Worland v Tobin

1 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20224/00 Zachary Lucas Worland by his tutor John Worland v Teresa Mary Tobin

JUDGMENT 1 On 1 December 1991 the plaintiff sustained personal injuries when, whilst crossing Adjin Street Wagga Wagga, he was struck by a car driven by the defendant. The plaintiff was then aged two years and two months (date of birth: 1 October 1989).

2 The plaintiff has brought these proceedings by his tutor to recover damages for such injuries. On 22 September 2003 an order was made pursuant to the Supreme Court Rules 1970, Pt 31 r2 that liability be determined as a separate issue. The order was made with the consent of the parties. This is the determination of that issue.

3 Adjin Street is a residential street in Wagga Wagga. At the time of the accident the relevant section of the street was straight and level and ran north/south, it had a bitumen surface and was kerbed and guttered with the distance from kerb to kerb measuring 8.95 metres. There were no lane markings. The speed limit was 60 kilometres per hour.

4 The plaintiff and his sister, Courtney, who was then approximately four and a half years old (date of birth: 10 May 1987) had stayed overnight at number 36 Adjin Street which was situated on the western side of the street. On the morning of 1 December 1991 the plaintiff's parents came to pick up the children from that address. They parked their vehicle, a 1983 Holden Commodore sedan, some metres south of the driveway of number 31 on the eastern side of Adjin Street, facing south. A utility was parked on the western side of the street. The vehicles were parked virtually opposite each other, the front of the utility being a little north of the rear of the Holden.

5 The parents entered the house and remained there for some time. At about 12.45 pm the plaintiff and Courtney left number 36 and crossed Adjin Street to the Holden. The weather conditions were dry and sunny. The children were unaccompanied. The Holden was locked. The children did not have the keys to it.

6 Meanwhile the defendant (date of birth: 29 November 1967) had reversed her husband's car, a 1985 Magna sedan, out of the driveway of her home at number 53 Adjin Street and was driving north along that street. She was alone in the car. The plaintiff ran out from behind the rear of the Holden and was struck by the Magna. He impacted the front of that vehicle about 0.4 metres from the nearside.

7 The evidence thus far recited was either the subject of express agreement or was not in dispute.

8 There was also no dispute as to the width of the Holden (1.72 metres), the width of the Magna (1.76 metres), the height of the boot of the Holden from the ground at the position of the rear light (90 centimetres) or the height of the bonnet of the Magna from the ground (72 centimetres).

9 The defendant gave evidence her vehicle speed was about thirty to forty kilometres per hour when, about three house blocks from her home, she observed a very young girl (Courtney) standing on the road about half a metre or less from the rear of the Holden. On observing Courtney she initially slowed down, but then, having formed the impression Courtney was going to stay where she was, perhaps because Courtney was looking her way, the defendant slowly accelerated. She had observed no person other than Courtney until she saw a "tuft of hair" "on my bonnet" approximately level with the left hand headlight. She had continued to accelerate slowly up to the time she became aware of the presence of the plaintiff. I accept this evidence, subject to the possibility the defendant may have travelled a little more than three house blocks before first seeing Courtney.

10 The issues for determination were, principally, (a) whether the defendant was negligent in failing to observe the plaintiff earlier than she did, and (b) whether, if she had seen the plaintiff earlier, the collision could have been avoided.

11 As to the first issue the relevant test is whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care - Derrick v Cheung (2001) 181 ALR 301 at [13]. As Priestley JA held in Tsuji v Metromix Pty Ltd (Court of Appeal, 20 November 1998, unreported) at 5, the duty of care on drivers is to drive reasonably in the circumstances in which they find themselves.

12 The authorities establish that while the standard of care is always that of the reasonably prudent driver, particular circumstances may call for the exercise of greater care and caution than usual by the reasonably prudent driver. One of these circumstances is the presence of young children on or near the road which circumstance should put a driver on notice not only of the risk that the observed children may run out upon the road but also the possibility of the presence of unobserved children who may do likewise: Lolomanaia v Rush (Court of Appeal, 15 July 1996, unreported).

13 The defendant was unable to offer any explanation for not seeing the plaintiff earlier than she did. She conceded there was no difficulty in terms of vision, no oncoming vehicles to be contended with, no one on her left hand side and that the area in which Courtney was located was a primary area of concern not only because the actions of a child as young as Courtney were unpredictable but also because her presence might mean other children were also present but unseen. The defendant, in evidence, said she did not recall if she had looked away after observing Courtney though in a statement made on 22 July 1992 she said she had looked back to the road.

14 Whilst it may well be that a driver is entitled to take into account that persons with the appearance of normal adults will take normal precautions for their own safety unless there is something to indicate to the contrary and that it is reasonable for a driver to conclude that a person with the appearance of a normal adult who has stopped and who is looking straight at the driver's vehicle is fully aware of the presence of the vehicle and has stopped to wait to permit the vehicle to proceed (Ma v Keane (2003) 38 MVR 212 at [26], [27]) this is not the case in respect of very young children who tend to act unpredictably, a propensity well known to drivers (Mitchell v Government insurance Office (NSW) (1992) 15 MVR 369 at 374, 384) and admittedly known to the defendant.

15 In my opinion, reasonable care required the defendant to continue to keep Courtney and the area at the rear of the Holden under observation until she had passed the area of possible conflict. There was no reason on the evidence why this could not have been done. In my opinion, the inference is inescapable that the defendant failed to keep Courtney and the area at the rear of the Holden under observation when reasonable care required she should have done so. If she had done so she could not have failed to see the plaintiff as he emerged from behind the rear of the Holden. I find the plaintiff has established there was a lack of reasonable care on the part of the defendant.

16 As to the second issue the plaintiff relied upon the reports and evidence of a consulting traffic engineer, Mr Stuart-Smith. In his reports Mr Stuart-Smith opined that at speeds from twenty to forty kilometres per hour the defendant, had she observed the plaintiff when he became fully visible, would have had sufficient time either to stop before impacting the plaintiff or to slow sufficiently to enable him to clear the last 0.4 metres of the front of the Magna. Mr Stuart-Smith confirmed this opinion in his oral evidence.

17 Mr Stuart-Smith's analysis involved a number of assumptions, most importantly as to the lateral position of the Magna, the speed at which the plaintiff was running and the perception/reaction time of the defendant. Mr Stuart-Smith was cross-examined as to these assumptions, but in my opinion it was open to him to make them and they were appropriate.

18 The lateral position of the Magna was not established by direct evidence. There was evidence from the plaintiff's mother that the on-side of the Magna was about one metre from the utility and the defendant gave evidence she had been driving down the centre of the road probably a little more to the left than to the right. However the defendant and her husband, in statements given shortly after the accident, placed the Magna on the left hand side of the hypothetical centre line, as did the sketch of the investigating police officer. Whilst the positioning of the Magna on the left hand side was not done with any great precision, the clear inference from the latter evidence is that the Magna was on the left hand side of the road at the relevant time. This would accord with what one might expect where a child of tender years had been observed on the opposite side of the road. The defendant's husband, though present, was not called to give evidence at the hearing and I infer his evidence would not have assisted the defendant's case. There is no evidence a cone placed on the road after the accident and shown in photographs represented the lateral position of the Magna. On the balance of probabilities I find that the off-side of the Magna was either upon or slightly to the defendant's left of the hypothetical centre line at the relevant time.

19 The speed at which the plaintiff was running was not established by direct evidence. It was however common ground the plaintiff was approximately 85 centimetres or marginally taller at the time of the accident. This was an average height for a boy of his age as indicated by anthropometric data. Mr Stuart-Smith relied upon research data by Eubanks as to the typical running speed for boys aged two to three years. He selected the median figure in the range (1.71 metres per second). This appears appropriate as the plaintiff was of average height for his age which was less than the mean age of those surveyed by Eubanks.

20 The use of a perception/reaction time of 1.5 seconds by Mr Stuart-Smith accorded with accepted traffic engineering practice. However I accept the evidence of Mr Stuart-Smith that the use of that perception/reaction time was conservative and that a lower time would be justified by reason of the defendant's age and her awareness of the presence of Courtney. Additionally the reaction time would have been further foreshortened if the defendant's foot had been hovering over the brake rather than on the accelerator.

21 I accept the opinion of Mr Stuart-Smith and find that had the defendant been keeping a proper lookout she would have had sufficient time either to stop before impacting the plaintiff or to slow sufficiently to enable the plaintiff to clear her vehicle before impact.

22 I also accept the conclusion of Mr Griffiths, a road safety researcher qualified on behalf of the defendant, that had the defendant been observing Courtney as she approached her she would have seen the plaintiff in time to stop. I prefer the evidence of Mr Stuart-Smith and the conclusion of Mr Griffiths to the opinion of Mr Jamieson, a consulting forensic engineer, who, whilst challenging the assumptions made by Mr Stuart-Smith, accepted that the information available to him did not exclude the possibility the accident was avoidable.

23 The plaintiff also submitted the defendant was negligent in accelerating into a position of actual danger and travelling too fast for the situation in which she was.

24 The speed at which the Magna was travelling after Courtney was seen was not established with certainty. However Mr Stuart-Smith accepted in cross-examination that the evidence supported the conclusion that the probability was that the speed of the Magna was in the order of 20 kilometres per hour or a little more and that this was more likely than a speed of 30 or 40 kilometres per hour. As a speed of 20 kilometres per hour or a little more was such that the defendant could have avoided collision with the plaintiff had she been keeping a proper lookout I find the plaintiff has not established the defendant's speed was excessive.

25 I find there was a lack of reasonable care by the defendant in accelerating before reaching Courtney and that the defendant should have had her foot hovering over the brake rather than on the accelerator at that time. However, as I have found the defendant could, in any event, have avoided the collision if she had been keeping a proper lookout, this breach was not causative of the injury.

26 In my opinion the defendant was in breach of the duty of care owed by her to the plaintiff and such breach of duty caused injury to the plaintiff.

27 Contributory negligence was neither pleaded nor, by reason of the age of the plaintiff, relevant.

28 It will be necessary for the matter to be listed for hearing in order to determine the remaining issues. I am uncertain if the matter is ready to take a date for further hearing. Accordingly I stand the matter over to the Registrar's List on 20 May 2004 for Mention. I make no order as to costs at this stage. **********

Last Modified: 05/20/2004 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.