Matthew Traynor (bhnf Peter Traynor) v Australian Capital Territory and Ors; Traynor and Ors v Australian Capital Territory and Ors [2007] ACTSC 38 (18 June 2007)

Last Updated: 8 May 2008

MATTHEW JAMES TRAYNOR (by his next friend PETER TRAYNOR) v

AUSTRALIAN CAPITAL TERRITORY and OTHERS

LINDA TRAYNOR and OTHERS v AUSTRALIAN CAPITAL

TERRITORY and OTHERS

[2007] ACTSC 38 (18 June 2007)

NEGLIGENCE - motor accident - cyclist collides with car - tree planted by public authority obscures view of bike path - motorist has no opportunity to avoid accident.

Civil Law (Wrongs) Act 2002

Australian Capital Territory (Self-Government) Act 1989 (Cth)

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Vairy v Wyong Shire Council [2005] HCA 62, (2005) 223 CLR 422

New South Wales v Fahy [2007] HCA 20

The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40

Brodie v Singleton Shire Council [2001] HCA 29, (2001) 206 CLR 512

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Latham v Ferguson [2006] NSWCA 288

McHale v Watson [1966] HCA 13; (1966) 115 CLR 199

No. SC 307 of 1999

No. SC 418 of 2002

Judge: Connolly J

Supreme Court of the ACT

Date: 18 June 2007

IN THE SUPREME COURT OF THE )

) No. SC 307 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MATTHEW JAMES TRAYNOR (by

his next friend PETER TRAYNOR)

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

First Defendant

AND: JOSE ALFREDO GUEVARA

Second Defendant

AND: COMMONWEALTH OF AUSTRALIA

Third Defendant

ORDER

Judge: Connolly J

Date: 18 June 2007

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff against the first defendant in the sum of $1,748,706.83 plus costs.

2. There be judgment for the second and third defendants.

3. The parties be heard on the costs of the second and third defendants.

IN THE SUPREME COURT OF THE )

) No. SC 418 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LINDA TRAYNOR

First Plaintiff

AND: PETER TRAYNOR

Second Plaintiff

AND: SHAUN TRAYNOR

Third Plaintiff

AND: AUSTRALIAN CAPITAY TERRITORY

First Defendant

AND: JOSE ALFREDO GUEVARA

Second Defendant

AND: COMMONWEALTH OF AUSTRALIA

Third Party

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff against the first defendant in the sum of $237,514.99 inclusive of costs.

2. There be judgment for the second defendant.

3. The parties be heard on the costs of the second defendant and third party.

1. These actions arise from a tragic motor vehicle accident that occurred late on a Saturday afternoon on 24 August 1996 in Bonython in the Australian Capital Territory. Matthew Traynor, then an 11 year old boy, had been out with his friend, Aaron Oakman, riding their mountain bikes around a hill in a nearby reserve. As they were returning to their homes, they followed a path that lead downhill and in a generally easterly direction from the hill reserve to a children's play area, and then down to a point where the path intersected with a road, Bardolph Street. Throughout these reasons I will refer to this as the bike path, because that is how it was subsequently shown in an ACT Government publication "Canberra Cycleways". Strictly, it is a shared use path, available to pedestrians, cyclists, and persons using wheelchairs or other mobility devices, and parents with strollers or prams. The bike path continued on the opposite side of the road. There was a bushy tree close to the point where the bike path met the road, planted in such a way that it obscured views to the south of northbound traffic. There was a car proceeding in this direction. While Bardolph Street, like all streets in suburban Canberra, had extensive tree plantings, the tree planted closest to the bike path assumed great significance in this case, and will be referred to throughout these reasons as "the tree".

2. The boys proceeded down the path at some speed, with Matthew in front. At the roadway, Matthew came into collision with a Ford Falcon sedan driven by the second defendant (Mr Guevara). Matthew was thrown from the bike and landed some distance to the north of the point where the path met the road, and on the western side of the road. He sustained significant injuries in the impact, including profound brain injuries. He died in September 2001. He was never in any condition to make a statement in relation to the circumstances of the accident. The accident occurred at around 5.30 pm, when the sun was setting, but there was still daylight.

3. His parents commenced an action for damages in Matthew's name in 1999. They named as defendants the first defendant (the Australian Capital Territory Government), in respect of claimed negligence in the design and construction of the bike path and the planting of the tree, and Mr Guevara in respect of negligence in not observing the boy and taking evasive action. The third defendant (the Commonwealth) later became a party as it emerged that the relevant suburb had been designed by the Commonwealth before self-government in 1989, and the infrastructure, including roads, footpaths and bike paths, had been built by the Commonwealth. Street tree planting, however, had not occurred until after self-government. While there was some initial confusion as to who had planted the tree, the Australian Capital Territory admitted that it had planted the tree.

4. Matthew's action was continued by his estate after he passed away and a fresh action claiming damages in respect of nervous shock was brought by his parents and brother. It was clear that the liability issues in respect of the claims would be the same, and the actions were consolidated in July 2005 and heard together although the action against the Commonwealth was discontinued in the nervous shock claims (No. SC 418 of 2002) in December 2005. The parties, very sensibly in my view, were able to agree on the appropriate award of damages in respect of each claim. This not only saved considerable court time but, more importantly, spared the family the additional ordeal of having to relive the difficult years following the accident until Matthew passed away.

5. Damages were agreed (subject to any finding of contributory negligence) at $1,943,007.59 plus costs in the estate claim, and $263,905.55 inclusive of costs in the nervous shock claims. These figures have been derived as follows:

Estate claim (SC 307 of 1999)

Griffiths v Kerkemeyer component inclusive

of interest $1,496,445.00

Out-of-pocket expenses paid by NRMA $ 418,280.76

Outstanding out-of-pocket expenses $ 27,242.58

HIC charge $ 1,039.25

Total: $1,943,007.59

Nervous shock claims (SC 418 of 2002)

General damages $250,000.00

Out-of-pocket expenses per HIC charges:

Peter Traynor $ 3,385.00

Linda Traynor $ 2,516.55

Shaun Traynor Nil

Paid out-of-pocket expenses $ 8,004.00

Total: $263,905.55

The Issues for Determination

6. The plaintiff's claims involve actions against two public authorities in respect of the design and construction of the bike path and roadway, and the planting of the tree. The claim involves allegations of negligence by way of both omission and commission. It alleges that this was by reason of failure to safely design the bike path so that it proceeded down a hill from a playground directly onto a road, and failure to install a chicane or other device to prevent cyclists from entering the road at speed. It also alleges negligence by reason of failure to properly apply signage to warn motorists of the bike path and to warn cyclists of the roadway. It alleges negligence by way of positive action in planting a tree that was known to be bushy in such a position that it would block vision of the bike path entry to the road for motorists, and of motorists approaching from the south for cyclists.

7. The action against Mr Guevara proceeds on the basis of an allegation of failure to exercise appropriate care. It was common ground that Mr Guevara was travelling at a speed of between 50 and 55 in an area that at the time had a posted speed limit of 60 kph.

8. There was much evidence lead from experts in traffic engineering and the field of reconstruction of traffic accidents. Much of the dispute on this went to the question of the precise path that Matthew took as his bike approached the road, and the point of impact between the boy and the car. Maps of the area and a view taken by the Court in the presence of counsel, show that the bike path proceeded directly across the road from the point at which it intersected with Bardolph Street. It was argued that from the view that some metres north of the point where the bike path restarted there was something of a worn trail where it was apparent that cyclists took a "short cut" to enter a crossing point that took them safely under the major roadway of Drakeford Drive. It was the plaintiff's case that this was the path Matthew was taking. The significance of this dispute is that, if Matthew entered the roadway at an angle of more or less 90 degrees to proceed directly across the road to the resumed bike path, there would be less time for the motorist to observe him than if he entered the roadway at an angle of more or less 45 degrees heading north west in order to proceed on the so-called short cut.

9. Calculations by experts in this case were, as are all calculations by expert witnesses, determined by the starting assumptions. In this case there was no real dispute as to the speed of the car, but most other parameters for equations going to the stopping speed and lines of vision were far less clear. There was no direct lay or scientific evidence as to the point of impact between the boy and the car. There was conflict in the evidence between lay witnesses and a police officer, who drew a chart as to the point where Matthew came to rest. This point would be of assistance in calculating the point of impact if the speed of the car and the boy were known. No police photographs were taken because, at the time, the full significance of the accident was not appreciated and it was not treated as a fatality. No criticism of the police investigation should be taken from this. There was no clear evidence as to the speed of the bike, and there was considerable conflict as to the angle at which Matthew entered the road.

10. The position at which the tree was planted is known with precision, at some 2.4 metres from the road kerb and 3.9 metres south of the edge of the bike path. There are extant photographs of the tree, and from this, and knowing the width of the footpath running alongside Bardolph Street, it would seem that it's width was between 3 and 3.6 metres. It is clearly a bushy tree, in that the foliage commences from close to the ground, as opposed to the type of unbranched trunk tree usually found in street plantings. Everyone who saw the tree, whether lay witnesses who gave evidence and were available for cross-examination, or officers from the relevant ACT Government agency whose comments are recorded in documents tendered in the hearing, agreed that the tree obscured vision. Experts, who never saw the tree, expended considerable time and intellectual energy in disputing this. I am entirely satisfied that the tree obscured the motorist's vision of the existence of the path and the presence of any person on the path, and the cyclist's vision of northbound vehicles.

11. Because of all these uncertainties, much of the expert evidence was, it seems to me, of marginal assistance. Calculations of sight lines without real knowledge of the point of impact or the speed of the bike are speculative, and some calculations were clearly drawn with an assumed width of the tree considerably smaller than the reality, thus presenting a lesser impediment to vision. I am reminded of the observations of Callinan J in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, where his Honour observed (at 167) in respect of the evidence of an accident reconstruction expert that:

Rarely in my opinion will such evidence have very much, or any, utility. Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates. Minor, and even unintended but inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them. It is also open to question whether variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court. The engagement of experts in running down cases, other than in exceptional circumstances, is not a practice to be encouraged.

12. I would make the observation that this was an exceptional case, and while I have not been greatly assisted by the expert reports, for the reasons eloquently stated in the passage cited above, I do not cite this passage as being relevant to the costs of commissioning the various expert reports in this case.

The task of the Court

13. For any plaintiff to succeed in a claim for damages for personal injury based on negligence, it is necessary to establish that a defendant owes a relevant duty of care, and that the defendant, by its act or omission, has breached that duty of care, and that that breach has caused the damage complained of. In considering this question, I must be mindful of avoiding the error identified by Hayne J in Vairy v Wyong Shire Council [2005] HCA 62, (2005) 223 CLR 422, where his Honour said (at [126]):

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 is 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.

14. This point has been reinforced by the High Court in New South Wales v Fahy [2007] HCA 20, a decision handed down after oral argument in this matter. That case involved the question of duty of the State to avoid psychiatric injury to a police officer. The High Court was urged to revisit the well-established principle in The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40, where Mason J said (at 47):

... the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

15. The Court declined to revisit this formulation of the law, but emphasised that the question must be answered by looking at what a reasonable defendant ought to have done at the time. As Gummow and Hayne JJ said in NSW v Fahy at [57]:

It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury.

16. Gleeson CJ (who disagreed with the disposition in NSW v Fahy) also declined to re-open Wyong Shire Council v Shirt, observing (at [7]) that the problem in its application lay in:

There may be cases where courts have lost sight of the ultimate criterion of reasonableness, or have adopted a mechanistic approach to questions of reasonable foreseeability, risk management or risk avoidance. Complaints about failure to warn seem to give rise to problems of that kind. There have been occasions when judges appear to have forgotten that the response of prudent and reasonable people to many of life's hazards is to do nothing. If it were otherwise, we would live in a forest of warning signs.

17. A plaintiff will succeed if, bearing in mind that the question of whether a defendant breached a duty of care must be determined on the basis of asking what would a person in the position of the defendant have been expected to do at the time, it can be shown that the defendant's breach of duty caused the harm suffered by the plaintiff.

18. Moreover, the apportionment legislation (now contained in the Civil Law (Wrongs) Act 2002) provides that an award of damages may be reduced if contributory negligence on the part of the plaintiff can be established. In this case Matthew can be taken to have been familiar with the bike path, having ridden along it with Mr Oakman on previous occasions (T 43/6). For an adult cyclist to proceed at speed down a bike path and proceed without stopping or slowing across a road would clearly be contributory negligence of a high order. Different considerations, however, apply to the conduct of children. The apportionment legislation requires that, where contributory negligence is pleaded, as it is in this case, the Court should proceed to a decision as to primary negligence, then assess damages, and then make a finding as to whether contributory negligence is made out, and if it is made out, reduce the award by the appropriate amount to reflect the plaintiff's lack of care for his/her own safety.

The relevant duties of care on the defendants

19. It is probably most convenient to first set out the duty of care placed on the motorist.

20. The duty of care on a motorist is well established and uncontroversial. A motorist has a duty of care to other road users, including pedestrians and cyclists, to exercise due care and attention, to keep a proper lookout, and to drive at a speed that is safe in all the circumstances. The significant breach of duty of care that is pointed to here is the allegation that Mr Guevara failed to keep a proper lookout.

21. The duty of care placed on a public authority in respect of roads, pathways and other infrastructure is more complex, although the High Court in Brodie v Singleton Shire Council [2001] HCA 29, (2001) 206 CLR 512, has greatly clarified the position by abolishing the old common law "highway rule" and placing the duty of care on a public authority firmly in the mainstream of the law of negligence. The High Court (per Gaudron, McHugh and Gummow JJ at [150]) held that where a public authority is responsible for the design and construction of roadways, or the carrying out of maintenance or repairs on them such an authority is:

... obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.

22. This broadly is the duty of care placed by the common law on the Commonwealth and the Australian Capital Territory. In this case, the allegation is that the Commonwealth, as the relevant road authority responsible for construction and design of the road and bike path, was negligent in that it designed the bike path so that it proceeded in a straight line down a slope and onto a road, that it was negligent in that it designed and constructed the bike path without a chicane or other device to slow cyclists, and that it was negligent in that it failed to require in the road design of Bardolph Street signage warning motorists of the presence of the bike path, and that it failed to require in the bike path design signage warning cyclists of the presence of the road.

23. The negligence alleged against the Australian Capital Territory is that, as the relevant road authority from 1989, it failed in its duty to construct a chicane or safety device on the bike path, or to erect signage. It is additionally alleged against the Australian Capital Territory that it was negligent in planting a bushy shrub in such a location that it would obstruct a motorist's vision of the bike path, and a cyclist's vision of the road.

24. It seems clear from the material in this case that the roads and paths in this suburb were designed and constructed by the Commonwealth shortly before the establishment of the Australian Capital Territory as self-governing body politic in May 1989 (Australian Capital Territory (Self-Government) Act 1989 (Cth)). It is apparent from aerial photographs of the suburb (exhibit 8) taken on an annual basis from 1989 that at self-government the roads and paths were constructed, at least in form if not final sealed state, but no houses had been built nor had trees been planted. There was clear acknowledgement in the evidence before me that the tree planting in this region was undertaken by the Australian Capital Territory.

25. The majority in Brodie observed (at [154]) that, in relation to construction and design claims:

Issues may arise as to whether there was a foreseeable risk of harm arising from the design or the method of construction employed and whether, in choosing or performing the design and construction or in failing to take preventative measures or to put in place warning signs, the authority responsible failed to exercise reasonable care.

26. Their Honours continued (at [155]):

The question of whether "due care and skill" was taken (336) in design and construction will require consideration of all the circumstances of the case. The circumstances will include the type and volume of traffic expected. Different roads will serve different purposes and need not be constructed to the same standard. Thus, one would not expect all country roads to be sealed. The cost and practicality of an alternative and safer design, if one be available, may be weighed against the funds available to the construction authority. This may involve striking a balance between competing designs or methods of construction.

27. Where a duty of care is established against a public authority the question of whether the duty was breached will be determined by applying the analysis from Wyong Shire Council v Shirt as set out at [14].

The lay evidence

28. There was evidence before me from a number of persons who were present at the time of the accident, although no one was able to say that they saw the whole incident. Matthew's friend, Mr Oakman, gave evidence in the hearing and, while I am entirely satisfied that he has at all times sought to be truthful, I am also mindful that he was giving evidence as an adult about something that had occurred very quickly some ten years ago when he was himself a boy of 11, and in an accident that later proved to be fatal to his friend.

Mr Guevara

29. Mr Guevara did not give evidence. There was a statement before me that he made to police at the time in which he is recorded as saying that he did not see Matthew until he heard the thud and noticed the boy on the bonnet of his car. He said (see exhibit M, p 2):

It all happened pretty fast I didn't have a chance to see nobody comin down the ah cycle path and suddenly I just saw this this boy on top of me bonnet. Right? And I er pressed the brakes. Right?

He told police that he was not aware of the existence of the bike path. He said (see exhibit M, p 3):

because you see all those shrubs over there I didn't even know there was a cycle path there. ... There's nothing I could - er - see.

30. In later questions and answers, the police record (exhibit M) provides:

Was your visibility obstructed in any way? Well not not of the road, but I couldn't see nobody comin down the bike path.

Why couldn't you see anyone coming down the bike path?

Well there is a big shrub over there, but ah I couldn't see nothing.

31. An Australian Federal Police internal report from a Constable Fulller was before me as exhibit 9. It records that Mr Guevara:

stated that he didn't see any of the cyclists on the cycle path as his vision was absurd by a small tree which was approximately 2 metres east of the cycle path and approx 3 metres from the roadway.

32. In answers to interrogatories, however, Mr Guevara, when he was on oath, gave an answer that would be consistent with him not looking to the left at all as he approached the intersection. In answers to interrogatories (exhibit 22), he was asked:

Q.8 Shortly prior to the collision was your view of :

a) the pathway

b) the plaintiff

obstructed by any and if so what object or thing? If yes then describe such obstruction as clearly and fully as you are able.

33. He answered this question, on oath, that:

I am unable to say. I inspected the site afterwards and thought my view could have been obstructed by a tree or shrub which was growing beside the pathway.

34. It was put to me by Mr Toomey that Mr Guevara in these answers in effect says that he was not looking to the left as he approached the bike path, but that, after the event, he has said that the tree would have obstructed his view. I was invited to draw the inference that, due to his failure to attend to give evidence and be cross-examined, his evidence would not have assisted his case: see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Mr Morris, in written submissions, had made the point that, in opening, Mr Toomey had stated that (T 11/43):

There is no assistance to be gained from the driver of the car because he says that he didn't see the boy at all until he was rolling on his bike.

35. He also made the point that the answer to interrogatory 8 should be read in the context of answers to interrogatories 5, 6 and 7, where he states that he did not see Matthew prior to the point of impact. As he has said on oath that he did not see Matthew, it is correct so say that he was unable to say whether his view of Matthew was obstructed, and it seems to me that this is not an acknowledgment that Mr Guevara was not keeping a lookout. The question of whether, in spite of the tree, he ought to have observed the presence of the path and a moving boy on the path, is an important question in these proceedings, and is central to the plaintiff's case against Mr Guevara. I do not draw an adverse inference from Mr Guevara's failure to give evidence.

Aaron Oakman

36. Mr Oakman had been out with Matthew on the Saturday afternoon of the accident, riding mountain bikes around the reserve in the suburb of Bonython. He gave a statement to police shortly after the accident in a form that had been prepared with the assistance of his mother. He made a later statement to solicitors in 2005 many years after the accident, and gave oral evidence at the hearing.

37. He said that after riding around a reservoir at the top of the hill, they decided it was time to return home, and they rode down the bike path. At the play area there were a number of earth mounds which boys (and girls) on bikes could use to perform jumps. He said they rode down the hill and did the jumps and then went back up the hill to do the jumps again. He said that to do this they were pedalling "as hard as [they] could" (T 38/32), with Matthew some 5 to 10 metres in front of Aaron (T 38/45).

38. After the final jumps, they proceeded down the bike path towards Bardolph Street, with Aaron still behind Matthew. As he was proceeding down the bike path, which has fences to the sides, his view would be such that, if he saw the impact, it must have occurred essentially at the point where the bike path meets the road. The maps show that the bike path emerges from between numbers 17 and 19 Bardolph Street and photographs show fencing and vegetation along the length of the path.

39. In his original statement and in his evidence before the court, Aaron said that as Matthew approached the road, he looked to his right (exhibit D). In his statement of April 2005 he said "I vaguely recall that as Matthew rode his bike to within a metre or so of the edge of the road, he swerved his bike to the left" (exhibit 3). In his original statement he said, "I saw a white car and heard a loud bang" (exhibit D). He said that he then lost sight of Matthew, saw a car go through the mouth of the pathway, and then heard a bang and a screeching sound. He denied seeing the collision, but he agreed that, at the time he heard the bang, he could still see the boot of Mr Guevara's car (T 92/35, T 93/5). This would mean that the impact occurred at the most about a car length from the point where the bike path meets the road.

40. He continued to the end of the path, and when he emerged onto the road he could see his friend lying by the side of the road on the opposite side of the road. He was shown a chart of the road and said that Matthew was lying between a lamp-post and trees, and drew a stick figure showing this point (exhibit 1).

41. He said in cross-examination that when he and Matthew had previously ridden down the path, they had proceeded at an angle across Bardolph Street to cut through some logs and then join the bike path that goes under Drakeford Drive (T 45).

Mr Vincent Rothe

42. Mr Rothe is the only person to give clear evidence that he saw the actual collision, although he acknowledges that he did not witness the lead up to the collision. He was backing his car out of his driveway at No 21 Bardolph Street, looking towards the south, in the direction of Mr Guevara's approach. He said in his evidence-in-chief, and maintained throughout cross-examination, that he did see the impact, where a boy on a bike came "out straight" (T 408/26) of the path and collided with the passenger side of the car (T 409/6-7).

43. His evidence as to the position where Matthew came to rest was similar to that of Mr Oakman. He said that Matthew was on the grass by the roadside at a point between the bike path and a light pole. He was asked to mark this position on a chart, and this became exhibit 11, and is consistent with exhibit 1.

44. Mr Rothe was asked about the tree. He said that it was overgrown and obscured the pathway (T 425/10). He said that, despite living in the street, he was unaware of the existence of the pathway (T 425/17).

Mr Edward Haponik

45. Mr Haponik was at home at No 17 Bardolph Street on the afternoon of the accident working in his shed when he heard a noise, which he described as a bang, and came out to investigate. He said that he saw a boy lying just north of the pathway close to a light pole (T 458). He was shown a photograph of the area, where he marked Matthew's position with a red cross and also marked this position on a chart (exhibit 15). His recollection as shown by his mark is consistent with that of Mr Rothe and Mr Oakman.

Mr Robert Barnes

46. Mr Barnes was at home at No 15 Bardolph Street, and he said that he saw a white car go past that was not going too fast (T 483/15). He said that he heard it stopping quickly and then heard a thud (T 483). I note that this is inconsistent with Mr Oakmans's evidence which was of a bang then a car stopping, and Mr Guevara's statements, all of which indicate that he was first aware of Matthew at the point of impact, and did not try to stop before the impact. I am not critical of Mr Barnes, who was clearly giving his best recollection of a traumatic accident some 10 years ago.

47. Mr Barnes phoned for assistance and then went to Matthew. He said that to the best of his recollection Matthew was lying a couple of metres north of the light pole. This is inconsistent with the other lay witnesses, including Mr Oakman, who placed Matthew south of the light pole. He conceded in cross-examination that this was possible, and said that he had no recollection of the pole at the time of the accident.

Mr Paul Sherring

48. Mr Sherring, who is now a Federal Agent with the Australian Federal Police, but was at the time of the accident in 1996, a constable of police with community policing, attended the scene on the evening of the accident. Mr Sherring drew a sketch plan of the accident, which was tendered as exhibit E. In this plan, Matthew is shown as having come to rest at a position well to the south of where Mr Oakman, Mr Rothe and Mr Haponik indicated and, to the extent that he recalled a precise location, Mr Barnes.

49. Although the plan was admissible as a business record, it is clear from the evidence of Mr Sherring that it was generated some time later in the afternoon after Matthew had been taken from the scene to hospital by ambulance. He was unable to recall whether it was drawn from recollection or markings at the scene, and he acknowledged that he now had no clear independent recollection of the place where Matthew was lying.

50. Unfortunately, Mr Sherring did not take contemporaneous photographs of the accident scene and its aftermath.

51. Mr Sherring also gave evidence concerning the tree. He showed this on his sketch plan, and said that he included this on the plan "because I believed at the time that it had an influence in the line of vision between the driver of the vehicle and Matthew on his bicycle" (T 379/41). He said that he believed that the size of the tree and its location was such that it "blocked the vision ... available to all motorists of the pathway and objects upon it" (T 380/ 2, 29).

52. Mr Sherring said that he and the other constable performed a drive through of the accident scene in their Tarago van, travelling at a speed of 60 kph in the same direction as Mr Guevara. He said that the tree was "a fairly bushy shrub, quite high, and to my memory it blocked my vision of the laneway with the bicycle path meeting the road" (T 382/37). He agreed that had he not been aware of the presence of the bike path, the presence of the tree would have resulted in him passing it without noticing it (T 383/25).

53. Mr Sherring said that he had some recollection of speaking with Mr Oakman at the scene. His recollection, based on this conversation, was that "they were riding their bikes down the pathway fast" (T 388/10). He said that his recollection was that Mr Oakman had said that Matthew had "gone out straight onto the road" (T 388/21).

Departmental views of the accident scene

54. In the course of tendering a report of Mr Johnson, an expert witness for the plaintiff, Mr Toomey also sought to tender certain documentation generated within the Australian Capital Territory Government immediately following the accident. There was no objection, and a series of documents generated within the office of the then Deputy Chief Minister and Minister for Urban Services became part of exhibit G.

55. These show that on 27 August 1996, some three days after the accident, Mrs Oakman, the mother of Aaron, contacted the Minister's office. The constituent enquiry form was filled out by one of the Minster's staff, identified only as "Tamara", and proceeds on a clear misunderstanding that it was Mrs Oakman's son who was injured. It states "apparently there is no bar at the side of the road to force cyclists to stop, there is also a large tree blocking the view of vehicles" and directs the Department, in particular the Traffic and Roads area to "please check this out".

56. There is then an internal minute dated 28 August 1996 within the Traffic and Roads section headed "Tree Obscuring Cyclists Vision". It is from a Mr Cox, the supervising engineer, to a Mr Mundy. This is in typed text and states:

A site investigation has revealed that the tree in front of No 17 requires as a minimum lower branches trimmed or completely removed if vision from path is still hindered.

57. A handwritten note appears, which a later witness identified as being in the same handwriting as Mr Cox's signature, which states "I think we should remove completely".

58. There is a handwritten facsimile message dated 30 August 1996 from Mr Cox to the Minister's office, to the attention of "Tamara" which states:

The attached map shows the location of the tree in question is very close to the road in front of #17. Photos 1, 2 & 3 show how the tree would obstruct vision of motorists of cyclists entering the road from the path. It would be inappropriate to erect a barrier to path users. Removing the tree is the answer.

59. The tree was removed shortly afterwards. Representations from residents to erect some form of safety barrier continued, and there is another constituent enquiry form of 14 October 1996 which states:

Prior response 30/8/96 removing tree has solved visibility problem. Rest rail would not help cyclists slow down and funds are better spent in other areas that are essential.

60. The significance of this material, it seems to me, is that, following a complaint from Mrs Oakman, the Minister's office very properly and promptly enquired of the Department, and officers attended the scene. The documentation makes it abundantly clear that, upon an observation of the scene, they formed the view that the tree did obstruct vision and that it ought to be removed. It was removed within a week of the accident.

The expert evidence

Mr Grant Johnson

61. The first expert called in the plaintiff's case was Mr Grant Johnson, who had provided a report in November 2000. His report included a time and motion analysis to seek to determine whether and in what circumstances the accident could have been avoided. He noted, appropriately, in his report that it was necessary to do this on certain assumptions, because the speed Matthew was travelling at was not known, and he said that he proceeded on a range of speeds between 10 kph, which he said was probably slow, to 20 kph, which he said is a relatively fast speed for an 11 year old on this type of 24 inch mountain bike. Mr Johnson's report was based on the assumption that Matthew proceeded directly down the path and onto the road, and it was not until the hearing that he was aware of the alternative version that Matthew had veered to the left. On the assumptions of a straight line of travel, he concluded that, with the tree present, a motorist would have substantial difficulties in seeing the cyclist such that a safe approach speed would be between 20 kph for a cyclist at 10 kph, and 11 kph for a cyclist at 20 kph for the car to stop. In order for the car to slow to 20 kph, at which speed the impact would have been significantly less severe, he calculated, with the tree present, safe approach speeds of between 30 kph and 20 kph for the car.

62. These are not reasonable speeds to expect of a motorist, and I take it from Mr Johnson's report that, with the tree present, an accident was inevitable.

63. Mr Johnson presented similar calculations with the assumption that the tree was removed, and on these calculations he said that if the cyclist was travelling at 10 kph the car could come to a stop from a speed of 60 kph, whereas if the cyclist was travelling at 20 kph, the motorist could stop from a speed of 18 kph.

64. His conclusion was that removal of the tree would make the location "relatively safe for a 10 km/h cyclist".

65. In his oral evidence, which was given after Mr Oakman had given evidence that Matthew had moved to the left, and that he did not see the impact, but did still see the back of the car when he heard the impact, Mr Johnson said that, if the point of impact was moved from 5 to 8 metres to the north, it would have a significant impact on the sight line times and, accordingly, on stopping times for the motorist. He said that this would make little difference at a lower cyclist speed, but that (T 219/38):

At the higher speed of the cyclist where it might not have been quite possible to stop even with the tree absent, then the 8 metres would have made a vast difference. It may have been the difference between impact and not.

He noted, and this is consistent with common sense, that if Matthew had turned to the left, he would have been travelling at a lower speed.

66. Mr Johnson stated in his report that signage or devices to slow cyclists were also appropriate. He stated in his report that a chicane device should have been installed, although he acknowledged that "this type of device does cause some inconvenience to persons in wheelchairs or with prams" (exhibit G, p 21). He repeated this view in his evidence at T 278/10, although in cross-examination he again acknowledged that there could be contra indications for chicanes particularly for shared use paths, which he acknowledged this path was (T 247/35-40).

67. Mr Johnson acknowledged that the proposition that the accident occurred to the north of the direct line between the bike path and the continuation of the bike path did depend on findings as to the point where Matthew came to rest. He acknowledged that, if he did in fact come to rest at the point indicated by Mr Oakman on exhibit 1, that would be consistent with the accident occurring in a direct line (T 284/31).

The medical reports going to conclusions about angle of impact

68. The plaintiff commissioned reports from medical experts to express a view as to whether his injuries provide guidance to the mechanism of the accident. The motorist responded with an expert medical report. Dr Griffin, a radiologist, expressed the view that the injuries to his leg were probably caused indirectly, that is after he was thrown from his bike (exhibit L). Dr Searle, a consultant orthopaedic surgeon, expressed the view that the injury to the right tibia came from the left side, again as a consequence of his landing after being thrown. Dr Henderson, a general practitioner who has worked in traffic safety areas and who reported for the second defendant, expressed the view (exhibit 13) that the injury to the right tibia was consistent with being struck by the motor vehicle.

69. At the end of the day I am not of the view that much assistance can be gained from these medical reports, as they seek to reconstruct a mechanism of injury years after a complex accident in which there were several dynamics of potential injury.

Mr Palmer

70. Mr Palmer gave evidence and provided reports as a consultant road safety engineer. He has many years of experience in this field and has appropriate academic qualifications to well establish himself as an expert in this field. However, a significant issue arose as to his independence. It was apparent from his impressive resume that he had worked for many years in senior positions within the ACT Government in road and traffic safety areas. Mr Palmer gave evidence that he had no involvement in the construction of this intersection (T 532/30). He was asked (T 594/42-45):

Had you had involvement after and made - taken part in decisions about it, I suppose it would - that would have more clearly brought to your mind the possibility that you were in an awkward position, might it not?

71. He agreed with this proposition. He was then shown material that formed part of exhibit G, which included the minute of 14 October 1996 that contained the notation that "removing tree has solved visibility problem". He acknowledged that he had signed off on this document, which had been generated by Mr Cox, who reported to him.

72. Mr Palmer sought to argue that the position of the tree was not inappropriate, or that the tree was irrelevant to the safe design of the site. He said, "I do not agree with the notion that the tree was well placed" (T 538/43), and then stated, "I'm surprised actually because it doesn't look like the sort of tree the government would place there, but they may have" (T 539/8). Mr Toomey took up in further cross-examination Mr Palmer's concession that he did not say the tree was well placed, and he had great difficulty in explaining how this could fit with his assertion that the tree was not a problem (T 559/11-24).

73. I can accept that, given that Mr Palmer would have provided advice, or signed off on advice from his responsible subordinate professional officers, on many thousands of occasions over many years, he may not have had a recollection of his involvement, marginal as it might have been, in this particular accident. Mr Palmer was correct to concede that he was in a difficult position as an expert if it could be shown, as it has been, that he was involved in the decision making process that removed the tree. As I observed earlier in these reasons, every person who has actually seen the tree and from whom I have heard evidence, or whose notation or report I have seen, has agreed that the tree presented a significant barrier to visibility. When Mrs Oakman made a complaint to the relevant Minister's office, the documentation shows that it was taken seriously and within days a responsible officer had been sent to do an inspection, and the decision was taken to remove the tree because it was a barrier to visibility. Because the matter had been raised with the Minister's office, a briefing note was directed to the Minister from Mr Cox on 20 November 1996. Mr Palmer's signature appears on this note to indicate that he had cleared the advice. The advice states that:

The accident occurred at the location where a footpath running between two houses meets Bardolph Street and is the natural point where pedestrians and cyclists would be expected to cross the street.

In order to improve sight lines from the road to the footpath a tree on the verge was removed soon after the accident.

74. Mr Palmer also gave evidence in relation to signage and barriers. In relation to signage, he expressed the view in his report (exhibit 18) that given the nature of Bardolph Street as a loop street with a low traffic volume, no signage was necessary and that no standard required signage. In his evidence Mr Palmer referred to the danger of "over signage" (T 525/40). He said (T 525/30-35):

The intention of signage is that the motorist and users get a consistent message and that they get the messages that they need without giving them too many messages. For instance, every driveway on Bardolph Street is not signposted as a possible location where a car might come out. It's expected that users would understand that.

75. He said (T 525-526) that the danger of over signage was that:

drivers become complacent to the prolific - too many signs. If there are too many signs, one, they probably can't read them because they're coming - they're driving past them too quickly to actually observe the information and, two, people wont read the signs if there are too many.

76. In relation to barriers, Mr Palmer said (T 532/40) that:

During the 90s, chicanes were becoming less - it was believed that they were less useful as a device in these sorts of locations, as they tended not to deliver the outcome of creating the need to look for something else, they were more regarded as an obstruction than as a useful device in advising users that there was a hazard, a potential hazard.

77. I note that this is in fact quite consistent with the advice that Mr Palmer signed off on to the Minister contained in exhibit G. Mr Palmer advised the Minster that there had been a meeting with parents and residents at the site, and that, as well as removing the tree, a chicane would be built. The minute said that Departmental officers had advised the community:

why the Department no longer installs barriers of the type suggested. The current standards on this acknowledge the problems chicanes present to general paths users particularly cyclists and people with prams or wheelchairs. Arising from the very emotional concerns expressed at this meeting we agreed to install a chicane at this location by the end of school term.

Mr Paul Murphy

78. Mr Murphy was originally engaged by the ACT Government Solicitor to provide a report on sight lines, signage and barriers. His instructions were later amended to request that he report solely on the question of sightlines. It emerged in the hearing that he had made site inspection notes on his first visit to the site, and had had a discussion about these notes with the ACT Government Solicitor prior to his instructions being amended. The site inspection notes recorded (exhibit Q):

Location of cyclist rail, chicane, too far back from road.

Warning signs should be placed in this location given the interaction with the Tuggeranong Bike Path to the East.

79. Where an expert makes preliminary views contrary to the interests of his client and his instructions are then amended to invite him to remove references to this aspect of the matter, it raises questions of objectivity.

80. In his evidence, before the existence of the site inspection notes was apparent, he said that it would not be desirable to have a sign because of problems with "proliferation of signage" (T 632/10). He maintained, again before his preliminary views that warning signs "should be placed in this location", and that if designing the suburb he would not use signs (T 646/5).

81. Mr Murphy's report was confined to the question of sight lines and stopping distances. He expressed the view that, whether or not the tree was there, the accident was inevitable. I note that he had assumed that the tree was only 2.5 metres in width, and in cross-examination seemed most reluctant to concede that it was in fact larger than this. His calculations were based on the tree being a smaller size, which must put his conclusions in some doubt.

82. Mr Murphy also made a significant observation in his inspection notes which is not reflected in his report. He records, after describing the view down the path from the playground area of fences and vegetation:

The effect of these plantings and vegetation/fencing on the southern side of the path was to create a tunnel effect. A cyclist travelling along this path down an incline (grade not measured) would have experienced tunnel vision. At the time of the accident these plants are likely to have been less mature, thus the tunnel effect would have been less pronounced but would still have been an issue. The tunnel vision experienced would have drawn the cyclist's focus towards the bicycle path on the opposite side of Bardolph Street, which is the continuing and dominating feature. The road itself did not appear as a dominant visual feature.

The George Report.

83. A report from a traffic consultant, Mr George, commissioned by the ACT Government, was tendered by Mr Morris. Mr George was not called to give evidence. Mr George's report confirmed that the tree "would have reduced the intervisibility between the plaintiff and defendant driver for a time period of [approx] half a second". This is broadly consistent with other time and motion studies going to the intervisbility between a moving motorist and a moving cyclist. Mr George's report contains a series of photographs, taken in 1999 when the tree had been removed, which show the view of a driver approaching the position of the bike path from the south along Bardolph Street in the direction travelled by Mr Guevara, taken at 10 metre intervals from 50 metres south of the site, but with a bollard placed at the position of the tree. These photographs confirm the difficulty a driver would have even knowing that the path was there, regardless of the question of intervisibility with a moving cyclist.

84. Mr George also made observations that the Ausroads Guidelines then in operation "recommend that barrier devices at the ends of pathway structures present safety and convenience problems to cyclists and should not be used". The guidelines recommend that the slowing of cyclists be achieved by construction of sharp curves on the pathway in advance of any intersection.

Conclusions from the evidence

85. Having set out the duty of care on each of the defendants, and the evidence in the case, it is necessary to determine whether the plaintiff has established breach of duty of care in respect of each or any of the defendants.

It was a breach of duty of care for the Territory to plant the tree in this location

86. The most significant conclusion that I draw from the lay evidence is that the tree was of such a nature and planted in such a position, that it obscured from motorists proceeding north along Bardolph Street the very existence of the bike path. The ACT Government has admitted that it planted the tree, and this is confirmed in the documentation. The presence of a bike path opening onto a road represented a potential hazard that should have been obvious at the time the tree was planted. The tree was of a bushy nature. I am satisfied that it significantly obstructed the view of a motorist, and of a cyclist. Every witness who saw the tree and was asked a question about it, was of this view. Departmental officers who inspected the scene drew a similar conclusion, and the tree was removed within a week of the accident. This is entirely consistent with documentary evidence from the Australian Capital Territory departmental files relating to the original tree planting within the suburb tendered by the Commonwealth. This shows that, in the minute dated 9 April 1991, an officer within City Parks noted that "trees should not be planted where they may in future interfere with ... traffic sight lines" (exhibit 27, folio 92).

87. Unfortunately, this is precisely what I find the tree did. In reaching this conclusion, I found little assistance from the expert evidence. I certainly found experts trying to say that this tree was not a hazard, even when conceding that it ought not to have been planted there, not convincing. Much of the time and motion material, subject of course to Justice Callinan's observation that I cited at the outset, focussed on the intervisibility between a moving cyclist and a moving motorist. It calculated to a fraction of a second the opportunity a motorist would have had of "vision of a cyclist". It seems to me that the most significant question is not the extent to which the intervisibility would have been affected for a motorist closely observing the left-hand side of the road as they approach. This would have been in the order of one to one half of a second, certainly significant in braking times. But of more importance, it seems to me, is that the tree obscured the very presence of the path. A motorist who was aware of a bike path entering onto a street could be expected to take greater care in observing potential hazards by way of moving cyclists, and to slow down in order to deal with such a hazard. Mr Guevara, it seems to me, did not have this opportunity.

88. I was assisted by the evidence of Mr Sherring, who said that he and another officer, Constable Fuller, drove along the street to observe the impact of the tree. They had to decide whether or not charges should be laid in respect of the accident. Mr Guevara had told them the tree had blocked his view, and Mr Sherring gave evidence that, during the drive through, the presence of the tree resulted in him being unaware of the presence of the bike path.

89. A duty of care on a public authority to refrain from planting street trees or shrubs is not an onerous one, and accords with common sense. The ACT Government was clearly aware of this duty, and the documentation going to the contract for planting in the suburb of Bonython made the point that trees should not be planted where they interfered with safe site lines. It shows that at a nearby location another tree was in fact removed because it was a potential hazard. This tree, in this location, clearly was a hazard, and I find that it was negligent to plant the tree there, and to not have removed it as it matured and the hazard became even more obvious.

Neither the Commonwealth nor the Territory were negligent in the design and construction of the pathway

90. It is clear that the bike path in question was a shared use community path, intended to be used by pedestrians, cyclists, and persons using wheelchairs and prams. It is clear from the evidence, and a matter of common knowledge in Canberra, that the city has a hierarchy of bike paths. The map (exhibit P) makes this clear, and accords with the observations on the view of the area. There is a network of narrow share use paths in the Bonython area, as in all suburbs, and they connect near the site of the accident with the dedicated bike path that runs along the major arterial road of Drakeford Drive. Access across Drakeford Drive for cyclists and pedestrians is by underpass.

91. It accords with common sense and relevant safety standards that the level of construction of safety and signage devices will vary with the flow of expected use. There was no evidence that, at the time the relevant path was constructed by the Commonwealth, the method of design or construction employed was unsuitable, or the decision not to erect a chicane was negligent. I note the observations by the experts that chicanes can be a hazard as well as a potential safety feature.

92. I am not satisfied that the relevant guidelines mandated or recommended the installation of signage on this shared use community bike path. The standards, it seems to me, go towards ensuring uniformity of signage across Australia, when a decision is taken that road conditions require warning signs. They do not prescribe when this should be the case. It seems to me that, absent the tree, the entrance of this path to the road is in the same position as many others throughout Canberra. A glance at exhibit P would show that this would require massive signages throughout the city. Apart from the cost, which Mr Palmer acknowledged would be only some hundreds of dollars per site, but which spread across the entire network would be considerable, I am satisfied from the expert evidence that oversignage itself can create a hazard. If the tree had not been there, it seems to me that an alert motorist would have observed the presence of a bike path. I am not satisfied that the Commonwealth authorities were negligent in not erecting signs to warn motorists of the presence of the bike path.

93. A traffic engineer, knowing an accident occurred at a given site, may well say a sign may have assisted to avoid the accident. But this, it seems to me, is to fall into the hindsight error identified by Hayne J in Vairy v Wyong Shire Council.

94. Responsibility for the bike path passed to the Australian Capital Territory at about the same time as substantial construction of houses commenced. A school was also constructed not far from the site of the accident, and the bike path could form a link with the school. These factors were urged as indicating the need to erect signage. Again, however, it seems to me that the standards do not mandate signage in such a location, but rather provide for uniformity of signage, and that to place signage here would be to require signage at every point throughout Canberra where a bike path, including every shared use path shown on the Canberra Cycleways map, intersects with a road. Such a profusion of signs, it seems to me, could create the type of complacency from drivers referred to by Mr Palmer. It brings to mind Gleeson CJ's observations in NSW v Fahy of a "forest of warning signs". In arguing that there was no need for a sign, however, the Territory, it seems to me, rather reinforces its negligence in the placement of the tree. I accept that, but for the tree, there was no need for signage, because a motorist is expected to be alert for footpaths and cycle paths as they proceed along any suburban street. To place a tree in such a position that it obscures the path, is to create a danger. The solution is not a sign saying "bike path hidden by tree". The solution is to remove the tree.

95. Although after this accident a chicane arrangement was placed on the path, I am not satisfied that it was negligent of the Commonwealth or the Territory not to have erected such a device earlier. I am satisfied from the expert evidence that, indeed, chicanes can be counter productive, both in that they create a hazard for other path users and, it seems to me a potential hazard for a young child on a bike, who could be injured by riding directly into the bar of the chicane. I note that the documents reveal that the decision to place a chicane was made because of community concern and the experts advised the Minister that normally a chicane would not be recommended for this site. I am not satisfied that the Commonwealth or the Territory was negligent in not placing the chicane there before the accident.

The motorist did not breach his duty of care

96. In order to determine the liability of Mr Guevara, it is necessary for me to make a finding of fact as to the angle of travel of Matthew. The only person who can give direct evidence of this is Mr Oakman, who says that he recalls Matthew looking to the right, and then moving to the left. In his original statement he said that Matthew looked right. This would be consistent with Matthew becoming aware of some hazard on the road. Were this so, it would be entirely natural for him to veer to the left.

97. There is a conflict in the recollections of witnesses as to the point at which Matthew came to rest, which will have some impact on this question. Counsel for Mr Guevara notes that Mr Oakman, Mr Rothe and Mr Haponik were generally in agreement as to his position as somewhere between the lamp post and the tree, as marked by Mr Oakman on the photo which is exhibit 1 and by Mr Rothe on plan exhibit 11. This position would be consistent with the impact occurring at about the point directly where the path meets the road.

98. Mr Sheering drew a sketch map of the scene in his Australian Federal Police field book and took measurements. He has the position of Matthew as lying some 12.7 metres to the south of the lamp pole, a position of rest that experts agreed was consistent with the impact occurring to the south, perhaps 5 to 8 metres to the south, of the point where the path meets the road.

99. Mr Sherring said that he now had limited recall of the incident. He said that he attended with another officer, and made the sketch in his book using a device to measure distances called a "true meter", being a measuring wheel. He said that he drew the map up after Matthew had been removed by ambulance officers, but that he observed Matthew in position. He was asked how he recorded the position, and replied:

I can't remember exactly why or the reasons why I would have done that, I can only assume that it would have been through either bandages left over by the paramedics or other things that were indicating that's where Matthew was lying.

100. It seems to me that the contemporaneous sketch map, supported by reasonably accurate measurements, taken by a trained police observer, provides a better guide to the position of Matthew than lay recollections some ten years after the incident. The significance of his place of rest only really assume importance as part of the forensic exercise of this trial and lay observers would have had no particular reason to be clear on this. Mr Oakman, whose evidence it was that started the plaintiff's solicitor on the path of enquiring as to the likelihood of the accident occurring some distance north of the pathway, himself gave some evidence that would be consistent with the accident occurring on the pathway. I am satisfied that the lay observers, including Mr Oakman, are simply mistaken, and on a question such as this, I prefer the police sketch map which, as well as being a business record, has the advantage of having been prepared by a trained observer, and being a contemporaneous record.

101. It is possible, if one knows the speed and trajectory of one known object, classically a billiard ball, to project the trajectory and distance of travel of another known object with which it comes into contact. Plotting the dynamics of the aftermath of a road traffic accident can never involve such precision. The dynamics of this accident were that a boy on a bike, himself pedalling thus involving an internal dynamic, came into contact with the front passenger side of a car. While clearly the boy would have been propelled at some vector of the trajectory of the car, which being the greater mass with greater energy would have more effect, and the trajectory of the bike itself, which being the smaller mass with lesser energy would have lesser effect, it is impossible to precisely calculate this angle. One would expect the boy to come to rest somewhere towards the opposite side of the road, and north of the accident site, but this, it seems to me, is all that can be said.

102. Assuming the position on the contemporaneous chart to be more or less accurate, and bearing in mind Mr Oakman's evidence, which I accept, that at the point that he heard the impact he still had some vision of the car, I am satisfied, on the balance of probabilities, that the accident occurred about five metres (or one car length) to the north of the point where the path meets the road, consistent with Matthew moving his bike to the left, either to try to avoid an oncoming car, or to move towards a point on the opposite side of Bardolph Street where he intended to jump the kerb and proceed down an embankment to the bike underpass to return to his home on the other side of Drakeford Drive. It seems to me that the directional change was most likely to have been in order to proceed in a planned direction. The tree would have significantly blocked Matthew's vision on a glance to the right. Mr Oakman gave evidence, which was not contradicted by any counsel, that Matthew made no effort that he observed to stop or slow down. Counsel for the Commonwealth made the observation that a boy on this type of bike can "stop on a dime" (T 728/23). While this is an obvious exaggeration, the small mass of a boy on a bike has a much greater ability to stop, and any observation of boys at play will reveal bikes being flung about to achieve an abrupt and dramatic stop.

103. The effect of this finding of the point of impact about a car length north of the intersection is that the motorist would have had some, but very little, additional time to observe Matthew and to try to stop the car.

104. The time and motion studies going to the intervisibility of the car and the boy do purport to show that there would be brief moments in time where an observant motorist could see a boy on a bike before their vision would be obscured by the tree, and after the obstruction ceases provided they were looking in the correct direction. But it seems to me that this evidence, even taking away the fact that it has to make assumptions about the speed of the bike and the precise point of impact or angle of the bike, suffers from the faults described by Callinan J, in that it is highly theoretical and assumes a motorist would or should be observing the left hand side of the road at the precise points that the opportunity for vision occurs.

105. This is not a reasonable expectation of a motorist, who is under a duty of care to take reasonable and not absolute care, and to keep a proper lookout. Because the tree obscured the very presence of the bike path, a motorist approaching from the south would not be aware of a potential hazard. A trained observer, Constable Sherring, was not aware of the path on his drive through. A reasonably observant motorist would be aware of a potential hazard on the other side of the road because the entrance to the bike path on that side is clear. Given the evidence of Mr Rothe, who was backing his car out of his home to the north of the scene and observed Mr Guevara, the motorist would have been aware of the hazard of Mr Rothe's vehicle. It seems to me that, even accepting, with all the necessary assumptions, that the expert evidence can establish that a motorist approaching from the south could have had an opportunity of a brief glimpse of the boy that would have allowed them to stop or slow down, and avoid or at least minimise the impact of the accident, I am not satisfied that failure to be looking at the precise and limited point in this direction is a breach of a duty of care. The motorist, exercising reasonable care, should have been looking for all hazards. He should not have been solely concentrating on the left-hand side of the road. If a trained police officer could not identify the danger, it seems to me that Mr Guevara could not be expected to identify it.

106. Much was made in closing submissions by counsel for the first defendant, and the plaintiff, of the answer to an interrogatory in which Mr Guevara said that he was unable to answer a question going to precise times at which his view of the path was obstructed. I was invited to draw the inference from this, and from his non-attendance to give evidence, that he had not made any observations to the left. Clearly, a motorist not looking at all to the left would be in breach of a duty of care to keep a proper lookout.

107. However, it seems to me that Mr Guevara's record of interview with attending police on the day of the accident makes it clear that he says that his view was obstructed by the tree, and that all he could see was the tree. This is consistent with other lay evidence of residents who had not been aware of the path, because of the tree. It seems to me that, because of the negligence of the Territory in planting a tree that not only amounted to an interference between the intervisibility of a moving motorist and a moving cyclist, but concealed from a reasonably alert motorist the very existence of a potential hazard in the form of a bike path, no breach of duty of care is made out against the motorist.

108. It seems to me that this motorist was in a similar position to the motorist in Latham v Ferguson [2006] NSWCA 288, who was proceeding at a reasonable speed when a young child ran out onto the road. Mr Guevara was driving well below the speed limit and, I have found, keeping a reasonable lookout. While expert evidence establishes that he could have observed the cyclist if he had looked in the direction of the tree at the precise points in time when the vision of the cyclist was not obscured, he was not, in my opinion, negligent in failing to make this observation. The speed which the experts calculated would be safe for a motorist, given the obstruction of the tree, of around 20-30 kph is, in my opinion, not a reasonable speed in a street with a posted speed of 60 kph.

109. It follows that there should be a finding for the plaintiff or plaintiffs against the first defendant only in both actions.

Contributory negligence

110. I am satisfied that this accident occurred as Matthew proceeded down the bike path with no apparent reduction of speed, and entered the roadway, probably with a direction of travel at an angle towards the north of the point where the bike path intersects with Bardolph Street. It would clearly be contributory negligence in a significant degree for an adult cyclist to proceed from a bike path onto a roadway without stopping or significantly reducing speed, even in circumstances where there is some form of obstruction of view to oncoming traffic. The level of care that one should expect an adult to take for his/her own safety, however, is not the duty of care to be expected of a child.

111. In McHale v Watson [1966] HCA 13; (1966) 115 CLR 199, the High Court had to determine, for the first time it seemed, the appropriate standard of care to apply in the case of a 12 year old boy who was being sued for negligence. McTiernan ACJ observed (at 205) that:

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.

112. Kitto J said (at 215) that:

It seems never to have been doubted in any reported case from Lynch v Nurdin [([1841] EngR 52; 1841) 113 ER 1041] onwards, that contributory negligence on the part of a child consists in a failure to exercise the care reasonably to be expected of an ordinary child of the same age.

113. The question then in determining contributory negligence is whether Matthew exercised the care that ought be expected of an 11 year old boy. The evidence establishes that he was a bike rider of some experience and, more significantly, had undertaken some road safety education at school with Mr Oakman. He had travelled on this very bike path earlier that day, and he lived in the vicinity of the bike path, although in the suburb on the opposite side of Drakeford Drive. Mr Oakman's evidence that the direction of travel of Matthew was to the north to then jump through the log barrier and go down the embankment to meet the underpass, which is the version of facts which was strongly urged upon me by Mr Toomey, and which I accept, is dependent for its veracity on Matthew having sufficient familiarity of this location to know of this short cut and hence of the road.

114. It seems to me that an 11 year old boy on a bike can be expected to exercise such a degree of care for his own safety that he ought to slow down or stop as he approaches a road from a bike path. I find contributory negligence to be established.

115. In order to determine the extent of this negligence, I must bear in mind that I have found, on Mr Oakman's evidence, which has been consistent on this point from his first statement, that Matthew did look to the right. He would have done so in circumstances where his view was significantly obstructed by the tree, and where his opportunity to stop or slow was similarly affected. It seems to me that, had there been a clear view available to Matthew, an 11 year old boy would exhibit a significant degree of contributory negligence if he proceeded directly onto a road from a bike path. Bearing in mind the presence of the tree that obstructed his view and my finding that he did in fact look to the right (albeit without first slowing down), and bearing in mind his age, it seems to me that an appropriate finding of contributory negligence should be 10 per cent.

116. Accordingly, the agreed damages should be reduced in each matter to reflect this degree of contributory negligence, and it follows that in matter No. 307 of 1999 there should be judgment for the plaintiff against the first defendant in the sum of $1,748,706.80 plus costs. There should be judgment for the second and third defendants. I will hear the parties as to the costs of the second and third defendants.

117. In matter No. 418 of 2002, there should be judgment for the plaintiffs against the first defendant in the sum of $237,514.99 inclusive of costs. There should be judgment for the second defendant. I will hear the parties on the costs of the second defendant.

I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 18 June 2007

Counsel for the plaintiffs: Mr B Toomey QC with Mr G Blank

Solicitor for the plaintiffs: United Legal

Counsel for the first defendant: Mr D Davies SC with Mr P Walker

Solicitor for the first defendant: ACT Government Solicitor

Counsel for the second defendant: Mr L Morris QC with Mr D Wilson

Solicitor for the second defendant: Moray & Agnew

Counsel for the third defendant: Mr R Crowe SC with Mr M Kelly

Solicitor for the third defendant: Australian Government Solicitor

Dates of hearing: 16, 17, 18, 19, 23, 24, 25, 26 and 27 October, 2006, and 15, 16 and 17 May 2007

Date of judgment: 18 June 2007