EL SLEIMAN v HOLT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, STEIN JA and SHEPPARD AJA 23 June 1998, 22 September 1998 [1998] NSWCA 74 NEGLIGENCE — Motor vehicle accident — Appellant, the unsuccessful plaintiff at first instance, knocked down by vehicle driven by first respondent — Appellant four years of age — Struck down in conditions of darkness in quiet suburban street — Street not well lit — Appellant ran across road from behind parked station wagon — Appellant had been told to remain with father who was removing articles from back of station wagon — Appellant ran across road to be with his mother who, with two other children, had crossed the road shortly beforehand — Observations on first respondent's obligation to keep a proper look out, to have regard to likely presence of other pedestrians including children who might suddenly cross road, not to accelerate until clear no likelihood of danger — Whether first respondent should have had her lights on high beam. Mason P I agree with Sheppard AJA. Stein JA I agree with the reasons of Sheppard AJA set out in his judgment and with the orders which he proposes. It is indeed a tragic case and one in which the natural sympathies of the court are with the appellant and his family. The question for the court however, is whether the trial judge was wrong in not finding that the respondent was negligent. As Sheppard AJA makes plain, he was not in error. Sheppard AJA This appeal is from a judgment of Newman J sitting in the Common Law Division given on 11 December 1995 in a case involving a motor accident in which the appellant suffered very serious injuries. The judgment was for the first respondent, the defendant below. His Honour also found for the cross-defendants, the second respondents here, in third party proceedings brought by the first respondent against the second respondents who are the parents of the appellant. As his Honour said, it was common ground that the accident in which the appellant was injured occurred at about 8:00pm on the evening of 30 May 1990 in Marion Street, Auburn. His Honour found that the appellant, then nearly five years of age, in company with his parents and other siblings, was to attend a family gathering in a house, No 30, in that street. The plaintiff had travelled to Marion Street in a station wagon driven by his father. His mother and two other siblings, both young children, were also passengers. Two other siblings, who were also to attend the gathering, had travelled to Marion Street in another vehicle driven by one of the appellant's uncles. On arrival at Marion Street, the appellant's father parked his vehicle on the opposite side of the road to the house to which the family was going. The appellant's mother, in company with her two other children, crossed the road, leaving him in the care of his father. At about the time Mrs El Sleiman and her children were crossing the road, the first respondent, Ms Holt, had entered Marion Street in her 1983 Nissan sedan. She was travelling in a southerly 2 UNREPORTED JUDGMENTS direction having come from Beatrice Street which intersects with Marion Street at its northern end. There were cars parked on either side of Marion Street. The night was overcast and rain, which had fallen earlier, had made the road surface wet. Ms Holt was accompanied by a Ms Villiers who was sitting in the front seat on the passenger's side. The car driven by the appellant's uncle had also reached Marion Street and had been parked. It was parked on the eastern side of the street. No 30 was situated on that side. At the time when the accident happened, the uncle, his wife, the appellant's mother, Mrs El Sleiman, and a number of children were on the footpath on the eastern side of the street proceeding to No 30. The appellant and his father were on the western side of the street. His Honour said that there was an issue about the "mode adopted" by Mrs El Sleiman when she crossed the road with two of her children. One was an infant whom she was carrying and the other was holding her hand. Mrs El Sleiman said that as she started to cross the road, she observed Ms Holt's car. His Honour said that both Ms Holt and Ms Villiers said that the persons they saw crossing in front of them were running. Ms Holt's evidence was "they were sort of running slightly". Ms Villiers had said initially: "T saw a group of people run from the side of the road to the other side of the road. They just suddenly dashed out in front of us." In contrast Mrs El Sleiman said that initially she was walking across the road, but agreed that she had gone quickly when she saw Ms Holt's car approaching from her left-hand side. His Honour accepted her statement that, during the time she was crossing the road, she was looking straight ahead. His Honour said that when Ms Holt saw "What plainly enough was the appellant's mother and her two children crossing the road, she slowed her vehicle down to avoid a collision". His Honour said that Ms Holt's evidence as to what speed she slowed down to was vague as indeed was her evidence as to the speed she subsequently accelerated after Mrs El Sleiman and her two children had safely crossed the road. He accepted Ms Holt's evidence that she was not exceeding the speed limit, which was 60 kilometres per hour. On the other hand, Mr Bailey, who was called to give expert evidence in Ms Holt's case, said that at the time when Ms Holt braked immediately before the accident, she could not have been travelling at more than 36 kilometres per hour. The evidence was based on the length of brake marks observed by Constable Dowling who investigated the accident. His Honour accepted that part of the evidence given by the expert, Mr Bailey, but found that evidence given by him of the probable speed of a young child running across the road was of no assistance. There was no objection to Mr Bailey's evidence about the speed of Ms Holt's vehicle. Considerations discussed in the judgments of the members of the High Court in Clark v Ryan (1960) 103 CLR 486 were apparently not regarded as relevant. Prior to Mrs El Sleiman commencing to cross the road, she had told the appellant to remain with his father. Mr El Sleiman was to bring presents from the station wagon to the party and had opened the tailgate for the purpose of removing them. An internal light was on in his vehicle while he was gathering up the presents. The appellant did not remain with his father. He proceeded to cross the road. His Honour said that he had no doubt that he did so as rapidly as he could. Mrs El Sleiman said that he could move suddenly and unexpectedly, an observation, as his Honour said which could be made of any four year old boy. URJ EL SLEIMAN v HOLT (Sheppard AJA) 3 His Honour said that the uncontested evidence led invariably to the conclusion that the appellant was moving quickly across the road immediately before the accident occurred. His Honour referred to Ms Holt's evidence in which she said that everything was clear when she began to accelerate after people had passed in front of her. She said that "a little boy came up from nowhere". She "slammed" the brakes on as soon as she saw his hair. It was too late and she hit him. Ms Villiers said that, when she first saw the appellant, he was less than one metre from the vehicle and he was running. Neither Mr nor Mrs El Sleiman saw the accident and there was no other evidence of it. His Honour went on to make findings about the state of the street lighting in Marion Street. These were based on evidence given by Mr Bailey. Marion Street is a quiet suburban street. At the relevant time it did not carry a large volume of traffic. It was not well lit. Diagrams contained in Mr Bailey's report and annexed to His Honour's judgment show that each street light cast a pool of light. In between these pools were areas of darkness or comparative darkness. His Honour found that the appellant had emerged from one of these gaps in the light cast by the street lights. He said: "Accepting as I do the [first respondent] as a witness of truth, that position was very close to the position the [appellant] was when she first saw him. In my view the evasive action she took, namely of hard application of the brakes, was reasonable in the circumstances." The submissions made by counsel for the appellant were substantially based on the duty of drivers of vehicles to take special care in cases where there are children on or near the roadway or when the possible presence of children in the vicinity of the roadway ought reasonably to be foreseen. There is a conflict in the evidence relevant to this matter which his Honour does not really resolve. Ms Holt and Ms Villiers thought that more people crossed the road than Mrs El Sleiman and her two children. Furthermore, according to their evidence, they did not perceived those who crossed to include children. His Honour's judgment proceeds upon the basis that only the mother and her two children, one of whom she was carrying, crossed the road. That suggests the acceptance of Mrs El Sleiman's evidence in this respect. If that finding be correct, Ms Holt's observation and that of Ms Villiers must be incorrect both in relation to the number of people who crossed and whether or not the group included children. On the other hand, his Honour was favourably impressed with Ms Holt's evidence. As mentioned, he described her as a "witness of truth". I think the apparent conflict which there is in the evidence is resolved by accepting that it must have been Mrs El Sleiman and her two children whom Ms Holt saw but that, although her observation must have been erroneous, she did not observe the people she saw to include children and she thought more people were involved than two or three. Thus, on his Honour's findings, she was not in fact aware that children were about. Whether she ought to have been aware of their presence is a matter to which I shall come in due course. It needs be said, as it sometimes is in these cases, that the whole exercise in which the Court is engaged has an artificiality and an unreality about it. The witnesses gave their evidence in August 1995. The accident happened in May 1990, over five years beforehand. The critical events could not have occupied more than fifteen or twenty seconds, possibly less. Yet, the law's procedures are such that detailed questioning of witnesses as to matters of minute detail occurs. 4 UNREPORTED JUDGMENTS The strain imposed on human recollection is considerable. Witnesses are placed in a situation where they have trouble in distinguishing recollection from reconstruction. Too much is expected of them. Indeed, in this case, one counsel had the grace to ask questions almost apologetically because of the pedantic nature of them. Judges trying these cases are, of course, aware of the problems. They have to bring, and do bring, reality back into the courtroom. A broad view has to be taken and a decision given that reflects reality and common sense. What then is the reality of the events here? Ms Holt, driving at a moderate speed, entered Marion Street from the north. The street was dark but, in places, illuminated by pools of light cast by street lights. She had the benefit of her own headlights which were on low beam. Soon after she entered the street she was confronted by a number of people, she thought, although erroneously, numbered more than two or three. She did not perceive that they included children. In fact, the number was comprised of three persons, one adult and two very young children, one being carried. She slowed to allow them to cross in front of her and then began to accelerate believing that there was no occasion not to do so. They were then behind her and close to the eastern footpath. On his Honour's findings, she did not accelerate "violently". From her point of view all was then clear and there was no reason why she should not do so. Unbeknown to her, the appellant and his father were behind the station wagon, the father busily engaged in collecting parcels to be taken to the party. The interior light in the station wagon was on. She did not see it. The station wagon, parked as it was on the western side of the street, was facing her so that neither the appellant nor his father would have been visible to her. The appellant emerged suddenly from her right. She did not see him until he was quite close to the front of her vehicle. She did not in fact notice his body. Her evidence was that it was his hair that she saw. Those being the objective facts, the question is whether Ms Holt was negligent in failing to avoid the appellant. Counsel for the appellant broke their submissions up in order to deal with various matters. That is an understandable course but, in the end, the case has to be looked at as a whole. The question is whether, on the totality of the facts found by the primary Judge, he erred in not finding negligence. I propose to deal with counsel's submissions seriatim but, in doing so, I should not be thought to be departing from my view that the case needs to be looked at as a whole rather than under separate headings. It was first submitted that his Honour erred in failing to have appropriate regard to the principle stated by the Court of Appeal in Mitchell v Government Insurance Office of New South Wales (1992) 15 MVR 369 which affirmed the obligation of drivers of motor vehicles to drive defensively in circumstances where pedestrians, particularly children, might be expected to come on to the roadway. Reference was also made to the judgment of Beazley JA in Gunning v Fellows (11 February 1997, unreported). There is no question but that the law imposes a heavy duty on motorists to be aware of the possibility of pedestrians, but particularly young children, coming unexpectedly on to the road. No absolute standard is imposed. Every case depends upon its own facts and circumstances. Drivers passing a school during school hours, whether or not during hours when children might be expected to be arriving at or leaving the school, drivers passing a bus stop where a bus has stopped, drivers driving down a street where children are accustomed to play, or drivers confronted with a situation where they see young children on the footpath or the edge of the road, are required to make allowances for sudden movements of children across the road and to drive in a URJ EL SLEIMAN v HOLT (Sheppard AJA) 5 manner and at a speed which will enable them to avoid a collision. These are but examples of cases where great care is required but they are no more than examples. Children are likely to be encountered in all sorts of situations. Appropriate steps to avoid injury to them must be taken. In my opinion the present case does not fall into the category of case into which counsel seek to put it. I say that because, although the street was a quiet suburban street, the accident happened in conditions of darkness at about 8:00pm. The road was wet from previous rain and there were no objective signs that children were about except for the fact that Ms Holt and her passenger had seen people cross in front of the vehicle as it approached the vicinity of No 30 Marion Street. She had taken avoiding action by slowing down and allowing them to cross in front of her. There were suggestions in the cross-examination that, if she had not slowed down, she would have struck them. I do not see that reaching a conclusion on that matter, if it could be reached, is of any great assistance. The fact is that she did take adequate avoiding action and she thought that it was safe to resume a normal speed. She accelerated. To what speed she accelerated is a matter of conjecture. She gave evidence of a speed of 55 or 60 kilometres per hour. Her passenger confirmed this. But allowance has to be made for the fact that she had slowed down, she thought, to 20 or 25 kilometres per hour, and that she was regaining speed. Whether she was able to observe her speedometer is not revealed by the evidence and the expert evidence given by Mr Bailey suggests a speed of no more that 36 kilometres per hour at the time she commenced to apply her brakes. That was the evidence his Honour accepted. But a question remains, namely whether Ms Holt was negligent in accelerating at all. Ought she have remained at a very slow speed keeping a vigilant lookout for any other persons who might emerge from the darkness? His Honour's findings were that in all the circumstances Ms Holt's actions were reasonable. That seems to me to be the critical question in the case. Counsel for the appellant submitted that his Honour should have held that Ms Holt, being aware of the presence of an uncertain number of persons crossing or wishing to cross the street, and having slowed down to allow some pedestrians to cross, ought to have been alert to the possible presence of more pedestrians wishing to cross the street, and should have refrained from accelerating until she had ascertained that there were no further pedestrians who were about. She should have had her vehicle under sufficient control so that if a further pedestrian should emerge, collision could be avoided either by braking or sounding the horn. It was submitted that the action of Ms Holt in accelerating before ascertaining whether there were other pedestrians coming on her right was clearly a failure to take care. This, so it was submitted, was particularly so having regard to the presence of young children on the road. If the street had been well lit whether by street lighting or Ms Holt's lights being on high beam, and nothing more had been observed, it would be difficult to accept the submission which was based on the fact that a mother with two young children, one in her arms and one holding her hand, had successfully crossed the street. The submissions would run counter to findings to which there was no real challenge. On the evidence which his Honour accepted, there were no persons on either side of the road who wished to cross. There were those who had crossed whom she had avoided, those already there, namely the uncle and his wife, Mrs El Sleiman and the other siblings, and there were the appellant and his father of whose presence she was unaware. She said that she did not see the appellant until he was quite close to the car by which time it was too late for her 6 UNREPORTED JUDGMENTS attempt to avoid him to succeed. It was put that she should have been aware of the presence of other people on the right-hand side of the roadway because the light in the station wagon which Mr El Sleiman was unloading was on and a driver keeping a proper lookout would have observed it and concluded that there were other people in the vicinity who might cross the road. Her evidence was that she did not see the light. The fact that she did not may, as counsel for Ms Holt suggested, be explained by the fact that there were other cars parked in the area. The appellants submissions proceeded upon the basis that Ms Holt's negligence lay in her failure to drive at a speed at which she could bring her vehicle to a halt if any more people, including children, should emerge. But it was also submitted that Ms Holt was negligent in not perceiving the appellant earlier than she had done when he was about a metre away from the vehicle. He had crossed the western side of the roadway and her view of him would have been uninterrupted, there being no other vehicles about at that time. In the submission of counsel for the appellant, Ms Holt would have seen the appellant a little earlier than she did if she had been keeping a proper lookout. But the impression one has from a reading of the whole of the evidence and from his Honour's findings is that the appellant made a dash for the other side of the road. This is entirely understandable; he wanted to be with his mother and the other people while his father was engaged in retrieving the presents from the station wagon. If there were no more, a finding of negligence would, in my opinion, be unrealistic. But it is here that one has to bring into the equation the dark conditions of the area. His Honours finding was that the appellant suddenly emerged from the darkness into the light cast by Ms Holt's headlights which were on low beam. She had little prospect of avoiding him particularly as she was accelerating, however gradually that was being done. She had to change from acceleration to braking within a fleeting second. I think the case comes down to two questions. Was she negligent in accelerating at all and was she negligent in doing so when her lights remained on low beam? If she had had her lights on high beam, it is likely that they would have illuminated the western side of the road so that she would have seen the appellant a little earlier than she did. A further question to be brought into the consideration of the matter is whether she ought, particularly because of the darkened conditions, to have observed that the interior light in the station wagon was on. If it was, there is the further question whether that should have alerted her, particularly because of the recent crossing of the street by Mrs El Sleiman and her children, to the possibility that there might be other persons about who might be likely to cross the street. I should say at this point that I do not think that Ms Holt's failure to observe that two of the persons who crossed in front of her were children is indicative of a failure by her to keep a proper lookout. She would not have had a good opportunity to observe them. The darkened street and the suddenness of their appearance militated against her having a clear enough view to make a precise observation. What matters is that she did see them and she did avoid them. One of the critical questions is whether Ms Holt should have had her lights on high beam. His Honour dealt with this matter by saying that he found that Ms Holt's action in leaving her lights on low beam was reasonable in all the circumstances. He added that, while the street lighting was such as to cast pools of light in between which there were areas of darkness, there was nothing in the evidence to suggest that a reasonable driver would regard the lighting as being so imperfect as to require the lights to be placed on high beam. The submissions URJ EL SLEIMAN v HOLT (Sheppard AJA) 7 made on behalf of Ms Holt referred to a number of matters including the fact that the lighting cast by the street lights and the vehicle's lights, although on low beam, were adequate to reveal pedestrians on the roadway at some distance in front of Ms Holt's car. Thus she had no difficulty in avoiding the possibility of a collision with Mrs El Sleiman and her children. There is nothing now unlawful in drivers using lights on high beam in dark suburban streets where there is no oncoming traffic. Indeed, in a given case, it may be a wise precaution. Nevertheless, it is not customary to drive with lights on high beam in built up areas. Most suburban traffic travels with lights on low beam. One reason for this is the need for drivers with lights on high beam to be astute to dip them once oncoming cars emerge or their vehicles catch up to other traffic. The reflection of lights on high beam in rear vision mirrors can be just as blinding as lights on high beam may be to oncoming drivers. The question is whether, in the circumstances, particularly having regard to the fact that there were no other vehicles moving in the area, Ms Holt was in breach of her duty of care to the appellant in not having her lights on high beam. Really the question is whether his Honour was in error in concluding that she was not. His Honour thought that her conduct in leaving the lights on low beam was reasonable in all the circumstances. Having considered the matter, I am unable to detect error in this finding and, for that reason, would not disturb it. If, on the contrary, one were to accept the submission, there would still be a question whether the lights would have revealed the appellant in sufficient time for Ms Holt to have taken avoiding action. I think that is a matter that is open to question. In all the circumstances, I would reject the submissions made concerning the failure of Ms Holt to have her lights on high beam. That leaves the question concerning Ms Holt's failure to observe the appellant until he was quite close to her vehicle. Involved in this is the question whether she was justified in beginning to accelerate after having slowed down for Mrs El Sleiman. His Honour's finding was that the appellant suddenly emerged from the darkness. She could do little to avoid him. Should she have observed the interior light of the station wagon? There were a number of cars parked in the street. How close any of them was to the point of impact is not disclosed by the evidence. It is possible Ms Holt did not see the light because of parked cars. It is also possible that she did not see it because the illumination cast by it was not particularly bright. And, if one takes the view that she should have seen it, there would be the further question whether she should have taken account, by reason of it being illuminated, of the possibility of the appellant's sudden dash across the street. His Honour concluded all these matters adversely to the appellant. He found that Ms Holt's actions were reasonable in the circumstances: I do not detect error in his decision. The accident has had tragic consequences for the appellant and his family. What began as a happy family occasion ended in disaster. But the question is whether his Honour was in error in not finding Ms Holt negligent. In my opinion, he was not. In the result, I would dismiss the appeal. I should mention the third party proceedings. They were brought by Ms Holt against Mr and Mrs El Sleiman upon the basis that they, if sued, would have been liable to the appellant; s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. It was submitted that they were at fault in not taking proper care of the appellant so as to ensure that he did not do what he in fact did, namely cross the street alone. In the circumstances, it is unnecessary to deal with this submission. If it had been, it would have been necessary to consider some authorities. The 8 UNREPORTED JUDGMENTS most important of these is Hahn v Conley (1971) 126 CLR 276 per Barwick CJ at 283-5 and 286, Menzies J at 288, and Windeyer J at 294. The submission, if it had been necessary to consider it, would have raised a difficult question. In the circumstances, however, I do not come to it and do not otherwise comment on it. Accordingly, the appeal and cross-appeal should be dismissed. The costs of the appeal should be paid by the appellant and those of the cross-appeal by the first respondent, Ms Holt. 1 The appeal be dismissed. 2 The appellant pay the first respondent's costs of the appeal. 3 The cross-appeal be dismissed. 4 The first respondent pay the second respondents' costs of the cross-appeal. Counsel for the appellant: B Gross QC; T Boyd Solicitors for the appellant: Cameron Gillingham Boyd, Sydney Counsel for the first respondent: P W Taylor SC; A M Colefax Solicitors for the first respondent: Malcolm Johns & Company, Sydney Counsel for the second respondents: P Hall QC; J Sleight Solicitors for the second respondents: Uther Webster & Evans, Sydney