Derrick v Cheung [2001] HCA 48

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, KIRBY, HAYNE AND CALLINAN JJ

ROSALIE DERRICK APPELLANT

AND

WAH YE ROSANNIE CHEUNG RESPONDENT

(by her next friend XIE RUI HONG)

Derrick v Cheung [2001] HCA 48

9 August 2001

S151/2000

ORDER

1. Appeal allowed. 2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales dated 11 October 1999 and in lieu thereof order that: 3. the appeal to that Court be allowed; 4. the orders and declaration of the District Court of New South Wales be set aside; and 5. judgment be entered for the defendant.

3. Appellant to pay the respondent's costs in the District Court, the Court of Appeal and this Court.

On appeal from the Supreme Court of New South Wales

Representation:

J D Hislop QC with P J Gormly for the appellant (instructed by Henry Davis York)

S L Walmsley SC with P C See for the respondent (instructed by Beston Macken McManis)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Derrick v Cheung

Negligence – Standard of care of motorist – Vehicle struck infant who darted on to road – Vehicle travelling at 10 to 15 kilometres per hour under the speed limit – Whether Court of Appeal was entitled to find that the motorist was travelling at excessive speed in the circumstances.

1. GLEESON CJ, GAUDRON, KIRBY, HAYNE AND CALLINAN JJ. The question in this appeal is whether the Court of Appeal of New South Wales erred in affirming a judgment of a trial judge who held that a motorist exercising reasonable care was liable for the injuries suffered by an infant who ran into the path of her vehicle because a collision might have been avoided had the motorist been travelling at a lesser speed than she was.

The facts

1. At about 9.00am on Saturday, 17 December 1994, the respondent was taken by her mother across Victoria Avenue, Chatswood, from their home in that street to visit a friend. She was then aged about 21 months. While her mother was talking to her friend inside the house, the respondent left the house, walked along the front path to the pavement of Victoria Avenue, and moved out on to the roadway into the path of oncoming traffic. 2. The appellant was driving along Victoria Avenue in an easterly direction. The respondent suddenly emerged from between two parked vehicles. The appellant braked – there was nothing to suggest that her reactions were unduly slow – and attempted to avoid the respondent by veering to her right. Her vehicle skidded and collided with the respondent, throwing her to the road and causing her serious injuries. There was some damage caused to the nearside headlight of the vehicle. 3. The trial judge (Chesterman ADCJ), who was concerned with the issue of liability only, found that it was clear on the evidence that as the appellant approached the point at which her vehicle struck the respondent, the combination of parked cars on her left, and a tree and some shrubs by the side of the footpath prevented her from seeing the respondent, or having any opportunity to do so, until the respondent appeared on the roadway. His Honour also held that the respondent had moved very quickly on to the roadway. Mr Moye, the driver of a car approaching from the opposite direction, described the respondent infant's movement as a darting one. 4. The weather was fine and the road was relatively straight and in good condition. It was some 12.8 metres in width. There was enough space for the safe passage of a lane of traffic on each side of the centre-line, together with a line of parked cars beside each kerb. The pavement of the nearside footpath was about 3.8 metres wide. 5. The evidence of Mr Moye and Ms Margaret Anne Mason and Ms Catherine Mason, who were travelling in the car proceeding in front of the appellant's, established that there was a fairly steady stream of traffic travelling on each side of the road at the time of the accident. The Masons gave evidence that their car was an "average distance" in front of the appellant's car. They also spoke of seeing the respondent appear from the left and running out from between the two parked cars. 6. The appellant, the Masons, and the police officer who investigated the accident (Senior Constable Anne Gordon) all gave estimates of the speed of the appellant's car when she first saw the respondent, as being about 40 to 50 kilometres per hour. The speed limit on that stretch of Victoria Avenue was the standard urban speed limit of 60 kilometres per hour.