Torts - Negligence - Road accident cases - Actions for negligence - Apportionment of damages - Pedestrian accidents - Pedestrian ran into side of vehicle.

Civil Liability Act 2002 (Tas), ss11, 12, 13 and 14.

Knight v Maclean [2002] NSWCA 314, referred to.

Judgment Number: [2011] TASSC 45

JAYDEN FLOYD RAYNER an infant by his Litigation Guardian

1 Jayden Rayner, suffered personal injuries when he ran into the side of a passing vehicle driven by Rachel Cochrane. The issue before me is whether she is liable for his injuries, and, if so, whether and to what extent he was contributorily negligent.

2 The accident occurred at about 3.50pm on Thursday, 3 July 2008 about mid-way along a section of Tiger Head Road, Dodges Ferry, between its intersection with Lourah Street and the cul-de-sac at its western end. In the course of the hearing, this section of the road was dealt with as if it ran from east to west.

3 The following is a plan of the area in the immediate vicinity of the accident. An endeavour has been made to draw the plan to scale based on dimensions agreed to by the parties. There was no agreement between the parties on the point of impact or the position of the defendant's vehicle at that time. Their position on the plan reflects my findings in relation to these matters.

4 At the time of the accident Jayden was 12 years of age. He ran from the entrance of the driveway to 39 Tiger Head Road onto that road. His intended destination was his home at 37 Tiger Head Road. From this, and his and the defendant's failure to see one another any earlier than they did, I conclude that he was on the eastern side of the driveway entrance, near the boundary fence, as he left the driveway. I also infer that he was bearing a little to his left as he ran out. I conclude that the point of impact was in about the centre of the travelled portion of the road, a little east of the projected line of the boundary fence between 39 and 37 Tiger Head Road.

5 Shortly prior to the collision, the defendant had collected her three children from a bus-stop in Carlton Beach Road, they having returned from school in Richmond. She was driving west along Tiger Head Road to her home near the end of the road. Her vehicle was a white, four-door, seven seater, Kia, Carnival hatch, 4.925 metres long and 1.9 metres wide.

6 She was travelling at no more than 25 kilometres per hour, and probably less bearing in mind the short distance that she and Jayden say her vehicle travelled following the impact. One reason why the defendant was driving relatively slowly is that she had just washed her car and was concerned about getting it dusty. That portion of the road was gravel. The speed limit was 50 kilometres per hour. Her vehicle was on the left-hand side of the road, its driver's side being close to the centre of the road.

7 Jayden was returning home from Sorell High School. At the time he was the only student of that school living in Tiger Head Road. He had travelled on a bus from Sorell to Dodges Ferry where he alighted at a stop about one kilometre from his home. He then walked to the end of Layete Street, which adjoins the rear boundary of 39 Tiger Head Road. He crossed that property in order to exit it at its Tiger Head Road entrance and go to his home at number 37. It was common for Jayden to take this route when walking home and he had the authority of the owner of number 39 to do so.

8 The boundary of number 37 on Tiger Head Road was fenced, as was its shared boundary with number 39. These fences were taller than Jayden and indeed most people. Accordingly, the defendant could not see Jayden moving down the driveway towards the entrance of number 39 as she drove towards that entrance.

9 Following the accident, Jayden was taken to the Royal Hobart Hospital. Hospital records record that on the evening of the accident Jayden said that at the time of it he was "running fast" and ran into the side of the car. Eight days later Jayden participated in an audio recorded interview with an accident investigator. His mother was present. In the course of that interview he said he was "jogging and running" as he crossed the yard of number 39, and when he came out of the driveway there was a car in front of him, so he placed his hands on its driver's side door to stop himself. This evidence, to the effect that Jayden was running as he came out of the driveway, is consistent with that of the defendant, and I accept it. Insofar as Jayden gave evidence to the contrary in the course of the hearing, I reject it.

10 I find that the defendant first saw Jayden out of the corner of her eye, to her right, as she approached the entrance to number 39. In her answers to interrogatories, she said that Jayden was less than half a metre from her vehicle when she first saw him. In my view, Jayden's failure to see or hear the defendant's vehicle until it was in front of him can in part be attributed to the speed at which he was running. Similarly, in my view, the defendant's failure to see Jayden until he was, by her estimate, less than half a metre from her vehicle, can in part be attributed to the speed at which he was running.

11 Jayden ran into the side of the defendant's vehicle just to the rear of its rear door handle. His left ankle was fractured. I infer that this was caused by his left foot coming into contact with the driver's side rear wheel.

12 I find that the defendant's immediate reaction upon seeing Jayden was to brake and swerve to her left, and that her vehicle came to a halt a short distance from the point of impact on the left-hand side of the road, opposite the property at number 39. She (photograph P9) and Jayden (photograph P2(a)) marked much the same place as the position where her vehicle came to a halt.

13 It is beyond question that the driver of a motor vehicle on a road owes a duty of care to persons on or near that road, and this includes pedestrians. The Civil Liability Act 2002, ("the Act") Pt 6, applies to a breach of this duty. There is no disagreement between counsel about the applicable law. Subject to minor alterations, it was summarised as follows by counsel for the defendant:

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The exercise of reasonable care does not require a driver to drive in such a way as to be in a position at all times to anticipate anything that a pedestrian might do, or be in a position to reduce the speed of the vehicle to a level which will avoid any risk of a collision; Wensink v Marshall [2010] WASCA 117 at [54], citing Knight v Maclean [2002] NSWCA 314 at [68]; and also Mobbs v Kain [2009] NSWCA 301 at [4] and [101].

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The standard of reasonable care required of drivers is a high standard (because cars are dangerous) but it is not a standard measured by success or perfection assessed with the wisdom of hindsight; Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523 at [47].

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The question to be addressed is not whether different conduct on the part of those involved would have produced a different result, but whether the plaintiff has proved the defendant has not acted in accordance with reasonable care; Hamshere v Favelle [2009] NSWCA 4 at [21] referring to Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13]; and also see Dennis v Keep [2002] NSWCA 227 at [18].

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It is relevant to take into account s12 of the Act which provides 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; Mobbs v Kain at [92].

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The liability of a driver is not absolute or strict such as to require a driver (in the absence of a specific perceivable danger) to slow down to a speed where he could stop in any conceivable circumstances and avoid an accident. This would supplant the obligation to take reasonable care; the Act, s11, Mobbs v Kain at [101] and [103] and Knight v Maclean at [66].

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It is only where the driver knows, or ought reasonably to know, that children may be on or near the road that the exercise of reasonable care may call for greater than usual caution in light of the propensity of children to act in unexpected ways; Wensink v Marshall at [53], Knight v Maclean at [64], South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 at [60] and Tobin v Worland [2005] NSWCA 188 at [43].

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The presence of the background risk of children entering suburban roads unexpectedly can satisfy the test of reasonable foreseeability, but is not at a level as to require a driver to take particular or special precautions such as to drive at a speed so as to enable the driver to see up obstructed intersecting roads so as to be able to take evasive action in the event of a child entering from it; Wensink v Marshall at [26] - [27].

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A driver is entitled to drive with his eyes ahead until noticing something to the left or right which calls for greater concentration to the left or right; Knight v Maclean at [65] - [66]. A driver is not required to drive looking for obscured hazards; Wensink v Marshall at [55] - [56].

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A plaintiff who collides with the side of a vehicle may have difficulty proving that a breach of duty to drive at a particular speed caused the injury (this proposition can be extended to other breaches such as failing to keep to the left, swerve, keep a lookout, etc). In this case the relevant question is whether the breach of duty was a necessary element of the occurrence of the harm? The plaintiff bears the onus of proof of any facts relevant to that issue. Section 13 of the Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability. Factual causation is to be determined by the "but for" test; the Act, ss13 and 14, Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [45] and Mobbs v Kain at [8] - [10] and [107] - [110]

14 In essence, the particulars of negligence detailed in the statement of claim allege that the defendant was negligent because: (a), she drove at an excessive speed; (b) and (g), she failed to keep a proper lookout; (c), (d), (e) and (f), she failed to drive on the left-hand side of the road; and (h) and (i), she failed to stop or manoeuvre her vehicle so as to avoid the collision.

15 The following incidental matters are pertinent. At the time of the accident the weather was fine and visibility was good. The gravel road was dry. It did not have made footpaths. The distance between the boundary of residences fronting on the road and the travelled portion of the road was comparatively short, 1.8 metres in front of number 37. The travelled portion of the road was not wide, 4.8 metres. Foliage encroached on the verge of the road at some points. To avoid oncoming vehicles the defendant found it necessary to pull over to the side and slow right down. She said it was not a good road and was horrible. The relevant portion of the road was straight and the defendant had an unobstructed view along it for more than a sufficient distance before she reached the entrance to number 39. The defendant, having lived near the western end of the road since January 2007, had driven that section of road daily for about 18 months. She was aware that children lived in the residence at number 37 and in other residences along the road; that school children may have been returning to residences on the road at about the time of the accident; that children often played on the road or in its vicinity; and that children and others often walked along the road. At the time of the accident only the defendant and Jayden were on or in the immediate vicinity of the portion of the road where the accident occurred. Nothing occurred in the short period before the defendant drove past the entrance to number 39 to forewarn her that anyone might be about to run from that entrance.

16 Consistent with my findings as to the point of impact and the inference that Jayden was bearing a little left as he ran from the driveway, he could only have been seen by the defendant as he travelled a distance of about 4.5 metres. If he was running at 15 kilometres per hour it would have taken him 1.08 seconds to travel 4.5 metres. If he was jogging slowly at half that speed this would have taken him 2.16 seconds. I conclude that the defendant had less than two seconds within which to see Jayden, and this was insufficient time for her to have done anything more than she did, that is, see him and react by swerving to the left and braking. Again, in the time available, I doubt that what she did had any significant effect on the speed or direction of her vehicle before the impact.

17 With regard to the defendant's liability, the primary position advanced by counsel for Jayden is that the defendant failed to keep a proper lookout. Interwoven with counsel's submissions on this failure is a contention that at the time of impact Jayden was walking. Whilst this contention is supported by Jayden's evidence on the hearing, as explained in par[9] of these reasons, I reject this evidence from him as: it is contrary to what he said following the accident at the Royal Hobart Hospital; contrary to what he said eight days later to an accident investigator; and contrary to the defendant's evidence. In her answers to interrogatories, the defendant said that Jayden was less than half a metre from her vehicle when she first saw him. Insofar as this means that she did not see him as early as she could have, I am not persuaded that any inadequacy in her lookout played a relevant role in this accident. Even if she had seen him immediately he emerged from the driveway, I am not satisfied that she would have had sufficient time to take and effect evasive action that would have avoided the impact or markedly reduced its consequences.

18 Of relevance to what I have just said, and the contention that the defendant was driving at an excessive speed, is the following passage from Knight v Maclean (supra). At pars[67] - [69] Heydon JA, agreed with by Meagher JA and Young CJ in Equity, said:

"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 ...

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. ..."

19 Whilst the above passage relates to a substantial highway, the thrust of what is said also applies to a minor road in circumstances where; there are no pedestrians in sight; nothing has occurred to indicate that a person might run onto the road from a concealed position; and the speed of the vehicle is very modest. The defendant's speed was roughly half the speed limit of 40 kilometres per hour that commonly applies in a school zone. For her to have had a realistic prospect of avoiding driving into a person who ran onto the road, as Jayden did (but in front of her vehicle not into its side), she would have had to be driving at an extremely slow speed. Even at an extremely slow speed there was little that she could have done to stop a person from running into the side of her vehicle. See Mobbs v Kain (supra) at [8] - [9]. I am not persuaded that the defendant drove at an excessive speed.

20 The particulars of negligence include allegations that the defendant: failed to drive her vehicle as far as possible on the left-hand side of the road or as near as practicable to the far left side of the road; failed to drive her vehicle to the left of the centre of the road; and drove it over the imaginary centre line of the road. I am not satisfied that her vehicle was over the imaginary centre line of the road when the accident occurred. Even if it had been in the centre of the road, I doubt that I would have found this to be negligent. Her view ahead was unobstructed. Amongst the risks that she had to keep in mind was the possibility of a vehicle or person unexpectedly entering the road from either the left or the right. In these circumstances it could well have been reasonable for her to have driven in the centre of the road. For this reason, I reject the allegation that she was negligent as she was not driving as near as practicable or possible to the left-hand side of the road. Had she done so this would have reduced her chance of responding appropriately to an unexpected entrant onto the road from her left. As it was, she was driving within less than 50 centimetres of the left-hand side of the road. From Jayden's stand point it was reasonable for her to do so. For the reasons I have already given, I am not persuaded that the defendant failed to brake or swerve in an endeavour to avoid the impact. She did so as soon as she saw Jayden. However, her efforts in this regard were of little, if any, effect in the time available to her.

21 I am not persuaded that liability has been established against the defendant. The action against her is dismissed.