Reported Decision : (2006) Aust Torts Reports 81-861 New South Wales Court of Appeal CITATION: Latham v Fergusson [2006] NSWCA 288 HEARING DATE(S): 16/10/2006 JUDGMENT DATE: 3 November 2006 JUDGMENT OF: Santow JA at 1; McClellan CJ at CL at 2; Hoeben J at 3 DECISION: Leave to appeal be granted. The appeal is allowed. The judgment of McGuire DCJ be set aside and in lieu thereof judgment entered in favour of the claimant. Costs reserved pending the outcome of the application for leave to appeal in Firth v Latham & Ors in matter CA 40085/2006. CATCHWORDS: Motor accident - child aged 23 months - masked by metal chevron sign on pedestrian crossing - motorist moving at low speed - breach of duty - whether breach caused accident - dangers of hindsight reasoning. LEGISLATION CITED: Evidence Act 1995 Derrick v Cheung (2001) 181 ALR 301 CASES CITED: Knight v Maclean [2002] NSWCA 314 Tobin v Worland [2005] NSWCA 188 Vairy v Wyong Shire Council (2005) 80 ALJR 1 PARTIES: Kim Latham - Claimant Olivia Floyd Fergusson by her next friend Lara Floyd - Opponent FILE NUMBER(S): CA 40964/05 COUNSEL: R Leatherbarrow SC/Ms C Allan - Claimant R Goodridge - Opponent SOLICITORS: Abbott Tout - Claimant Firths - Opponent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 4100/2004 LOWER COURT JUDICIAL OFFICER: J C McGuire DCJ LOWER COURT DATE OF DECISION: 18 November 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40964/2005 DC 4100/2004 SANTOW JA McCLELLAN CJ at CL HOEBEN J Friday, 3 November 2006 Kim LATHAM v Olivia Floyd FERGUSSON bhnf Lara FLOYD JUDGMENT 1 SANTOW JA: I agree with Hoeben J. 2 McCLELLAN CJ at CL: I agree with Hoeben J. 3 HOEBEN J: The claimant seeks leave to appeal from a decision of McGuire DCJ in which his Honour determined in a separate trial of the issue of liability that the claimant had been negligent while driving her motor vehicle, which struck the opponent (then aged 23 months). The accident occurred at 11.50am on 8 April 2003 on a pedestrian crossing in Garden Street, North Narrabeen. Factual background 4 The following facts were not in dispute. 5 On 8 April 2003 the opponent was in the company of her mother, Lara Floyd, and one month old baby sister on a walk in North Narrabeen. The baby was being pushed by Ms Floyd in a pram, which had until the baby's birth been used to transport the opponent herself. This was the first time Ms Floyd had taken the two children on such an outing together. 6 Ms Floyd crossed the pedestrian crossing, which was near the intersection of The Crescent, from the western kerb to the eastern kerb. She did not have hold of the opponent's hand as she crossed since she was pushing the pram with her left hand and holding a plastic ride-on toy in her right hand. 7 The pedestrian crossing was marked with metal chevron signs, placed on concrete blisters in the centre of the roadway and 1.1 metres from the western and eastern kerbs. The configuration of the pedestrian crossing is clearly set out in the police photographs, exhibit A. 8 The opponent did not follow Ms Floyd across the pedestrian crossing but instead stayed close to the western kerb, apparently playing behind the metal chevron sign there located. 9 The claimant, who was driving her motor vehicle in a northerly direction along Garden Street, at a speed of approximately 40 kph struck the opponent after she had emerged from behind the metal chevron sign into the path of the claimant's motor vehicle. At no time did the claimant see the opponent before impact. The vehicle was a red 2001 Nissan Pulsar sedan. 10 The speed limit in Garden Street was 50kph. The width of the area between the concrete blisters available for northbound vehicles through the crossing was 2.9 metres. The distance between the eastern edge of the raised chevron sign on the western side of the road to the centre traffic island was 3.3 metres. The width of the pedestrian crossing was 3.71 metres. The chevron sign on the west side of the road was 76cms above road level at its eastern edge and 80cms above road level at its western edge. There were gaps above and below the panel comprising the actual chevron. The gap above the panel was 6cms and below was 13cms. The opponent was 85cms high taking into account her shoes. 11 The width of the claimant's vehicle was 1.65 metres. A fast walking speed for a child of the opponent's age was 1 metre per second and the running speed for such a child was 2 metres per second. The expected perception reaction time for a driver in an urban environment was 1.5 seconds. This could be a little less, if the driver had been alerted. A small lag time of between .1 and .2 seconds occurs between the application of the brake in a car and actual braking. 12 At a speed of 40kph the claimant would have needed to commence heavy braking at a distance of 25 metres from the intersection in order to have avoided an impact with the opponent. Put another way, allowing for a 1.5 perception reaction time, the claimant's vehicle would need to have been travelling at 8kph when the opponent emerged from behind the chevron sign for an impact with the opponent to have been avoided. At 40kph a car travels 11 metres in 1 second. The evidence 13 The opponent's case comprised the oral evidence of Lara Floyd, police photographs taken at some time after 2.30pm on the day of the accident, the claimant's statements recorded in a police notebook and in a later electronic interview and various diagrams and plans of the crossing. 14 Ms Floyd said that she entered the pedestrian crossing on the western side of Garden Street with the opponent at her side. She was carrying the opponent's ride-on tricycle as she wheeled the pram over the crossing. At the same time she was talking to the opponent. When she received no response, she said that she realised that the opponent was no longer beside her. She looked back and observed the opponent crouching down playing in the dirt at the bottom of the chevron sign at the western end of the crossing. While continuing to look back she proceeded to complete the crossing. She pushed the pram onto the footpath where she applied its brake and then turned around intending to go back over the crossing for the opponent. 15 The evidence of Ms Floyd as to what happened next was: "As I was walking towards her she turned around, she saw me coming towards her. At the time, same time that she is looking at me and I am looking at her, I noticed a car just out of my range of sight coming towards her and I froze and I watched as Olivia saw me and started running towards me, or walking towards me, she had a look on her face you know, like, I've been caught out, been naughty, naughty mum and she started heading towards me and then the car hit her and took her along the road." (Day 1, T.24.25) In subsequent answers Ms Floyd clarified the speed at which the opponent was moving as "walking quite quickly". 16 Ms Floyd was certain that she had not completed the crossing when she first looked back and saw the opponent. It was never clarified where exactly the opponent was standing immediately before she commenced moving towards Ms Floyd. I infer that she was standing on the pedestrian crossing, but it is not known how far away from the chevron sign. Had she been standing on the concrete blister, rather than on the crossing, one would have thought this was sufficiently unusual to have elicited some comment from Ms Floyd and would seem to be inconsistent with the observations of Ms Brown. 17 In the claimant's case a statement of Ms Penelope Brown and the transcript of her evidence in police proceedings was tendered pursuant to the provisions of s64 of the Evidence Act 1995. That evidence was given on 15 March 2004. Ms Brown was a motorist who had passed through the pedestrian crossing from the opposite direction to the claimant moments before impact. 18 The evidence of Ms Brown was that she was driving a four wheel drive vehicle at 40kph in a southerly direction. When she was about 15-20 metres from the crossing she observed Ms Floyd coming off the crossing pushing a pram and carrying a bike. She did not observe Ms Floyd to look back over her shoulder. As she was passing through the crossing Ms Brown looked to her right and for the first time saw a little girl standing behind a barrier on the western side of the road. The child seemed to be about the same height as the barrier. Ms Brown was shocked and worried when she saw the child. 19 In his summary of the evidence, his Honour concluded that Ms Brown had travelled some 20 metres beyond the crossing when her vehicle and that of the claimant passed each other. The same proposition was put to this Court, on behalf of the opponent. 20 That conclusion was based on an incorrect reading of the evidence of Ms Brown in the police proceedings (T.52). What Ms Brown in fact said was that when she was in the intersection, the claimant's vehicle was 20 metres away from her and travelling towards the intersection. In submissions before his Honour and in this Court, that evidence was of importance because of what it was said the claimant could or should have observed about Ms Floyd at that point in time. 21 The claimant's evidence was that she was driving cautiously towards the crossing. This was because traffic conditions were busy and because she had a loose muffler which she had discovered earlier that day. As she was approaching the pedestrian crossing, she could see that the crossing was clear. She said that at approximately 13 metres from the pedestrian crossing she first noticed Ms Floyd standing on the eastern kerb holding the pram and tricycle and looking over her shoulder. She said that she thought that Ms Floyd might have been waiting for a dog but when she looked over the pedestrian crossing she could still see nothing. She then proceeded. She did not brake but did take her foot off the accelerator. She did not see the opponent until after she felt a bump. 22 In a statement recorded in a police notebook on the day of the accident, the claimant said: "I was driving along Garden Street approaching the pedestrian crossing that I am very aware that children use frequently and usually employs a lollypop lady. There was none there at this point in time. It was later than school hours. I feel about 11 o'clock. I was very aware of a lady standing on the eastern side of the pedestrian crossing holding a pram and also holding a child's small dinky, a ride along plastic toy. She was looking back across the crossing and I continued to look on the right hand side of the road for the child. I could not see any child. Vision was obstructed in all directions by the three sets of panels with arrows on. I continued to drive because I felt the road was clear until I heard an impact at the front of the car." 23 In her electronically recorded interview taken some two weeks after the accident, the claimant said: "Q30 A The traffic and the congestion of Garden Street where the garages are was quite heavy and it was very busy. I was travelling slowly. I am aware that the traffic, the speed in that area is low. There's a pedestrian crossing which usually has a lollypop lady there during school hours and I would have been travelling no more than between 40 and 50 kilometres an hour along that road. I viewed a lady standing on approaching the crossing where the child was injured. I did see a lady standing on the north side of the crossing with a pram facing the high school, also holding a child … children's ride on plastic toy. She was looking backwards. My eyes were focused on that. I had seen previous to approaching the crossing, nobody on the crossing. From quite a distance I continued to be concerned about this woman whose body was facing the high school but she was looking backwards. It's a crossing that's often used by dogs. I wondered if she was not taking her dog across the road but I could see no dog. I could see nothing on the road or the crossing so I proceeded. My first recollect of the accident was a bump on the car." "Q92 Female on the crossing. Whereabouts was she when you first saw her? A I'm not sure whether you call it on the crossing. It was on the there's a ramp of orange coloured cement off the road, it's not actually a step. She was off the crossing and she was on the other side, I suppose you'd call it the footpath, with the pram and the trike." "Q97 And you said that she was looking backwards at the time is that correct? A Yes. Westwards. Q98 OK A But I could see nothing on the crossing. Q99 So the first thing you realised when something untoward has happened is when you notice a bump on your car is that correct? A Yeah. Q100 Is there any reason that you can think of as to why you didn't notice something else on the roadway in your, in the vicinity of your car? A No. I can see no reason why I didn't see anything." 24 Evidence was given by William Keramidas, who held a master's degree in engineering science and a bachelor's degree in applied science. His particular expertise was in traffic engineering and accident investigation. A report of his dated 3 March 2004 was tendered (exhibit P) in the claimant's case. 25 Because in many respects the report was based on incorrect assumptions, additional evidence was adduced orally from him. In that evidence he provided most of the data recorded in paragraphs [10-12] hereof. He accepted that the point of impact was somewhere between 50cm and 55cm from the nearside of the vehicle. On the assumption that the claimant was driving more towards the centre of the road, approximately 30cm from the central concrete blister, he assessed the point of impact on the road at 1.8 metres to the east of the eastern edge of the chevron sign. 26 In relation to whether the opponent could have been seen while she was standing behind the chevron sign, Mr Keramidas gave the following evidence: "Q Mr Keramidas if she is up against the sign she would be visible if you looked in that position, from the driver's perspective, is that right? A I guess the difficulty I've had in answering that is that you can't just take that one perspective or element of it. The gap itself is not sufficient to identify whether she would have been detectable to the driver. You need to take into account the distance at which the visibility would occur and the effect that that gap would have as well as the contrast between what's in front or behind her, you can't just say there's a 130 millimetres gap and therefore the person is visible behind me. They might physically be visible but not detectable to the driver." (Day 4, T.69.35) "Q. Then we go to this situation. At what distance would the driver have to see a person or a child underneath the gap in that sign to be able to stop? A. From 40 kilometres per hour, 25 metres. … Q. And are any of those photographs from about that position? A. Yes there are. Q. Which one? A. Photograph 7." (Day 4, T.70.29) 27 In relation to the visibility of the opponent's head above the chevron sign, the evidence of Mr Keramidas was: "Q Why do you say that? A Again looking at the distance that would be involved on approach, the gap of somewhere between 5 and 9 centimetres, the child's head would be above the barrier in combination with the fact that the barrier is a bright colour and would not in my opinion allow for the detection of the child behind the barrier, we're talking about something between that and that … Q Two to 4 inches or two to three inches? A Correct and again at the relevant period, a driver could see the child at a range of 10, 15 metres but it's too late at that point, the driver cannot respond within that time and impact will occur, that's within that one and a half seconds range. HIS HONOUR: Q The question is, what you're dealing with is detection, having regard to the fact that the child's head is 50 millimetres above what distance are we talking about that you would be unable to detect? A Your Honour, in my opinion beyond about 15 metres or so, the top of the head could not be detectable to a driver. Q So you could see it but you couldn't detect it? A Correct your Honour, you'd be able to see it but you wouldn't be able to distinguish, that's actually a person's head, it would be in your field of view it's just whether you're able to detect the presence of what you're seeing as being a person there and again it comes down to the distance, the high contrast sign is in front of the child and the fact that you're looking at, if you like, slivers of the child you're seeing 5, 8 centimetres at the very top and then you miss the section with a bright yellow bar and then you have another small section of about 5 to 6 centimetres and then you miss a large gap and then underneath …" (Day 4, T.72.6) Judgment 28 This was not a case which turned upon the impression made on the trial judge by any particular witness or witnesses. The only finding by his Honour which might in some way have been credit based was his Honour's rejection of the claimant's estimate of how far she was away from the crossing when she first saw Ms Floyd. His Honour said: "In the course of her evidence she estimated that she was but 13 metres away from the lady at first sighting. This is inconsistent with what she told the police and I do not accept it as an accurate estimate." 29 Having reviewed the evidence, his Honour concluded that the point of impact on the front of the claimant's vehicle was 50-56cms from the nearside front edge of the bonnet. On the basis of the claimant's evidence that she was closer to the centre traffic island than to the left, he concluded that the point of impact on the road was 1.8 metres from the eastern edge of the chevron sign. On the assumption that the opponent was moving at a fast walk, it would have taken her 1.8 seconds to cover the distance from the edge of the chevron sign to the point of impact on the road. 30 Because of the incorrect interpretation of the evidence of Ms Brown, to which I have referred, his Honour concluded that the claimant would have been at least 50 metres from the crossing at a time when the opponent was standing behind the chevron sign and Ms Floyd was at the edge of the footpath looking backwards over the crossing. Many of his Honour's subsequent conclusions were based on that finding. 31 His Honour concluded that when the claimant saw Ms Floyd looking backwards she ought to have been alerted to the fact that she was looking for a child or somebody or something on the crossing. In those circumstances his Honour held that the appropriate response was to brake and approach the crossing with caution or alternatively, if the claimant could not brake in time, to slightly veer to her right even if this meant driving over part of the central concrete island. His Honour also concluded that had the claimant been properly observing the crossing it was "highly likely" that she could have observed the presence of the opponent behind the chevron sign because of the gaps at the top and bottom of the sign and the fact that the opponent's height exceeded that of the sign by at least 5cms. 32 His Honour was unimpressed with the evidence of Mr Keramidas because of his assumption that the opponent was standing between 1-1.5 metres away from the chevron sign and because his Honour had concluded from his own examination of the police photographs that it was quite feasible that the driver of a car could have seen part of the child's body through the gaps in the chevron sign and part of the top of the head above it. His Honour noted that at the time when Mr Keramidas had inspected the accident site and prepared his report, conditions were significantly different to those which prevailed on the day of the accident. He rejected the conclusion of Mr Keramidas that even if the claimant had observed the opponent immediately as she emerged from behind the chevron sign, the collision would still have occurred since the claimant was too close to have stopped or avoided her. 33 His Honour concluded that the claimant should have commenced braking as soon as she saw Ms Floyd looking backwards, which was when she was at least 50m away from the crossing. Had she done that there would have been ample time to bring her vehicle to a halt before impacting with the opponent. 34 The claimant was unable to explain how it was that she did not see the opponent before impact. His Honour concluded that if the claimant had been keeping a proper lookout she must have seen the opponent for some period of time once she emerged from behind the chevron sign. This failure to observe the opponent at any time was also indicative of a failure to keep a proper lookout. 35 His Honour found negligence on the part of the claimant on the basis that she failed to take immediate precautions by braking when she first saw Ms Floyd and that she was not keeping a proper lookout in that she failed to detect the opponent behind the chevron sign and failed to see the opponent at any time before impact. His Honour characterised the duty which the claimant breached as follows: "Drivers must be astute to what pedestrians might do. They are not entitled to assume that all pedestrians will show good sense and proceed on the roadway taking all necessary steps and precautions for their own safety and security. The potential of major injury or indeed death which can result from a collision between a motorist and a careless or indeed silly pedestrian must be factored into the driver's conduct. The driver must make allowances for the unexpected or indeed the foolish or stupid pedestrian." 36 His Honour summarised his conclusions as follows: "This is not the case of a pedestrian darting from behind a vehicle or object completely obscuring the presence of the pedestrian prior to a sudden and unexpected venture onto the roadway, leaving the driver no opportunity to act. There was a perceivable risk that a child could well be on or in the vicinity of the crossing. That being so there was a clear and obvious danger to that child from a vehicle passing through it. This called for a cautious and prudent approach such as to take into account the unpredictable behaviour of a child. It was readily foreseeable that the child would behave as a child and move without heed for its safety. Prudence required that the defendant take immediate steps to brake and slow her vehicle when she first became alert to some unusual situation on the crossing and to approach it with utmost caution. She was not entitled to simply observe the mother whilst continuing at a speed which clearly posed a threat of serious injury to a child on the crossing." Consideration 37 Fundamental to his Honour's conclusions was that the claimant was at least 50 metres from the pedestrian crossing at a time when the opponent was standing behind the chevron sign and Ms Floyd was at the edge of the footpath and looking backwards. As indicated, that conclusion was based on an incorrect reading of the evidence of Ms Brown in the police proceedings. On the correct reading of that evidence, the claimant would have been about 35-40 metres away from the crossing when Ms Brown first observed Ms Floyd. 38 Ms Brown's evidence was that when she first saw Ms Floyd she was about 15-20 metres from the crossing and Ms Floyd was coming off the crossing. She did not observe Ms Floyd to look back. Ms Floyd's evidence was that she commenced to look back while she was still in the crossing. That discrepancy was not resolved by his Honour. 39 If the observation of Ms Brown is correct, then Ms Floyd looked back some time after she was first seen by Ms Brown and therefore at a point in time when the claimant was closer to the crossing than 35-40 metres. It was, of course, the looking back over the shoulder by Ms Floyd which was the unusual feature which attracted the attention of the claimant and upon which the finding of negligence is primarily based. 40 It was the evidence of Ms Floyd that she completed the crossing still looking over her shoulder, applied the brake on the pram and then turned around preparatory to walking back across the crossing. That evidence is different to that of the claimant. According to the claimant Ms Floyd was stationary on the orange ramp on the kerb with the pram facing forwards but looking backwards when first seen by her. She did not see Ms Floyd turn around to recross the crossing at any time. This difference was not resolved by his Honour. 41 It is clear from the diagrams and plans that, subject to vehicles being double parked, from 50 metres away the claimant would have had a relatively unobstructed view of the crossing. On the evidence of Ms Brown there would have been nothing unusual about the crossing at that time except that Ms Floyd would have been pushing the pram past the chevron on the eastern side of the road. There was no evidence as to the speed at which Ms Floyd moved through the crossing. Subject to whether the opponent could be seen behind the western chevron from that distance, there was nothing in that scenario which should have caused the claimant to take any particular action. Consistent with the evidence of Ms Brown, the claimant would have been much closer to the crossing at the time when Ms Floyd first looked over her shoulder. It should also be kept in mind that every second the claimant's vehicle would travel 11 metres closer to the crossing. 42 It follows that there was no basis for his Honour's finding that when the claimant was at least 50 metres from the pedestrian crossing Ms Floyd was at the edge of the footpath and looking back over her shoulder. For his Honour to make such a finding he had to reject the evidence of Ms Brown on this point and also that of the claimant. No such finding was made nor is there any obvious basis for such a finding. 43 His Honour rejected the claimant's estimate that she was about 13 metres from the crossing when she first observed Ms Floyd. He did so on the basis that her evidence was inconsistent with her police statements. His Honour did not identify the inconsistency. The claimant agreed that the estimate was an approximation and that she was not good with distances. There is, however, nothing in the police statements which would justify a finding that the claimant first observed Ms Floyd looking back over her shoulder at a distance of 50 metres from the crossing. On the contrary, in her statement recorded in the police notebook on the day of the accident, the following was recorded: "I said "What distance from the crossing were you when you first saw the lady with the pram and trike?" She said "Probably back to where the double yellow lines are whatever that would be. But the pram was facing eastward not as if she was about to come back on the road." I said "When you say probably back to where the double yellow lines are do you mean where the lines commence?" She said "Yes she was standing over there I could see her quite clearly." 44 The plan, exhibit K, made it clear that the double yellow lines commenced 30 metres away from the crossing. This statement of the claimant is therefore fully consistent with the evidence of Ms Brown and the conclusions in paras [38] – [40] hereof. Accordingly, his Honour was justified in rejecting the claimant's estimate of 13 metres but there was no proper basis identified for replacing that estimate with a figure of 50 metres. 45 His Honour found that had the claimant been keeping a proper lookout she would have been able to observe the opponent standing behind the chevron sign. His Honour did not identify at what distance from the pedestrian crossing this observation should have been made but implicit in his finding is the premise that such an observation should have been made at a distance of greater than 25 metres from the crossing since it was accepted that at 40kph a minimum distance of 25 metres was required to bring the claimant's vehicle to a stop. 46 His Honour's conclusion in this regard seems to be based upon his Honour's own interpretation of the police photographs. In the absence of a view this, it seems to me, is a somewhat dangerous approach in that the photographs depict a static situation whereas that which confronted the claimant was dynamic, involving not only the control and management of her vehicle but the observation of other vehicles and pedestrians. It also assumes the existence of a reason why the claimant would direct her attention specifically to the western chevron sign as distinct from those in the middle of the crossing, or any other part of the crossing or its approaches. 47 Even following that approach and with particular reference to police photograph number 7, which it was agreed was taken from a distance of between 25 and 30 metres from the crossing, I am far from persuaded that the opponent should have been visible and detectable to the claimant at a distance of 25 metres or greater from the crossing. This is particularly so when there was no evidence as to how far from the chevron sign the opponent was standing. My assessment of that photo in particular and of others taken from a greater distance is that the opponent would not have been visible and detectable at a distance of 25 metres or more from the crossing. I find the evidence of Mr Keramidas on this issue logical and persuasive. (See paras [26] and [27]) 48 It is also of significance that Ms Brown did not see the opponent until she was actually in the intersection. This is despite the fact that Ms Brown's vision was not obstructed by the chevron sign since from her direction the opponent was in front of it, albeit on the other side of the road. This provides support for how difficult it must have been for a driver on this road at this time of day to detect such a diminutive figure when there were a number of other distractions (including Ms Floyd) and when the opponent was obscured by a significant obstruction. 49 In my opinion his Honour was not entitled to find that the opponent should have been visible to the claimant at a distance of 25 metres or more from the crossing and that the claimant failed to keep a proper lookout in that she failed to observe the opponent's presence behind the western chevron sign. 50 An important part of his Honour's reasoning was that when the claimant observed Ms Floyd looking back towards the crossing, pushing a pram and holding a trike, she should have been on notice that a child was somewhere in the vicinity and should have immediately braked. I have difficulty with that line of reasoning. I do not think that the presence of a child was reasonably foreseeable. 51 The holding of a trike by Ms Floyd was sufficiently explained by the presence of the pram, ie the trike belonged to the child in the pram. It would also be most unusual for a mother to be separated from a child of tender years while crossing a busy road. The fact that Ms Floyd was looking over her shoulder towards the crossing was indicative of no more than that she was looking for something or someone, either on the crossing or on the other side of the road. The claimant's response was to take her foot off the accelerator and scan the crossing. When she saw nothing on the crossing, she continued. To require in those circumstances an emergency braking response is unreasonable and based on hindsight. 52 Such an approach involves the error referred to by the High Court in Vairy v Wyong Shire Council (2005) 80 ALJR 1: "In his reasons in this appeal, Hayne J explains why an examination of the causes of an accident that has occurred does not assist, and may confuse, in the assessment of what the reasonable person ought to have done to discharge the anterior duty of care. Moreover an assessment of what ought to have been done but was not done, critical to the breach issue, too easily is transmuted into an answer to the question of what if anything had to be done, a duty of care issue." (61 Gummow J) "When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury." [126 Hayne J] 53 In accordance with that guidance it seems to me that a driver in the position of the claimant, having been alerted to the possibility of something or someone on the crossing, or across the road, who then carefully looks at the crossing and cannot identify any person who might be at risk should the vehicle continue, is entitled to do exactly what the claimant did, ie take her foot off the accelerator and drive through the crossing. This is particularly so when the evidence establishes a somewhat extraordinary combination of circumstances, ie a 23 month old child separated from her mother by a significant distance while crossing a busy road and whose presence is almost entirely obscured by a chevron sign. 54 The situation is analogous to that described by Davies AJA in the passage approved by the High Court in Derrick v Cheung (2001) 181 ALR 301: "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, 45-50 km per hour, 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 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." 55 A similar statement of principle was made by Heydon JA in Knight v Maclean [2002] NSWCA 314: "[68] It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge's test would entail that duty. [69] The plaintiff bore the burden of proving negligence on the part of the defendant. This meant that in substance the plaintiff bore the burden of proving that the defendant failed to keep a proper lookout and of proving that if he had kept a proper lookout he would have seen the plaintiff in sufficient time to avoid the collision. These burdens could not be discharged by the mere fact of the collision. To the extent that the nature of the locality at the time of the accident called on the defendant for an explanation as a practical matter, an acceptable explanation consistent with keeping a proper lookout, for the defendant seeing the plaintiff only at the last moment may be inferred from the circumstances. The circumstances supporting that inference include the absence of anything in particular to put the defendant on notice of the need to guard against pedestrians suddenly crossing the road, the nature of Parramatta Road as a busy main road calling for close attention to the behaviour of vehicles in front, and the character and speed of the defendant's driving, in relation to other vehicles, as appropriate to the traffic conditions." 56 In the course of argument before this Court but not before his Honour the proposition was ventilated that it was not necessary for the claimant to engage in emergency braking but merely to reduce the speed of her vehicle which might have enabled the opponent to pass through the western side of the crossing thereby avoiding the accident. As was recognised in this Court, in the absence of that matter being specifically raised and dealt with at trial, too much speculation would be involved in this Court attempting to apply such an approach. 57 It seems to me, however, that a more complete answer to such an approach being taken by this Court is provided in Derrick v Cheung: "[13] … Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty a care, has not acted in accordance with reasonable care…" 58 Applying that test I am of the opinion that the claimant did act reasonably in the way in which she responded to her observation of Ms Floyd looking over her shoulder towards the pedestrian crossing, ie in taking her foot off the accelerator and checking the crossing in case there was some person on it who might be at risk if the vehicle continued. 59 Neither on the day of the accident nor subsequently could the claimant offer any explanation as to how she failed to see the opponent once the opponent had emerged from behind the western chevron sign. In that regard his Honour's conclusion that having checked the intersection the claimant's attention was mainly focused on Ms Floyd seems to be correct. This is consistent with the statements of the claimant. It provides an obvious explanation for why the claimant did not see the opponent when the opponent would have been visible for approximately 1.8 seconds before impact. 60 The dilemma facing the claimant is obvious. In the absence of any other source of risk or danger, she appears to have focused on Ms Floyd rather than on the pedestrian crossing immediately in front of her. Yet in Tobin v Worland [2005] NSWCA 188 a failure to so focus was found to constitute negligence. Nevertheless, in the circumstances of this case the actions of Ms Floyd were not so imminently threatening as to absolve the claimant from her primary obligation of looking to her front and in that regard the claimant failed to keep a proper lookout. 61 This does not end the matter. Even if the claimant had been keeping a proper lookout to her front and had observed the opponent as soon as she emerged from behind the western chevron sign, at 40kph there was insufficient time for her to react and brake so as to avoid impact. It follows that although breach of duty has been established in respect of this issue, it was not causative of the opponent's injuries. 62 When dealing with this matter, his Honour suggested as an alternative to braking, that the claimant could have veered slightly to the right and that if she had done so she would have avoided impact with the opponent, although this would have involved her vehicle driving over a portion of the traffic island. This alternative was never raised or explored at trial and appears for the first time in his Honour's judgment. As to whether impact with the opponent would have been avoided by such a manoeuvre is entirely speculative. 63 The suggestion gives rise to another difficulty. Ms Brown could not remember whether there were vehicles behind her but both she and the claimant stressed the busy nature of this road, a fact which is amply demonstrated by the police photographs. A manoeuvre such as that described by his Honour, which would probably have involved the claimant's car running over the central traffic island, if it were feasible, may well have brought about a different sort of danger insofar as oncoming traffic was concerned. 64 I do not regard the swerve to the right as a realistic alternative so as to solve the causation problem for the opponent to which I have referred. Conclusion 65 It follows from the above analysis that the claimant's application for leave to appeal and appeal succeed. The orders which I propose are as follows: (1) Leave to appeal be granted. (2) The appeal is allowed. (3) The judgment of McGuire DCJ be set aside and in lieu thereof there be judgment entered in favour of the claimant. (4) Costs be reserved pending the outcome of the application for leave to appeal in Firth v Latham & Ors in matter 40085/2006. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.