ARNOLD (BY HER FRIEND ARNOLD) v HOLDEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, HANDLEY JA and SHEPPARD AJA 22 October 1998, 22 October 1998 [1998] NSWCA 17 Negligence — standard of care — girl on bike struck by van — evasive action would not have avoided the accident — driver of van not negligent Mason P This is a sad case involving a fourteen-year old girl who suffered injuries when she was struck by a car. She and a companion were proceeding north along Mt Ettalong Road, just to the left of the carriageway. Two of her companions had crossed over to the right hand side of the road, also proceeding north, a little while earlier. In a careful judgment which reviews the evidence and contains findings of primary fact and ultimate conclusions, his Honour Judge Sinclair QC found that he was not satisfied that the defendant, the respondent here, was negligent. I would be content to adopt the reasoning of his Honour in its entirety because I find no fault either in the factual assessment or the legal principles stated, nor the conclusions to which his Honour came. However, out of deference to the argument put to us and the particular facts of the case, I should address some of the points that have been made. The case proceeded essentially upon the basis of the ultimately unchallenged evidence of the respondent and an independent witness, Mrs Hull, who was driving a car ahead of the respondent's van. The trial judge found that each of those witnesses impressed him as being truthful, sensible, and reliable witnesses, and the findings of fact he made were consistent with their evidence. His Honour accepted the evidence of Mrs Hull that the two girls on their bicycles on the left hand side of the road, one of which was the appellant, were veering on and off the road to some extent and calling to the girls on the other side of the roadway. However their conduct was not sufficient to cause Mrs Hull to slow down or veer towards the centre of the road as she passed them. Nevertheless, it was sufficient to cause her to look in her rear vision mirror as the defendant, the respondent here, was going past them. This is why her evidence, coming from an independent witness who actually had her attention alerted and looked at what happened, is of critical importance. Based on her evidence his Honour found that, without warning, the appellant turned her bicycle to the right and commenced to ride across the roadway, straight into the path of the respondent's vehicle, and that at that time he had no chance of avoiding the collision. Two things, I think, are important in corroborating this finding. The first is to note that the point of impact was about a quarter of the way cross the front of the respondent's vehicle and about the centre of the northbound traffic lane in which the respondent was driving. This was a road with a single lane north and a single lane south. In other words, the appellant had proceeded only a very short way across the road before she was struck by the car. The second significant objective fact, to my mind, is that it was found that Mrs Hull was between one and one-and-a-half Vehicle lengths ahead of the respondent. Given that the appellant veered across the road after Mrs Hull had passed, and yet before the respondent's vehicle came through and struck her, it 2 UNREPORTED JUDGMENTS must have been but an instant of time before the accident occurred. These two objective facts satisfy me that his Honour was correct in resolving the ultimate issue in the way that I have indicated. It was argued before us that the trial judge failed to apply the principles established in cases such as Mitchell v Government Insurance Office (1992) 15 MVR 369 and Gunning v Fellows, Court of Appeal unreported 11 February 1997. I do not accept that submission. His Honour adverted expressly to Mitchell's case. So far as the facts are concerned, the respondent had indicated in his statement to the police that he saw "two girls ahead on pushbikes, on the gravel". There may be circumstances where a driver needs to sound a horn or take additional evasive action, but I see nothing on the facts of this case to show that the trial judge erred in concluding that the respondent was not negligent. As regards the suggestion that he should have given a warning sounding of the horn, it is relevant again to record that he was following Mrs Hull's vehicle and proceeding within the sixty kilometre an hour speed limit. The second main point that was advanced in challenging the judgment was the submission that the respondent should have seen, as Mrs Hull did, that the girls ahead of her were behaving erratically, and therefore should have been on heightened alert. The trial judge was conscious of this submission, which clearly was put to him. He held that what must be borne in mind is that the perspective of the driver of the leading vehicle was different to that of the driver of the second vehicle. If one accepts, as I think we must, the finding that the respondent was at most about two car lengths behind Mrs Hull, then it is fairly obvious that in a straight section of road his capacity to see all that the girls were doing was less than hers. In any event, I do not think the facts establish when it was that the two girls who moved from the west to the east side of the road did so. Certainly they do not establish that this occurred at a time when they were within the line of sight of the respondent. The suddenness of the swerve into the path of the respondent's vehicle means that evasive action, including the sounding of a horn would not, on the particular facts of this case, have avoided the accident. In my view the appellant has failed to establish error in the judgment below, and the appeal must therefore be dismissed with costs. Handley JA I agree. Sheppard AJA I also agree. Mason P That is the order of the Court. The appeal dismissed with costs. Counsel for the appellant: A Fennell Solicitors for the appellant: Steele & Walker Counsel for the respondent: K J Kelleher Solicitors for the respondent: Sparke Helmore