Primary judgment
7The primary judge conducted a view and described the scene of the accident as follows:
"41. Stanley Avenue is a narrow street. It measured 7.9 m in width from kerb to kerb. If vehicles are parked on the bitumen surface it is difficult for vehicles travelling opposite each other to pass at the same time. On the southern side of Stanley Avenue the houses are slightly below road level and some driveways were angled upwards to the level of Stanley Avenue. These driveways were difficult to see, particularly if vehicles were parked on the bitumen. As one approached Albermarle Street from east to west there was a restricted line of vision into Albermarle Street due to foliage and a fence at number 84 Stanley Avenue."
42. A view of the accident scene was conducted on the morning of the first hearing day. The view showed quite clearly that both streets were narrow and care had to be taken particularly when passing motor vehicles that were parked on the street. It was not easy to see driveways that were angled below the level of Stanley Avenue leading to the houses. There was a restricted view of anyone coming out of Albermarle Street if one was approaching travelling west in Stanley Avenue due to a fence and foliage. Albermarle Street is a steep downhill slope that terminates at Stanley Avenue. Although there was no evidence from the plaintiff as to why he was riding his scooter down Albermarle Street as he did, just viewing the street and its slope produced an understanding why that street might have led to youngsters attempting daredevil activity.
43. Because Stanley Street ran almost directly east west, a car travelling west would be travelling into the sun on a slight uphill grade. ..."
8His Honour (at [11]) identified the risk of harm against which it was asserted the appellant should have taken precautions (s 5B(1) Civil Liability Act 2002 (NSW)) as being "that as the defendant approached a terminating street on his right a vehicle ... might appear from that street intending to enter Stanley Avenue, and that a collision might occur even though the defendant had the right of way". The underlying premise of his Honour's statement was that it was also foreseeable in such circumstances that a person such as the respondent might suffer personal injury as defined: s 5B(1)(a) Civil Liability Act.
9The primary judge found (at [12]) (and the appellant effectively conceded) that there was a not insignificant risk that a vehicle or person might enter Stanley Avenue from Albermarle Street as the appellant approached the intersection and that injury could be caused if a collision occurred: s 5B(1)(b), Civil Liability Act. Accordingly, he concluded that the appellant had a duty to take reasonable care to avoid that risk by travelling at a speed that was not excessive in the circumstances and by keeping a proper lookout for such persons or vehicles entering Stanley Avenue from Albermarle Street. There is no challenge to this finding.
10The primary judge (at [15]) identified the first question to be determined on the issue of breach of duty as whether immediately before the accident, the appellant was travelling at a speed which was reasonable in the circumstances.
11There was a controversy about the speed at which the appellant was travelling. The speed the defendant was travelling before impact was important both for reasons going to breach of duty and to causation, because it was relevant to another controversy, namely, the line of sight between the appellant's vehicle and the respondent prior to the accident: primary judgment (at [35]).
12The appellant had given two versions of the accident prior to trial, one to the Police who attended the scene and another to his third-party insurer when he reported the accident.
13In his statement to the Police who attended the accident, the appellant said (primary judgment (at [26])):
"... I was going a fraction over 50 km per hour ... All of a sudden a kid on a scooter was directly in front of me. He was within 5m of me. He was facing towards the eastern** kerb but angled slightly towards me. I jumped on the brakes as hard as I could. I think the kid hit the bonnet of my car headfirst. There was a cloud of smoke. ...."
** The primary judge concluded (at [23]) that the appellant "was there referring to the southern kerb of Stanley Avenue." This was correct, but, in fact, was what was written rather indecipherably in the Police notebook. His Honour incorrectly interpreted the word "southern" in the Police notebook as "eastern".
14A diagram of the accident in the Police notebook showed the respondent's scooter angled towards the kerb and the point of impact with the appellant's vehicle about a third of the distance back on the left side of the scooter and in about the middle of the car's bonnet. It did not show a line of travel for the respondent prior to the impact.
15In the appellant's report to his third-party insurer dated 21 January 2007, he gave the following account of the accident (primary judgment (at [27])):
" ...'Driving along road, 50 km speed zone, young boy came out of side road riding a scooter. In line with the side road the boy turned to face my direction and hit the left side front bumper of my car... Under the question 'speed at which the insured driver was travelling prior to impact' the defendant recorded 50 km per hour."
16The report included a diagrammatic representation purporting to depict the accident. It showed a line of travel for the respondent from the wrong (i.e. western) side of Albermarle Street into Stanley Avenue and a collision a short distance to the east of the intersection of the two streets at the mid-point of the front of the car, with the respondent's scooter angled in a south-easterly direction towards the kerb.
17In a COPS report prepared on the day of the accident, the Constable who took the appellant's statement drew a diagram showing the respondent's line of travel as being more from the east side of Albermarle Street into Stanley Avenue, with the respondent's scooter angled towards the southern kerb of that street. A COPS report apparently dated 30 October 2006 noted a skid mark for the appellant's vehicle of about 18 metres from the point of impact.
18The report completed by the ambulance officers who attended the scene recorded that the respondent had been struck by a "vehicle doing 50 - 60 KPH"
19The speed limit in Stanley Avenue was 50 km per hour. However, the respondent submitted that his Honour should find that a reasonable speed for Stanley Avenue at that time of day was 40 kilometres per hour: primary judgment (at [14]).
20The primary judge rejected the appellant's evidence that he was travelling at "50 km per hour or 52 km per hour as he drove along Stanley Avenue", saying:
"25. The defendant disputed he was travelling in excess of the speed limit. He was an unconvincing, self-serving witness as to his speed and the observations he made of the plaintiff on the day of the accident. I find his evidence unreliable. I find that he reconstructed the speed he was going to avoid responsibility. He also changed his version of the observations he made of the plaintiff as he approached Albermarle Street. He changed from the version he had given to the police at the scene by giving a more expansive version to support his case that the accident was inevitable. Ultimately, he had to substantially recant this amended version."
21The primary judge analysed the expert evidence on the issue of speed. Mr Joy, a traffic reconstruction engineer qualified by the respondent, estimated the appellant was driving somewhere in the range of 59- 65 km per hour: primary judgment (at [31]). Mr Keramidas, who was qualified by the appellant, estimated the appellant was driving somewhere in the range of 55 and 60 km per hour: primary judgment (at [34]).
22The primary judge concluded (at [36]) that "the weight of the evidence indicates that, more likely than not, immediately before the collision the defendant was travelling in excess of the 50km per hour limit and was probably travelling at approximately 60kph."
23The primary judge then considered what speed was reasonable for traffic proceeding west in Stanley Avenue at about 3pm on a Monday. There was a public school a short distance from Stanley Avenue. It was not in dispute that, as a local, Ms Purtell, testified that on a school day school children could be walking or riding bicycles, scooters or skateboards along Stanley Avenue. His Honour took into account the narrowness of Stanley Avenue, the fact that driveways were difficult to see because they were angled upwards and that there was restricted vision into Albermarle Street because of foliage and fencing.
24His Honour found:
"45. Because of the width of the road, the restricted view of Albermarle Street when travelling west, the likelihood of children being present in Stanley Avenue, the effect on traffic flow of parked vehicles, together with the evidence of Mr Hutton that he was driving at 40 km per hour, and Ms Purtell that she would regularly drive at 20 to 30 km per hour, I am of the opinion that a speed in excess of 40 km per hour would have been excessive in the circumstances that existed on the day of the accident.
46. In my opinion, a combination of all these factors required a driver at about 3pm on a school day to drive in Stanley Avenue at no more than 40km per hour, and driving at a greater speed was excessive in the circumstances and a breach of duty of care."
25The primary judge then considered the issue of keeping a proper lookout. That issue turned on the probable distance between the respondent and the appellant when the latter should have first seen him. His Honour said that determining that issue was difficult "because the speed of the plaintiff's scooter could not be determined, as it entered Stanley Avenue and immediately before impact." He opined (at [47]) that it was "not likely that the plaintiff was going very fast because Mr Fraser first saw him from 88 metres away and the defendant was passing Mr Fraser at that time".
26The reference to Mr Fraser was to a statement from a witness whose house was in Stanley Avenue about 85 metres from its intersection with Albermarle Street. Immediately before the accident:
"49. ... [He] was standing outside ... his then place of residence. He had just got out of his motor vehicle and he saw the plaintiff and then the defendant. He said he 'caught a glimpse of a young fellow coming out of the side street. He was riding a scooter I think. At the same time I saw the car coming past me heading west on Stanley Avenue.'"
Mr Fraser was deceased by the time of trial and, accordingly, a statement he had given was tendered. Neither side took issue with the fact that he could not be cross-examined.
27The primary judge also referred (at [47]) to evidence from a Mr Hutton, a witness who was driving east in Stanley Avenue immediately prior to the accident at 40 km per hour, who said that he saw the respondent in Albermarle Street when he was 50 metres away from the intersection. There was no suggestion he had slowed down, or needed to stop, to avoid the respondent.
28The primary judge concluded (at [49]) from Mr Fraser's evidence "that at that time the defendant was over 70 metres away from the eastern kerb of Albermarle Street the plaintiff was already travelling out of Albermarle Street into Stanley Avenue." He referred (at [50]) to Mr Joy's estimate that Mr Fraser's line of sight from his front lawn to the intersection was 88 metres. He accepted (at [51]) that Mr Fraser had a different angle of vision to the intersection from his front lawn than the appellant sitting in the driver's seat closer to the centre of Stanley Avenue, and who was "at least four or five metres north of Mr Fraser's position".
29Mr Joy estimated that, taking into account the reaction time, he assumed for a person driving at 50 kilometres per hour, the appellant should have been able to stop in 38 metres from where he first observed the respondent: primary judgment (at [53]).
30His Honour accepted (at [54]) Mr Joy's evidence that the appellant would have been able to see the respondent emerge from Albermarle Street when he was at least 45 metres east of the eastern kerb of that street, and possibly at a greater distance having regard to Mr Fraser's observations.
31The primary judge found (at [55]) that:
" ... if the defendant had been travelling at 50 km per hour he would have been able to stop before he reached the plaintiff at the point of impact (about 10 metres east of the eastern kerb of Albermarle Street). On the calculations of Mr Joy, the defendant would have been able to stop in 35 to 38 metres had he kept a proper lookout. The defendant's failure to see the plaintiff until the plaintiff was five metres in front of him was, on Mr Joy's evidence about line of sight, a breach of duty of care by failing to keep a proper lookout."
32The primary judge also considered (at [56]), the appellant's evidence at trial (which differed from his statement to the Police) to the effect that "he had seen a flash of something before he saw the plaintiff five metres from where he was seated". His Honour found that the appellant's contemporaneous statement to the Police given immediately after the accident "stated his true observations on the day [and was] more likely to be his real recollection" and that his evidence at trial was a reconstructed invention which he rejected. The appellant does not challenge this conclusion.
33However, in the event that that conclusion was erroneous and the appellant had seen the respondent in Albermarle Street before he "came in front of him", the primary judge observed (at [57]) that:
"... on his own admission he took no action to reduce his speed or identify what the flash was doing and therefore failed to take an opportunity to brake to avoid a collision earlier than he did."
34His Honour recorded (at [59]) the experts' general agreement that the point of impact was "some metres, 10 at most, east of the eastern kerb of Albermarle Street".
35Accordingly, his Honour concluded (at [58]) that on either version the appellant had failed to keep a proper lookout and (at [60]) breached the duty of care he owed the plaintiff by driving at a speed which was excessive in the circumstances and by failing to keep a proper lookout.
36The primary judge then turned to the issue of causation. He recognised (at [62]) that that required him to determine whether the appellant's negligence "was a necessary condition of the occurrence of the harm" and that the respondent bore the burden of proving any fact relevant to the issue of causation on the balance of probabilities: s 5D, s 5E Civil Liability Act.
37His Honour recorded (at [64]) the appellant's submission that if breach of duty was determined in favour of the respondent on either excessive speed or failure to keep a proper lookout, the breach was not causative of the respondent's injury, but, rather, that the accident was inevitable. That submission was based on the argument that:
"64 ... [a]fter entering Stanley Avenue the plaintiff went in an arc in a partly easterly direction which meant that he was travelling towards the defendant's vehicle and would have continued east down Stanley Avenue. It was submitted that even if the defendant had been travelling at, say, 40 km per hour or had been keeping a proper lookout, the probabilities were that the accident would have occurred in any event because of the direction of travel of the plaintiff."
38This submission, as his Honour recognised, required him to consider the respondent's direction of travel immediately before impact. Mr Hutton said that the respondent came from the wrong side of Albermarle Street into Stanley Avenue in an arc. Mr Hutton also said that the respondent emerged from Albermarle Street "in a manner that suggested there would be a head-on collision between the scooter and the defendant's motor vehicle". The respondent argued that the court should not accept that all Mr Hutton's evidence as to his observations was accurate.
39The primary judge accepted this submission. He found (at [70]) that Mr Hutton's evidence was neither accurate nor reliable and (at [76]) that it was a reconstruction.
40First, his Honour observed (at [72]) that Mr Hutton was giving his evidence from memory almost five years after the event and that, while he said he could recall speed and distances, had made no comment either about the speed of the scooter or the direction it was facing at the point of impact when he gave the respondent's solicitor a statement in April 2010. Further, he had said in the statement that he did not see the appellant apply the brakes, but gave different evidence at trial.
41Secondly, his Honour said (at [73]) he formed the distinct impression that Mr Hutton "had reconstructed his recollection of the events of the day with a bias in favour of the defendant and he was not giving evidence from his direct recollection." In his Honour's view Mr Hutton's recollection of the direction and distance of travel of the respondent after his scooter entered Stanley Avenue "was contrary to objective facts and the observations made by the defendant in the short time ... he observed the plaintiff immediately before impact." His Honour listed many aspects of Mr Hutton's evidence which explained his reasons for these conclusions. It is unnecessary to reproduce those examples.
42The primary judge (at [94]) rejected as unreliable Mr Hutton's evidence that the respondent's scooter was almost parallel with the Stanley Avenue kerb prior to the impact. He found that:
"...[It was] more likely than not that the plaintiff was angled more towards the south than the east when the collision occurred and therefore, if the defendant had been travelling at 40 km per hour and had kept a proper lookout, then the accident was not inevitable. The probabilities are that before the plaintiff would have reached the point where the defendant should have stopped, the plaintiff would have either gone into a gutter, onto the footpath area or into a driveway."
43The primary judge relied upon other evidence which he said reinforced this conclusion. This included (see [97]) first, the diagram in the report the appellant submitted to his insurer showing "the path of travel of the scooter as substantially south-west heading for the nearside front mudguard of [the appellant's] car", rather than parallel to the southern kerb. Secondly, his Honour referred (at [97]) to the fact that the collision caused damage to the left hand front mudguard and the centre of the bonnet of the appellant's car. Thirdly, his Honour referred (at [98]) to the police COPS diagram showing the path of the scooter as "predominantly going south before the collision".
44Further, in his evidence-in-chef, the appellant said that at the point of impact the respondent "was heading to the left of my car". The primary judge (at [99]) regarded that answer as being consistent with the diagrams to which he had referred and inconsistent with a finding that the respondent would have continued east and hit the appellant's car "no matter what speed the defendant was travelling or if he had not been keeping a proper lookout."
45The primary judge rejected (at [101]) the appellant's evidence that the impact was "slightly more head-on than side [on]" on the basis that the scooter was only two metres away from the front bumper bar immediately before collision. His Honour remarked that if the appellant had "really seen the precise direction of travel of [the respondent] he would have told the police and his diagram in [his report to his insurer] would have been different."
46The primary judge also referred (at [102]) to the appellant's evidence that, at the time of impact, his car was one or two feet from the centre of the road, that the respondent was two or three metres on the incorrect side of the road and his car was one and a half metres from the gutter. Having regard to this estimate, the primary judge concluded "the plaintiff had travelled more in a southerly direction than east and had almost reached the southern kerb at the time of the accident."
47The primary judge summarised his findings (at [103]) as follows:
"(a) The defendant was driving west in Stanley Avenue at about 3pm on 18 September 2006.
(b) Immediately before impact with the plaintiff's scooter he was travelling in excess of the 50km per hour speed limit applicable to that road.
(c) I find he was travelling at 60km per hour and this speed was excessive in the circumstances and a breach of duty.
(d) I find that to drive in excess of 40km per hour at that time of day on the day of the accident was a breach of duty.
(e) I find that by not seeing the plaintiff until the plaintiff was five metres in front of him the defendant failed to keep a proper lookout.
(f) I find that the defendant breached the duty of care that he owed the plaintiff by travelling at an excessive speed and failing to keep a proper lookout.
(g) On causation I find that but for the breaches of duty the impact between the plaintiff and the defendant would not have occurred. The accident was not inevitable. There is no policy reason to deny the plaintiff recovery.
(h) As to contributory negligence, I find that the plaintiff was too young for a finding that his actions caused or contributed to his injuries. There was no evidence as to how he came to be riding his scooter down Albermarle Street as he did, or what his view was of vehicles in Stanley Avenue."
48There is no challenge to his Honour's finding on contributory negligence.