Antypas v McKeon [2001] NSWCA 417

New South Wales Court of Appeal

CITATION : Antypas v McKeon [2001] NSWCA 417 FILE NUMBER(S) : CA 40275/01 HEARING DATE(S) : 19/11/01 JUDGMENT DATE : 28 November 2001

PARTIES : Catherine Antypas by her Tutor Farida Antypas v Linda Kay McKeon JUDGMENT OF : Hodgson JA at 1; Ipp AJA at 2; Rolfe AJA at 51

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8579/99 FILE NUMBER(S) : LOWER COURT Cooper DCJ JUDICIAL OFFICER :

COUNSEL : K Rewell SC/A Beardow (Appellant) R F Sutherland SC/L Morgan (Respondent) SOLICITORS : Keddies (Appellant) Moray & Agnew (Respondent) CATCHWORDS : NEGLIGENCE - motor accident - children - onus of proof. ND DECISION : (1) Appeal dismissed (2) Appellant to pay the Respondent's costs of the appeal.

OF NEW SOUTH WALES COURT OF APPEAL

CA 40275/01 DC 8579/99 HODGSON JA IPP AJA ROLFE AJA

Wednesday, 28 November 2001 CATHERINE ANTYPAS BY HER TUTOR FARIDA ANTYPAS v LINDA KAY McKEON

Judgment 1 HODGSON JA: I agree with Ipp AJA. 2 IPP AJA: On 18 November 1996, the appellant (Catherine Antypas) was struck by a car in Sutherland Street, St Peters. She was then aged 6 years 8 months. The respondent was the driver of the car. In consequence of the accident the appellant suffered very serious injuries. 3 The appellant (by her tutor), brought proceedings against the respondent to recover the damages she suffered. By agreement between the parties the issue of liability, alone, was first determined. Cooper DCJ held that negligence on the part of the respondent had not been established and awarded a verdict and judgment for the respondent. The appellant now appeals against the orders so made. 4 A difficulty that faced the trial judge and that faces this court is that the evidence as to relevant features of the scene of the accident was inadequate to a serious degree. I will come to that but, at this stage, I shall set out the relevant facts and circumstances relating to the accident that were established by the evidence. 5 A plan of the area was tendered on behalf of the appellant through Mr Aiello, a witness at the trial. Mr Aiello did not draw the plan. He did, however, indicate thereon the positions of his vehicle (which was parked in Sutherland Street at the time of the accident), where the respondent's vehicle came to a stop, and where he said the appellant was lying on the road after the accident. The plan was not drawn to scale. It had been prepared by a person unknown and admitted after objection by the respondent. The plan lacked measurements of several important features and has to be regarded as being of doubtful reliability. It does, however, give a general indication of the accident scene. 6 Sutherland Street runs from east to west. At the point where the impact occurred, Sutherland Street was about 12 metres wide "and open and straight". There was room for parked vehicles on either side of the roadway as well as for two lanes of traffic moving east and west. On each side of the roadway there was a footpath about "one and a half to two metres wide from the kerb to the front fences of the houses themselves". 7 Along the edge of the footpath on both sides of the roadway were trees. According to Mr Aiello, the trees were "more so like saplings". Nevertheless the trees were sufficiently high for their foliage to be at the height of the power lines. There was no other evidence that described the size of the trees, their thickness, and the extent to which they were capable of obscuring the view of a driver of a motor vehicle travelling from west to east. No witness was questioned as to how far the foliage came down, although Mr Aiello said that a speed advisory sign some fifty metres to the west of the point of impact was "covered by trees". There was no evidence as to the number of trees and the distances they were apart. 8 The appellant lived with her parents and other members of her family on the southern side of Sutherland Street in number 78. Mr Aiello lived in number 71. His house was on the northern side of the street, several houses to the east of number 78. 9 The accident occurred about two and a half metres into the roadway from the northern kerb opposite number 75, Sutherland Street. Number 75, like no 71, was on the northern side of the street. Opposite number 75 were numbers 70 and 72. To the west of numbers 70 and 72 were numbers 74, 76 and 78 (the latter being the appellant's house). 10 The respondent did not testify. By reason of her injuries, the appellant was not able to testify. There were no other eye-witnesses to the collision. Nevertheless, there was evidence from which Cooper DCJ held that the appellant walked out of her house at number 78, crossed to the northern side of Sutherland Street, proceeded east to an unknown point and eventually attempted to cross to the southern side of Sutherland Street, when she was knocked down outside number 75. 11 The properties directly opposite number 78, that is, on the northern side of the street, were not identified. The westernmost property identified on the northern side of the street was number 77, which was to the northwest of number 78. Number 75 was to the east of number 77 and numbers 73 and 71 were further to the east. There was no evidence as to the extent of the street frontage of any of these properties. 12 There were fences along the boundaries of numbers 77, 75, 73 and 71. Presumably there were fences along the boundaries of properties to the west of number 77, but the evidence was silent as to this. There was no evidence as to the type of fences that had been erected along the boundaries of the identified properties. Accordingly, their height and composition were not known. Nor was it known whether there was any foliage at or near the fences. 13 The plan showed that each of the identified properties had a path running from the front fence towards the house on the property. There was no evidence that established whether or not the fences would have prevented a driver of a vehicle travelling west to east along Sutherland Street from being able to see a child, of the age and size of the appellant, standing on any one of the paths in question. 14 The morning of 18 November 1996 was bright and sunny. Mr Aiello had parked his Commodore station wagon on the roadway outside his house facing east. There were cars parked behind Mr Aiello's car, but a "considerable distance" away. There was no evidence as to what that distance was. . 15 In Sutherland Street, to the west of Mr Aiello's car, was a speed hump. The distance from the eastern side of the hump to the eastern boundary of 75 Sutherland Street was 48 metres. Prior to the accident, the respondent was driving her car, a yellow Celica, eastwards along Sutherland street. On passing the speed hump, she was travelling at between 15 to 20 kilometres per hour. 16 In November 1996 it was the custom of the appellant's mother to take the appellant to a bus stop "outside" their house, and the appellant would catch the bus to her school. 17 By between about 8.00 am and 8.15 am on the morning in question, the appellant had been dressed in her school uniform and she was ready to be taken to the bus stop. Unfortunately, at about this time, her mother lost sight of her and the appellant left the house, alone. About 10 minutes later her mother realised that her child had been involved in a motor vehicle accident. 18 Shortly after 8.00 am, Mr Aiello was sitting in his Commodore station wagon while it was parked outside number 71. At about 8.15 am Mr Aiello noticed in his rear mirror that there was a stationary yellow Celica car facing east in Sutherland Street, no more than a car's length behind his car. The right hand side of the Celica was then about 2 feet to the south (or towards the centre of the road) of the alignment of the offside of Mr Aiello's vehicle. 19 Mr Aiello saw a woman standing behind the Celica. This was the respondent. He got out of his car and walked towards the Celica. He saw the appellant lying on the roadway. The Celica had collided with her. She was lying 2 ½ metres from the northern kerb. Mr Aiello had marked a point on the plan that indicated that she was lying in about the middle of the roadway, but the trial judge found that to be incorrect. He held that the point of impact was in the roadway, 2 ½ metres from the northern kerb. 20 The respondent did not testify but a statement she gave to the police was tendered by the appellant who accepted its truth. The relevant part of the statement is as follows: "I just started to come up Sutherland Street towards the Princes Highway. I had just come over the speed hump so I wasn't going that fast, probably about 15 to 20 kilometres per hour. Just as I came here, indicating outside 75 Sutherland Street, I saw this figure run out from my left hand side. I thought the girl was going to run out in front of my car. She didn't even look like she was going to stop. I swerved around to try to miss her but I must have just clipped her. There is no damage to my car. I think she may have hit the front left hand side of my car but I'm not sure. When I looked in my rear view vision mirror I saw her lying on the road". 21 On the appellant's behalf a table of average stopping distances was tendered. These distances were the distances that an alert driver would be expected to stop whilst driving a vehicle in good condition on a dry sealed road. Cooper DCJ found that the respondent was travelling at 20 kilometres per hour at the time of the impact. On that basis, the average stopping distance at 20 kilometres per hour was 8 metres. 22 Cooper DCJ found that the distance from the position of the appellant on the roadway after impact to the front of the stationary Celica was about 2 car lengths. He pointed out that this would be close to 8 to 10 metres, and that was consistent with the respondent's stated speed of about 20 kilometres per hour. This suggested that the appellant only braked after the impact, and his Honour so found, concluding that "there was a prompt, albeit not a harsh, braking". 23 Mr Sutherland SC, senior counsel for the respondent, criticised the finding that the distance from where the appellant was lying to the front of the stationary Celica was about 8 to 10 metres, but the evidence of Mr Aiello and the general position of the vehicles he drew on the plan support this finding. 24 Mr Rewell SC, senior counsel for the appellant (who did not appear at the trial), submitted that it must be taken from the respondent's statement that she first saw the appellant when she was running on the roadway. He submitted that had she seen the appellant when she was on the path between the houses and the roadway, she would have said so. The tenor of the respondent's statement supports this submission, which I accept. 25 To summarise, therefore, the respondent was travelling at 20 kilometres per hour. She first saw the appellant on her left when the appellant was on the roadway, running across the road from the northern side. The respondent did not brake at that stage and attempted to avoid a collision by swerving to the right. She was unsuccessful and struck the appellant when she was about two and a half metres into the roadway. Upon the collision occurring, the respondent braked and stopped about 8 metres east of the impact. 26 It seems from the reasons of Cooper DCJ that, at trial, the case for the appellant was put on two bases. Firstly, it was argued that the respondent was negligent in failing to keep a proper lookout. Secondly, it was argued that the respondent was negligent in failing to take appropriate evasive action to avoid colliding with the appellant. 27 In rejecting the first argument Cooper DCJ said "that a finding that the respondent could have seen the appellant on the northern footpath in good time before she ran onto the roadway, assuming that the respondent had kept a proper lookout, requires speculation". His Honour said: "It requires speculation as to where [the appellant] was and it requires speculation as to whether she was in a position where she was visible to the [respondent]. In short, the state of the evidence is such that [the appellant] has failed to satisfy the Court on the balance of probabilities that the failure of the [respondent] to see [the appellant] on the footpath or in a position before she ran on the roadway was due to lack of reasonable care on her part." 28 In rejecting the second argument the learned judge said: "In the first place the evidence satisfies me on the balance of probabilities that the [respondent] stopped within eight to ten metres after the impact so that there was a prompt, albeit not a harsh, braking. Furthermore the [respondent's] statement says, 'I thought the girl was going to runout in front of my car'. Under these circumstances the conduct of the [respondent] of swerving to try to miss her was all that a reasonably prudent driver could be expected to do. Indeed on the probabilities had the [respondent] applied her brakes harshly her car may well have lost traction on the roadway and the injuries to the [appellant] may have been even more severe. It was further submitted on behalf of the [appellant] that even if more prompt braking would not have avoided the impact nonetheless the injuries would probably have been less severe. I am not satisfied that this is so. Indeed on the balance of probabilities I am satisfied that the impact occurred on the left hand side of the [respondent's] vehicle at about the front." 29 Again, before this Court, Mr Rewell SC submitted that the respondent was negligent in failing to keep a proper lookout. In the written submissions filed on the appellant's behalf the following was said: "The appellant does not contend that the speed of the respondent's vehicle was excessive in the circumstances. The appellant does not contend that, having (belatedly) seen the appellant on the roadway, the [respondent] failed to take evasive action. The appellant simply contends that the accident occurred because the [respondent] failed to observe the presence of the appellant until almost the moment of impact when there was no reasonable excuse for failing to observe the appellant much earlier". 30 A difficulty that faces the appellant in regard to this argument is that it was not known where the appellant was before she commenced to cross Sutherland Street. 31 There was no attempt on behalf of the appellant to lead any evidence indicating where she might have been after leaving her house that morning. I accept that there may have been no person who might have seen her, but it is likely that there was some incentive for her to leave her house, cross the street to the northern side, stay there for some minutes and then return across the street. Such an incentive, for example, might have been a friendship with the residents in one of the houses opposite. Evidence to that effect might have cast some light on where she was at the crucial time. 32 Mr Rewell attempted to overcome this difficulty by submitting that that the appellant could have been in one of only three places, namely, in the pathway of number 75 Sutherland Street, standing or walking on the northern footpath, or on the roadway and not on the footpath. 33 Mr Rewell accepted that the appellant was required to prove that, on the assumption that the appellant might have been at any one of the three places mentioned, the respondent was negligent in not seeing her earlier. 34 While it is conceivable that the appellant was on the path leading to the house at number 75 Sutherland Street, it is also possible that she may have been in one of the other properties on the northern side of the street. Nevertheless, Mr Sutherland, in effect, accepted that the best situation from the respondent's point of view was that the appellant might have been in the path leading to the house at 75 Sutherland Street, and I shall therefore accept this part of Mr Rewell's submission. The scenario postulated assumes that the appellant had been in the pathway of number 75 and had run from there across the street where the impact occurred. 35 Importantly, there was minimal evidence dealing with the number, position and size of the trees along the northern side of Sutherland Street. Cooper DCJ observed that "the vantage points from which [the respondent] had views of the northern footpath were constantly changing as she approached the point from which the [appellant] ran onto the road". His Honour then went on to make the following remarks: [The plan] shows six trees between the western boundary of 75 Sutherland Street and the speed hump. There is no evidence as to the distances between those trees. There is scant evidence as to the extent to which those trees obstructed the [respondent's] view of the footpath from the various vantage points over the distance travelled by the [respondent] up to the point of impact." [The plan] also shows a tree outside 75 Sutherland Street approximately in line with where the [appellant] ended up lying on the roadway. There is no evidence as to where the [appellant] was standing or moving in relation to this tree immediately before running onto the roadway and there is no evidence as to whether or not this tree obstructed the [respondent's] view of the [appellant] in the seconds before the [appellant] ran onto the roadway". 36 Mr Rewell urged this Court to find that, because the trees were described as "like saplings", they would not have constituted any obstruction to the respondent's line of vision. In my view this submission cannot be accepted. It is not possible to determine with any reasonable accuracy what Mr Aiello meant when describing the trees in this way. After all, the trees were as high as the power lines. Their foliage had obscured the advisory speed sign, as I have mentioned. From the perspective of a driver approaching the point of impact it is possible that the trees, to a substantial extent, may have obscured a child between 6 and 7 years of age standing or moving on the footpath. There is no evidence as to the height of the appellant at the time, whether she was a small child or big for her age. 37 It would have been a simple matter to have led evidence of the line of vision from the direction from which the respondent was travelling, but this was not done. Not even photographs of the scene were put in to evidence. 38 Mr Aiello said that a car was parked on the northern side of the road behind his car. It is true that he said that it was a "considerable distance" away. But there was no attempt to ascertain what he meant by a "considerable distance". Did he mean 40, 60 or 100 metres away? He was not questioned about this. 39 The most serious potential obstruction to the line of vision of a driver in the respondent's position might well have been the fences of the properties on the northern side of Sutherland Street. This would have been the case had the appellant been in the pathway of 75 Sutherland Street (which, as I have pointed out, has to be taken to be a potential scenario). The degree of speculation required, already substantial by reason of the factors which I have mentioned, is enhanced by the omission to adduce any evidence dealing with the nature of the fences and the existence or otherwise of adjacent foliage and whether the fences and foliage (if there was foliage) were likely to obscure the vision of an oncoming driver into the pathway of number 75. 40 Mr Rewell submitted that the absence of relevant evidence as to visibility was a problem for the respondent rather than the appellant. He criticised the respondent for not questioning the relevant witnesses called by the appellant in regard to these matters, for failing to lead any relevant evidence in this regard, and for failing to put into evidence photographs of the scene which had been used at the trial to cross-examine Mr Aiello. 41 But this is to reverse the onus of proof. It was for the appellant to establish the visibility, not for the respondent to prove that the visibility was obscured. The following remarks of Kirby P in Maharis v Malajevac (1994) 20 MVR 41 at 45 are pertinent: "The onus rested upon [the appellant] to prove the negligence of the respondent. The law has not reversed the onus to place it upon the motorist. It was a risky procedure to adopt to refrain from calling the respondent. But clearly it was vindicated by the conclusion which Rummery A-DCJ reached. As, by the end of his case, the appellant had failed to establish negligence, it was a legitimate forensic tactic for the respondent not to offer his testimony and to rely, instead, upon the appellant's failure to discharge his onus. This is what I take to have been the respondent's strategy adopted at the trial." 42 In the course of his evidence Mr Aiello was asked whether children were living in Sutherland Street. He replied: "Yes, at that time of the morning there was always a lot of children making their way to school and whatever children do at that time of the morning". In this respect the area in question was similar to that of nearly all suburbs in Sydney. I accept, as did Cooper DCJ, that the respondent should have been on the lookout for children. That, however, does not cure the absence of evidence as to whether her line of vision was such that she could have seen the appellant far earlier than she did. 43 Had the appellant commenced to run across Sutherland Street from the commencement of the path leading into number 75, it would have taken her about one second to cross the footpath between the fence and the roadway. It was not in dispute that the reaction time for a driver in the position of the respondent was one second. On this basis, the respondent, taking due care, would have first been able to react to the danger presented by the appellant as she stepped on to the roadway. 44 In other words, on the assumption that the appellant was on the path in 75 Sutherland Street as the respondent was driving eastwards, the evidence failed to establish that the respondent, keeping a proper lookout, could have seen the appellant before she emerged from the path. This finding is determinative of the appeal. 45 Even were it to be assumed that the appellant was walking on the footpath between the roadway and the fences (and not somewhere in 75 Sutherland Street) as the respondent was driving eastwards, I do not think that the evidence established, on a balance of probabilities, that the respondent, exercising due care, would have seen the appellant and taken particular note of her before she commenced running across the roadway. The lack of evidence concerning the trees and the other matters to which I have referred means that one has to speculate whether a driver acting reasonably would have seen the appellant and been aware of the need to take avoiding action before the appellant commenced running on the roadway. 46 In the circumstances, I do not accept that the respondent failed to keep a proper lookout. In my view, Cooper DCJ was entirely correct in the view to which he came in this regard. 47 Despite Mr Rewell's written submissions confining his argument to the issue of keeping a proper lookout, during the course of argument there was some suggestion on his part that the respondent should have braked earlier than she did and should not have attempted to avoid the collision by swerving to the right. 48 The appellant hit "the front left hand side" of the respondent's car. According to the respondent, she "just clipped her". By taking the avoiding action she did, the respondent, although unsuccessful, came close to avoiding the collision. It is possible that, had she applied her brakes fiercely as soon as the appellant entered the roadway, her vehicle might have stopped short of hitting the appellant. On the other hand, it is possible that her vehicle might not have stopped in time and she might have run over the appellant with worse consequences than in fact resulted. It is simply not possible to say. 49 The fact is that the appellant's conduct in running across the road brought about a sudden emergency and, in my view, it would be unreasonable to criticise the respondent for swerving and not braking. Moreover, as I have indicated, it is possible that, had she braked, the consequences might have been worse. In the circumstances which suddenly confronted the respondent, and with which she had to deal in a few seconds, I do not consider that she acted unreasonably in any way. 50 In the circumstances I would dismiss the appeal and order the appellant to pay the respondent's costs of the appeal. 51 ROLFE AJA: I agree with Ipp AJA. **********