently accepted in the joint judgment (at [14]) 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). 88 In Tobin the appellant driver was found to have acted negligently in failing to keep a proper lookout in circumstances where, while she was driving along a quiet residential street at midday on a Sunday, she saw a small child standing on the road behind a car and was aware that that child's presence might mean that other children were present but unseen. She was also aware of the propensity of very young children to act unpredictably. There was no other traffic which required her attention. I concluded (at [45]) that "[i]n such circumstances… it was not reasonable conduct on her part to focus her 'full attention' on the road ahead" but, rather "it was … incumbent upon her to pay particular regard to the area where Courtney was standing and to be alert to the risk that a child, whether it be Courtney or some other child which she accepted might be in the vicinity but unseen, might suddenly emerge into a position of danger." The finding that the driver had failed to keep a proper lookout was also supported by the fact that prior to the point of impact the plaintiff 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. 89 Finally I note that in Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 the majority in the High Court (Gummow, Kirby and Hayne JJ, Callinan and Heydon JJ dissenting) held that it was open to the Full Court of the Supreme Court of Western Australia to find that a driver who kept his eye on a person on the side of the road, did not slow down, and veered to the centre of the road as he thought that person would step onto the road, then ran over the plaintiff who was drunk and lying on the road, had failed to exercise reasonable care. Although the majority accepted that "the possibility that someone would be found lying on a roadway like Middleton Beach Rd at 4 am is properly to be described as remote" they said (at [12]): "… the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events". 90 In Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523 (at [47]) Hodgson JA, (Ipp JA and Gyles AJA agreeing) referred to Manley (at [12]): "47 In my opinion, in the second sentence of par [12] of the majority judgment, it is noteworthy that their Honours used the words 'may know' and not 'knows' or 'will know'. I do not suggest that, in their context, the words 'may know' mean merely 'might possibly know'. However, the words certainly do not mean 'knows' or 'will know'. In my opinion, the best understanding of the words can be expressed as 'is in a reasonable position to know'. The standard in respect of the position a driver should be in so as to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight."

Conclusion: liability 91 The second appellant, as the driver of a vehicle on a public road, was under a duty to other persons on and in the vicinity of the road on which he was driving to exercise reasonable skill and care with a view to avoiding the causing of injury to those persons. The question of whether he failed to exercise the requisite reasonable skill and care, and if so whether this caused injury to the respondent were questions of fact: Turkmani v Visvalingam [2009] NSWCA 211 (at [27]) Hodgson JA (Beazley, Hodgson and McColl JJA agreeing); Liverpool City Council v Estephan [2009] NSWCA 161 (at [42]) per Giles JA (McColl JA agreeing and Basten JA relevantly agreeing). It might be accepted that the line of authorities to which I (and the primary judge) have referred recognise that, as a matter of principle, "a person driving a motor vehicle on a public road should, as a reasonable person, appreciate that there is a significant risk of causing serious and perhaps catastrophic injury to other persons; and for that reason should, as a reasonable person, exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections": Turkmani (at [28]). 92 In considering what will constitute a discharge of a driver's obligation to take reasonable care, it is relevant to take into account the proposition enunciated in Derrick (at [13]) which finds reflection in s 5C(b) of the Civil Liability Act, that the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done. In Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 (at [540]), Young CJ in Eq expressed the somewhat different view that s 5C(b) deals "with the situation where there were two or more apparently equally viable alternatives and a choice was made which turned out not to be the best". 93 It is not necessary to consider the range of operation of s 5C(b), particularly in circumstances where it was not referred to either below or in submissions on appeal. It clearly had some bearing on the issue of breach, although I accept that the primary judge did not reach his conclusion on that topic by reference solely to the proposition that the second appellant could have driven more slowly but, rather, by reference to the circumstances enumerated (at [69] in particular) which in his view militated in favour of that conclusion. 94 The starting point, in my view, for considering the primary judge's finding that the second appellant was travelling at an excessive speed, is the facts that the second appellant was complying with the applicable speed limit and was keeping a proper lookout. As even the majority in this Court in Derrick v Cheung accepted (at [7]), "travelling within the designated speed limit and in conformity with the traffic flow is ordinarily reasonable. Indeed, to do otherwise would often create risks". 95 It is important to look at some matters of evidence to which the primary judge referred (at [151]) when dealing with the issue of contributory negligence. That evidence demonstrated that the bus was at least several hundred metres in front of the second appellant when he first saw it. It took him at least 30 seconds from that time until he reached it. During that time, he did not see any children on the kerb side where the bus was. As the primary judge found, he accepted that he knew that the purpose of the bus pulling over was to let children off and that that was the likely purpose for it being stationary at the kerb. In response to a question whether he was looking for children on the side of the road, he said he was "keeping my eyes open for everything". He agreed with the proposition that "in particular [he was] looking to see where these children [he] couldn't see were". 96 The second appellant also agreed with the proposition that if there was a particular situation that made it appear there may be something unexpected in front, the driver should "slow even further" than the prescribed speed limit. However he disagreed with the proposition that if one did not know "where the child or children who got off the bus are or are going to be, you should pass the bus at a speed which is slower than 40 kilometres an hour". In response to the proposition that not knowing where whoever it was who was getting off the bus was as he approached, he should have slowed down to something twenty or twenty-five kilometres an hour and not continued at forty kilometres per hour, the second appellant said he "wouldn't get past the bus if I went that slow". He disagreed with the proposition that, in the circumstances, he should have slowed his speed to twenty kilometres per hour. 97 There was considerable discussion in the course of argument on the appeal concerning the expert evidence adduced by the plaintiff from an engineer, Mr Grant Johnston. The primary judge only referred to that evidence twice, once, as I note below, apparently to reject it and (at [66]), despite its apparent earlier rejection to accept Mr Johnston's evidence that the accident was unavoidable at 40 km/h. 98 Mr Johnston undertook various calculations relating to expected reaction times and stopping times, having regard to assumptions he made concerning the circumstances of the accident. One of the critical assumptions upon which he based his conclusions was that the respondent had emerged from the kerb at a 45° angle. The primary judge, however, found (at [39]) that the respondent's angle of travel from the kerb was 30 degrees. The primary judge also concluded (at [39]) that the point of impact between the vehicle and the respondent was in the order of 2.7 metres from the front of the bus. He contrasted that finding with Mr Johnston's estimate of that distance as approximately 4.8 metres. When his attention was drawn to these matters, Mr D Campbell of Senior Counsel, who appeared with Mr I McGillicuddy for the respondent on appeal and at trial, effectively conceded that the Court could not take Mr Johnston's calculations into account for the purpose of determining either breach of duty or causation. Accordingly I have not referred to various of his submissions, made before this concession, concerning Mr Johnston's evidence about speeds at which the accident was avoidable. 99 Mr Campbell submitted that in the light of the perceived risk that impulsive children who had just alighted from the bus might run across the road, it was incumbent on the second appellant to be driving at a speed whereby he would be able to avoid the accident if a situation such as presented occurred. He pointed out, correctly, that many of the cases in which a conclusion that a driver was travelling at an excessive speed was made, there was no actual calculation of the speed at which the defendant ought to have been travelling: see Mye v Peters (1967) 68 SR (NSW) 298. He contended that in this case the second appellant should have slowed down until he could identify the children who had alighted from the bus and where they were, or seen what they were doing. He accepted that that might mean that, in order to discharge his obligation to exercise reasonable care, the second appellant would have to stop even in a line of traffic, or stop then nose in front of the bus in order to ensure no impulsive child was on the verge of speeding across the road. Another submission put forward by Mr Campbell was, in effect, that the second appellant had to travel at a speed (which he did not identify) which meant he would not be where the respondent was when he emerged from the front of the bus. The circularity of the reasoning inherent in the latter submission is such that, in my view, it need not be considered further. 100 Mr Campbell also submitted that the second appellant was not entitled to act in accordance with the applicable speed limit for the reasons set out in the primary judgment (at [69]). In my view, and with respect to the primary judge, the matters to which his Honour referred in that paragraph do not take the case outside the circumstances it might be inferred the legislature intended to cover by enacting cl 40 of the 1999 Regulation. In my view, the evidence did not disclose any additional factor which should have caused the second appellant to reduce his speed below the applicable speed limit, especially in light of the fact that he was keeping a proper lookout. He had a clear view of the bus from a distance of at least several hundred metres before he passed it, during which time he saw no children in or around it. He slowed his speed. He did not see any particular danger. He had a clear explanation, which the primary judge accepted (at [65]), for not seeing the respondent until "for all practical intents and purposes the same moment that the collision took place" - the fact that the respondent "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". 101 In my view this was not a case in which the possibility that a child might emerge from the front of the bus, meant that the second appellant had to slow down to a speed where he could either stop in any conceivable circumstances. Such a finding would impose absolute or strict liability on drivers: Rowes (at [90]) per Cole JA; Knight (at [66]) per Heydon JA. It would supplant the obligation to take reasonable care with the impermissible obligation of ensuring the respondent's safety: cf s 5B, Civil Liability Act; Waverley Council v Ferreira (at [11]) per Ipp JA (Spigelman CJ and Tobias JA agreeing); Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot [2009] NSWCA 247 (at [23]) per Sackville AJA (Ipp and Basten JJA agreeing). It should also be recalled that to find breach for failing to take precautions against a risk of harm, not only must the risk be foreseeable and not insignificant, it must also be such as, in the circumstances, a reasonable person in the person's position would have taken those precautions: s 5B(1); see also Lieng (above). 102 Although the appellants do not challenge his Honour's finding that Kingscliff Street was a "quiet residential" street, there was, as I have said uncontested evidence that there was traffic flow in both directions of travel. Although it was not the busy sort of road encountered in Stocks, Derrick, Knight or Rowes, it was nevertheless a thoroughfare along which the second appellant was driving in mid-afternoon on a weekday. 103 It is not reasonable, in my view, to require the second appellant to slow down to whatever speed would have avoided the accident. Leaving aside the high level of abstraction at which such a conclusion is expressed and its failure to address the particular risk, it is, in my view, the product of impermissible hindsight reasoning. The s 5B/Shirt inquiry requires the Court to look forward to identify what a reasonable person would have done in the circumstances, not backward to identify what would have avoided the injury: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 (at [57]) per Gummow and Hayne JJ; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126]) per Hayne J. 104 Tobin, which the primary judge clearly regarded as a close analogy to the present case, was, in my view, a very different case. The driver was driving on a Sunday in a residential area, she saw a child on the road and she failed to keep a proper lookout even though alerted to the possibility of children coming onto the road. 105 In my view the primary judge erred in concluding that the second appellant was driving at an excessive speed in the circumstances. 106 I would allow the first, second and third grounds of appeal. Causation 107 The principles embodied in s 5D of the Civil Liability Act accord with the common law concept of causation: Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 (at [59]) per McDougall J (Ipp and Young JJA agreeing). In applying the common law principles in the context of a motor vehicle accident, the relevant test for causation is that stated by McHugh J in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [23], namely "the breach of duty by the defendant caused the particular damage that the plaintiff suffered…[and] [t]he existence of the relevant causal connection is determined according to common sense ideas": see Flounders v Millar [2007] NSWCA 238 (at [91]) per Hoeben J; (at [38]) per Ipp JA (Handley JA agreeing with both judgments).

108 In accordance with s 5D(1)(a) of the Civil Liability Act, it was necessary that his Honour identify the negligence which was "a necessary condition of the occurrence of the harm"; see also Fogarty v Creasey [2002] NSWCA 318 (at [33]) per Heydon JA (Meagher and Beazley JJA agreeing). The respondent bore the burden of proving on the balance of probabilities any facts relevant to that issue: s 5E.

109 Turning to the primary judgment, I would observe that, to the extent his Honour appeared to address this issue, his reasons were found in his conclusion (at [70]), that if the second appellant had been driving more slowly, he could have stopped in time or avoided the collision. It is difficult, with respect, in the absence of any finding as to the speed at which the second appellant should have been driving, to sustain that conclusion.

110 In my view his Honour did not identify the negligence which was "a necessary condition of the occurrence of the harm" and the respondent did not otherwise establish that any conduct on the second appellant's part caused the particular damage that the respondent suffered. Rather, as a matter of common sense, it was the respondent's dash across the road which caused the collision.

111 I would allow the fourth and fifth grounds of appeal.

Contributory negligence 112 Appellate courts considering whether to intervene on questions of apportionment for contributory negligence are bound by the constraints identified in Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492. 113 Since the degree of liability due to a plaintiff's contributory negligence is 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 all of which involve an individual choice or discretion as to which there may well be differences of opinion by different minds (such a finding, if made by a judge, is not lightly reviewed: Mousa v Marsh [2001] NSWCA 317 (at [12]) per Sheller JA (with whom Powell and Heydon JJA agreed). Accordingly, to set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited [2002] NSWCA 461; (2001) 53 NSWLR 626 (at [60]) per Stein JA with whom Davies AJA agreed (at [189]); see also (at [172]) Fitzgerald AJA. 114 The appellants submitted that the primary judge's reduction in damages was not just and equitable because, on the assumed correctness for these purposes of his finding on breach, the only omission by the second appellant was a failure to further adjust his speed below the limit fixed by parliament; whereas the actions of the respondent went beyond what the primary judge described as "no more than a momentary lapse in concentration" and amounted to a deliberate course of action embarked upon him contrary to all he had been taught. 115 There is some force in the appellants' submission. However the question of contributory negligence also had to be considered by reference to "standard of care required of the person who suffered harm is that of a reasonable person in the position of that person": s 5R. The primary judge properly paid careful consideration to the issues concerning the impulsive behaviour of children, even those, such as the respondent who were well trained in road rules. In my view the appellants' submissions do not identify any error which would warrant appellate interference. 116 I would reject ground six.

Orders 117 Although the respondent has successfully resisted one ground of appeal, the substantial part of the appeal addressed those grounds on which he was unsuccessful. In my view his success on the sixth ground was not such as would warrant departure from the general rule that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) 42.1. 118 I would make the following orders:

2. Notice of Appeal in the Red Book to stand as the Notice of Appeal.

4. Set aside order 5 made by Harrison J on 29 April 2008.

5. Set aside the verdicts, judgments and orders made by Harrison J on 29 April 2008 against the appellants.

Respondent to pay the costs of appeal and the appellants' costs of the hearing at first instance. 119 MACFARLAN JA: I agree with McColl JA.

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