Yedelian v McKune

AMP General Insurance v Brett (1998) 27 MVR 492 Betts v Whittingslowe (1945) 71 CLR 637 Bullock v London General Omnibus Co [1907] 1 KB 264 Commonwealth v Clark [1994] 2 VR 333 Commonwealth v Introvigne (1982) 150 CLR 258 Dare v Dobson [1960] SR(NSW) 474 Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48 Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 Doubleday v Kelly [2005] NSWCA 151 Federation Insurance Ltd v Wasson (1987) 163 CLR 303 Hahn v Conley (1971) 126 CLR 276 Ireland v Brown (DCt NSW, Garling DCJ, 28 July 2000) Lolomanaia v Rush (1996) 24 MVR 128 CASES CITED: McCallion v Dodd [1966] NZLR 710 McHale v Watson (1966) 115 CLR 199 Phillips v Britannia Hygienic Laundry [1923] 2 KB 832 Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 Posthuma v Campbell (1984) 37 SASR 321 QBE Insurance (Australia) Ltd v Smith [2005] NSWCA 130 Ramsay v Larsen (1964) 111 CLR 16 Richards v State of Victoria [1969] VR 136 Robertson v Swincer (1989) 52 SASR 356 Scrase v Jarvis (1998) 27 MVR 85 Mye v Peters (1967) 68 SR(NSW) 298 Towart v Adler (1989) 52 SASR 373 Watt v Bretag (1982) 56 ALJR 760 Worland v Tobin [2004] NSWSC 113

PARTIES: Sevag Yedelian (by tutor Mary Yedelian) (Plaintiff/Cross Defendant) Scott McKune (First Defendant/Cross Claimant)

COUNSEL: Mr Stitt QC; J Morris (Plaintiff/Cross Defendant) Mr King SC; Mr D Ronzani (First Defendant/Cross Claimant)

SOLICITORS: Marsdens (Plaintiff/Cross Defendant) Henry Davis York (First Defendant/Cross Claimant)

1 On 3 April 1995 the Plaintiff was struck by a vehicle driven by the First Defendant whilst he was crossing Kent Road, Ryde. The Second Defendant is the Plaintiff's father, who had stopped his car on the other side of the road and dropped off the Plaintiff and his sister.

2 In the accident, the Plaintiff suffered a fractured leg. He also claimed that following the accident he suffered behavioural difficulties and that these behavioural difficulties were either a result of frontal lobe injury or post traumatic stress.

3 The Defendants disputed any liability to the Plaintiff and contested the causal connection between any condition from which the Plaintiff suffers or may suffer and the accident.

4 The Plaintiff and First Defendant resolved the dispute as between themselves subject to approval of the Court pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

5 The First Defendant had joined the Second Defendant by way of cross claim, and, as a consequence, the Plaintiff joined the Second Defendant directly as well.

6 The Plaintiff agreed to dismissal of his claim against his father, with payment of the father's costs, but reserving the right to seek a Bullock order (see Bullock v London General Omnibus Co [1907] 1 KB 264) for such costs as against the Second Defendant.

7 On 30 August 2005, I approved the settlement of the claim by the Plaintiff against the First Defendant upon the basis of material which was separately tendered on the application for approval.

8 The First Defendant, having submitted to judgment against him, now, as Cross Claimant, seeks to recover contribution from the Second Defendant as Cross Defendant, pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 ('the LRMPA'). I shall refer to the Cross Claimant as 'McKune' as and the Cross Defendant as 'Yedelian'.

9 Yedelian accepts that the settlement between McKune and the Plaintiff was reasonable both as to liability and amount. None of the material tendered before me on the application for approval was tendered on the hearing of the cross claim, and I have no regard to it for the purposes of this cross claim.

10 There is no dispute that for McKune to succeed he must establish that Yedelian would have been liable to the Plaintiff if sued. If Yedelian is found to be a tortfeasor, then the next question is in what proportions should McKune and Yedelian bear liability for the judgment of $544,864.32 entered by the Court in favour of the Plaintiff against McKune.

11 Mr King SC appeared with Mr D Ronzani for McKune, and Mr Stitt QC appeared with J Morris for Yedelian. I received helpful submissions from counsel, both written and oral.

12 The following facts are not in dispute: (a) Kent Road runs in essentially an east-west direction. It intersects (as a 'T' intersection) with Lane Cove Road, which runs in essentially a north-south direction. At the aperture of the intersection with Kent Road and Lane Cove Road is a pedestrian crossing which crosses from north to south across Kent Road (see Exhibit 'A');

(b) Lane Cove Road has three lanes running in each direction;

(c) Kent Road has one lane running in each direction. There were no road markings as at the time of the accident;

(d) Approximately 20 metres to the west of the intersection of Kent Road and Lane Cove Road was a bus stop on the northern side of the Kent Road;

(e) Approximately opposite that bus stop was a bus stop on the southern side of the roadway (T66.26);

(f) Kent Road is essentially straight and level. Further to the west, on the northern side of Kent Road, is Pindari Street, which runs at right angles to Kent Road;

(g) To the south of the intersection of Kent Road, on Lane Cove Road, is a bus stop (T62.50) ('the Lane Cove bus stop'). At 7.45am on each school day a bus collected children who attended the Armenian School at Ingleside (T63.30) from that bus stop. The Plaintiff and his sister were students of the school and were intending to make their way to the Lane Cove bus stop;

(h) At that time of the morning Lane Cove Road carried heavy traffic;

(i) On the morning of 3 April, 1995 Yedelian drove his motor vehicle in an easterly direction along Kent Road towards the intersection of Lane Cove Road;

(j) The Plaintiff was a passenger in the rear of the vehicle driven by Yedelian. He was sitting in the rear behind the front passenger seat (T66);

(k) Salpi Yedelian, the Plaintiff's sister, was sitting in the rear of the vehicle behind Yedelian (T66);

(l) Yedelian took the following route to arrive at Kent Road: (i) along Kylie Street;

(see T75 and Exhibit 'E' which comprises two pages from Gregory's Sydney Street Directory ).

(m) Yedelian parked his motor vehicle west of the intersection of Kent Road and Lane Cove Road. The position is marked on Exhibit 'A'. Yedelian parked his car between two driveways; I shall say more about the distance from the intersection later but the Defendant's submissions are that it was 30 metres from the intersection;

(n) Yedelian then activated his hazard lights (T67.05ff);

(o) On stopping the motor vehicle, Salpi Yedelian alighted from the motor vehicle on the driver's side;

(p) the Plaintiff alighted from the motor vehicle on the passenger side and moved around the back of the motor vehicle;

(q) Salpi Yedelian stood on the roadway in front of the motor vehicle driven by Yedelian (T67.35ff, T31.54);

(r) Both Salpi Yedelian and the Plaintiff were intending to cross Kent Road from north to south at about the point where Yedelian parked his motor vehicle;

(s) Yedelian had been dropping Salpi Yedelian off in the same area for about five years. He had been dropping the Plaintiff off for about three years (T62.45);

(t) There had never been any prior accident involving either of his children;

(u) There were motor vehicles parked behind Yedelian (T71.46) (and there was unchallenged evidence that there were cars in front as well: T33.1-4);

(v) Yedelian gave his children instructions on occasions prior to this accident on how to cross the road. Those instructions given previously were to the effect that they should look right and left and take care when crossing the roadway (T70.03-19); his evidence was that he also told them to avoid the pedestrian crossing (T69.22) but whether he gave instruction not to use the crossing, and the basis for it, are in dispute: see para 7 of the Cross-Defendant's submissions and para 13 below;

(w) McKune was the driver of a motor vehicle registered SBW987 (T40.26-36). He travelled north along Lane Cove Road (T40.40);

(x) The Plaintiff commenced running across the road as McKune approached and was struck by McKune's motor vehicle somewhere towards the centre of the road. The precise point of impact is not known (but it is clear from the evidence that it occurred in the southern portion of Kent Road);

(y) McKune, as he travelled along Lane Cove Road and turned left into Kent Road, saw people in the vicinity of the bus stop in Lane Cove Road and the northern and southern stops in Kent Road but could not recall if they were children or not (T42.06);

(z) The first time McKune saw the Plaintiff was when the Plaintiff was one or two metres in front of McKune's motor vehicle (41.08). This was a split second before impact (T35.40-57);

(aa) Salpi Yedelian was on the road adjacent to the front of the vehicle driven by Yedelian (T31.54, Exhibit 'B');

(bb) McKune was a tortfeasor in that he owed a duty of care to the Plaintiff and he breached that duty.

13 The following facts were in dispute (my formulation, not that of the parties): (a) Whether Yedelian gave instructions to his children to avoid using the pedestrian crossing adjacent to the intersection of Lane Cove Road and Kent Road;

(b) If the answer to (a) is 'Yes', whether he did so because he believed on reasonable grounds that the pedestrian crossing was dangerous.

(c) The 'reasonable grounds' issue encompasses the issue of whether the pedestrian crossing was unsafe and whether the pedestrian crossing had been the subject of many accidents.

14 McKune's case against Yedelian is that Yedelian owed a duty of care to the Plaintiff in delivering the Plaintiff to the bus stop on Lane Cove Road, and that in undertaking that task he breached that duty by the following acts and omissions: (1) stopping on the northern side of Kent Road, forcing the Plaintiff to cross a busy street in order to make his way to the Lane Cove bus stop, and or not escorting the Plaintiff or supervising him;

(3) instructing the Plaintiff not to use a marked pedestrian crossing which was at the end of Kent Road and which would have brought the Plaintiff directly to the Lane Cove bus stop;

(4) not warning the Plaintiff about the flow of traffic, nor sounding his horn, nor shouting a warning when McKune's car approached.

15 Yedelian's position is that the accident happened because the Plaintiff, while crossing Kent Road as a pedestrian, suddenly and unexpectedly ran into the path of an oncoming car from behind his car. That act, it is said, being unexpected, is not something Yedelian could be liable for: see [3] of Yedelian's written submissions. Emphasis is laid on the fact that the Plaintiff had alighted from the car and left the control of Yedelian - he was no longer a passenger but a pedestrian. Reference was made to Hahn v Conley (1971) 126 CLR 276, in which it was held, it was submitted, that the relationship of parent and child only gives rise to a moral obligation to act as a conscientious parent and does not give rise to a justiciable cause of action: see [27] of the submissions. This is a submission that there was no duty but it also segues into the issue of no breach. Absence of causation was also argued, but it was accepted that at least so far as (1) and (3) are concerned, no causation issues remains once breach is established.

16 Before I deal with the disputed areas of facts, I shall comment on the witnesses, of whom there were only three - Mr Baker, an independent bystander called by McKune, McKune himself, and Yedelian, the father, in his own case. The evidence of both Mr Baker and McKune was short (as was the cross-examination), and I was impressed by both as witnesses of truth doing their best to tell the truth and ready to accept that with the passage of 10 years since the accident there were details which they could not recall. I have no hesitation in accepting their evidence in its entirety.

17 McKune's case against Yedelian is not based solely on matters which involve rejection or non-acceptance of Yedelian's evidence, but so far as it is relevant I did not form the same favourable impression in respect of Yedelian. He is obviously an intelligent man, and although English is not his first language he has an impressive command of it. There were a number of points in his evidence, however, which cumulatively led me to doubt his veracity, which I shall outline below (and not in any order of significance):

(1) Mr Baker said that he saw the Plaintiff grab his school bag and run behind the Mazda, and out to the road. In his evidence-in-chief, the impression was given by Yedelian that his son had got out of the car in a normal fashion and not run anywhere but had waited appropriately: see T67.40-68.16. Yedelian, in cross-examination, denied that his son had run, but then agreed that he had not seen what his son had done after he left the footpath: see T94.7-T95.21, and see also Exhibit C, his statement to police, in which he referred to seeing both children behind his vehicle.

(2) Yedelian was reluctant to admit that eight-and-a-half year old boys can be expected to do rash things: T78.4-79.25.

(3) Yedelian denied knowledge that he was not permitted to park in a bus stop. I will deal with the bus stop issue separately below, but this is a discrete, albeit minor, point relevant to his credibility. I did not find his denial convincing.

(4) Yedelian claimed in his evidence-in-chief that when he stopped his vehicle at the bus stop (T65.48) he turned off the engine: T67.15. He was cross-examined about this claim and although he did concede that he was the person in charge of the vehicle, the cross-examination from T79.35 to T82.5, the fact that Yedelian had not mentioned turning off the car engine to police (see Exhibit 'C') and the inherent unlikelihood of him doing so when he did not get out of the car and was intending to drive off immediately his children had reached the other side of the road (in accordance with his normal practice of dropping them off there on his way to work: see T99.36-41; T101.16-40), and his explanations at T79.58-T80.29 left me with the distinct impression that Yedelian had asserted that he had turned off the vehicle in his evidence-in-chief (and it is also to be found in Exhibit '1', a statement made to the Plaintiff's solicitor and in his cross-examination at T80.40-44) because he believed that this reduced his exposure. I am not persuaded that he did turn off his engine, and whilst that has no relevance to liability, it is relevant to credibility.

(5) I did not find Yedelian's evidence of his complaints to the RTA at all convincing either in content or manner, and I will refer to this issue later in these reasons.

(6) Yedelian attempted to inculpate McKune by describing him as 'speeding' both in chief (T68.19) and in his statement to police in a more muted form (in Exhibit 'C' he said that he noticed McKune's car 'because it was driving faster than the other cars') yet there was uncontested evidence from McKune that he was not speeding and that when he said to Yedelian 'I'm sorry I didn't see him. He came from nowhere,' Yedelian said to him 'Don't worry, it's not your fault': T37.10-17.

18 In his evidence, Mr Baker said that he was at the bus stop on the northern side of Kent Road, and there were a number of cars stopped down from Lane Cove Road (T27.55), when he saw two children get out of the car. In his statement to police, which was tendered, he said that he noticed (Yedelian's) car 'pull up on the approach side of the bus stop area': Exhibit 'D'.

19 In his evidence, Yedelian said in chief that his car stopped at the bus stop on the northern side (T65.50-51) but that there was no bus shelter at the time. He said he thought the bus stop was 10 metres from Lane Cove Road. In chief, he then marked on Exhibit 'A', with an 'X', where he was parked. In cross-examination, Yedelian said that he had parked at least six metres from the bus stop on the northern side of Kent Road. Using the scale on the map (Exhibit 'A'), there is a discrepancy - if the bus stop was 10 metres from Lane Cove Road, and Yedelian parked six metres from the stop, then the position marked on the map could not be correct.

20 This discrepancy was not explored in cross-examination. There seemed, until Mr King commenced cross-examination (at T75.35), to be no contest that Yedelian had parked at the bus stop. At T75.35 Mr King put to Yedelian that he knew he was not permitted to park six metres from a bus stop, to which Yedelian replied, 'No'.

21 Objection was taken to further questions in this vein and Mr King then sought leave to amend the particulars of negligence, which Mr Stitt resisted on the basis that breach of the regulations was irrelevant. I indicated that I would permit amendment provided the relevant regulations were indicated and the new pleading was brought to Court. Mr King did not pursue cross-examination on this topic at that stage and indeed did not return to it in cross-examination. After the close of evidence he sought leave to file the formal Amended Cross Claim. After further argument based on lack of utility, I permitted him to file the Amended Cross Claim. The relevant regulation relied upon is regulation 84 of the Motor Traffic Regulations 1935 (NSW), which relevantly provides: 'No person shall cause or permit any motor vehicle upon a public street to stand:

(c) so that, unless the vehicle is a bus which is actually engaged in taking up or setting down passengers or is standing for the purposes of a regular passenger service, any portion of it is between: (i) a point 18 m distant from any sign (not being a sign which is one of or is located between a pair of notices mentioned in subparagraph (ii) hereof) indicating a stopping place for buses, such point being in the direction from which a vehicle travelling so that the sign is on its near side, approaches the sign, and a point 9 m distant from the sign in the opposite direction; or

(ii) a pair of notices, erected with the approval of the Traffic Authority, each displaying the words "Bus Stop", "Bus Stand" or "Bus Zone", with or without other words:

Provided that where a sign or notice mentioned in this paragraph indicates that a place is a bus stop, bus stand or bus zones only at times specified on the sign or notice, this paragraph shall apply in respect of such sign or notice only at the times so specified...'

22 In the course of submissions, I raised with counsel the discrepancy of where Yedelian had marked his position on Exhibit 'A'. Mr Stitt also pointed out that when Mr Baker and McKune had given their evidence, and he had examined Yedelian in chief, he had not known that a breach of regulations was relied on.

23 As I have noted, it did not appear, initially, to be disputed by Yedelian that he had parked at a bus stop, and one way of reading his evidence is that his estimate of how far the stop was from the Lane Cove Road (ie 10 metres) was wrong and that the bus stop (ie the pole marking the stop for the benefit of passengers) was 6 metres from where he had parked. There was no challenge to Mr Baker's evidence that Yedelian had pulled up in the approach to the bus stop (again, this is consistent with Yedelian being 6 metres from the bus stop - ie the bus sign), and since I had allowed the amendment (at T76.15-29) it was open to Mr Stitt to re-examine Yedelian to explain the discrepancy between the 'about six metres' answer and the marking on Exhibit 'A'. Whilst it was for McKune to establish that Yedelian had parked in a bus zone, the evidence of Mr Baker does establish that he was. Yedelian's evidence, if accepted, is ambiguous but capable of being read as consistent with Mr Baker's.

24 I do not need to resolve this point (and I would need to take into account that what is asserted is a breach of the Motor Traffic Regulations and not merely the civil law) because there does not seem to be a causal connection between the breach of the regulation per se and the accident which occurred. Had there been no bus stop on the northern side, the same problems would have arisen that arose. Had Yedelian stopped just outside the bus zone, but on the northern side of Kent Road, the problem which arose would have arisen. Very little was said about this point in argument but the scope of duty is relevant: see Phillips v Britannia Hygienic Laundry [1923] 2 KB 832, 840; Betts v Whittingslowe (1945) 71 CLR 637, 649 and Trindade & Cane "The Law of Torts in Australia" 3rd edn page 689 - and I do not think that injury to a person getting out of a car stopped at a bus stop (when no bus was present) is an injury that breach of the regulation might be expected to cause.

The failure to warn immediately before the accident

25 The failures referred to in para 14(4) above, taken by themselves, also suffer from a causation problem. I accept the submissions on behalf of Yedelian that sounding the horn would have been too late, shouting from the driver's seat would probably have been ineffectual if the boy had commenced to run, but the failure to get out of the car and supervise the crossing is in a different category and integrally linked with the decision to drop the children where he did.

26 Documents were tendered that demonstrate that Kent Road and the intersection of Kent Road and Lane Cove Road was a place of many accidents in the period 13 June 1990 to 18 November 1994: Exhibit '2'. Reference is made in another of the documents (Exhibit '4') to the intersection being a 'black spot'. It was accepted that lights were put in at the intersection some years later (the Council was calling for lights in April 1995: see Exhibit '4'). Lane Cove Road is obviously a main arterial road (and see Gregory's maps 281 and 282, Exhibit 'E'). There are, however, few reports of pedestrian accidents in Kent Road, indeed only two in Exhibit '2' over a four-and-a-half year period, and there is no indication of where in Kent Road (which is a fairly long street) those pedestrian accidents occurred.

27 No expert evidence was called as to the inappropriateness of the pedestrian crossing at the location it was in, or that it was dangerous or unsafe for pedestrians or that crossing further down the road was a safer option. Mr Baker's evidence was that he had seen the crossing used by pedestrians (T28.55), but no further questions were asked of him.

28 When Yedelian made a statement to the police, he said nothing about any concern with the pedestrian crossing. His explanation for not having said anything was that he was stressed about the accident. I readily accept that he was stressed about the accident but even so I would have thought that if Yedelian did believe that the crossing was a problem he would have raised that with police. In his statement made to his son's solicitors, he says: 'I deliberately don't park any closer to the pedestrian crossing because it's a very dangerous crossing and vehicles turning left from Lane Cove Road into Kent Street travelling in a westerly direction very rarely stop and that has been the site of many collisions. That is why the children alight further back from the intersection and cross the road where it is safer.'

29 Mr King drew attention to the fact that Yedelian makes no reference to having himself seen any collisions or to having communicated with the Council or RTA concerning the crossing. In his evidence-in-chief, there was the following exchange: 'Q.Over that period of time, what had you personally observed in relation to that pedestrian crossing, so far as its use was concerned?

A.Was a lot of accident - collision - between cars. Pedestrian hit from there. Cars turning to the - because there was always traffic. No traffic turning into Kent Road and traffic going out of the Kent Road towards Lane Cove Road, and that was dangerous spot.

30 Yedelian agreed in cross-examination that he had not written to the RTA about the crossing (T96.25) but he said he had rung them many times - he was asked whom he had rung, and he said, 'We rung RTA': T100.37. He could not say who he had rung. I am not persuaded, on the balance of probabilities, that he rang anybody about the crossing, nor am I persuaded that he viewed the pedestrian crossing as unsafe.

31 Yedelian accepted that it was open to him to turn into Pindari Street and park there, and escort his children across the road, or to turn around in Pindari Street (which was a quiet street) and drop the children on the southern side of Kent Road: T91. There was another route that he could have taken which would have enabled him to drop his children on the southern side, both of which I find were open to him and not particularly inconvenient, and which he agreed would have been safer: T91.30-91.49.

32 In Hahn v Conley the High Court, by a majority, held that a grandfather who was aware that his four-and-a-half year old granddaughter was on the other side of a busy road to him was not liable for injuries caused by her being hit by a motor vehicle when crossing the road towards him. Barwick CJ held that the grandparent was not liable for failing to prevent the child falling into danger even where there was a recognition that the child was on the other side of the road and the grandfather perhaps ought to have realised that in crossing the road his granddaughter might come to harm, because the child was not in his care and control. Had he called her to come to him he would have come under a duty to take reasonable care for her safety. McTiernan J held in the grandfather's favour on the basis that there was no breach of duty in not going to assist the child once the grandfather had heard her voice calling him from the other side of the road, and Windeyer J did so on the ground that there was a duty of care owed but it had not been breached. Menzies J, with whom Walsh J agreed, was of the view that as the grandfather was aware of the child's position, his failure to take the opportunity of protecting the child from a danger of which he knew, or ought to have known, would occur by reason of her crossing the road constituted a breach of duty.

33 Whilst the majority opposed the imposition of liability in the circumstances of the case, finding a ratio of more general application is not an easy task, as King CJ pointed out in Posthuma v Campbell (1984) 37 SASR 321, at 322. It can be seen that three judges of the Court (and possibly McTiernan J as well) were of the view that the grandfather did owe a duty of care to the grandchild. I accept that a ratio cannot be derived by reference to the judgments of some of the majority and some of the minority: see Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 188 per Barwick CJ; Federation Insurance Ltd v Wasson (1987) 163 CLR 303, 314 (guidance, however, can be obtained provided the propositions of law found in the judgment are not in conflict with the majority ratio and the result: see Commonwealth v Clark [1994] 2 VR 333 and Macadam and Pyke, "Judicial Reasoning and the Doctrine of Precedent in Australia", Butterworths 1998 at [10.34]).

34 There is, in the area of liability of parents for injury caused to children, a reluctance of the courts to impose a duty on the parents: see Robertson v Swincer (1989) 52 SASR 356; Posthuma (supra); Towart v Adler (1989) 52 SASR 373; but see McCallion v Dodd [1966] NZLR 710. It is rather surprising that a driver can be held liable in negligence for failing to notice a child running out onto the road, but the parents who were present and who failed to stop the child going out onto the road (Swincer) are not liable, or that parents who, in opening a window failed to appreciate the danger in a bunk set up for which the landlord was held liable (Towart), should be excused from liability on the basis of 'policy'. There may be a concern at the prospect of a myriad of claims by children against their parents, but, accepting the legitimacy of that concern, it seems, with respect, a different situation when a third party is sued for injury to the child. There may well be a perception that those third parties who have injured the child are likely to be insured (drivers would certainly fall into that category) and the parents not insured, but the third party is not necessarily insured, and the existence of insurance ought not determine liability: see McCallion v Dodd at p721 ll 27-31. The comments of Turner J at p727 of McCallion raise an interesting possible solution to the difficulty - the revival of 'identification', an approach which his Honour noted had not been run on the appeal, and which had fallen into desuetude. The fact that liability is imposed on a school because it is in a position to exercise authority over a child (see Ramsay v Larsen (1964) 111 CLR 16; Richards v State of Victoria [1969] VR 136, 138-9; and Commonwealth v Introvigne (1982) 150 CLR 258 only emphasises the incongruity of rejecting parental liability where liability is to be imposed on a third party, in my view, and see also Fleming "The Law of Torts" (9th edn) at p 748). For a discussion of policy issues touching on the matter see S Yeo, "Am I my Child's Keeper? Personal Liability in Negligence" (1998) 12 AJFL 150.

35 In McCallion v Dodd, it was held that the father of a child injured in a road accident who walked his family along the highway at night on the left-hand side of the carriageway was under a duty to exercise reasonable care to protect the child from injury, notwithstanding the absence of insurance.

36 For present purposes, it can be accepted that the relationship of parent and child does not of itself give rise to any tortious liability, and it is not necessary to explore further the precise limits of parental liability in tort given that both sides accepted as correct and relied on the following passage from the judgment of Jacobs J in Posthuma: 'To assert that the relationship of parent or guardian to a child does not of itself give rise to a duty of care is, however, not to deny that the law will in some situations impute such a duty; but it all depends upon the circumstances. A common example of such a situation, well recognised in the cases, is the duty of care generally owed to a child exposed to the hazards of road traffic': p329.

37 The issues of duty of care and breach are both inextricably bound up in the precise circumstances of the case. Mr Stitt argued that Yedelian did not expose his child to the hazard of road traffic, he only dropped him off at the bus stop on the other side of the road.

38 There was a strand to the submissions on behalf of McKune which leads to two important aspects of this case. Mr King submitted that McKune's negligence was of a very low order, and that McKune was very unlucky to be saddled with any responsibilities for this accident given the approach of the High Court in Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301. I think there is force in the submission, and the Court may have had difficulty, had it been contested, in determining whether McKune ought to have appreciated that a child might run out from behind Yedelian's car, as was held in Lolomanaia v Rush (1996) 24 MVR 128 and Worland v Tobin [2004] NSWSC 113, or not, as was held in Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301. However, even assuming minimal degree of fault on the part of McKune (and some must be imputed by reason of the judgment entered by consent) this does not mean that Yedelian is therefore to be held liable because McKune has admitted to a modicum of fault. To put it another way, the question of contribution as between McKune and Yedelian does not arise unless and until the Court is satisfied that Yedelian owed a duty of care, breached it, and that the breach was a contributing factor in the Plaintiff's injuries.

39 The second aspect is that Derrick v Cheung highlights that the mere fact that a person who owes a duty of care to others could have altered his or her conduct to reduce or even obviate the occurrence causing injury does not establish breach of duty. In Derrick v Cheung, the driver was progressing at 40-45 kph in a zone the speed limit for which was 60 kph. The fact that she could have reduced her speed to 20 kph did not render her speed of 40-50 kph a negligent speed. This has relevance to both the contribution issue as between McKune and Yedelian, and to the competing positions of Mr Stitt and Mr King, because Mr Stitt asserted that looking at alternative ways to drop the Plaintiff off did not establish that what was done was negligent. Mr King submitted that alternative means of dropping off were relevant in considering the appropriateness of what Yedelian did once it was established that the method he used was deficient.

40 Over this must be laid a further consideration - the role of a parent is not always easy (some may say it never is) and it is unfortunate indeed when the Court must consider the responsibility of a parent to a child, particularly where the consequences on the Plaintiff's case (and as reflected by the settlement) are serious indeed. Jacobs J noted in Posthuma that parents have different attitudes, and some are over-protective and some less protective (and I would add that some of those who are under-protective may take that position in the belief that the child will be better able to learn to cope for him or herself). All that a court can do is consider the matter from an objective point of view.

41 Mr King submitted that it would be unlikely for this Court to impose any degree of contributory negligence on the Plaintiff, having regard to his age. That threw up the point, he said, that if a court would not impose a level of contributory negligence on an eight-and-a-half year old boy, it could only be confirmation that a boy of such tender years could not be expected never to act rashly and unwisely or against his own best interests, and that, he said, emphasised the need for parental control. I think Doubleday v Kelly [2005] NSWCA 151 per Bryson JA at [26] (with whom Young CJ in Equity and Hunt AJA agreed), and McHale v Watson 115 CLR 199 cited in that case, also supports Mr King's submissions. Reference may also be made to the words of Ambrose J in Scrase v Jarvis (1998) 27 MVR 85 at 90, 'Children of tender age are renowned for becoming distracted from taking care of themselves in dangerous situations', and the recognition by the courts of the 'propensity of young children to act with extreme disregard for their own safety': Lolomanaia p133 - Clarke JA referring to the words of Sugarman P in Mye v Peters (1967) 68 SR(NSW) 298 and see Introvigne at p271 per Mason J (as he then was).

42 The view that I have come to is that Yedelian owed a duty of care to his son in taking him to the Lane Cove bus stop, and that stopping where he did and leaving the Plaintiff to make his own way behind his car and across the road (whilst he remained seated in his car waiting for him to cross) constituted a breach of the duty of care owed to his son. I think this is a case in which the Plaintiff, if he had sued his father, would not be relying on the parent-child relationship as the foundation of liability but as a result of the specific situation in which Yedelian placed his son by dropping him where he did and by his acts and omissions which exposed the Plaintiff to the hazards of road traffic. I do not see Garling DCJ's judgment in Ireland v Brown DCt NSW 28 July 2000 as inconsistent with this conclusion - his Honour there found there was a duty of care but held that in the circumstances of that case the duty was not breached (the father in that case told the four-and-a-half-year-old to stay where he was whilst he attended to another child in the car).

43 I accept Mr King's submissions that Yedelian had the care and control of the Plaintiff in the process of the boy arriving at the Lane Cove bus stop, and that in relation to that process he owed the Plaintiff a duty to take reasonable care that the manner of arrival and progress to the Lane Cove bus stop was safe, and to provide appropriate instructions to his child. I am of the view that Yedelian breached the duty of care to his son for the following reasons:

(1) Yedelian recognised that escorting the Plaintiff across the road might expose Yedelian himself to danger (T89.9-11), emphasising the need for a safe system of depositing the Plaintiff on the southern side of Kent Road.

(2) If Yedelian did think that the crossing was unsafe and he did have a reasonable basis for that view, that did not make the choice of dropping the Plaintiff on the northern side of Kent Road appropriate.

(3) It is not established on the balance of probabilities that the pedestrian crossing at the end of Kent Road was not safe - and in my view if Yedelian did instruct his son not to use it, it was inappropriate advice. I accept that a pedestrian crossing is no guarantee of absolute safety but it has the advantage of being marked and hence visible, and that those using it are not obscured by cars behind or in front of them, and it is a place from which drivers must expect pedestrians (within reason) to emerge. It is also a point at which all traffic in or out of Kent Road would be travelling at low speed, as McKune's evidence confirms.

(4) Since I am not persuaded that the crossing was unsafe or that Yedelian thought it was, it would follow that it is unlikely that he told his children not to use the crossing. If, however, he did tell them not to use the crossing, as he asserts he did, that advice was flawed and constituted a breach of the duty of care.

(5) It is clear that he did not tell them to use the crossing and his failure to tell them to do so coupled with dropping them on the northern side of Kent Road constituted, in the circumstances, breach of his duty, which breach was causative of the injury suffered by the Plaintiff.

(6) Yedelian could have put the car in a position where the Plaintiff could alight from the passenger side onto the Southern side of Kent Road and from which position no busy road would have to be crossed by the Plaintiff.

44 There is one further matter to which I should advert. In the course of the trial and in submissions, there were references made to the question of whether this accident as between Yedelian and the Plaintiff was a 'motor accident' for the purposes of motor accidents legislation. It seemed to me that it formed no part of the Court's function in these proceedings to determine that question (and whether this case was analogous to QBE Insurance (Australia) Ltd v Smith [2005] NSWCA 130, and cases such as AMP General Insurance v Brett (1998) 27 MVR 492, or not), and thankfully counsel agreed with my conclusion in this respect.

45 I am now required to determine in what proportions McKune and Yedelian should bear liability. The legislation requires the Court to determine a level of contribution between tortfeasors that is just and equitable having regard to the extent of responsibility for the damage: s 5(2) of the LRMPA. It has been said that the apportionment exercise requires the Court to examine the departure of each person from the standards of a reasonable person (Watt v Bretag (1982) 56 ALJR 760) and that the court must consider the relative blameworthiness of the tortfeasors and the relative causal potency of their acts: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529, dealing with similar contribution legislation and see Dare v Dobson [1960] SR(NSW) 474.

46 There are three factors which I regard as significant here:

(1) Yedelian was the Plaintiff's father and was at all relevant times aware that a a relatively young child was about to cross the road, whereas McKune was not aware of this;

(2) Yedelian either gave positive instructions to the child as to where to cross (his evidence) or by his actions encouraged the child to cross at a point that was not safe, without taking the child across the road himself; nor did he instruct the Plaintiff to stand with his sister in a visible spot in front of the car.

(3) If Yedelian had encouraged use of the pedestrian crossing or had dropped the Plaintiff on the southern side of Kent Road, there would have been much less risk to the Plaintiff, and the Plaintiff, by Yedelian's actions, was put at risk not only of negligent driving but also non-negligent driving.

(4)(a) McKune's negligence, as admitted, could be attributed to one of the following reasons: (i) failing to slow down: (1) because Yedelian's car had hazard lights on; or

(2) because Salpi Yedelian was at the front of Yedelian's car waiting to cross; or

(3) because there were bus stops with people at them;

(b) I do not think hazard lights on a car on the other side of a road ought necessarily to alert motorists to a danger on their side of the road - if McKune had seen Salpi Yedelian he would have seen that she was waiting to cross and would have had no need to slow down. There was no evidence of children playing in the street as there was in Lolomanaia, and the Plaintiff, most of whose body was hidden by Yedelian's car (see Mr Baker's evidence at T28.12, T32.20-34), would not have been clearly visible.

(c) I have already indicated that in my view there is a real issue about whether McKune was negligent at all, but if he was negligent - and I must proceed on the basis that he was - his negligence can only have been that he did not slow down to take into account the bus stop (and the prospect of people running for the bus, although none was in view at the time) and perhaps failing to keep as wide a lookout as was appropriate in all the circumstances. In my view, his level of negligence was limited, although of course the damage was caused by his vehicle's impact.

47 Taking into account the respective negligence of the parties, I would apportion liability 75% to Yedelian and 25% to McKune, with the consequence that Yedelian must pay McKune $408,648.24 of the total judgment amount for which McKune is liable to the Plaintiff.

48 It was agreed that the issue of costs should be left for determination after judgment.

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