ECCLESTON v SMITH [2007] NSWCA 22

New South Wales Court of Appeal

CITATION: ECCLESTON v SMITH [2007] NSWCA 22

HEARING DATE(S): 1 February 2007, 2 February 2007

JUDGMENT DATE: 23 February 2007

JUDGMENT OF: Mason P at 1; Beazley JA at 131; Bryson JA at 132

DECISION: Appeal allowed.

CATCHWORDS: NEGLIGENCE – essentials of cause of action – breach of duty of care – Motor vehicle accident – personal injury – failure to stop – failure to swerve – failure to keep a proper lookout - JUDGMENTS AND ORDERS – statement of reasons for decision – interference with findings of fact – balance of probabilities – where evidence on balance of probabilities not supportive of findings at first instance

LEGISLATION CITED: Motor Accidents Act 1998, s73 Civil Procedure Act, s101

CASES CITED: Tobin v Worland [2005] NSWCA 188

PARTIES: Amy ECCLESTON by her tutor Ian ECCLESTON May SMITH

FILE NUMBER(S): CA 40191/06

COUNSEL: Appellant: D T Kennedy SC/ M J Walsh Respondent: J N Gleeson QC/ B G Smith

SOLICITORS: Appellant: Wright & Strickland Respondent: Moray & Agnew

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 9211/00

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 19 December 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40191/06 DC 9211/00

MASON P BEAZLEY JA BRYSON JA

Friday 23 February 2007 Amy ECCLESTON (by her tutor Ian ECCLESTON) v May SMITH JUDGMENT 1 MASON P: The appellant suffered significant head injury when struck by a car driven by the respondent. Judge Garling entered a verdict for the defendant, finding that negligence had not been established. 2 The accident occurred at about 3.15pm on 2 July 1998 in Argyle Street Moss Vale. Weather conditions were fine. 3 Argyle Street is the main street of Moss Vale. There are shops in the area. The street carries a lot of traffic, described by the respondent as being at the time "continual, heavy traffic". Cars were parked on either side of the road, leaving a generous single lane each way (the trafficable roadway). The respondent was driving southwards. Where the accident occurred the street dips slightly, curves leftwards and widens somewhat. There was over 5m between the row of parked cars and the broken centre line, given that the distance between kerb and centre line was 7.4m. The speed limit was 60 kph. 4 The appellant was approximately eight and half years old and 128cm tall at the time. She had been collected from school by her parents who drove along Argyle Street and stopped, facing north, opposite a pet shop located on the other/east side of the road. The appellant crossed the street and the parents remained in the car, directly opposite where the appellant passed between two parked cars to get to the footpath and the pet shop. When she returned from the shop by a similar route, she stopped on the roadway between the two parked cars near the line formed by their offsides. (The precise location is critical and is addressed below.) She waited until her father called her to cross and then (not necessarily immediately) set off at a walking pace towards her parents' car. She was struck by the front of the respondent's car. (Once again, the precise location assumes critical importance and is discussed below.) She suffered no discernible physical trauma except for the serious injury resulting from striking her head on the roadway. 5 The respondent was aged 75 and had been a driver for 39 years at the time of the accident. She was driving a Ford Falcon. She lived in Moss Vale and must be taken to have known that school children were about at the time. 6 Several children were in the vicinity. Like the appellant they were in their school uniforms - a yellow shirt, blue pants and a blue jumper. 7 The trial was in 2005 and by that stage the respondent was not medically fit to give evidence. Her written statement given to the police on the day of the accident was tendered without objection. In it, she gave the following account: I was driving from Bowral to Moss Vale travelling into Moss Vale on Argyle Street. At the time I was following traffic, travelling at between thirty to forty kilometres an hour. At the time I was heading into Moss Vale so that would be south. I was travelling down hill in Argyle Street. I saw several cars parked to the side of the road outside one of the cafes, I don't know its name but it was just up the road from the Old Post office which is on the other side of the road. These vehicles were parked in the same direction I was travelling, which is towards the middle of Moss Vale. All of a sudden a small child ran out in front of my vehicle from the café side, which was the same side I was travelling, right in front of my vehicle. The small child ran from where the cars were parked to the side of the road, but I am not sure as I was watching where I was going. When I noticed this small child her head and shoulders were just above my bonnet and I could just see her. The small child was facing across the street towards the other side of the road. The small child appeared to stop in front of my vehicle, and we appeared to look at each other. At this point I tried to put my foot on the brake, but the momentum of the car hit her and she went over. I lost sight of her and the car kept moving. I felt a bump at the rear of the car and I applied the brakes and stopped in the middle of the road. 8 The respondent did not see the child until immediately before the collision. She did not brake, swerve or skid, or sound her horn. Her case in effect was that there was no time to do any of these things because the young girl suddenly "ran out in front of my vehicle from the café side". 9 In light of evidence other than the respondent's statement, the judge found that the appellant was walking, not running, as she moved into the path of the vehicle, and this much is common ground in the appeal. 10 In her primary case, the appellant does not suggest that the respondent was driving at an excessive speed. Her complaint is that the driver did not keep a proper lookout. If she had done so, she could have stopped in time and/or swerved, thereby avoiding the collision or (alternatively) the serious injury that resulted from it.