New South Wales Supreme Court CITATION : Lambert v Zammit [2005] NSWSC 1135 HEARING DATE(S) : 24/10/05, 25/10/05, 26/10/05, 27/10/05, 28/10/05, 31/10/05 JUDGMENT DATE : 10 November 2005 JUDGMENT OF : Cooper AJ at 1 DECISION : Judgment for the plaintiff. CATCHWORDS : Contributory negligence (child age 7) - Motor accident - Standard of care owed by driver to a child running across the road Lolomanaia v Rush 1996 24 MVR 128 Sevic v Roarty NSWCA 14 August 1998 Knight v Maclean 2002 NSWCA 314 Tobin v Worland 2005 NSWCA 188 CASES CITED : Chotiputhsilpa v Waterhouse 2005 NSWCA 295 Derrick v Cheung 2001 HCA 48 reported in 181 ALR 301 Cettree v Roberts [1982] 1 NSWLR 649 Mitchell v Government Insurance Office [1992] 15 MVR 369 McHale v Watson [1966] 115 CLR 199 Mye v Peters [1967] 87 WN (Part 2) NSW 26 Daniel Robert Lambert By His Next Friend Nicole Lucas PARTIES : Sandra Zammit FILE NUMBER(S) : SC 20253/04 Plaintiff: B Toomey QC/P Frame/ L Csillag COUNSEL : Defendant: P Garling SC/J Morris Plaintiff: Matthews Folbigg Pty Ltd SOLICITORS : Defendant: Abbot Tout Lawyers LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ACTING JUSTICE COOPER THURSDAY 10 NOVEMBER 2005 20253/04 DANIEL ROBERT LAMBERT BY HIS NEXT FRIEND NICOLE LUCAS v SANDRA ZAMMIT JUDGMENT INTRODUCTION 1 HIS HONOUR: In this case the plaintiff sues the defendant by his next friend to recover damages for serious injuries which he sustained when he, as a pedestrian, was struck by the car driven by the defendant in Fitzwilliam Road Toongabbie at about 8:30 am on 22 November, 2002. 2 An order has been made severing the issues of liability and damages. The task which I have to determine is the issue of liability. 3 It is not in issue that the plaintiff was a pedestrian proceeding from the southern to the northern kerb of Fitzwilliam Road whilst the defendant was driving easterly along that same road. It is also not in dispute that the car driven by the defendant collided with the plaintiff causing the plaintiff to be thrown over the top of the car and to land behind it head first. 4 He is left with spastic quadriplegia and brain damage. 5 On behalf of the plaintiff it is argued that the defendant was travelling at a speed which in all of the circumstances was excessive and also that in the particular circumstances existing at the time she had failed to keep a proper lookout. 6 On behalf of the defendant it is argued that the plaintiff ran across the road immediately in front of her and that she had no opportunity to avoid colliding with him. On her behalf it is also argued that her speed was moderate and appropriate in the circumstances, that she was keeping a proper lookout and that her failure to see the plaintiff at an earlier stage was due to her vision being obstructed by other vehicles on the roadway. PHYSICAL FEATURES OF THE LOCATION 7 It is first appropriate to consider the physical layout of the roadway in the vicinity of the accident site which is depicted in a number of photographs and plans in evidence. 8 Fitzwilliam Road Toongabbie is a major local road running generally from east to west and is sealed from kerb to kerb. The speed limit in force was 60 Kms. per hour. 9 Parallel with Fitzwilliam Road and to its north is a service road divided from Fitzwilliam Road by a concrete raised strip approximately 1.5 to 2 metres wide. 10 The service road is at a slightly higher elevation than Fitzwilliam Road. This difference in elevation does not detract from the visibility of pedestrians and vehicles on that road from Fitzwilliam Road. If anything, it marginally improves it. 11 Joining Fitzwilliam Road from the south so as to form a T-intersection is Bungaree Road. 12 The width of the main carriageway from kerb to kerb of Fitzwilliam Road is approximately eleven metres and the width of the service road to the north is approximately 6.2 metres. 13 On the approach to Bungaree Road from the west whilst travelling east, the westbound portion of the carriageway is approximately 3.5 metres wide. The eastbound portion comprises a single traffic lane approximately 5.15 metres wide. 14 Approximately 65 metres west of the centre of the Bungaree Road intersection the effective width of the eastbound traffic lane is reduced by the introduction of a painted centre line which develops over a distance of twenty-five metres reducing the eastbound traffic lane to about 3.5 metres. 15 At a distance of approximately forty metres from the centre of the Bungaree Road intersection, an exclusive right turn lane is developed within the established width of the painted centre line so that about twenty-five metres from the intersection a 2.6 metre wide right turn lane is developed. The final ten metres of the right turn lane is separated from the westbound traffic lane by means of a narrow raised concrete median strip about forty centimetres in width. 16 On the eastern side of the Bungaree Road intersection the eastbound traffic lane is about 3.5 metres in width with the painted centre line developing a short distance to the east of the intersection and tapering to zero over a distance of about forty-five metres. At the end of the taper the width of the eastbound traffic lane once again develops to about 5.15 metres. 17 Within the area of the painted centre median to the east of the Bungaree Road intersection there is a pedestrian refuge situated at the centre of the roadway which comprises two raised concrete medians each about 3.3 metres in length and about 1.25 metres in width at their maximum. 18 The centre of the pedestrian refuge is approximately thirteen metres east of the centre of the Bungaree Road intersection. On both the northern and southern sides of Fitzwilliam Road there are pedestrian ramps in the kerb linking the southern footpath to the northern service road via the pedestrian refuge. At the pedestrian refuge there are 'Keep Left' vertical signs facing east and west. 19 The plaintiff had passed from the southern kerb of Fitzwilliam Road through the pedestrian refuge and was hit by the defendant's vehicle in about the middle of the eastbound carriageway in line with the pedestrian refuge to the south and the ramp in the northern kerb. 20 The nearest junction to the west of the accident site is Willmot Avenue adjoining from the south at a distance of about two hundred metres and Tucks Road which adjoins from the north at a distance of about two hundred and fifty metres. 21 It is common ground that the plaintiff had joined Fitzwilliam Road by turning left out of Tucks Road. 22 Approximately two hundred metres east of Bungaree Road a School Zone speed limit of forty kilometres per hour commences for the Toongabbie Primary School which is located on the southern kerb of Fitzwilliam Road about two hundred metres further to the east. 23 This was the school which the plaintiff attended and was his intended destination at the time of the accident. 24 A traffic signal controlled crossing is provided at the intersection of Binalong Road adjacent to the Toongabbie Public School about four hundred metres east of Bungaree Road. 25 Approximately one hundred to one hundred and twenty five metres to the west of the accident site and facing eastbound traffic is a warning sign located on the northern kerb of Fitzwilliam Road facing east. This sign is black on yellow and depicts a small child being escorted by an adult and has the words "Refuge Island". This sign would have been passed by the defendant on her way from Tucks Road to the accident site. 26 The accident occurred at about 8:25 on the morning of 22 November 2002, a school day. It was daylight and the weather was fine. 27 At that time a number of primary school aged children were proceeding along Fitzwilliam Road in the direction of Toongabbie Primary School. 28 The plaintiff, at that time was 7 years and 8 months old and about 1.2 metres tall. He was wearing his school uniform of grey trousers, grey shirt and a bright red cap which is in evidence as exhibit G. On his back was a backpack which was wider than him and said in evidence to be about 40 centimetres wide. Its weight is unknown. 29 From Tucks Avenue intersection to the accident site the road is straight and level. EVIDENCE IN THE PLAINTIFF'S CASE . 30 It is now convenient to consider the evidence called on behalf of the plaintiff. The plaintiff himself gave no evidence. It is conceded that his severe injuries precluded him from so doing. Nathan Beaman 31 Nathan Beaman who was born on 12 November 1994 was walking in an easterly direction with Dale Marshall along the northern footpath of the service road towards the school. He saw the plaintiff crossing Bungaree Road on the southern side of Fitzwilliam Road with the plaintiff's sister. He said the plaintiff walked to the eastern corner of Bungaree Road and Fitzwilliam Road and then looked across the road to the northern kerb where Kirby McIntosh was located. 32 His evidence was that Kirby McIntosh was riding his bike in an easterly direction and stopped at the crossing in line with the pedestrian refuge. His bicycle was facing east but he turned his head towards the south and talked to the plaintiff. He heard Kirby say to the plaintiff "Do you want a double" and the plaintiff replied "Wait". 33 Nathan's evidence was that, before leaving the southern footpath of Fitzwilliam Road the plaintiff looked left and right. He said that there was traffic travelling west but there was a big gap through which the plaintiff crossed the first half of the roadway to the pedestrian refuge in the centre. He looked left and right again and then started to run when his (Nathan's) view of the plaintiff was blocked by the red car which hit him. 34 He said that the plaintiff was waiting in the pedestrian refuge in the middle of the road for about two seconds before he started to go across the second half of the road. When asked how sure he was that the plaintiff looked both ways before leaving the pedestrian refuge his answer was "one hundred percent sure" (page 28). 35 Nathan said that Daniel was in his class at school and they had been taught to look to their left and right before crossing the road. They had been told to look, listen and wait and that they had to look both ways, listen for the sound of vehicles and wait if a vehicle was coming. Dale Marshall 36 Dale Marshall gave evidence that he was with Nathan walking on the left hand footpath of the service road when he saw the plaintiff ahead of him on the opposite side of Fitzwilliam Road with his sister, Jade. He thought that the plaintiff stopped just before he crossed Fitzwilliam Road then ran to the middle and then ran to the other side. When he was asked if the plaintiff had run straight across or stopped in the middle he answered "I think he stopped in the middle" (page 36). 37 He also saw Kirby McIntosh sitting on his bike with his feet on the ground. The bike was facing east but his head was turned so as to face the plaintiff. He thought that Kirby was waiting for Daniel so that he could give him a lift to school on his bicycle. 38 He said that he was able to see Daniel for the whole way from the time that he started to cross the road to go to Kirby. However at page 42 when asked whether he saw Daniel go from the gutter to the pedestrian island, he could not remember if he had actually seen it or not. He then added "I'm not sure. I could have. Like I could have seen it but I don't think I did." However he did say that he saw the plaintiff when he was on the pedestrian island just standing waiting for a gap in the traffic so he could cross. His evidence was that Daniel stopped at the pedestrian island and waited. He thought that in the time he was there about three cars passed. Dale said that he turned to talk to others and then he heard a bang and looked for Daniel but he was not there. Kirby McIntosh 39 Kirby McIntosh was a pupil at Toongabbie Public School who rode to school on his bicycle. He was born on 15 January 1993. 40 He was riding on the service road and saw Daniel (the plaintiff) on the opposite side of Fitzwilliam Road walking towards the school. He saw him jog across Bungaree Road and then take a couple of steps on the footpath of Fitzwilliam Road to a point in line with the refuge island. He went across the first half of the road and then on to the second half where he was hit. 41 Kirby had had some months of counselling after the accident and was very disturbed by it. He could not remember talking to the plaintiff before he crossed the road. 42 His evidence was that the plaintiff walked faster than normal before he got hit but he was not sure whether or not he had stopped at any stage or whether he had looked at any stage. He could not remember seeing any of the other boys who were around at the time. Rebecca May 43 Rebecca May, at the time, was a pupil at Pendle Hill High School and was being given a lift to school by Mrs Christine Laing. She had travelled down Tucks Road and then turned left into Fitzwilliam Road and the car had then moved into the right hand turn lane leading to Bungaree Road. 44 She thought that at the time they joined that lane the vehicle in which she was travelling was about the third back. She could remember seeing Kirby and the plaintiff. 45 As they were pulling up to turn right into Bungaree Road she saw the plaintiff walking on the southern footpath of Fitzwilliam Road about to cross Bungaree Road. 46 She was sitting in the rear passenger side seat of the car. She did not see him cross Bungaree Road but saw him come up to the southern side of Fitzwilliam Road in line with the pedestrian refuge. At that stage Kirby was on the service road sitting on his bike looking at Daniel. It looked to her as if they were talking to each other. 47 The vehicle she was in had started moving up to the position of first in the line and they were slowly rolling forwards when she saw Daniel. 48 Her view of the plaintiff was partly obscured by the seat in front of her. She saw the car hit Daniel and at that stage the car she was in was slowly turning right. She drew on Exhibit J the position of the car in which she was a passenger showing it to be at an angle of approximately forty five degrees to the southern kerb of Fitzwilliam Road. 49 She said that the plaintiff left the southern kerb running as fast as he could and reached the refuge island. She could not recall whether he stopped there for a split second or whether he looked and kept running. She first saw the red car as the plaintiff was hit. That car came into impact with the plaintiff on the passenger side bonnet. 50 She heard the thud of the impact and then heard the screeching of brakes. 51 At pages 79 and 80 she said that she had him in sight whilst he was in the pedestrian refuge and whilst he went across the second part of the roadway but lost sight of him for a time whilst he was on the first half of the road because her view was obstructed by the car seat in front of her. When he arrived at the pedestrian refuge he was still running as fast as he could. She agreed that he might have slowed down in the pedestrian refuge but he certainly never came to a stop there. 52 She said that before Daniel left the southern kerb he looked left and right before he ran. James Bingham 53 In November 2002 James Bingham was a student at Pendle Hill High School and had finished his school certificate and had time off. 54 On 22 November he and a few of his mates rode their bicycles up to the Toongabbie shops at the western end of Fitzwilliam Road. They then rode easterly along the access road. 55 From a point about twenty five to thirty metres away he saw the plaintiff standing on the southern side of Fitzwilliam Road. At that stage his mates were on the northern side and were yelling across the road towards him saying words to the effect of "Come over". 56 James Bingham said that he looked away for about a second, then looked back and saw the plaintiff on the pedestrian refuge standing waiting for a gap in the eastbound traffic. 57 He then saw the plaintiff start to run towards the northern side and, out of the corner of his eye, he saw the car which hit him. 58 At that stage he was about fifteen metres or less away from the boy. 59 He testified that it was not until the boy got hit that he saw the brake lights of the car and, associated with this, he heard a little screech. 60 He said that he had seen the plaintiff sprint from the start of his crossing at the southern side but he then looked away. When he looked back the plaintiff had just arrived at the refuge. Then he saw him start again and he got hit. When asked what he saw whilst the plaintiff was at the refuge, he replied "he looked, he didn't really look, he just looked up and saw his mates and then quickly tried to do a dash between the cars." 61 The questions at page 100 continued:- "Q. And would it be right to say that on the pedestrian refuge area he made a quick little pause in the middle of the island? A. Yeah. Q. And when you looked he was looking. When he was on the refuge area and you said he looked, he was looking straight across not to his left. A. Not to his left at all. Q. Is that correct? A. Yes. Q. And before he left the footpath to start crossing the road at the very beginning did you see him look left or right? A. Yes he looked both ways first. Q. He looked both ways? A. Yes. Q. And had you seen him standing there for very long. A. Probably a minute, maybe less." 62 He could not remember whether there were any stationary cars in the right hand turn lane leading from Fitzwilliam Road into Bungaree Street. THE DEFENDANT'S EVIDENCE 63 I now pass to the eyewitness evidence called on behalf of the defendant. Christine Laing 64 Mrs Christine Laing gave evidence that on the morning of 22 November 2002, she was taking her children to school together with a friend of her daughter, Rebecca May, who had already given evidence. She drove into Fitzwilliam Road by turning left from Tucks Road and then headed east. As she approached Bungaree Road she put on her indicator to turn right and pulled into the right hand turn lane. 65 Her memory was that at that stage there were two or three cars in front of her. 66 She described the traffic in that street as bumper to bumper but still flowing slowly. 67 She could not remember how long she was in that right hand turn lane before the accident. However the cars ahead of her moved off to the right and she was in a position where she was the first in the queue waiting to turn right. The front of her car was then in line with the prolongation of the centre line of Bungaree Road. 68 Her evidence is that while stationary in this position she saw a young boy (the plaintiff) standing on the road at the southern side by himself yelling across the road to a boy on a pushbike who was then on the access road but next to the ramp in line with the pedestrian refuge. They were yelling backwards and forwards to one another. She indicated that the plaintiff was standing on the roadway at the junction of the cement gutter and the tar road so that traffic travelling west was weaving around him to avoid him. He seemed oblivious to the traffic. 69 Her evidence continued that as soon as there was a break in the west bound traffic behind a truck, he started running. She could see his legs from under the truck going quite fast. He kept going without stopping at the pedestrian refuge and out of the side of her eye she could see a red car approaching on her left. The boy ran straight into the path of the red car. 70 She described the truck which passed the boy as "more like a delivery type courier van sort of thing" (page 181). 71 When the plaintiff first started his crossing she could see only his legs beneath the truck but she could see the whole of his body as he passed through the break in the median strip and met with the car. He seemed to be running at a constant speed. 72 Mrs Laing said that she was stationary in the previously described position the whole time up to the time of the impact. 73 She saw the boy cartwheel over the car, come off its back and then land on his head on the gutter. 74 At the first break in the traffic she turned right, pulled over to the left, told the children to stay in the car and then ran across the road to the boy. 75 She knew the boy on the bicycle with whom the plaintiff had been talking as Kirby McIntosh. 76 During the time he and the plaintiff were yelling at each other he was directly opposite the plaintiff sitting on his pushbike but on the service road close to the strip dividing that road from the main Fitzwilliam Road. 77 She said that when the westbound traffic was weaving to avoid the plaintiff they were moving over towards the centre as far as they could go. 78 Her estimate was that Kirby and the plaintiff were exchanging words across the road for as much as a minute. During that minute the plaintiff was in the same position on the western bound carriageway at the junction of the cement gutter and the tarred road. 79 She could not recall how many westbound vehicles thus weaved past the plaintiff but agreed that a fair range would be from ten to thirty. 80 She saw no young people in the vicinity other than Kirby McIntosh and the plaintiff The Defendant. 81 The defendant gave evidence that as at November 2002 she had held a driver's licence for about twenty-five years. 82 On that morning she was taking her daughter to Catherine McAuley High School at Westmead. 83 She had entered Fitzwilliam Road by turning left into it from Tucks Road. 84 Her evidence was that, once in Fitzwilliam Road, there were cars in front of her. She could not remember any identifying features of the car that was directly in front of her but she thought that it was one to one and a half car lengths away. 85 She recalled seeing children in the bus shelter which is a few metres from the corner of Tucks Road. 86 She also noticed as she was travelling east that there were children walking. 87 She was aware of the location of Toongabbie Public School and that it was on the right hand side of Fitzwilliam Road in the direction in which she was travelling. 88 She testified that she remembered assessing the traffic ahead and saw a car in front of her indicating it wanted to make a right hand turn into Bungaree Road. She moved over to her left to overtake it. 89 She then said, page 211:- "I'd just noticed from the corner of my eye a movement and when I realised what that was, that it was a child, I just knew that I wasn't going to be able to avoid him." 90 She said that when she realised that it was a child, he was directly in line with the middle of the front of her car and very close to it. 91 Her evidence continued:- "I braked and then I pulled over to the side of the road. It took me a few seconds to get out of the car because the traffic was still moving, trying to get past my car and there wasn't really enough room for me to get out, but that happened after a few seconds". 92 Her evidence was that she put on her brakes instantly. 93 She gave evidence that her daughter started school at 9:00am but she also agreed that what was called the "home room" commenced at 8:40am. 94 When asked her speed before the accident she said about fifty kilometres per hour and denied that it could have been fifty-five kilometres per hour. She said that this was because she could tell from the movement of her car's gears. 95 During cross-examination she was confronted with her answers to questions in the transcript of the electronic recorded interview between her and police on the day after the accident, Exhibit D. 96 The relevant passages are set out at pages 217 and 218 and are as follows:- "Q89. At that stage when you saw the boy at that stage how fast were you travelling? A. I don't know. Q. Out of your experience as being a driver for twenty-six years would you be able to estimate what speed you would have been travelling, either no less than or no greater than a rough speed? A. That would only be a guess though. Q. What do you think that would be? A. I don't know. I just know I wasn't going very fast. Q. So it would be less than sixty? A. I'd only just got sort of moving, so I mean if I had to guess I would say somewhere between fifty and fifty-five". 97 It is quite clear that the plaintiff was telling the police that she did not know her speed and that, if she gave a figure, it would only be a guess. As a result of pressure from the police she made a guess of somewhere between fifty and fifty-five. I am satisfied that she did not know then, and does not know now, what her speed was immediately prior to the collision. 98 She testified that she did not see a boy on a bike directly opposite the pedestrian refuge just in the service road. Nor did she see a boy calling across the road to someone sitting on his bike on the other side. 99 She did not notice any movement of the westbound traffic consistent with traffic weaving around something. 100 She said that she was looking in the direction in which she was moving. She also agreed that she could not recall whether there were cars going west and said that she wasn't looking on that side. 101 She conceded that she did not see the boy pass through the pedestrian refuge. 102 She was aware that about a hundred metres back (to the west) from the point of the collision there is a sign showing a woman and a child and underneath the words 'Pedestrian Refuge'. She was aware of the existence and location of the pedestrian refuge. She was aware of all this because she had been driving along that road on virtually a daily basis. 103 She was also aware that young children are unpredictable and irresponsible in the sense that they do not take care for their own safety and that seven year olds are irresponsible and do not take care for their own safety. She was aware that she was then a couple of hundred yards away from a school zone with a speed limit of forty kilometres per hour. She was also aware of the location of Toongabbie Primary School. 104 At page 233 the following exchange is recorded:- "Q. And do you regard your duty as a driver to keep a proper lookout as being satisfied by looking directly in front of you? A. I know that I'm aware of the movements at the bus shelters and I am aware that there is the movement of traffic and that there are different signals on the road, that is what I am aware of. Q. Are you aware of the possibility of children in an area such as this darting out without taking proper care for their safety. A. I am aware. Q. Don't you regard yourself as having a duty to watch out for that? A. Of course. Q. Yet you did not mention it in answer to what your duty was do you recognise it as part of your duties? A. Of course. Q. Do you recognise it is particularly high in this area because it is near a school, it was the time children would be going to school, and you knew there were people in the area? A. Yes. Q. So you agree it was a particularly high duty at that time? A. Yes I do agree." Rachel Zammit 105 The next witness for the defendant was Rachel Zammit, the daughter of the defendant, who was born on 5 July 1985. 106 As at November 2002 she was in year 11 at Catherine McAuley High School at Westmead. 107 On that morning she was sitting in the front passenger seat of the car being driven by her mother. 108 She could not remember if there were any cars waiting to turn right into Bungaree Road. She did, however, remember that there were children and parents walking around that area. 109 Her evidence was that she saw from the corner of her eye an object. As she looked it was something in line with her mother in front of the car approximately in line with the right headlight. Then she realised it was a little person side on to her. Her view of the boy was for a split second moving from the right towards the left. 110 The next thing, she saw the boy being hit directly in line with her. He went up in the air and then towards the back of the car. 111 Her evidence was that her mother braked. She could not tell whether it was before the impact or at the time of impact. As soon as the boy went to the back of the car it was stopped, her mother looked back and then the car moved forward and over to the left hand kerb where it stopped. After the second stop her mother got out of the car. She recalled feeling the car braking harshly. OTHER EVIDENCE 112 The remaining witnesses are experts called by both parties whose evidence will be mentioned later. 113 On the morning of the accident the plaintiff was in the company of his older sister, Jade, who was born on 6 June 1993 and, therefore, was then nine years of age. 114 By the time this case came on for hearing she was in the care of the Department of Community Services. A subpoena was issued for her attendance at court. 115 Before she was called a report from Florence Levy, a child and adolescent psychiatrist, was tendered as exhibit L. 116 This report revealed that the Department of Community Services had requested an assessment of Jade to see whether she was able to go to court and whether this was likely to upset her emotionally. 117 In the report it is stated that Jade informed Ms Levy that she would never forget the accident and was having dreams about it and that she often felt sad and blamed herself that she was not with Daniel and did not make him stay with her. The report concludes:- "Jade said she would like to tell the judge what happened and is willing to go to court. I believe that Jade still has symptoms of post traumatic stress and guilt but because she is willing to go to court I believe that she should be allowed to do so." 118 Senior counsel for the plaintiff elected not to call her. 119 This has resulted in the defendant submitting that there was no reason for her not to give evidence and, consequently, the court ought to draw an inference that nothing which Jade could say would have assisted the plaintiff's case (Jones v Dunkel [1959] 101 CLR 298). 120 I can well appreciate that counsel for the plaintiff would be reluctant to call Jade as a witness in view of the fact that she has symptoms of post traumatic stress and guilt. She is now only twelve years of age and to require her to give evidence could well have aggravated her emotional upset. Accordingly I am satisfied that reasonable grounds have been established for not calling her. The result is that I do not speculate upon what she may or may not have said in evidence and I decide this case on the evidence that is actually before the court. WHY DID THE DEFENDANT NOT SEE THE PLAINTIFF EARLIER? 121 The evidence clearly establishes that the defendant did not see the plaintiff until he was right in front of her when she collided with him slightly to the left of the centre of her bonnet. Why did she not see him whilst he was crossing to that position from the southern kerb? 122 The answer to this is provided in the evidence of Mrs Laing who was stationary for some time in the designated right hand turn lane with the front of her vehicle in line with the centre line in Bungaree Road. 123 When she entered that lane there were, she thought, about three vehicles ahead of her and she moved slowly forward to the final position where she was at the time of the accident. 124 The evidence of the defendant is that she saw a car in front of her indicating that it was turning right into Bungaree Road and it then entered the right turn lane and she overtook it on its left. It was very shortly after this that she collided with the plaintiff. 125 The probabilities are that the vehicle which had moved into the right turn lane from in front of the defendant was not Mrs Laing's car but was another car which had entered that lane behind (but not necessarily immediately behind) Mrs Laing. There would, therefore, have been at least two stationary vehicles in that lane. 126 In evidence illustrated by exhibit 7, Mr Keramidas, an expert called on behalf of the defendant, points out that the vehicles in the right turn lane would have obstructed the defendant's view of the plaintiff, at least, whilst he was crossing over the westbound traffic lane of Fitzwilliam Road. On the assumption that the plaintiff was running at the rate of 3.5 metres per second and that the defendant was travelling at fifty kilometres per hour she was only 17.38 metres from the point of impact and would have covered this is 1.25 seconds. Mr Keramidas further testified that the reaction time to perceive and actually react to an emergency is about 1.5 seconds. The vehicle would not stop in this time because the brakes then have to be applied. WHAT WAS THE DEFENDANT'S SPEED? 127 In written submissions, counsel for the plaintiff concedes that the evidence of Mr Keramidas makes it quite plain that at fifty to fifty-five kilometres per hour a driver would have little or no opportunity to react, slow or stop in the event of a child running across the carriageway from south to north directly through the refuge area. The plaintiff submits that it is for that very reason, with the various cues available, that the defendant ought not to have been travelling at a speed of fifty to fifty-five kilometres per hour. 128 The question arises at what speed was the defendant travelling? 129 The record of interview, exhibit D, shows that, under some pressure from police questioning the plaintiff eventually said fifty to fifty-five kilometres per hour. However it is quite clear that this answer was given under pressure and was little more than a guess on her part. In evidence she said that her speed could possibly have been forty to forty-five kilometres per hour (Page 190). 130 Given that the events all occurred within a very short space of time I am satisfied that the plaintiff does not really know what her speed was. 131 However, having regard to the fact that she was trying to keep up with the traffic and had recently overtaken a vehicle turning into the right hand turn lane, the probabilities are that she was travelling at about fifty kilometres per hour. WHAT WAS THE PLAINTIFF'S RUNNING SPEED? 132 Expert witnesses on both sides have sought to reconstruct the circumstances of the accident. Their attempts, however, lack reliability because of the number of unknown variables. It is unknown at what speed the plaintiff was running across the road. 133 Mr Johnson suggested a range of 2.7 to 3.7 metres per second, which he regards as being reasonably conservative and was based upon the "Icrash" tests, exhibit N, moderated by the fact that the plaintiff was wearing a backpack. 134 Mr Keramidas suggests a range of 4.07 to 5.02 metres per second as the plaintiff's likely speed. He did not take into account the fact that the plaintiff was carrying a large backpack upon his back. His calculations were based upon a report of Vaughan and Bain, exhibit 10. 135 There is a temptation to split the difference and say that his speed was probably 3.5 metres per second. In reality such an estimate would be little more than a guess based upon average speeds of boys of similar age. Anyone who has attended a primary school sports day and seen boys of seven years of age in a running race will appreciate that there is a wide range of running ability. Some will be faster than average and others will be slower than average. Where the plaintiff's running ability lay is quite unknown. 136 From the southern kerb of Fitzwilliam Street to the point of impact is approximately 8.25 metres. If the plaintiff had been running at the rate of 3.5 metres per second he would have covered this distance in 2.35 seconds. DID THE PLAINTIFF STOP IN THE PEDESTRIAN REFUGE? 137 There is a further question to consider in this context; namely whether the plaintiff stopped in the pedestrian refuge. 138 Nathan Beaman was quite certain that the plaintiff stopped in the pedestrian refuge for about two seconds. Dale Marshall initially said that he thought the plaintiff stopped in the middle and then said that he saw the plaintiff standing in the pedestrian refuge waiting for a gap in the traffic and was stopped while about three cars passed. He said that he turned away to talk to someone else and then heard the thud of the impact. 139 Kirby Marshall could not recall whether or not the plaintiff stopped. 140 Rebecca May could not recall whether the plaintiff stopped at the pedestrian refuge for a split second or whether he looked and kept running. 141 James Bingham said that he saw the plaintiff on the pedestrian refuge standing waiting for a gap in the eastbound traffic. However in answer to further questions he said (page 100) that, whilst the plaintiff was in the pedestrian refuge, "He looked, he didn't really look, he just looked up and saw the mates and then quickly tried to do a dash between the cars". He further said that when the plaintiff was looking whilst in the pedestrian refuge, he was looking straight across to Kirby McIntosh and not to his left. 142 Mrs Christine Laing testified that the plaintiff ran straight across the road without stopping in the pedestrian refuge. 143 The evidence of the defendant and her daughter Rachel is that they did not see the plaintiff until he was virtually right in front of them. 144 The only witness who testified that the plaintiff came to a complete stop in the pedestrian refuge is Nathan Beaman who at the time was nine years of age. The preponderance of the evidence is that the plaintiff either did not stop at all or just slowed down whilst in the pedestrian refuge. 145 On the probabilities I accept the version of James Bingham that the plaintiff made "a quick little pause in the middle of the island" and that when he looked he was looking straight ahead and not to his left. Support for this finding is provided by the fact that had he looked to his left he must have seen the red Holden approaching him at a close distance. 146 I am satisfied on the balance of probabilities to accept the evidence of Mrs Laing that the plaintiff, before commencing his run across the road, was standing at or near the gutter and waited for at least ten vehicles to pass by him one of which was a large van. 147 I am further satisfied that the vehicles which passed by him were weaving around him and approached as close as practicable to the painted lines towards the centre of the road. I am further satisfied that once the large van or truck passed him, the plaintiff ran across the road, slowed slightly at the pedestrian island and looked only straight ahead and then ran onto the eastbound carriageway where he was struck by the plaintiff's vehicle in about the middle of that carriageway. 148 I am satisfied on the balance of probabilities that, having regard to the restriction of the defendant's vision (caused by the vehicles in the right turn lane) of the plaintiff's passage across the roadway, coupled with the speed at which she was travelling and the speed at which the plaintiff was running, resulted in her being unable to see the plaintiff until he was immediately in front of her. It was then too late to avoid an impact with him. 149 The expert evidence is that a normal time in which a reasonable driver would react to an emergency and start to apply the brakes or to steer away is about 1.5 seconds. From the time the defendant became aware of the plaintiff in front of her to the time of the impact was less than 1.5 seconds. This would explain why her brakes did not react until after the impact. 150 I accept that she believed that she braked before the impact because she had already started to react in the fraction of a second beforehand. However the actual braking was afterwards. I accept the evidence of the defendant and her daughter that the plaintiff did brake and then realised that an accident had occurred and moved her car to the side of the roadway and stopped it there. This was thirty-six metres from the point of impact. I am satisfied on the probabilities that this was not the first stopping point and, consequently, that one cannot deduce her speed at the time of the impact from this distance. THE LAW 151 The fact that the plaintiff was not seen by the defendant until immediately before the impact does not necessarily mean that the defendant was not negligent. 152 I have been referred to a number of decided cases by both counsel namely Lolomanaia v Rush 1996 24 MVR 128, Sevic v Roarty NSWCA 14 August 1998, Knight v Maclean 2002 NSWCA 314, Tobin v Worland 2005 NSWCA 188, Chotiputhsilpa v Waterhouse 2005 NSWCA 295 and Derrick v Cheung 2001 HCA 48 reported in 181 ALR 301. 153 I note here that there appeared to be a tendency in the submissions of counsel on both sides to seek to compare the facts of each of those cases with the present case and to argue for or against the proposition that the defendant was negligent. 154 This, of course, is a wrong approach. It is necessary to examine what principles of law, if any, are enunciated in those cases and then to apply those principles to the facts of the present case. 155 In the case of Derrick v Cheung the joint judgment of the court at paragraph 11 said:- "There was no relevant dispute about the facts of the accident and it was common ground that this was not a case which turned upon the impression made on the trial judge by any particular witness or witnesses. Nor was it a case where the incident occurred near to a school or bus stop or other place where reducing speed or special caution in driving might be required or prudent." 156 The court approved the dissenting judgment in the New South Wales Court of Appeal of Davies AJA appearing at paragraph 11, the relevant part of which states:- "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, forty five to fifty kilometres 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 proper response to the traffic conditions on the day." (Emphasis added). 157 From these passages I deduce that for the plaintiff to succeed, he must satisfy the court on the probabilities that there was a particular perceivable risk or observable danger which the defendant should have taken into account but did not. To put it another way, that the incident occurred at a place where reducing speed or special caution in driving might be required or prudent. 158 In Lolomanaia v Rush Clarke JA at page 132 said:- "The authorities establish that, while the standard of care is always that of the reasonably prudent driver, particular circumstances may call for the exercise of greater care and caution than usual by the reasonable prudent driver. One of those circumstances is the presence of young children on or near the road." 159 His Honour also referred to the dictum of Hope JA in Cettree v Roberts [1982] 1 NSWLR 649:- "Seeing a group of young children so close to the side of the trafficable portion of the road, even though their backs were turned to that portion of the road, the defendant had a duty to take appropriate precautions to guard against the event that one or more of the children might do what children have a well known propensity of doing, ie, move suddenly out onto the road…that one of the children might so act was a possibility which the defendant ought reasonably to have foreseen and guarded against." 160 Clarke JA also quoted the judgment of Kirby P in Mitchell v Government Insurance Office [1992] 15 MVR 369 at 372:- "One special circumstance which the courts have determined to be relevant to the standard to be expected relates to the cases in which it has been held that the driver should anticipate the presence of young children near the highway on which he or she is proceeding and take particular care in such circumstances. In a series of cases this court (and its predecessor) have stressed the special care which drivers must take when they know, or should know, that children are near the highway. The obligation has been explained in terms of imputed knowledge of the tendency of children to act in ways which adults might regard as irresponsible." WAS THE DEFENDANT NEGLIGENT? 161 In the light of these statements of the law it is now necessary to look at the evidence in the present case. 162 The incident occurred at about 8:30 am on a school day at a time when children could be expected to be on or near the roadway proceeding to their primary school some four hundred metres to the east. 163 That such children were in fact so proceeding along the footpath of Fitzwilliam Road and/or the access road adjacent thereto is clearly established by the evidence. 164 It should also be noted that the school to which they were proceeding was a primary school attended by children aged from five or six years up to eleven or twelve years. 165 On her approach to the scene of the accident the defendant passed, and indeed was aware of, a sign indicating that there was a pedestrian refuge ahead. That sign showed a person holding the hand of a child and walking. Thus it warned of the presence of children. 166 The defendant conceded that she was aware that there were generally school children around and that the School Zone was not far ahead. She was also aware of the pedestrian refuge and its location. 167 Had she kept a proper lookout she would have seen Kirby McIntosh seated on his bicycle which was pointing to the east stationary on the service road in line with the crossing with Kirby's head turned to his right facing in line with the crossing across Fitzwilliam Road to the northern kerb. It may well be that she would be unable to see that he was talking or shouting to someone. But the fact that he was looking in the direction of that crossing towards the north was a sign that something may be happening on that crossing requiring her to take special care. 168 Her view of westbound cars veering to their right around the plaintiff may have been obscured by the vehicles located in the right hand turn lane. However the evidence establishes that one of those vehicles was a truck which had an enclosed back. The top of that vehicle would have been visible to her had she kept a proper lookout. Its veering course around the plaintiff would have been a further indication of a potential source of danger. 169 The evidence of the defendant is that she was unaware of the traffic heading west on the other side of the road and was unaware of the presence of a boy on a bike. Indeed in her recorded interview she maintained that she was just looking directly ahead. 170 Her evidence at pages 229 and 230 is particularly pertinent:- "Q. You are aware, are you, that one hundred metres back from the point of the collision there is a sign showing a woman and a child and underneath pedestrian refuge? A. Yes. Q. And you were aware of course that the pedestrian refuge was there? A. Yes. Q. You were aware also, I take it, because you had been driving for twenty-five or twenty-six years at the time, that the reason for a pedestrian refuge is that people can stop in the course of crossing the road. A. That is correct. Q. Stop in safety in the course of crossing the road. A. That is correct. Q. And you were also aware that it was school time. A. That's right. Q. You would also be aware, would you not, that women who take children to school might have other young children with them, correct? A. Correct. Q. They might walk their school aged child to school, take the younger child and then walk them back? A. That's correct. Q. How many children do you have? A. I have two. Q. So you would be aware that young children are unpredictable. A. Yes. Q. And irresponsible in the sense that they do not take care for their own safety? A. Yes, depending on age and – yes. Q. Certainly seven year olds are irresponsible and do not take care for their own safety, aren't they? A. That's right. Q. And you were also aware that you were a couple of hundred yards away from the school. A. Yes. Q. At a hundred metres or so from entering a forty zone, a school zone? A. That's right. Q. If you had seen a nine year old boy on his bike at the end of that line through the pedestrian refuge, shouting to someone on the other side of the road, that would have alerted you, would it not, to the fact that there might be children on the other side of the road? A. I can't say what I would have done if I had seen that. I can't say. Q. If you had seen it would you not have perhaps slowed the speed of your car? A. Perhaps. Q. Because it may have put you on notice that there was the possibility of children coming in from the other direction, might it not? A. Perhaps, yes. Q. That is from your right. A. Perhaps." 171 All of these matters comfortably satisfy me that there were readily observable dangers which ought to have been apparent to the defendant had she kept a proper lookout. If she had kept a proper lookout and had given appropriate regard to these surrounding circumstances she ought to have slowed her vehicle to a speed that was more reasonable in the circumstances; that is a speed which would have allowed her the time and space to react in the event of an emergency and, in particular, in the event of a young child coming on to the carriageway. Instead of having due regard to all of these circumstances, the plaintiff just looked straight ahead, failed to use her peripheral vision and concentrated directly ahead. THE DEFENDANT'S SUBMISSIONS 172 It is now convenient to look at the defendant's submissions. 173 It was argued that the effect of the plaintiff's submissions is that the defendant ought to have been travelling at a much lesser speed, namely something less than forty kilometres per hour. The traffic authorities had designated an area some two hundred metres to the east as a School Zone with a forty kilometre per hour speed limit. The effect of the plaintiff's argument is to treat the area of the accident as a school zone. 174 The answer to this submission is that the circumstances existing at and on the approach to the crossing area presented observable dangers of children coming onto the carriageway. It is for this reason that a much slower speed then the designated limit of sixty kilometres per hour was required. 175 It was further pointed out that Masters Beaman and Marshall were walking along the northern footpath of the service road for the entire time before the accident and that there was nothing in their behaviour which would cause the defendant to do anything different even if she had seen them. Furthermore, as the plaintiff and his sister were approaching Bungaree Road along the southern footpath of Fitzwilliam Road, there was nothing to indicate from their conduct that there was any potential source of danger. 176 The answer to this submission is that it may well be that these particular people did not in their then positions represent a source of observable danger. However the fact that there were children on their way to a primary school of itself gave rise to the requirement to take extra care. 177 It is further argued that the crossing through the pedestrian refuge was not a marked pedestrian crossing. It provides an area in the centre of the roadway where pedestrians can take refuge whilst crossing the road in two sections. Of itself it does not give rise to an observable danger of children running across the road. 178 The answer to this submission is that it is an area of crossing where children can be expected to cross at a time when children can be expected in that vicinity and those children are of primary school age. 179 In written submissions, counsel for the defendant argued that Kirby McIntosh was on the service road and was directly opposite the pedestrian crossing for a period that was no longer than a minute. Given that his conversation with the plaintiff was intermittent, there is no particular reason to infer that the reasonably alert approaching driver on Fitzwilliam Road would have perceived each of the following matters: · That Kirby was stationary for the purpose of having a conversation. · That he was conversing with a child younger than he (the plaintiff) who was also stationary at the southern kerb of Fitzwilliam Road. · That the subject matter of the conversation was Kirby offering the plaintiff a bike lift to school. · That the conversation would have the result that Kirby, the older boy, would not cross the road at all but rather the plaintiff would cross the road suddenly in a run and would not stop in the middle of the road on the pedestrian refuge. 180 The submission proceeds that it would only be if each of these matters was not only foreseeable, but a likely series of matters which ought to have been seen, understood and discerned by the approaching driver that such a person would have to react to them by slowing the vehicle significantly. 181 In my view these requirements go too far. 182 The mere fact that Kirby McIntosh was present on his bike on the southern side of the service road next to the concrete strip dividing it from the eastbound carriageway of Fitzwilliam Road and directly opposite the pedestrian refuge and was facing in a line through that refuge to the southern side of Fitzwilliam Road ought to warn a reasonable prudent driver that there was a potential for some form of danger. He would not be looking in that direction for no reason at all. The reason may not have been readily apparent to the defendant but it is because of that that it would be necessary for a reasonably prudent driver in those circumstances to take special care by substantially reducing her speed. 183 In addition, the defendant, had she kept a proper lookout, would have seen that her view of the area of the roadway towards which Kirby was facing was, at least partly, obstructed by vehicles in the right hand turn lane. She ought to have appreciated that the presence of a boy looking at a portion of the roadway which was obstructed from her view could give rise to a source of danger and cause her to substantially reduce her speed. 184 I agree with that part of the defendant's written submission which says:- "The only question then is whether the defendant ought to have been travelling at a significant lower speed than she was. By that it is submitted that in order to be found negligent, the court would need to find that the appropriate speed was less than forty kilometres per hour and somewhere in the range of thirty-five kilometres per hour. It is not enough for the plaintiff to allege that by merely travelling at a few kilometres per hour less than she was, the collision would have been avoided and therefore she was negligent." 185 For the reasons already stated I am comfortably satisfied on the probabilities that the surrounding circumstances existing at the time (to which I have already referred) gave rise to an observable danger and therefore the defendant was required to keep a greater lookout and reduce her speed quite considerably. Her failure to do so, in my view, amounts to negligence on her part. CONTRIBUTORY NEGLIGENCE 186 The defendant submits that the plaintiff was guilty of contributory negligence. 187 The evidence of Nathan Beaman was that the plaintiff was in his class at school where they had been taught how to cross a road. He agreed that they had been taught to look, listen and wait. This meant that they had to look both ways for oncoming traffic, to listen for the sound of vehicles and to wait until the road was safe to cross. 188 It is further submitted that the plaintiff was aware of these matters because he had stopped at the southern kerb of Fitzwilliam Road before proceeding to cross the westbound carriageway. 189 For these reasons he was knowledgeable on road safety and in the circumstances he failed to take adequate care for his own safety. 190 As against this, it should be mentioned that the evidence establishes that he did not stop on the southern footpath before crossing Fitzwilliam Road. He stood on the roadway at the point where the cement gutter meets the tarred roadway. He stopped there with the traffic veering to avoid him. 191 It should be mentioned here that it is not claimed on behalf of either party that the provisions of Division 8 of Part 1A of the Civil Liability Act which applies to motor accidents by virtue of section 3B(2)(a) of that Act alters the common law situation. 192 The fact here is that the plaintiff was aged seven years and eight months at the time. He had been offered a lift on Kirby McIntosh's bike to school. I am satisfied that such an offer would be irresistible to a seven year old boy and that it is the very type of offer which would so excite his enthusiasm as to make him oblivious to his own safety. 193 In the case of McHale v Watson [1966] 115 CLR 199 the High Court was considering the standard of care owed by a twelve year old boy whose conduct had injured a nine year old girl. 194 At page 205 McTiernan J said:- "There is ample authority for the proposition that in cases dealing with alleged contributory negligence on the part of young children they are expected to exercise the degree of care one would expect, not of the average reasonable man, but of a child of the same age and experience." 195 At page 213 Kitto J said:- "The standard of care being objective, it is no answer for him any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow witted, quick tempered, absent minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard. In regard to the things which pertain to foresight and prudence – experience, understanding of causes and effects, balance of judgment, thoughtfulness – it is absurd, indeed it is a misuse of language, to speak of normality in relation to persons of all ages taken together. In those things normality is, for children, something different from what normality is for adults; the very concept of normality of rising levels until years of discretion are attained." 196 In the case of Mye v Peters [1967] 87 WN (Part 2) NSW 26, a case involving whether a child of five was guilty of contributory negligence, Sugarman JA said at page 32:- "Mr Langsworth stressed the changes in standards which he said had taken place in recent years both in the density of traffic and in the education of young children to these matters and with the teaching and indoctrination which the evidence suggests this child had received from his parents and the bus driver and I think that one may reasonably assume from his kindergarten teachers. But very young children remain very young children, notwithstanding indoctrination. Adults are apt to be appalled by the disregard which they often manifest for their own safety and the needless risks which they take. While on the one hand it may be suggested that they do not meet with more harm because they lead a charmed life, the other and preferable view of the matter is that they are greatly dependent upon the solicitude which is shown for their safety and welfare by adults doing in their vicinity things which might endanger them. Moreover, it must be remembered that, as the High Court said in McHales' case the test to be applied is an objective one and not one which is dependent upon the degree of intelligence of a particular child or the standard of indoctrination which it may have received." 197 In the light of all of these statements and having regard to the age of this particular plaintiff the defendant has failed to satisfy the court on the probabilities that the plaintiff was guilty of contributory negligence. 198 Accordingly there will be judgment for the plaintiff. 199 I invite submissions as to costs and further orders to be made with respect to the disposition of the issue of damages. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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