Derrick v Cheung [1999] NSWCA 341

New South Wales Court of Appeal CITATION : Derrick v Cheung [1999] NSWCA 341 FILE NUMBER(S) : CA 40614/98 HEARING DATE(S) : 20/09/99 JUDGMENT DATE : 11 October 1999

PARTIES : Rosalie Derrick v Wah Yi Rosanni Cheung (By her Next Friend Xiu Rui Hong) JUDGMENT OF : Stein JA at 1; Fitzgerald JA at 1; Davies AJA at 11

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 40614/98 LOWER COURT JUDICIAL OFFICER : Chesterman ADCJ

COUNSEL : C G Gee QC/M Scheib (Appellant) S L Walmsley/P C See (Respondent) SOLICITORS : Henry Davis York (Appellant) Beston & Co (Respondent) CATCHWORDS : Torts; negligence; motor vehicle accident; injury to pedestrian child; reasonable response to risk attendant upon driving; opportunity to avoid collision; consideration of Stocks v Baldwin 24 MVR 416; by majority: not a case for appellate intervention. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40614/98 DC 7156/97 STEIN JA FITZGERALD JA DAVIES AJA

Monday, 11 October 1999

Rosalie DERRICK v Wah Rosannie CHEUNG (By her Next Friend Xie Rui HONG)

JUDGMENT

1 STEIN and FITZGERALD JJA: At about 9.00am on Saturday 17 December 1994, the respondent, then an infant aged about 21 months, ran out of a yard onto the footpath and then between parked cars onto the roadway of Victoria Avenue, Chatswood. The road was busy at the time. The appellant had no opportunity to see the respondent until she appeared on the roadway in front of the appellant's car. The designated speed limit was 60 kilometres per hour and the appellant's vehicle was travelling at 45-50 kilometres per hour, which was consistent with other traffic movement in the locality. The appellant braked, swerved and skidded, but the respondent was struck by the near-side headlight of the appellant's vehicle, knocked to the roadway and seriously injured. 2 The careful judgment of the trial judge is not susceptible of any criticism unless it is of his Honour's ultimate conclusion that the appellant was negligent. 3 That conclusion gave literal effect to statements in Stocks v Baldwin, (1996) 24 MVR 416. particularly by Mahoney P, which have been applied by this Court on numerous occasions. While each case falls to be decided on its own facts, the judgment of the President in Stocks v Baldwin 24 MVR 416. is persuasive, as is the reasoning of Simos AJA. 4 We will record only two passages from Mahoney P's judgment. His Honour said: "I have stressed that the reasonable person would accept that it is not the duty of a driver so to drive that there is no foreseeable risk of injury to others. To think otherwise would be to ignore the realities of city life. But it not to be taken from what I have said that risks may be ignored. In the 'balancing' process to which Mason J referred [ Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48] at least four things are to be borne in mind: the extent of the damage that may be done by a driver to a pedestrian; the degree of likelihood that a pedestrian will suddenly come into the path of an ongoing vehicle; the consequent extent of the precautions which a driver must take against that eventuality; and the extent of what a driver is able to do when confronted with such a danger. The damage which a driver may do to a pedestrian is great: the injuries suffered by the present plaintiff show this. This is an important matter when deciding what a driver must do. The inconvenience of driving slower is to be measured against, inter alia, what may be done to a pedestrian if the driver's estimate of the risk is wrong. Pedestrians sometimes act carelessly. I do not mean by this that they do so more often than not. But, in my opinion, they do not so with sufficient frequency that a prudent driver would take account of it. The likelihood of that occurring is not a 'far-fetched or fanciful' risk which is to be put aside or discounted. It is something which occurs often enough for the prudent driver to foresee it and take it into account. 24 MVR 416, 418. … In this context, what is the significance of the speed at which the defendant was driving? The speed is significant because of the effect it has or may have upon what the driver will be able to do if such an eventuality occurs. If a pedestrian was to do what the plaintiff did, the things which the present driver could do to avoid her were limited. Swerving was of little if any use: he was driving in a traffic lane presumably not much wider than a car width, with a line of stationary cars on his right and the kerb on his left. In a practical sense, he could avoid the pedestrian only by stopping and, of course, his capacity to do so would be affected by his speed." 24 MVR 416, 420. 5 It is questionable whether the driving standards required by the statements in Stocks v Baldwin 24 MVR 416.are compatible with current driving practice in Sydney and its environs, or indeed always practical in the traffic conditions which exist. However that might be, they often do not correspond with the driving habits of many Sydney drivers. 6 It does not necessarily follow that they are a counsel of excessive caution or otherwise require an unreasonable standard of care. The circumstance that the exigencies of movement in and around the city cause many to drive too fast for the prevailing conditions might make such speed "reasonable" in one sense but does not mean it is not a breach of duty to other road users. 7 Accidents such as the present involves special difficulties. Theoretically, a pedestrian might run out into the traffic at any point at any time. A driver might have no opportunity to avoid a collision. However, the slower the vehicle, the greater the opportunity that exists. Nevertheless, travelling within the designated speed limit and in conformity with the traffic flow is ordinarily reasonable. Indeed, to do otherwise would often create risks. 8 There is no reason to doubt that the trial judge appreciated such considerations or the need to take all surrounding circumstances into account. As his Honour said, his decision was reached "often some hesitation". Another judge might have reached a different conclusion, despite the sympathy which the plight of the respondent and her family naturally attracts. Certainly, the appellant does not bear any moral, as distinct from legal, responsibility for what occurred. 9 However, we are not persuaded that this is a case for appellate intervention. As Mahoney P acknowledged in Stocks v Baldwin, 24 MVR 416, at 420. the determination of whether there was a breach of the duty of care is not determined by a 'syllogistic process from facts to conclusion'. Rather, it involves making value judgments, as referred to by Mason J in Shirt v Wyong Shire Council. (1980) 146 CLR 40. 10 We would dismiss the appeal, with costs. 11 DAVIES AJA: This is an appeal from the judgment of a Judge of the District Court of New South Wales in which his Honour found the appellant guilty of negligence in her driving and liable to pay damages to the respondent who was injured thereby. 12 The appellant was driving in an easterly direction along Victoria Avenue, Chatswood going towards the intersection of that road with Penshurst Street. The respondent was an infant aged 21 months. Whilst her mother was talking to a friend inside the friend's house in Victoria Avenue, the respondent went out of the house onto the pavement of Victoria Avenue and into the path of the traffic. The learned trial Judge accepted the evidence that the respondent moved quickly onto the road and referred to the evidence of an independent witness that she had "darted". The appellant braked and swerved but was unable to avoid the little girl. Evidence was given by the driver of a car which had been approaching from the other side of the road and also from the driver and front-seat passenger of the car immediately preceding that which the appellant was driving. Their evidence and that of the appellant established that there was a fairly steady stream of traffic on both sides of the road, that the appellant was keeping an average distance from the car in front and that the appellant was driving within the range of 45-50km/h. The speed limit for traffic was 60 km/h. The trial Judge found that the appellant's reaction time was reasonable, that she took appropriate action to avoid the accident and that the accident was unavoidable having regard to the speed of the car. 13 The trial Judge said that the only matter upon which a finding of negligence could be based was the speed of the appellant's vehicle, 45-50km/h. After referring to a number of decisions, the trial Judge held that the appellant was negligent in driving that speed. His Honour said: "The presence of houses and shops in the vicinity, taken in conjunction with the date (shortly before Christmas), the day of the week (a Saturday) and the time of day (9.00am), should have alerted her to the possibility that a small child such as the plaintiff might be on or near the road." 14 Reference to the date, the day of the week and the time of the day add little or nothing to the known facts. Victoria Avenue, between the Chatswood Shopping Centre and Penshurst Street was a busy road. His Honour's reference to the possibility that a small child might be on or near the road was not supported by any finding that this was an area where one might expect a child of 21 months to be unattended. The trial Judge did not find that Victoria Avenue, in the relevant area, was a quiet suburban street where children might be playing. 15 The decision of Mahoney P, Sheller JA and Simos AJA in Stocks v Baldwin (1996) 24 MVR 416 has often been cited and was cited in this appeal. It is a valuable authority. The reasons for judgment of Mahoney P, with whom Sheller JA agreed, contain a helpful analysis of the principles to be applied. However, the decision did not change the law and did not purport to do so. Mahoney P made it clear, at p 417, that the fundamental test is what a reasonable man would do by way of response to the risk attendant upon his driving. That was the issue in Stocks v Baldwin and it is the issue in this appeal. 16 The facts of the present case were different from those in Stocks v Baldwin for there was no particular perceivable risk which the appellant should have taken into account but did not. She drove with other cars at a modest speed, 45-50km/h, keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout. The appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and a proper response to the traffic conditions on the day. For the appellant to have dawdled along Victoria Avenue when no particular danger was apparent would not have been appropriate for it could have caused disruption. 17 The facts of the present case have similarities with those in Stewart v Carnell (1984) 2 MVR 147, where it was held that the driver was not negligent, notwithstanding that, had the driver slowed, even a little, the collision would have been avoided. At p 151, Kirby P, Glass and Samuels JJA said: "Negligence implies a want of care to prevent foreseeable injury. There are limits on the extent to which irrational behaviour of pedestrians, in apparent disregard of their own safety, should reasonably be anticipated by a reasonably careful motorist. Those limits were reached in the facts of this case." 18 And so they were in the facts of the present case. The appellant was driving at a reasonable speed and in a responsible manner. The respondent, a toddler, should not have been on the roadway. She was not observable and it was not reasonably foreseeable that, unattended, she would attempt to cross the road. 19 I would allow the appeal. I would set aside the orders below and, in lieu thereof, I would order that the proceedings below be dismissed with costs. I would order that the respondent pay the costs of the appeal.